US EPA Approves Missouri’s Innovative Approach to Limiting Nutrient Pollution

In December 2018, the US EPA approved Missouri’s standards for limiting nutrient pollution in lakes and reservoirs in the state. The Agency’s approval comes after years of past debate and litigation between US EPA and Missouri over the state’s approach to nutrient criteria and, notably, represents a reversal from US EPA’s Obama-era opposition to the state’s proposed standards. It is likely that Missouri’s framework will be used as guidance by other states in developing their approaches to lake and reservoir nutrient pollution, and it may be that US EPA’s approval will embolden states to deviate from the federally-recommended numeric nutrient criteria and develop customized plans. Continue Reading

US Supreme Court to Reconsider Key Agency Deference Standard

By Brent Owen on February 15, 2019 Posted in Administrative Procedures Act, Environmental Litigation, Rulemaking & Policy Development

Often called the fourth branch of government, administrative agencies implement the labyrinth of federal regulations governing people and companies in the United States. Administrative agencies play a particularly important role in regulating environmental, health, and safety in the United States. Those administrative agencies may soon face greater scrutiny from federal courts in their interpretation of their own regulations. This development could give businesses—particularly those in highly regulated industries—more opportunities to challenge, limit, or at least better anticipate their regulatory burden.

This term in Kisor v. Wilkie, the US Supreme Court will consider whether to overturn Auer deference; the rule that courts must defer to an agency’s construction of its own regulation unless that interpretation “is plainly erroneous or inconsistent with the regulation.” This development fits with the broader trend that we identified last year—the Court’s growing skepticism about deferring to legal determinations made by administrative agencies. Last year, we explained the Court’s hostility to Auer deference’s controversial cousin, the Chevron doctrine, which requires courts to defer to an agency’s reasonable interpretation of a statute. Continue Reading

January 2019 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

By Squire Patton Boggs on February 12, 2019 Posted in Environmental Litigation, Health & Safety, Rulemaking & Policy Development

Online News We are pleased to share our latest edition of “frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In the January 2019 edition, we summarise 27 developments in the environmental, safety and health sector. Top stories this month include:

Post-Brexit environmental guidance set out in the Environment Bill, which introduces principles that will apply in place of the EU treaty principles after Brexit
The publishing of Defra’s long-awaited Resources and Waste Strategy for England, which looks at several issues in relation to various types of waste
An Environment Agency proposal to revise its public participation statement for environmental permitting
Defra issuing its Clean Air Strategy, intended provide a stronger legislative framework for future action on air pollution
Environment Agency guidance on environmental permitting compliance and its response to last year’s consultation changes to permit compliance scoring

For more detailed information on these developments and access to the remaining summaries, download a copy from our website. Make sure you also subscribe to receive our most recent edition every month.

After Shutdown, US EPA Announces New Hearing Date for the New WOTUS Rule

By Wes Reed on February 7, 2019 Posted in Administrative Procedures Act, Clean Water Act, Environmental Protection, Rulemaking & Policy Development, Water Quality, Waters of the United States

As a result of the recent lapse in appropriations, the US EPA and US Department of the Army (Army) delayed a planned January 23, 2019 hearing regarding the proposed new “Waters of the United States” (WOTUS) definition. Publication of the proposed rule and the start of the comment period on the rule were also postponed due to the shutdown. On February 6, 2019, EPA announced that the hearing will now be held on February 27 and 28, 2019. The Office of the Federal Register has not yet published the proposed rule, which will start the clock on the 60-day comment period.

Because it determines the scope of the Clean Water Act, the definition of “waters of the United States” has been a hot-button issue since it was amended, and significantly broadened, by the Obama administration in mid-2015. The 2015 rule was challenged by 31 states and numerous other stakeholders in multiple lawsuits. In October 2015, the Sixth Circuit issued a nationwide stay of the rule. The nationwide stay was lifted when the US Supreme Court determined on January 13, 2017 that review of the rule falls within the jurisdiction of the district courts. Although the nationwide stay is no longer in effect, decisions by the US District Courts for the Districts of North Dakota, Southern District of Georgia, and Southern District of Texas, preliminarily enjoining the 2015 rule in 28 states remain in effect. Thus, the Obama-era rule is in effect in only 22 states, the District of Columbia, and US territories.

