Tag Archives: rulemaking

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 … Continue Reading

Reforming Cost-Benefit Calculations under Circular A-4: Implications for Environmental Rulemaking

Would you rather pay your bills tomorrow or next year?  What about your paycheck?  Intuitively, most people want delayed costs and immediate benefits, and so want checks now and liability later.  This poses a challenge for policymakers when weighing the costs and benefits of a new policy: is reasonable to pay 90 cents today for … Continue Reading

The Automotive Recall Landscape in the US

As automotive technologies evolve, particularly in regard to autonomous vehicles (AVs), legislators struggle to keep pace. The lack of a binding legislative framework for AVs leaves regulators on their own in determining if and how to establish new safety standards. Here, we provide a general overview of recent legislative efforts, the National Highway Safety Administration’s … Continue Reading

US EPA’s Submission of Reconsidered Fugitive Emissions Rule Signals Movement Forward on Agency Air Permitting Initiatives

While the US has begun considering the implications of the US Supreme Court’s monumental June 28, 2022 opinion addressing air emissions from power plants, without much fanfare US EPA sent a proposed rulemaking to the White House Office of Management & Budget (OMB) for pre-publication interagency review that could be significant for “major source” air … Continue Reading

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

On 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 … Continue Reading

Heavy-Duty Truck and Engine Regulation by US EPA and CARB: Agency Rulemaking in the COVID-19 Era

The US Environmental Protection Agency (US EPA) and the California Air Resources Board (CARB) are proceeding with development of proposed rules for on-road heavy-duty vehicle and engine regulation. As previously covered in our blog, US EPA and DOT already issued a final rule in early April rolling back greenhouse gas emission (GHG) standards in the … Continue Reading

US EPA Offers Advice to NPDES Permittees on Documenting COVID-Related Noncompliance While Environmental Groups Seek More Stringent Reporting Requirements

On March 26, 2020, US EPA issued a temporary policy regarding enforcement of routine monitoring, recordkeeping, and reporting violations caused by the COVID-19 pandemic.  As discussed in an earlier blog post, US EPA’s temporary policy sets out the Agency’s overall policy to exercise of enforcement discretion during the COVID-19 pandemic and generally not seek penalties … Continue Reading

It Has Been A Busy Year For the TSCA Risk Assessment Process

As 2019 moves into its closing months, US EPA activity under the amended Toxic Substances Control Act (TSCA) remains front and center.  As part of US EPA’s three-step process of prioritization, risk evaluation and risk management for existing chemicals, as we previously reported, EPA began in 2016 by identifying the first ten chemicals for  risk … Continue Reading

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

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 … 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

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

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 Revises RCRA Definition of Solid Waste Rule to Comport with D.C. Circuit Rulings

On May 30, 2018, US EPA issued a final rule to revise the regulations associated with the 2015 Definition of Solid Waste (DSW) Rule.  US EPA performed this rulemaking to bring the regulations in line with the D.C. Circuit’s 2017 and 2018 rulings in American Petroleum Institute v. EPA (Case No. 09-1038), which vacated and … Continue Reading

Groups Request Comment Period Extension on US EPA’s Proposed Rule Banning the Use of “Secret Science”

US EPA announced on April 24, 2018 that EPA Administrator, Scott Pruitt, had signed a proposed rule to strengthen the science used in regulations issued by US EPA. The proposed rule, “Strengthening Transparency in Regulatory Science,” was published on April 30, 2018 and would require that – where scientific studies are pivotal to US EPA’s regulatory action … Continue Reading

US EPA Proposes New Toxic Substances Control Act Fee Rule

On February 26, 2018, the US Environmental Protection Agency (US EPA) formally issued its proposed rule to charge new “user fees” under the amended Toxic Substances Control Act (TSCA).  The amended TSCA authorizes US EPA to charge fees for a variety of activities under TSCA sections 4, 5 and 6, totaling up to 25% of … Continue Reading

D.C. Circuit Holds US EPA Cannot Stay Implementation of Methane Rule Issued by Obama Administration

On July 3, 2017, the US Court of Appeals for the D.C. Circuit vacated US EPA’s decision to stay implementation of portions of a final rule concerning methane and other greenhouse gases.  In Clean Air Council v. Pruitt, a three-judge panel held that US EPA lacked authority under the Clean Air Act to stay the … Continue Reading

D.C. Circuit Strikes Down Portions of the RCRA Definition of Solid Waste Rule

On July 7, 2017, the D.C. Circuit Court of Appeals issued a decision striking down portions of US EPA’s Definition of Solid Waste (DSW) Rule, which defines when certain hazardous secondary materials (i.e. recyclable materials generated as the remainder of industrial processes) become “discarded” and thus subject to regulation as a solid waste.  The Rule, … Continue Reading

State Attorneys General Join Fight Over “1-in 2-out” Trump Executive Order

Attorneys General from 14 states—led by West Virginia and Wisconsin—filed an amicus brief on April 17 in support of the “1-in 2-out” Executive Order (EO) issued by President Trump.  This EO, which we have covered previously, requires that: For every new regulation promulgated, two regulations are eliminated; Any new incremental costs associated with new regulations … Continue Reading

US District Court Strikes Down BLM Rule for Hydraulic Fracking on Federal and Tribal Land

On June 21, 2016, the US District Court for the District of Wyoming set aside the US Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on federal and Native American lands, finding that BLM lacked Congressional authority to promulgate the regulations.  “Congress has not delegated to the Department of Interior the authority to regulate … Continue Reading

US Mine Safety and Health Administration Holds Stakeholders’ Meeting to Discuss Safety, Compliance, and Next Steps

On May 12, 2016, the US Mine Safety and Health Administration (MSHA) held a stakeholders’ meeting entitled “Improving Compliance: Reemphasizing Rules to Live By and the Exam Rule.”  The meeting discussed the current status of safety and compliance in the mining industry and future plans that MSHA has for outreach and enforcement of safety standards.  Key points … Continue Reading

Industry and Environmental Groups Seek Judicial Review of US EPA’s Cooling Water Intake Structure Rule

As expected, in the wake of the US EPA’s finalization of the cooling water intake structure rule, several groups filed lawsuits regarding the proposed rules. Cases were filed by environmental and industry groups in the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits. In the initial round of filings, industry groups focused on whether the minimum … Continue Reading

Congress and State Officials Increase Scrutiny of US EPA “Sue and Settle” Rulemaking

Fed up with USEPA’s “sue and settle” rulemaking tactics, the regulated community’s complaints have resulted in increased scrutiny of the practice by members of Congress and state officials and has even resulted in recent litigation.  Our prior article details the specifics of USEPA’s “sue and settle” rulemaking practices, but in essence, it is where USEPA has been sued (or threatened … Continue Reading
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