U.S. Supreme Court’s Jarkesy Ruling Shifts Power for Federal Enforcement

Keith Bradly, Squire Patton Boggs (US) LLP Partner and Co-Chair of the Appellate and Supreme Court Practice, authored an article for Bloomberg Law discussing the U.S. Supreme Court’s recent decision in SEC v. Jarkesy. The Court found that when the Securities Exchange Commission (SEC) seeks civil penalties for securities fraud, the Seventh Amendment affords a defendant the right to a jury trial in federal court because such claims are legal in nature. Although this case involves the SEC, it may have a ripple effect for other agencies, raising the question of whether enforcement matters, including environmental enforcement actions, are similar to claims at law or equity. It may also lead to less administrative enforcement actions but increased and more expensive federal litigation. Read the full article at Supreme Court’s Jarkesy Ruling Upends SEC Enforcement Practices (bloomberglaw.com).

Chevron Has Fallen: Supreme Court Seismically Shifts Regulatory Power From Agencies to Courts

Guardian of Law Statue United States Supreme Court Building

On June 28, 2024, in a 6-3 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court overturned the Chevron doctrine, a decades-old precedent that largely pressed federal courts to defer to federal agency interpretations of ambiguous statutes under their jurisdiction. The opportunities, the challenges, and the uncertainty will grow for a long time before the dust settles from Loper Bright. In every interaction with the federal government, it is now necessary to do a fresh assessment of just how much discretionary authority the agency actually has. Read the full publication here for details on the implications of this decision, which merit ongoing attention and preparation for a changed environment.

OSHA Final Rule Clarifies Employees’ Walkaround Representative; Opens Non-Union Workplaces to Union Representatives 

Safety helmets

The U.S. Department of Labor’s Occupational Safety & Health Administration (OSHA) published its controversial final “walkaround” rule on April 1, 2024.  The final rule clarifies the rights of employees to authorize a representative – employee or non-employee – to accompany an OSHA compliance officer (CSHO) during an inspection of their workplace.  This can include a “third party” (or non-employee) representative, such as a union representative, if OSHA deems the representative “may be reasonably necessary to the conduct of an effective and thorough inspection based upon skills, knowledge, or experience such as knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills”    OSHA argues the authorized employee representative would accompany the CSHO for the purpose of aiding a lawful inspection under the Occupational Safety & Health (OSH) Act.

Commenters raised significant concerns, ranging from First, Fourth, Fifth, and Tenth Amendment violations to due process concerns and issues over allowing a union representative access to a non-union worksite/workplace that some believed could potentially violate the Supreme Court of the United States’ decision in Cedar Point Nursery.  With respect to the latter issue, OSHA argues in the final rule:

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FDA Announces End of PFAS Use in US Food Packaging

Supermarket shelves

On February 28, 2024, the Food and Drug Administration (“FDA”) published a news release regarding the voluntary market phase-out of per and polyfluoroalkyl substances (PFAS) in grease-proofing substances used on food packaging. The FDA stated that the completion of this phase-out “eliminates the primary source of dietary exposure to PFAS from authorized food contact uses.”

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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”.

Read the full publication here.

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.

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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.