Latest News and Perspectives on California Prop 65

By Kendra Sherman and Danelle Gagliardi on January 10, 2019 Posted in Alcohol, Food and Entertainment Licensing, Chemicals & Products, Environmental Litigation

The latest news and perspectives on California’s Proposition 65 (Prop 65) track the passage of the newly-amended Clear and Reasonable Warnings regulations under Prop 65, which took effect on August 30, 2018. Significantly, plaintiffs have started to target companies whom they believe to not be in compliance with the newly-amended regulations. Read more below about this and other important recent updates since the new Prop 65 regulations became effective, including the updated comment deadline of January 11, 2019, on proposed amendments:

December 2018 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

By Squire Patton Boggs on December 27, 2018 Posted in Chemicals & Products, Health & Safety

We are pleased to share our latest edition of “frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In the December edition, we summarise 29 developments in the environmental, safety and health sector. Top stories this month include:

Three companies, all operating on the same site found liable after security killed and fined £1.4 million.
OPSS launches guide for consumers on “shopping safety for children at Christmas” after reports of potential safety issues with counterfeit goods
CPS find bus company guilty of breaching Health & Safety and issue a fine of £2.3 million
A water company has donated £975,000 to local charities after a water pollution offence

US EPA Issues Proposal to Freeze Tailpipe Emission Standards

By Nicole Bothwell on December 21, 2018 Posted in Air Quality, Rulemaking & Policy Development

The United States Environmental Protection Agency (US EPA) and the National Highway Traffic Safety Administration (NHTSA) issued a proposed rule regarding existing Corporate Average Fuel Economy (CAFE) and tailpipe greenhouse gases (GHG) emission standards for passenger cars and light-duty trucks on August 24, 2018. With this proposal, US EPA’s goal is to finalize a rule that would freeze standards rather than provide for increasingly stringent standards, which was the plan set by the previous rule under the Obama Administration. The proposed rule would also revoke California’s authority to set its own GHG emissions standards for passenger cars and light-duty trucks more stringent than federal standards.

We previously reported on the lawsuit filed by a number of states in response to US EPA’s announcement that it would be rolling back tailpipe emission standards. Eighteen states petitioned the D.C. Circuit Court of Appeals for review of US EPA’s determination that it would revise the GHG standards. US EPA’s decision to do so was a reversal of its initial determination, made pursuant to the mid-term evaluation prescribed by rule, that the GHG standards remained appropriate for the period through model year (MY) 2025.

In response, US EPA filed a motion to dismiss the case for lack of jurisdiction, arguing that judicial review would be improper because US EPA’s decision to initiate a rulemaking concerning the emission standards did not constitute final agency action. Petitioners argued in response that the Agency was attempting to skirt judicial review and simply “wipe the administrative slate clean.”

On November 21, 2018, the court announced that it would review the Petitioners’ challenge to US EPA’s determination to revise the standards on the merits. Continue Reading

US OSHA Continues Emphasis on Excavation and Trenching Safety

By Matthew Cooper on December 13, 2018 Posted in Health & Safety, Rulemaking & Policy Development

Safety Effective October 1, 2018, the US Occupational Safety and Health Administration (OSHA) updated its National Emphasis Program (NEP) on Trenching and Excavation, with the intent of describing “policies and procedures . . . to identify and to reduce hazards which are causing or likely to cause serious injuries and fatalities during trenching and excavation operations.” The updated NEP replaces the original 1985 CPL 02-00-069 – Special Emphasis: Trenching and Excavation and, among other things, establishes a requirement for each Area Office/Region to develop and implement outreach programs in support of the emphasis program, including the provision of compliance assistance materials for employers, permitting and other municipal organizations, industry associations, equipment rental organizations, water works supply companies, and plumbing companies (“stakeholders”). Continue Reading

Left In The Lurch – Another UK Landlord Convicted Following Tenant’s Unlawful Waste Operations

By Robert Biddlecombe on December 12, 2018 Posted in Environmental Due Diligence, Environmental Litigation, Environmental Protection, Property Acquisition, Site Remediation & Brownfields Redevelopment, Solid & Hazardous Waste

Toxic Waste Barrels

Recent caselaw demonstrates that regulators are prepared to prosecute landlords as a direct result of their tenants’ unlawful waste operations. Landlords should consider this possibility when negotiating with prospective tenants and put in place reasonable safeguards to protect themselves. However, victims of fly-tipping may potentially face a similar risk of prosecution against which such safeguards will not be available. Continue Reading

Two Federal Courts Issue Decisions Against EPA “Suspension” Rule, Reviving and Protecting Obama-era Waters Rule

By Rees Alexander on December 11, 2018 Posted in Clean Water Act, Environmental Due Diligence, Environmental Litigation, Property Acquisition, Site Remediation & Brownfields Redevelopment, Rulemaking & Policy Development, Water Quality, Waters of the United States

A swamp in the middle of the clearing

In the past two weeks, U.S. District Courts in South Carolina and Washington issued decisions that dealt additional blows to the Trump Administration’s efforts to unravel the 2015 Obama-era “waters of the United States” rule (“Obama Rule”). In light of these rulings, the Obama Rule appears poised to remain effective in 22 states for at least the immediate future.