U.S. Fifth Circuit Reverses EPA’s Denial of Fuel Program Hardship Exemption for Refineries
In Calumet Shreveport Refining LLC v. EPA, Case No. 22-60266 (5th Cir. Nov. 22, 2023), the U.S. Court of Appeals for the Fifth Circuit struck down Environmental Protection Agency (EPA) denials of six small refineries’ petitions for hardship relief under the Clean Air Act Renewable Fuel Standard (RFS) program, holding that EPA used an “impermissibly retroactive” standard to deny the refineries’ petitions in violation of the Administrative Procedure Act. This ruling could serve as a basis for other refineries to challenge EPA’s retroactive denial of their hardship petitions — and provides support for similar petitions pending before the U.S. Court of Appeals for the D.C. Circuit.
U.S. EPA Publishes New Regulations Governing State Plans for Existing Sources of Emissions
On November 9, 2023, the U.S. Environmental Protection Agency (EPA) published implementing regulations that set timelines and other requirements for state plans to limit pollution from existing sources under Clean Air Act (CAA) Section 111. The amended provisions apply to all emissions guidelines published after July 8, 2019, and will affect the scope and pace of development of updated performance standards for existing facilities.
U.S. EPA Enforcement Office Issues a Climate Enforcement and Compliance Strategy Memorandum
On September 28, 2023, the U.S. Environmental Protection Agency (EPA) Office of Enforcement and Compliance Assurance (OECA) issued a memorandum outlining a Climate Enforcement and Compliance Strategy, identifying several steps the office plans to take to address climate change (the Strategy Memo). As part of the strategy, EPA plans to expand its efforts to address climate change by increased enforcement of rules governing greenhouse gas–forming pollutants and incorporating climate-related mitigation efforts, including renewable energy projects into settlements as mitigation or supplemental environmental projects. The Strategy Memo comes only a month after EPA issued its first-ever national enforcement and compliance initiative on climate change.
EPA Proposes Stricter Air Pollution Limits on Reclassified Area Sources
On September 21, 2023, the U.S. Environmental Protection Agency (EPA) published a notice of a proposed rule, “Review of Final Rule Reclassification of Major Sources as Area Sources Under Section 112.” The proposal adds requirements for regulated sources of hazardous air pollutants (HAPs) to reclassify from major source status to area source status under the National Emission Standards for Hazardous Air Pollutants (NESHAPs) program. Stakeholders who qualified under the revised policy adopted by the Trump administration should particularly take note of this further change by the Biden administration’s EPA. Comments are due by November 13, 2023.
EPA Issues Amendment to Waters of the U.S. Rule Following Sackett Decision
The U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), on August 29, 2023, issued a direct final rule amending the scope of “Waters of the United States” as defined in Clean Water Act (CWA) regulations. The final rule implements the U.S. Supreme Court’s recent decision in Sackett v. EPA, in which the Court held that only wetlands adjacent to Waters of the U.S. with a continuous surface connection to relatively permanent waters adjoining interstate navigable waters are to be regulated as jurisdictional waters.
U.S. EPA Memo Offers Direction on Lithium Battery Recycling—Essential to the Future Supply Chain for Battery Electric Vehicles
Lithium-ion batteries are commonly used in a wide variety of applications, from medical devices to laptops — and now, increasingly, in electric vehicles (EVs). With the market for personal and commercial EVs growing, it is essential for U.S. manufacturers to have a secure, reliable supply chain of the critical minerals needed to produce EV batteries, including lithium, cobalt, nickel, and copper. Indeed, a recent study highlights the growing demand for these minerals — and the challenges the U.S. faces to meet this demand from mined sources.
U.S. EPA Announces New Framework for Assessing New PFAS
On June 29, 2023, the U.S. Environmental Protection Agency (EPA) announced a framework for its approach to reviewing new per- and polyfluoroalkyl substances (PFAS) and significant new uses of existing PFAS. Stakeholders in sectors such as food packaging, textiles, semiconductors, and aerospace industries that continue to rely on PFAS compounds should take note. In general, EPA’s approval of new PFAS or new significant uses of existing PFAS may require additional testing — with substantial additional testing in some cases.
Spring 2023 Agenda Previews Continued U.S. Significant Environmental Regulatory Action
On June 13, 2023, the Biden administration released the 2023 Spring Unified Agenda of Regulatory and Deregulatory Actions (Agenda). The Agenda lists federal agencies’ planned “short-term” regulatory actions to be taken over the next 12 months and “long-term” actions under development. The dates listed in the Agenda are based on publication dates in the Federal Register. Stakeholders should take note, as the Agenda provides a window into the administration’s priorities and strategies:
U.S. EPA Finalizes Rule Limiting Confidentiality Designations Under the Toxic Substances Control Act
On May 31, 2023, the U.S. Environmental Protection Agency (EPA) finalized a rule designed to tighten confidential business information (CBI) designations in submissions under the Toxic Substances Control Act (TSCA). EPA has touted this rule as providing “transparency” and providing the agency leeway to make “more health and safety data publicly available more quickly.” Given the sensitive nature of the data often provided in TSCA submission, regulated entities should carefully consider the provisions of the new rule and what steps they must take to ensure that confidential information is not subject to public disclosure.
U.S. EPA Opens Public Comment on Funding for Zero-Emission Vehicles and Charging Infrastructure Under Inflation Reduction Act
The U.S. Environmental Protection Agency (EPA) issued, on May 5, 2023, a request for information seeking input on the availability of zero-emission technologies in the heavy-duty vehicle and port sectors toward establishing funding programs under the Inflation Reduction Act (IRA). EPA requests comment from manufacturers, distributors, installers, fleet operators, and port operators about their products and experience with zero-emission technologies.