The End of “Chevron” or Its Rebirth?

Fishermen in the small town of Cape May, New Jersey, are at the epicenter of a legal challenge that could reshape the landscape of agency authority. The fishermen are challenging the entrenched “Chevron” doctrine, which for years has afforded deference to government agencies with respect to reasonable interpretation of ambiguous statutes. Once again, the US Supreme Court (SCOTUS) is in the spotlight as it hears pivotal cases – Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo, which may presage the dismantling of “Chevron”.

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UK REACH: Awaited Consultation on Policy Direction for Registration of Chemicals

Toxic Substance

The most anticipated developments for 2024 in UK chemicals regulation are the long-awaited publication of the UK’s Chemicals Strategy, and a consultation on the UK government’s alternative transitional registration model (ATRm). In November 2023, a policy paper was issued outlining the government’s high-level plans for ATRm, but the questions and details for stakeholders are still unknown.

Since the end of the Brexit transition period on 31 December 2020, the framework for the regulation, evaluation, authorisation, and restriction of chemicals in Great Britain (UK REACH) has operated independently from the EU regime (EU REACH continues to apply in Northern Ireland under the Windsor Framework, which we have recently written about here).

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US EPA Finalizes Rulemaking for Methane Emission Reductions

On December 2, 2023, the United States Environmental Protection Agency (EPA) issued the pre-publication version of its Final Rule for standards of performance in the Oil and Natural Gas sector. The original proposed rule, published on November 15, 2021, sought to strengthen methane standards for new sources (New Source Performance Standards or NSPS), establish nationwide emission guidelines (EG) for regulation of existing sources, and develop new standards for unregulated sources. EPA later issued a supplemental proposed rulemaking on November 15, 2022 (2022 Supplemental Proposed Rulemaking), as we summarized in our previous post. In total, EPA received nearly 1 million public comments on this rulemaking. The rules, when published in the federal register, will be included in 40 CFR Part 60, Subpart OOOOb (NSPS) and Subpart OOOOc (EG).

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US EPA’s Draft Revisions to Technical Guidance for Assessing Environmental Justice in Regulatory Analysis

Our team at Squire Patton Boggs monitors environmental justice (EJ) developments and provides periodic updates regarding environmental justice topics.  Recently, US EPA released draft revisions to its Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (EJ Technical Guidance), and US EPA is currently seeking public comments through January 15, 2024.  

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Biden Administration Finalizes Greenhouse Gas Target Rule that is Likely to Draw Challenges

The Federal Highway Administration (FHWA) recently released a prepublication version of its final rule establishing a greenhouse gas (GHG) emissions measure.  The final rule establishes a method for measurement of GHG emissions associated with transportation and requires state departments of transportation (State DOTs) and metropolitan planning organizations (MPOs) that have National Highway System (NHS) routes within their jurisdiction to establish targets for reducing GHG emissions from on-road sources and to report on their efforts to meet those targets. The rule will take effect thirty days after the date of its publication in the Federal Register. State DOTs are required to establish targets and report those targets by February 1, 2024. Subsequent targets would be established and reported by no later than October 1, 2026.  

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FDA Delays Enforcement of MOCRA Deadlines for Facility Registration and Product Listing to July 1, 2024

On November 9, 2023, the FDA published notice of final guidance that delays FDA’s enforcement of some facilities’ registration and product listing compliance requirements under MOCRA to July 1, 2024. This enforcement delay applies to facilities that “engaged in manufacturing or processing of a cosmetic product” or products as of MOCRA’s enactment date (December 29, 2022). Additionally, on November 1, 2023 the FDA issued an announcement delaying the implementation date for its new online submission portal called “Cosmetics Direct” for facility registrations and product listings. For more details on the key changes and issues, see our detailed post on this issue here.

Revamping Cosmetics Safety and Regulation: Updates from FDA on Regulatory Changes under MOCRA

In August 2023, the FDA released draft guidance on upcoming regulatory changes pursuant to MOCRA, including guidance on cosmetic product facility registrations and product listings. MOCRA applies to any establishment that manufactures or processes cosmetics products. According to the draft guidance, the FDA is in the process of creating a new online portal for facility registrations and product listings and has created a draft list of categories and codes for cosmetic products for facilities to use when registering a facility or listing a cosmetic product. For more details on the key changes and issues, see our detailed post on this issue here.

Windsor Framework: Deadline for Businesses to Register for New Northern Ireland Retail Movement Scheme Approaches

Closeup of hands on clock face

From October 2023, a broad range of products moving from Great Britain (GB) to Northern Ireland (NI) (and that are intended for “final consumption” in NI) will be processed through a “green lane” and be subject to fewer checks and controls. While this will ultimately facilitate movements of various products, there are implications for businesses in the short term.

Agreement on the Windsor Framework was reached by the UK and the EU on 27 February 2023 as a way to address some of the issues presented by the Northern Ireland Protocol. The UK government has now unveiled the Northern Ireland Retail Movement Scheme (NIRMS), which will allow UK public health and consumer protection standards to apply for all retail food and drink moving to NI through the scheme, while recognising that goods that are potentially not compliant with EU requirements should not be able to pass into the EU through the NI and Republic of Ireland border without checks.

From 1 September 2023, all businesses responsible for selling or facilitating the movement of food for final consumption in NI will be able to register for NIRMS.

Please click here for a link to our article setting out the background to the Windsor Framework, the scope of the new Northern Ireland Retail Movement Scheme (which will commence on 1 October 2023) and required arrangements for registration, a General Certificate declaration by traders and labelling of products and/ or boxes/ crates.

White House Finalizes Long-awaited Build America, Buy America (BABA) Guidance

The White House has announced long-awaited final guidance to federal agencies to implement domestic content and manufacturing requirements in federally funded infrastructure projects. The Biden administration guidance applies broadly to the use of iron, steel, and other common construction materials and products and, as a result, is expected to have broad implications for awardees of federal funding, prospective applicants, contractors, and suppliers.

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Reforming Cost-Benefit Calculations under Circular A-4: Implications for Environmental Rulemaking

Would you rather pay your bills tomorrow or next year?  What about your paycheck?  Intuitively, most people want delayed costs and immediate benefits, and so want checks now and liability later.  This poses a challenge for policymakers when weighing the costs and benefits of a new policy: is reasonable to pay 90 cents today for a dollar tomorrow—and what if tomorrow’s dollar is a benefit other than money?  When federal agencies undergo notice-and-comment rulemaking, they have to make these calculations.  Immediate costs and benefits must be considered, while future factors are discounted to their present value to account for the intervening time.  Selecting the discount rate can have material implications for any economic analysis, and especially for environmental rules which tend to involve front-loaded compliance costs and primarily future benefits.

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