Looking Ahead to 2021: Implications of a Change in US Administration on Environmental Policy

The tumultuous presidential election is working its way to a close and, while the vote counting and White House at Nightlitigation continue, one thing is certain:  the environmental policy agenda to be advanced by a Biden Administration will be a marked contrast to that of the current Trump Administration.

The Biden environmental policy agenda includes, at front and center, a Plan for a Clean Energy Revolution to address climate change at the federal level and reengage with the global community to effect reductions in greenhouse gases; a greater focus on environmental justice and more significant enforcement; the likely revisiting of the Trump Administration’s executive orders and regulatory rollbacks; and a fundamentally different view from the Trump Administration on how to evaluate chemicals risks, with material ramifications on ongoing efforts under the Toxic Substances Control Act and the Clean Air Act.

In this alert we look ahead and evaluate the implications of a change in Administration on environmental policy in the US.

Trump Administration Issues Proposed Rule to Fast-Track Environmental Permitting for Mining Projects

Safety helmetsOn November 27, 2020, the Federal Permitting Improvement Steering Council (Permitting Council) issued a proposed rule to add mining as a sector eligible for streamlined permitting under Title 41 of the Fixing America’s Surface Transportation Act (FAST-41).  Public comments on the proposed rule are due December 28, 2020.

Enacted in 2015, FAST-41 created a new governance structure, set of procedures, and funding authorities designed to improve the timeliness, predictability, and transparency of the Federal environmental review and authorization process for covered infrastructure projects.  FAST-41 is a voluntary program for eligible large-scale infrastructure projects and provides project sponsors with enhanced coordination among 13 Federal agencies to ensure more streamlined environmental reviews and authorizations.  Current FAST–41 sectors include renewable and conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, and manufacturing. Continue Reading

US EPA Releases Draft National Recycling Strategy for Comment

US EPA recently released its draft National Recycling Strategy (Draft Strategy) as part of its broader “America Recycles” program that aims to increase the amount of paper, plastic and metal recycled in the country. While the Draft Strategy sets sweeping goals to grow domestic recycling capacity and improve markets for recycled materials, it offers little in the way of specific plans or future policies. The Draft Strategy is open for public comment until December 4, 2020.

The Draft Strategy sets out three primary objectives: reducing contamination in the recycling stream, increasing efficiency at recycling facilities, and improving markets for recycled feedstock. For purposes of the Draft Strategy, “recycling” refers to “the series of activities by which discarded or used materials are collected, sorted based on physical/mechanical characteristics, processed and/or converted into feedstock and used in the manufacture of new products.” US EPA states that recycling has long been a component of the Agency’s implementation of the Resource Conservation and Recovery Act (RCRA), although it is worth noting that the scope of US EPA’s authority to directly regulate recycling activities is unclear.

To reduce contamination in the recycling stream, the Draft Strategy focuses on increasing public awareness of the mechanics of recycling as well as the economic benefits of recycling. Part of this effort would include improving the consistency of labeling on recyclable products to reduce consumer confusion about what products can be recycled. The Draft Strategy also includes plans to analyze state and local policies that have already been implemented to address contamination issues.

In order to increase process efficiency, the Draft Strategy sets forth objectives that are ambitious but largely preliminary: improving understanding of available domestic recycling infrastructure and needs, increasing awareness of available funding and incentives, and developing and implementing national recycling system definitions, measures, targets, and performance indicators. If developed, such concrete metrics would provide needed guidance to industry as to the potential for regulatory burdens associated with US EPA’s recycling program.

To improve domestic markets for recyclable materials and recyclable products, the Draft Strategy proposes conducting market development workshops among stakeholders on actions that can be taken to strengthen markets for recycled materials at both the regional and local level. Additionally, the Draft Strategy aims to increase manufacturing use of recycled material feedstock and to increase the demand for recycled materials by identifying barriers and developing incentives and policies to address those barriers.

As US EPA’s Draft Strategy is still largely undeveloped in terms of concrete requirements to accomplish its broad goals, it is possible the Agency may look to state policies for guidance. In addition to laws banning plastic bags and plastic straws, states have recently begun to focus on efforts to increase the use of recycled material through minimum recycled content mandates applicable to manufacturers. For example, California recently passed AB 793 to require that products such as plastic beverage containers be composed of a minimum percentage of recycled material, beginning with 15% in 2022 and increasing to 25% in 2025 and 50% in 2030. New Jersey is considering a similar bill, and a Washington minimum recycled content bill was passed by the legislature, but vetoed by the governor due to budget restraints brought on by the COVID-19 pandemic.

As noted above, US EPA’s Draft Strategy is open for public comment until December 4, 2020. The Agency has asked commenters to focus on “key implementation steps and milestones” that could support each goal. Squire Patton Boggs will continue to monitor developments in this area.

Judicial Review of US Lead Hazard Rule Suggests Debate Will Continue

One of the key “non-scope considerations” commonly investigated during environmental due diligence For Leasefor commercial property transfers is assessment of any lead impacts from lead-based paint (LBP) and lead dust.  Although the use of LBP was banned in 1978, many structures constructed before that date retain LBP on surfaces.  As that LBP deteriorates over time, it creates lead dust that can create hazardous exposure risks.

US EPA has addressed lead under a variety of federal laws including the Toxic Substances Control Act (TSCA), the Residential Lead-Based Paint Hazard Reduction Act of 1992, Clean Air Act, Clean Water Act, and others.  These laws, and various rules promulgated thereunder, work together to comprehensively address lead hazards, including establishing safe work practices during renovations, training and certification for abatement contractors, and disclosure of LBP during sale or lease of residential properties.  In particular, Section 402 and 403 of TSCA establish hazard standards and clearance levels for lead in paint, dust and soil, which are carried through to US EPA’s lead-based paint activity regulations.

