Archives: Rulemaking & Policy Development

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Why Are We Still Talking About California Prop 65?

For readers who have been following us, you have likely seen our posts tracking California’s consumer right to know law, Prop 65, along with its new amendments and significant litigation. You may think, what more is there to write about a law that is only effective in one state? As it turns out, quite a … Continue Reading

DC Circuit Upholds US EPA Decision Not to Issue New Financial Assurance Requirements for the Hardrock Mining Industry

On July 19, 2019, the D.C. Circuit issued its decision in Idaho Conservation League v. Wheeler, upholding US EPA’s decision not to issue financial responsibility requirements for the hardrock mining industry under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The requirements, if adopted, would have cost the hardrock mining industry … Continue Reading

US EPA Announces Policy To Enhance State Partnerships in Civil Enforcement and Compliance Assurance Work

On July 11, 2019, US EPA announced its new policy on Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work (the Policy). The Policy was communicated as a memorandum from Assistant Administrator Susan Parker Bodine to the regional administrators. To date, the Policy is US EPA’s most comprehensive statement … Continue Reading

US Supreme Court Affirms Tweaked Auer Deference, But Is It Now a “Paper Tiger”?

In our prior coverage of Kisor v. Wilkie, we predicted that the Court would impose “greater scrutiny” on “administrative agencies’ . . . interpretation of their regulations.”  And the Court did.  The Court’s decision will affect every aspect of the federal government’s regulation of environmental, safety, and health. At the end of its term, the … Continue Reading

US EPA Formally Proposes Repeal of “Once In, Always In” Policy

On June 25, 2019, US EPA issued a proposed rule that would reverse the “once in, always in” policy for sources of hazardous air pollutants (HAP) that has been in place for more than 20 years. The rulemaking formalizes a January 2018 US EPA memorandum repealing the policy, an action that was challenged by environmental groups and … Continue Reading

Asbestos Receiving Renewed Attention in Light of Additional US EPA Assessments under TSCA and Potential Ban by Congress

Asbestos is in the hot seat these days and is receiving significant attention from both US EPA and Congress.  In particular, US EPA continues to evaluate asbestos risks under the Toxic Substances Control Act (TSCA) and has imposed additional regulations, while Congress is currently considering an outright ban on the substance. On April 25, 2019, … Continue Reading

US EPA Extends Date For Designation of Inactive Substances on the TSCA Inventory to August 5, 2019

US EPA has announced that the formal designation of substances as inactive on US EPA’s Toxic Substances Control Act (TSCA) Inventory will become effective on August 5, 2019. (84 Fed. Reg. 21773 (May 15, 2019)). US EPA’s action gives companies an additional three months to continue to manufacture, import and process substances, even though the … Continue Reading

Local Control in the US Gaining Steam … Again?

On Tuesday, April 16, 2019, Colorado Governor Jared Polis signed Senate Bill 19-181 (SB19-181) into law.  SB19-181 was a controversial bill as it made its way through the Colorado Legislature, and it is now a controversial piece of legislation.  Indeed, SB19-181 passed the Colorado Legislature strictly along party lines, and it has now pitted some … Continue Reading

US District Court Blocks Trump Administration Effort to Revoke Obama-Era Mineral Leasing Withdrawals

On March 29, 2019, the US District Court for the District of Alaska blocked the Trump Administration’s efforts to revoke the Obama Administration’s prior withdrawal of portions of the Arctic and Atlantic Oceans from mineral leasing under the Outer Continental Shelf Lands Act (OCSLA).  The court’s decision is noteworthy, not just for its implications for … Continue Reading

President Trump Signs Drought Contingency Plan for Colorado River

Months ago, in the face of “unacceptably high” risk to the Colorado River’s complex system of reservoirs, US Bureau of Reclamation Commissioner, Brenda Burman, indicated that if the seven Colorado River Basin States could not agree to a drought contingency plan (DCP), then the federal government would post a notice in the federal register seeking … Continue Reading

President Trump Signs Two Executive Orders to Promote Development of Critical Energy Infrastructure

On April 10th, President Donald Trump signed two Executive Orders that seek to promote timely review of critical energy infrastructure projects in the United States. These changes to the review process seek to “enable the timely construction of the infrastructure needed to move our energy resources through domestic and international commerce.” (EO 13868.) “By promoting the development of … Continue Reading

US EPA Finalizes Rule Employing “SNUR-Only” Approach for TSCA New Chemical Reviews

On April 5, 2019, US EPA finalized significant new use rules (SNURs) for 13 new chemical substances under section 5(a)(2) of the Toxic Substances Control Act (TSCA). Notably, the 13 chemicals are not also subject to orders under TSCA section 5(e) or 5(f) – an approach that differs substantially from US EPA’s long-standing past practice. … Continue Reading

Four Things to Know About US EPA’s Draft WOTUS Rule

On February 14, 2019, the US Army Corps of Engineers and US EPA (Agencies) published in the Federal Register the proposed rule to revise the definition of “Waters of the United States,” the term that identifies the scope of federal jurisdiction under the Clean Water Act.  The proposed rule is the second step in a two-part process … Continue Reading

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 … Continue Reading

US Supreme Court to Reconsider Key Agency Deference Standard

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 … Continue Reading

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

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, … Continue Reading

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

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 … Continue Reading

US EPA Issues Proposal to Freeze Tailpipe Emission Standards

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 … Continue Reading

US OSHA Continues Emphasis on Excavation and Trenching 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 … Continue Reading

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

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 … Continue Reading

Colorado Proposition 112: If Colorado Bans New Oil and Gas Development, What Next?

The State of Colorado is a leader in regulating oil and gas development. But a ballot initiative proposes a more dramatic regulatory step: restricting oil and gas development all together. In the upcoming election, Colorado voters will decide whether to enact Proposition 112, a law requiring a 2,500-foot setback between any new oil and gas developments and any “occupied … Continue Reading

US Court of Appeals for Ninth Circuit Orders Ban on Chlorpyrifos

In a 2-1 opinion this August, the Ninth Circuit Court of Appeals instructed US EPA to revoke all tolerances and cancel all registrations for chlorpyrifos, one of the most widely used conventional insecticides in the United States.  If left in place, this ruling will effectively ban domestic use of the popular pesticide, though the Ninth Circuit … Continue Reading

Proposed Affordable Clean Energy Rule: Navigating US EPA’s Clean Power Plan Replacement

On August 31, 2018, the US Environmental Protection Agency (US EPA) published its proposed rule providing a replacement to the Clean Power Plan (CPP).  The proposed rule, named the Affordable Clean Energy (ACE) rule, outlines revised emissions guidelines and the process for states to submit plans for the reduction of greenhouse gas (GHG) emissions from affected … Continue Reading

MPs Recommend Giving UK Local Authorities Power to Charge Employers for Health and Safety Enforcement Action

There has been a general decline in health and safety inspection and enforcement by local authorities since 2010 principally due to reduced funding and competing priorities, according to the All-Party Parliamentary Group on Occupational Safety and Health (APPGOSH). According to their recent report, “Local Authorities and Health and Safety”: the overall number of inspections and … Continue Reading
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