Presidential Exemption for Certain Stationary Sources of Air Pollution
The Environmental Protection Agency (EPA) has opened an electronic mailbox to allow regulated sources to request a Presidential Exemption under section 112(i)(4) of the Clean Air Act (CAA) from nine National Emission Standards for Hazardous Air Pollutants (NESHAPs) that EPA is reconsidering (see table below) across the energy, manufacturing, and chemical sectors.
The Future of Environmental Review of Federal Permitting Remains Unsteady as White House Seeks to Rescind NEPA Regulations
On February 19, 2025, the Council on Environmental Quality (CEQ) submitted a proposed Interim Final Rule rescinding its regulations implementing the National Environmental Policy Act (NEPA). The Rule will become effective 45 days after its publication in the Federal Register, marking the end of nearly 50 years of CEQ regulations serving as the foundation for federal environmental reviews. This Interim Rule comes right at the deadline set by President Trump’s Executive Order (EO) 14154—Unleashing American Energy—which rescinded CEQ’s authority to issue NEPA regulations and revoked President Carter’s EO 11991, which had originally directed CEQ to promulgate implementing regulations.
President Trump’s Executive Order Seeks to Reduce Federal Regulation
President Trump’s January 31, 2025, Executive Order (EO) titled “Unleashing Prosperity Through Deregulation,” is a part of the new Administration’s broader policy to reduce federal regulation. The EO finds that federal regulations impose significant costs and complexities on American citizens and businesses that hinder economic growth, innovation, and global competitiveness – and it is the Administration’s policy to alleviate these burdens. This marks a policy change from the approach of the prior administration and is a broader effort than the regulatory reforms of the first Trump Administration.
EPA Announces List of Manufacturers Subject to Fees for Chemical Substances Under the Toxic Substances Control Act
On December 31, 2024, the U.S. Environmental Protection Agency (EPA or the Agency) published a determination in the Federal Register announcing the availability of preliminary lists of manufacturers of five chemical substances designated as “High-Priority Substances” under Section 6 of the Toxic Substances Control Act (TSCA). The manufacturers — including importers — of these chemical substances will be subject to fees and reporting requirements under TSCA’s implementing regulations.
U.S. Environmental Protection Agency Amends New Chemicals Review Process Under Toxic Substances Control Act
On December 18, 2024, the U.S. Environmental Protection Agency (EPA) published a final rule modifying regulations governing the new chemicals review process under the Toxic Substances Control Act (TSCA) (Final Rule). As amended by the 2016 Lautenberg Amendments, TSCA Section 5 establishes prior notice requirements before a new chemical can be manufactured or an existing chemical can be used in new ways.[1] The Final Rule updates EPA practices guiding its review of exemptions and safety determinations, as well as a submitter’s request to start manufacturing, and aligns the implementing regulations with the 2016 amendments.
EPA Appeals Dismissal of Suit Against eBay
On November 26, 2024, the United States, on behalf of the U.S. Environmental Protection Agency (EPA), appealed a district court decision dismissing the government’s claims that eBay violated the Clean Air Act (CAA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Toxic Substances Control Act (TSCA).
EPA Publishes First-Of-Its-Kind Framework for Considering Cumulative Impacts Across Agency Actions
On November 21, 2024, the U.S. Environmental Protection Agency (EPA) published Notice of a newly developed draft framework intended to provide all EPA programs with a shared reference point for determining when and how to analyze or consider cumulative impacts—defined broadly to include the totality of exposures to combinations of environmental stressors and their effects on health and quality-of-life outcomes. Keeping pace with the Biden administration EPA’s environmental justice drive, key goals of the Interim Framework for Advancing Consideration of Cumulative Impacts include empowering EPA to (1) more fully and accurately characterize the realities communities face, (2) pinpoint the levers of decision making and identify opportunities for interventions that improve health and quality of life while advancing equity, and (3) increase meaningful engagement, improve transparency, and center actions on improving health and environmental conditions in communities.
U.S. EPA Removes Regulatory Affirmative Defense Provision Against Alleged Violations of Oil and Gas Facility NESHAPs
On October 22, 2024, the U.S. Environmental Protection Agency (EPA) published a final rule removing an affirmative defense from Clean Air Act (CAA) National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations for the Oil and Natural Gas Production Facility and Natural Gas Transmission and Storage Facility Source Categories (Final Rule).[1] Prior to the Final Rule, owners or operators could assert an affirmative defense that alleged NESHAP standard violations were caused by an equipment malfunction.[2] A “malfunction” is defined as any sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner.[3]
EPA Issues Final Rule for Major Source Reclassification Under Clean Air Act Section 112
On Tuesday, September 10, the U.S. Environmental Protection Agency (EPA) issued a final rule establishing requirements for major sources of hazardous air pollutants — sources that emit or have the potential to emit 10 tons per year of a single hazardous air pollutant or 25 tons per year of a combination of hazardous air pollutants — that reclassify as area sources below these thresholds. Reversing a rule adopted during the Trump administration, the rule provides that sources emitting any of the seven persistent and bioaccumulative hazardous air pollutants listed under Section 112(c)(6) of the Clean Air Act must continue to comply with major source standards even if otherwise reclassified as area sources. As a result, reclassified sources will still be subject to maximum achievable control technology standards rather than less stringent standards applicable to area sources. In so doing, EPA maintains that at least 90% of the cumulative emissions of these pollutants will be subject to National Emission Standards for Hazardous Air Pollutants (NESHAP) regardless of future source reclassifications.
Recent Developments in U.S. EPA’s Hydrofluorocarbon Phasedown
There have been several recent developments in enforcement, litigation, and regulatory implementation of the U.S. Environmental Protection Agency (EPA) phasedown of hydrofluorocarbons (HFCs).