EPA Launches Investigation under Title VI of the Civil Rights Act
Under the Biden Administration, the U.S. Environmental Protection Agency (the “EPA” or the “Agency”) has announced the advancement of environmental justice and civil rights as an Agency goal. For fiscal years 2022–2026, the Agency has included in its FY 2022 – FY 2026 EPA Strategic Plan (“Strategic Plan”) the objective to promote environmental justice and civil rights at the federal, tribal, state, and local levels. Within that plan, the EPA noted that the Agency “ha[s] already seen an increase in external civil rights cases being referred to the EPA, and…are investigating them to ensure that recipients of EPA dollars do not discriminate based on race, color, national origin, sex, disability, age, or retaliation.” (more…)
EPA Releases Equity Action Plan to Advance Environmental Justice and Civil Rights
On April 14, 2022, U.S. Environmental Protection Agency (EPA or the Agency) released an Equity Action Plan, in accordance with Executive Order 13985, which directs EPA and other federal agencies to develop a plan to address barriers faced by underserved communities regarding full and equal participation in the Agency’s programs and procurement and contracting opportunities. Within the Equity Action Plan, EPA identifies six agency priority actions: (more…)
Council on Environmental Quality Partially Restores National Environmental Policy Act Provisions
The U.S. Council on Environmental Quality (CEQ) published a Final Rule regarding implementing regulations of the National Environmental Policy Act (NEPA) on Wednesday, April 20. As anticipated, the CEQ’s final version is nearly identical to the earlier Proposed Rule and revises three separate NEPA provisions that CEQ identified as posing significant near-term interpretation or implementation challenges for federal agencies. These three provisions include purpose and need, 40 C.F.R. § 1502.13; agency NEPA procedures, 40 C.F.R. § 1507.3; and the definition of “effects” or “impacts.” Ultimately, CEQ’s Final Rule abandons revisions the agency made to NEPA regulations in 2020 and returns certain aspects of NEPA review to the former approach. CEQ noted that this revision is the first of two phases, so additional NEPA regulatory revisions are expected later this year. (more…)
Supreme Court Lifts Stay of Trump-Era Clean Water Act Section 401 Certification Rule
On Wednesday, April 6, the U.S. Supreme Court stayed an order from the U.S. District Court for the Northern District of California vacating and remanding a 2020 rule from the Environmental Protection Agency (EPA) narrowing the ability of states and tribes to block infrastructure projects that discharge into waters of the United States under Section 401 of the Clean Water Act. (more…)
National Highway Traffic Safety Administration Finalizes Model Year 2024-26 Vehicle Fuel Economy Standards
On Friday, April 1, the National Highway Traffic Safety Administration (NHTSA) announced its final fuel economy standards for model year 2024-26 vehicles. The final rule increases vehicle efficiency requirements, as represented through vehicle-footprint-based targets, 8% annually for model years 2024 and 2025 and 10% for 2026, which the agency concludes represents the maximum feasible level manufactures can achieve for these model years. NHTSA predicts that the new standards will yield an industrywide average fuel economy of approximately 49 miles per gallon for model year 2026 passenger cars and light trucks, which represents an increase of 10 miles per gallon over model year 2021. (more…)
EPA Proposes “Good Neighbor” Plan Addressing Regional Ozone Transport for the 2015 Ozone National Ambient Air Quality Standard
On April 6, 2022, the U.S. Environmental Protection Agency (EPA) is scheduled to publish its proposed Federal Implementation Plan Addressing Ozone Transport for the 2015 Ozone National Ambient Air Quality Standards (NAAQS), otherwise known as the latest iteration of EPA’s Cross-State Air Pollution Rule or “Good Neighbor” Plan. The proposal would subject 26 upwind states to the “good neighbor” or “interstate transport” provision of the Clean Air Act because EPA is proposing to find that nitrogen oxide (NOx) emissions, which are a precursor to ozone formation, from the upwind states significantly contribute to downwind states’ attaining and maintaining the 2015 ozone NAAQS.
EPA Revokes Pruitt’s Anti–“Sue and Settle” Policy
On March 25, 2022, EPA Administrator Michael Regan issued a memorandum titled “Consent Decrees and Settlement Agreements to Resolve Environmental Claims Against the Agency” (the Memorandum). The Memorandum revokes the memo and directive issued by former administrator Scott Pruitt, who had sought to foreclose a practice described by some as “sue and settle,” whereby groups would file a lawsuit that would be resolved by a settlement with EPA that would lead to new regulatory policies. (more…)
EPA Poses Questions to New St. Croix Refinery Owners to Make Prevention of Significant Deterioration Permit Determination
On March 22, 2022, the U.S. Environmental Protection Agency (EPA) sent a letter to the West Indies Petroleum Limited and Port Hamilton Refining and Transportation LLLP, the new owners of the St. Croix refinery (Refinery). The letter addresses permitting requirements for the Refinery under the Clean Air Act’s Prevention of Significant Deterioration (PSD) regulations — and offers insight into the agency’s current practice for evaluating PSD requirements when a source seeks to restart a permitted facility. (more…)
EPA Notifies Plastics Container Industry of Potential Presence of PFAS and TSCA Compliance Requirements
On March 16, 2022, the U.S. Environmental Protection Agency (EPA) notified the fluorinated high-density polyethylene (HDPE) industry in a letter that per- and polyfluoroalkyl substances (PFAS) could be formed in HDPE containers or similar plastics as a byproduct, which may trigger notification requirements under the Toxic Substances Control Act (TSCA) and be a violation of TSCA as contamination. (more…)
EPA Proposes to Adopt New American Society for Testing and Materials Standard, Including PFAS, for CERCLA Phase I All Appropriate Inquiry
On March 14, 2022, the U.S. Environmental Protection Agency (EPA) issued a proposed and direct final rule, which adopts the E1527-21 standard issued by the American Society for Testing and Materials (ASTM), for All Appropriate Inquiries (AAI) required under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (more…)