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

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

Court of Appeal dismisses appeal by Thames Water against £2 million fine imposed by the Crown Court
Construction company fined £1 million and employee, a site supervisor, given suspended custodial sentence following death
Government seek comments on draft Statutory Guidance for proposed implementation of Offensive Weapons Act 2019, including provisions on remote (online) sales of knives and other bladed articles and new offence for sale of corrosive product to underage person
Serious Fraud Office (SFO) Publishes Corporate Co-Operation Guidance
Almost 60 chemical manufacturers commit to re-evaluating the safety data in their reach registration dossiers
Council has approved the purchase and subsequent demolition of houses in an air pollution hot-spot
Boris Johnson has said that the UK’s environmental standards could ‘diverge’ from EU standards after Brexit
The Committee on Climate Change (CCC) has published advice on carbon pricing, including views on the establishment of a UK emissions trading scheme
ECHA launches public consultation on authorisation of chromium trioxide

For more detailed information on these developments, as well as access to the remaining summaries, make sure you download a copy from our website. You can also subscribe to ensure you receive our most recent edition every month.

US EPA Proposes Rule Narrowing States’ Ability to Block Pipeline Projects

By Nicki Hewell on August 30, 2019 Posted in Clean Water Act, Energy & Utilities, Environmental Protection, Rulemaking & Policy Development

Welding on Gas Pipeline On August 7, 2019, US EPA Administrator Andrew Wheeler signed the Agency’s newest proposal to amend the Clean Water Act (CWA) to streamline permitting of energy projects. Specifically, the proposed rule would amend the regulations concerning Section 401 of the CWA. It represents US EPA’s first comprehensive effort to promulgate federal rules governing the implementation of Section 401 of the CWA.

The proposed rule is in response to President Trump’s April 2019 Executive Order 13868 (see our post here), which directs US EPA to revise guidance on the CWA Section 401 certification process and propose new rules to implement CWA Section 401 by August 8, 2019. When announcing the proposed rule, Administrator Wheeler stated: “[T]he United States has become the number one oil and gas energy producer in the world, while at the same time continuing to improve our air quality.” He then noted, “Our proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act. When implemented, this proposal will streamline the process for constructing new energy infrastructure projects that are good for American families, American workers, and the American economy.”

US EPA Proposes to Roll Back Requirements to Control Oil & Gas Industry Methane Emissions

By Sarah Vilms on August 29, 2019 Posted in Air Quality, Energy & Utilities, Mining & Natural Resources, Rulemaking & Policy Development

Oilwell Today, US EPA proposed a rule to roll back the Obama Administration’s rule to control methane emissions from the oil and gas industry. Methane emissions from the oil and gas industry are equivalent to the emissions of one-quarter of all cars in the US, according to US EPA data. Methane emissions are also known to be 25 times more potent than carbon dioxide in contributing to climate change. Overall, methane is responsible for 10 percent of all US greenhouse gas emissions. US EPA has decided to lift the rules that would have controlled for methane emissions, which would have required monitoring, limiting leaks and regular leak inspections for new wells, storage tanks, pipelines and other transmission infrastructure.

The oil and gas industry is reportedly split on the decision. Some argue that “a lack of government backed minimum requirements to curb emissions could undermine the argument that natural gas is a cleaner fuel.” Continue Reading

Is the U.S. Endangered Species Act Itself Now Threatened or Endangered?

By Darin Smith on August 27, 2019 Posted in Administrative Procedures Act, Environmental Protection, Rulemaking & Policy Development

Red Wolf at Rest On August 12, 2019, the U.S. Department of the Interior (DOI) unveiled three final rulemakings that will have a significant impact on the future implementation of certain portions of the Endangered Species Act (ESA). According to DOI, the new regulations are “designed to increase transparency and effectiveness and bring the administration of the [ESA] into the 21^st century.” On the other hand, numerous environmental advocacy groups voiced swift and strong opposition to what they commonly see as “dramatic rollbacks” that will “weaken the critical and popular environmental law.” And, it appears that the final rules still face an uphill climb as Democrats in Congress, such as U.S. Senator Tom Udall (D-N.M.), vowed to “block this dangerous rollback” and “consider stopping these regulations by any means.” Continue Reading

Why Are We Still Talking About California Prop 65?

