On Friday, the White House Council on Environmental Quality (CEQ) rescinded draft guidance published by the Trump administration in June 2019 discussing how agencies should consider greenhouse gas (GHG) emissions when evaluating proposed major federal actions under the National Environmental Policy Act (NEPA). In that draft guidance, CEQ rescinded its 2016 Obama-era guidance and suggested that agencies may perform a more limited review of a project’s GHG emissions and impact on climate change, stating that “[a]gencies preparing NEPA analyses need not give greater consideration to potential effects from GHG emissions than to other potential effects on the human environment.” That draft guidance had further stated that agencies do not need to account for the “social cost of carbon” when quantifying the direct and reasonably foreseeable indirect greenhouse gas emissions from proposed actions.
On Wednesday, February 17, the California Governor’s Office of Business and Economic Development (GO-Biz) hosted a live streaming event to unveil its Zero-Emission Vehicle (ZEV) Market Development Strategy rolled out earlier this month. The 100-page strategy is one of the state’s first steps in implementing Democratic Gov. Gavin Newsom’s Executive Order N-79-20, signed on September 23, 2020, and discussed in a prior blog post, which sets ambitious targets phasing out new sales of internal combustion engine vehicles.
On February 18, 2021, the U.S. Federal Energy Regulatory Commission (FERC) reopened the comment period for its Notice of Inquiry (NOI) on the Certification of New Interstate Natural Gas Facilities. FERC applies its current policy, issued in 1999, to assess whether to issue interstate natural gas transportation facilities a Certificate of Public Convenience and Necessity (CPCN), a foundational permit required for their construction and operation. FERC must abide with its obligations under the Natural Gas Act and National Environmental Policy Act when considering pipeline certificate applications. FERC initially issued the NOI in April 2018, seeking comment on whether, and if so how, it should revise its approach to evaluating CPCN applications. The docket has been pending for nearly three years.
The U.S. Environmental Protection Agency (EPA) has approved, for the first time, a pesticide product for long-lasting efficacy claims (also called residual efficacy) against SARS-CoV-2, the novel coronavirus that causes COVID-19. Unlike standard disinfectants, “residual efficacy” products are continually efficacious against viruses or other microorganisms over a period of hours (or even months) rather than just at point of use. Based on efficacy data, EPA expects the product approved last week—antimicrobial copper alloy that contains at least 95.6% copper—to eliminate 99.9% of SARS-CoV-2 within two hours, on an ongoing basis. However, EPA has only approved antimicrobial copper alloy for supplemental residual efficacy claims; these are products that do not meet EPA’s standards for a disinfectant, but are intended to supplement the use of EPA’s List N disinfectants. (List N contains those products EPA has approved for limited claims of efficacy against the novel coronavirus.) Accordingly, antimicrobial copper alloy has been added to EPA’s List N Appendix, which catalogues those products approved for supplemental residual efficacy claims.
Last week, the U.S. Environmental Protection Agency (EPA) issued new guidance related to its policy on Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations (the Audit Policy), 65 Fed. Reg. 19618 (April 11, 2000). The new guidance, titled EPA’s Audit Policy Program: Frequently Asked Questions (the 2021 FAQ), provides an update to interpretive guidance from 1997, 2007, and 2015 for self-disclosure of potential noncompliance.
Earlier this month, the Acting Assistant Attorney General supervising the Environment and Natural Resources Division (ENRD) at the U.S. Department of Justice (DOJ) has issued a memorandum rescinding nine policy or guidance documents issued for ENRD over the past three years. The documents generally concerned enforcement priorities and discretion and payments to third parties as part of settlements. The memorandum cites Executive Order 13,990, signed by President Joe Biden on January 20, 2021, which directs agencies to review agency agencies that may conflict with a range of environmental goals.
On Monday, February 1, the U.S. District Court for the District of Montana vacated the Trump administration’s Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information rule. Published on January 5 and effective immediately, the rule established procedures for how the Environmental Protection Agency (EPA) would consider dose-response data underlying science used in its significant regulatory actions and influential scientific information. Opponents challenged the rule, arguing it would “cripple the Environmental Protection Agency’s ability to protect public health and the environment by fundamentally transforming the ways in which the agency may consider and rely on scientific evidence.” The vacatur follows a January 27 order suspending the rule because the court found EPA failed to justify why it made the rule effective immediately and questioned “whether EPA retains any legal basis to promulgate the Final Rule.” Following the order, EPA moved to vacate the rule, arguing that the previous administration lacked authority to issue it.
As Sidley previously reported, President Joe Biden issued an executive order (EO) on January 27 stating that “climate considerations shall be an essential element of United States foreign policy and national security.” The EO places environmental justice at the center of the wide-reaching climate plan, which creates a number of new positions and task forces intended to ensure climate change is being addressed by all parts of the federal government.