On October 27, 2020, the US Court of Appeals for the Ninth Circuit heard oral argument in an appeal of US EPA’s July 9, 2019 final rule addressing the Agency’s review of the current dust-lead hazard standards (DLHS) and the definition of LBP. Continue Reading

Climate Change Lawsuit Reaches the US Supreme Court

Guardian of Law Statue United States Supreme Court BuildingThe US Supreme Court recently granted certiorari in an important climate change lawsuit, BP P.L.C. v. Mayor and City Council of Baltimore. The lawsuit pits the Mayor and City of Baltimore against twenty-six multinational oil and gas companies that Baltimore claims are responsible for climate change. Baltimore alleges that the companies contributed to climate change by producing, promoting, and (misleadingly) marketing fossil fuel products long after learning of the climate-related dangers associated with them.  Specifically, Baltimore argues that the companies engaged in a “coordinated, multi-front effort” to conceal their collective knowledge of climate change.  Also that the companies discredited the “growing body of publicly available scientific evidence,” and worked to “undermine public support for regulations of their business practices.”  Baltimore seeks relief for “climate change-related injuries.” Continue Reading

Chemical Strategy for Sustainability Heralds Most Significant Changes to EU Chemicals Regulation in 15 Years

In publishing the Chemical Strategy for Sustainability (CSS), the European Commission has announced science laboratory glasswarethe Most Significant Changes to EU Chemicals Regulation in 15 Years. The Commission stated that the CSS is the first step towards a zero pollution ambition for a toxic-free environment. While the CSS fully recognises the fundamental role of chemicals for human well-being and for the green and digital transition of European economy and society, it acknowledges the urgent need to address the health and environmental challenges caused by the most harmful chemicals.

The EU’s chemicals policy needs to be further strengthened to take into account the latest scientific knowledge and citizens’ concerns. To this end, and among multiple other measures, the CSS foresees fundamental changes to the regulatory framework.  Squire Patton Boggs’ attorneys Ken Huestebeck, Anita Lloyd, Dave Gordon, Steve Owens, and Wolfgang Maschek look at the detail of what is proposed in this article.

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

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 September edition, we summarise 40 developments in the environmental, safety and health sector.

Some of the top stories this month include: Continue Reading

Talk to the Experts Virtual Forum: Complying With REACH – Why Changes to Chemicals Regulation Matter Across Many Industrial Sectors in a Post-Brexit World

The chemical regulation EU REACH will cease to apply in the UK at the end of the transitional period (31 December 2020), resulting in major implications for anyone supplying chemicals into the EU or UK, as well as those further down the supply chain who buy and use chemicals.

Whether you are a manufacturer, importer or distributor of chemical products, our roadmap will assist you in preparing for the new regulations. Additionally, join Team SPB live during our Talk to the Experts forum on Tuesday 8 October at 14.00 (BST), as we explore the critical regulatory steps you should take in trading with the UK or EU, to ensure you can continue to do so.

Download Roadmap ➡️ https://bit.ly/33WK2hg

Attend Virtual Discussion ➡️ https://bit.ly/3cMZTTt


Prop 65 Victory For Chemical Industry In Monsanto Case Has Been Appealed

On June 22, Judge William B. Shubb of the US District Court for the Eastern District of California granted Monsanto’s motion for summary judgment and imposed a permanent injunction on the enforcement of Proposition 65 for glyphosate (the active ingredient in Roundup) in the closely followed case National Association of Wheat Growers v. Becerra.  The ruling was important to many in the chemicals and agricultural world, and we provided an Expert Analysis of the district court decision in Law360.

However, as we expected, the California Attorney General appealed the decision to the Ninth Circuit Court of Appeals on September 9, 2020 (Case No. 20-16758), with the main issue on appeal being whether the First Amendment bars the State of California from requiring a Prop 65 Warning.

While mandatory to file, the Attorney General’s September 17, 2020 Mediation Questionnaire provides that he “believes the content and method of delivering such a [Prop 65] warning are both issues susceptible to a mediated resolution.”  This may mean the Attorney General could be considering a mediated agreement in the case if possible.  As we stated in our Law360 analysis, if the district court decision is upheld in the Ninth Circuit, it will set a significant precedent in the Prop 65 world and deal a huge blow to the State of California.

For now, we must wait while the parties go through the appeals process.  We will continue to monitor this case to its final resolution and provide reader updates.

Revised UK REACH Roadmap: Are You Ready For the New UK Chemical Regulation?

gavelAt the end of the transitional period, on 31 December 2020, the chemical regulation EU REACH will cease to apply in the UK. This will automatically invalidate EU REACH registrations and authorisations held by UK companies. A stand-alone UK chemical regulation UK REACH will replace EU REACH in the UK. UK-based EU REACH registrants, therefore, need to transfer their registrations and authorisations to an EU-27/EEA legal entity, if they want to retain them.  UK companies who manufacture or import chemicals will also need to ensure they have valid registrations under the new UK REACH regime.

The change to UK REACH will impact different supply chains in different ways, and the best solutions will also be very specific to those supply chains, for example, whether an “only representative” will be appointed to remove the burden from new UK importers. All potentially affected companies should review supply chains to identify the possible roles to be played by each “actor”; under UK and EU REACH to ensure the supply chain can continue to function smoothly and/or what adjustments may be necessary, or commercially sensible.

Anita Lloyd and Dave Gordon provide readers with updated insights on what this means in practice and the steps affected companies need to take, and by when, in their analysis available here.