By Danelle Gagliardi on August 16, 2019 Posted in Chemicals & Products, Health & Safety, Product Safety, Rulemaking & Policy Development

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 bit, especially now that Prop 65’s influence seems to have spread to other states. We have written previously about Prop 65’s far-reaching impact on companies, nationwide and internationally, doing business in California. Now, New York has proposed and Washington State has passed laws similar to Prop 65. These other laws could also have far-reaching effects for companies.

US Supreme Court Schedules Oral Argument Regarding Clean Water Act Liability for Indirect Groundwater Discharges

By Andrew Etter on August 15, 2019 Posted in Clean Water Act, Environmental Litigation, Environmental Protection, Municipal Utilities, Water Quality

Earlier this month, the US Supreme Court scheduled oral argument for November 6^th in its review of the Ninth Circuit’s decision in County of Maui v. Hawai‘i Wildlife Fund, et al. The case has significant implications for the scope of the Clean Water Act (CWA), with the Ninth Circuit having ruled that the eventual migration of pollutants from permitted underground injection wells through groundwater into surface waters violates the CWA:

We hold the County liable under the CWA because (1) the County discharged pollutants from a point source, (2) the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water, and (3) the pollutant levels reaching navigable water are more than de minimis.

886 F.3d 737, 749 (9th Cir. 2018).

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

By Squire Patton Boggs on August 7, 2019 Posted in Energy & Utilities, Health & Safety, Water Rights & Resource Management

Electronic News We are pleased to share with you the latest edition of “frESH Law Horizons – Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In our July edition, we summarise 35 developments in the environmental, safety and health sector. Some of the top stories this month include:

Rail company faces £1 million fine after the death of a passenger on the Gatwick Express
Government publishes its response to the final report on the Modern Slavery Act review
Environment Agency to use drones to tackle illegal water abstraction
Environmental Audit Committee launches an inquiry on electronic waste and the circular economy
Utility company faces fine of £700,000 for pollution offences
US lawmakers to propose plastics bill

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

By Alex Arensberg on July 24, 2019 Posted in Administrative Procedures Act, CERCLA/RCRA, Environmental Protection, Mining & Natural Resources, Rulemaking & Policy Development

Justice 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 an estimated $111 to 171 million per year. Continue Reading

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

By Nicki Hewell on July 23, 2019 Posted in Rulemaking & Policy Development

Business Growth

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 on the Trump administration’s proposed transfer of responsibility for compliance and enforcement matters from the federal agency to authorized states.

US EPA has been signaling that it will move to a more state-led enforcement and compliance policy. In January 2018, for example, US EPA issued interim guidance to enhance planning and communication between US EPA regions and the states. Later, in October 2018, Administrator Wheeler issued a memorandum outlining four key principles relevant to the enforcement of federal environmental laws. The principles rely heavily on state-led enforcement. Namely, the principles request: (1) general deference to states in state-implemented programs, (2) effective communication between the EPA and the states, (3) clear standards of review and predictable processes, and (4) a clear process for elevating issues.

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

By Brent Owen on July 22, 2019 Posted in Administrative Procedures Act, Environmental Litigation, Rulemaking & Policy Development

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 US Supreme Court issued its opinion in Kisor v. Wilkie—upholding but limiting Auer deference. Auer instructs that courts must defer to an agency’s construction of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.” (Indeed, under Auer (before Kisor), the US Supreme Court upheld regulations even when the interpretation was not “the best one.”) Auer deference, however, will work much differently going forward.