On February 7, 2024, the U.S. Environmental Protection Agency (EPA) issued a final rule under the Clean Air Act lowering the primary (health-based) annual National Ambient Air Quality Standard (NAAQS) for fine particulate matter 2.5 micrometers in diameter or smaller (PM2.5) from 12 to 9 micrograms per cubic meter (µg/m3). EPA asserts that the stricter standard is based on scientific evidence showing that the current PM2.5 standard (12 µg/m3), which was established in 2012 and retained in 2020, does not sufficiently protect human health. According to EPA, based on air monitoring data from 2020-22, 119 counties would not meet the new standard of 9 µg/m3.
On February 9, 2024, the U.S. Army Corps of Engineers (Corps) published a proposed rule that would amend the Corps permitting regulations to follow the National Historic Preservation Act (NHPA) implementing regulations as developed interpreted by the Advisory Council on Historic Preservation (ACHP). Specifically, the Corps proposes removing its own NHPA regulations, Appendix C from 33 CFR part 325, and replacing them with those promulgated by the ACHP at 36 CFR part 800. This change may lengthen the regulatory review process and expand the scope of the Corps’ NHPA review.
The Environmental Protection Agency (EPA or the Agency) is proposing to expand its authority under the Resource Conservation and Recovery Act (RCRA), including to extend its corrective action powers over an additional list of per- and polyfluoroalkyl substances (PFAS). Specifically, as part of the EPA PFAS Strategic Roadmap, EPA has prioritized development of a framework to regulate PFAS. In the June 2023 Spring Unified Agenda of Regulatory and Deregulatory Actions (Agenda), which lists federal agencies’ planned “short-term” and “long-term” regulatory actions, EPA included the short-term action of a proposed rule listing certain PFAS as hazardous constituents under RCRA.
On Wednesday, January 25, 2024, the U.S. District Court for the Northern District of California dismissed a challenge to a 2020 rule by the Environmental Protection Agency (EPA) revising regulatory requirements for water quality certification under Section 401 of the Clean Water Act. That rule came under challenge by environmental groups and Democratic-led states and was initially vacated by the district court but then reinstated by the Ninth Circuit in 2023 and remanded to the district court for additional review. However, on September 27, 2023, EPA promulgated a new rule that superseded the 2020 rule and replaced it with new Section 401 requirements, rendering challenges to the 2020 rule moot. Even as this 2023 rule is being challenged, the court stated that at present, there is no longer a pending controversy as to which effective relief can be granted. But because the 2020 rule was dismissed without prejudice, the court stated that if the 2023 rule is enjoined and the 2020 rule were to be resurrected, plaintiffs can reinitiate their challenge. Additional information on the issue is provided in prior posts on the vacatur here and 2023 rule here.
On Tuesday, January 23, 2024, the U.S. District Court for the Western District of Louisiana granted a preliminary injunction filed by the State of Louisiana seeking to halt the efforts of the Environmental Protection Agency (EPA) in imposing disparate impact-based mandates under Title VI of the Civil Rights Act in permitting decisions. The state contends that Title VI prohibits only intentional discrimination and, as a result, EPA’s disparate-impact regulations in 40 C.F.R. §§ 7.10-180 are an unlawful attempt by EPA to impose its environmental justice policy goals in official permitting decisions. According to Louisiana, EPA’s efforts to advance disparate impact-based mandates without explicit statutory authorization runs afoul of the major questions doctrine, which requires agencies to act in accordance with explicit congressional mandate for matters of major political or economic significance.
On January 11, 2023, the Department of Transportation (DOT) announced $623M in grants to expand electric vehicle (EV) charging infrastructure. The grants are part of the Infrastructure Investment and Jobs Act’s Charging and Fueling Infrastructure Discretionary Grant Program and have been made available to fund 47 EV charging and alternative fueling infrastructure projects in 22 states and Puerto Rico. Ranging from $500,000 to about $68.3M, 36 of the grants were awarded to EV charging and hydrogen fueling “community” projects in rural and urban communities, while the remaining 11 grants were awarded to “corridor” projects focused on fueling along roadways to assist in establishing national EV charging and alternative fueling networks.
Join Sidley for the Environmental Law Institute’s People Places Planet Podcast series, “The Enforcement Angle.” Through this series, Sidley partners discuss state and federal enforcement of environmental laws and regulations with senior enforcement officials and thought leaders on environmental enforcement in the United States and globally. The featured guests offer their insights into the challenging environmental issues facing corporations today. (more…)
The U.S. Environmental Protection Agency (EPA) released a draft of its final oil and gas methane rule on December 2, 2023. It may be some time before the final rule is officially published in the Federal Register, starting the clock on the rule’s compliance obligations. Interested parties will need that extra time to fully digest the 1,690-page draft final rule, which addresses methane emissions from new (in subpart OOOOb) and existing sources (in subpart OOOOc). Here are some of the rule’s key aspects to consider. (more…)