The Federal Energy Regulatory Commission (FERC) announced on March 24, 2022, that it will delay enacting any changes to its existing policies on the authorization or certification of interstate natural gas pipeline infrastructure under Sections 3 and 7 of the Natural Gas Act. Two policy statements FERC issued on February 18, 2022, in Docket No. PL18-1 and Docket No. PL21-3 (collectively, the 2022 Certificate Policy Statements) have now been deemed “drafts” that are subject to further comment. Initial comments will be due on April 25, 2022, with reply comments due on May 25, 2022. One of the two policy statements, which had been deemed “interim” but given immediate legal effect on February 18 prior to being relabeled a “draft” on March 24, had an initial comment date of April 4, 2022, which has now been extended to the aforementioned dates. Sidley provided a detailed summary of the changes implemented in the 2022 Certificate Policy Statements in a prior client alert and Energy Brief. (more…)
On February 18, 2022, the Biden administration launched two tools to address environmental justice.
Environmental Justice Screening and Mapping Tool (EJSCREEN) 2.0
The Environmental Protection Agency (EPA or Agency) announced EJSCREEN 2.0, an update to the mapping tool, which the Agency uses to identify areas that may have higher environmental burdens and vulnerable populations. EPA uses EJSCREEN to inform several Agency functions, including permitting, enforcement, outreach, and compliance. (more…)
On February 18, 2022, the Federal Energy Regulatory Commission (“FERC”) announced for the first time that it will consider a proposed natural gas infrastructure project’s impact on climate change as part of its public interest determination under sections 3 and 7 of the Natural Gas Act (“NGA”). A proposed project’s environmental effects, including reasonably foreseeable greenhouse gas emissions that may be attributable to the project and the project’s impact on environmental justice communities, now will become part of FERC’s balancing test for whether a project is: (1) required by the public convenience and necessity (“PCN”) under NGA section 7; (2) or in the public interest under NGA section 3. FERC’s prior PCN policy prioritized economic factors to define public need. Environmental effects, while considered under the NGA, were addressed primarily under the National Environmental Policy Act (“NEPA”). (more…)
On February 8, 2022, U.S. Environmental Protection Agency (EPA) Administrator Michael Regan announced the appointment of Robin Morris Collin as Senior Advisor of Environmental Justice to the Administrator. This appointment is the most recent agency action in the EPA-wide effort to prioritize environmental justice. According to EPA, “Collin will advise Administrator Regan as the Agency works to advance environmental justice and civil rights in communities that continue to suffer from disproportionately high pollution levels, including low-income communities and communities of color.” (more…)
On Monday, February 7, the U.S. District Court for the Eastern District of Michigan denied in part a professional engineering company’s motion for summary judgment in Walters et al. v. Flint et al., part of the ongoing Flint water litigation. Plaintiffs in the litigation sought to hold the engineering company, which has served as a water engineer for the City of Flint since at least 2011 and had been involved in discussing and planning the city’s possible switch of water source, liable for professional negligence based on the company’s failure to warn the city of its plan’s shortcomings or otherwise recommend corrective measures. (more…)
As part of its continued focus on per- and polyfluoroalkyl substances (PFAS) regulations, the U.S. Environmental Protection Agency (EPA) has added four PFAS substances to the Toxics Release Inventory (TRI) list, including PFBS (perfluorobutane sulfonic acid) and potassium perfluorobutane sulfonate as well as two compounds listed at by their chemical identifier numbers — CASRN 65104-45-2 and CASRN 203743-03-7. (more…)
On January 20, the U.S. Environmental Protection Agency (EPA) Office of Enforcement and Compliance Assurance (OECA) released its annual enforcement results for fiscal year 2021. OECA’s report provides some indication of the Biden EPA’s priorities for enforcement. Notably, OECA secured higher civil penalty amounts and financial commitments to injunctive relief in 2021 than in each of the previous four years, which supports the expectation that administrative enforcement actions in key priority areas will continue to increase during the Biden administration. (more…)
On January 5, 2022, the U.S. Environmental Protection Agency (EPA) released a draft Environmental Justice Action Plan. The Action Plan outlines measures that have been or will be implemented by EPA’s Office of Land and Emergency Management (OLEM) to address environmental justice (EJ) concerns in OLEM programs, including Superfund, emergency response, and risk management. (more…)
Todd Kim, Assistant Attorney General at the U.S. Department of Justice (DOJ) Environment and Natural Resources Division (ENRD), delivered remarks at the American Bar Association’s National Environmental Enforcement Conference on December 14, 2021. He provided insight into what DOJ plans to prioritize in environmental enforcement, centered on criminal enforcement, climate change, and environmental justice.
Kim emphasized that the purpose of enforcement is to ensure that businesses are properly incentivized to comply with the law through deterrence and to provide a level playing field, while protecting public health and the environment. He noted that DOJ has prioritized fighting corporate crime and is revising applicable polices, so ENRD will consider pursuing potential environmental and non-environmental crimes, as well as a business’s environmental and non-environmental track record in prosecution decisions.
Kim focused on methods of sector-wide enforcement, citing the Petroleum Refinery Initiative that involved settlements covering 112 refineries in 37 states since 2000. Kim also expressed an interest in more penetrating identification of all involved parties within a business, as well as in the full supply chain, where relevant. This focus could be especially impactful for importers of chemicals, pesticides, or wood products.
With these various tools in mind, Kim cited climate change and environmental justice as the two highest priority issues. For climate change, he indicated greater enforcement for air emissions from petrochemical plants and from facilities with refrigeration systems. For environmental justice, he provided a general assurance that ENRD is paying greater attention to potential violations in communities of color and low-income communities that may be disproportionately burdened by environmental hazards and harms.
On November 9, 2021, the U.S. Department of Justice (DOJ) announced its first environmental justice investigation under Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from discrimination on the basis of race, color, or national origin. DOJ announced that the investigation initiated by DOJ’s Civil Rights Division’s Federal Coordination and Compliance Section, with the support of the U.S. Attorney’s Office for the Middle District of Alabama, will focus on two issues. (more…)