U.S. EPA Bans Hydroflourocarbons in Refrigeration, Air Conditioning, and Heating Products
On October 5, 2023, the U.S. Environmental Protection Agency (EPA) issued a final rule restricting the use of hydroflourocarbons (HFCs) in new aerosol, foam, and refrigeration, air conditioning, and heat pump (RACHP) products and equipment. The rulemaking is part of the phasedown of HFCs under the American Innovation and Manufacturing Act of 2020. The final rule also establishes a process to submit technology transition petitions to restrict the use of HFCs in industry sectors in which they are used.
Federal Court Upholds U.S. Department of Labor ESG Rule
On September 21, 2023, Judge Matthew J. Kacsmaryk of the U.S. District Court of the Northern District of Texas rejected a challenge by 26 states and upheld the U.S. Department of Labor (DOL) rule that permits fiduciaries of plans subject to the Employee Retirement Income Security Act of 1974 (ERISA) to consider environmental, social, or governance (ESG) considerations under certain circumstances when making investment decisions. By upholding the rule, the court rejected the states’ contention that by allowing ESG considerations, financial interests would be subordinate to nonpecuniary interests. Stakeholders interested in ESG should continue to track this ruling, which may be appealed.
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:
Biden Administration Advances Overhaul of Regulatory Review Processes
On April 6, 2023, President Joe Biden signed an executive order (EO), “Modernizing Regulatory Review,” amending President Bill Clinton’s EO 12866, which has served as the foundation for regulatory review and analysis across administrations for nearly 30 years. The following day, the White House Office of Management and Budget (OMB) issued several related actions. These included proposed revisions to guidelines for benefit-cost analysis and processes for public participation in the regulatory review process.
Southern District of Texas Enjoins New Waters of the United States Rule
On March 19, 2023, in Texas et al. v. EPA, the United States District Court for the Southern District of Texas issued an order enjoining the Environmental Protection Agency (EPA) and Army Corps of Engineers Waters of the United States (WOTUS) Rule in the states of Idaho and Texas. The injunction went into effect just one day before the WOTUS Rule was set to become final. Texas represents the latest in the multidecade saga of seeking to define the term “waters of the United States” in the context of the Clean Water Act (CWA). Moreover, Texas is just one hurdle EPA’s new WOTUS Rule faces, with a pending Supreme Court case (Sackett v. EPA) and potential congressional action to block the rule both on the horizon.
Biden Administration Publishes Final Rule Redefining “Waters of the United States”
On January 18, 2023, the Biden administration published its Final Rule revising the definition of “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). Wetlands and waterways that meet the definition of WOTUS are protected by the CWA and subject to the U.S. Environmental Protection Agency’s and Army Corps of Engineers’ jurisdiction. However, the term is not defined in the statute. As such, the federal agencies’ interpretation of WOTUS determines which waters are subject to the CWA permitting requirements.
U.S. EPA Proposes New Risk Management Program Standards for Stationary Sources
On August 19, 2022, the U.S. Environmental Protection Agency (EPA) issued a proposed rule to revise Risk Management Program (RMP) standards for stationary sources using certain regulated substances under the Clean Air Act (CAA). EPA’s proposal marks the latest reconsideration of a rule issued under the prior administration, as directed by Executive Order 13990. The proposed changes include more stringent requirements for accident prevention, emergency preparedness, and public availability of information as well as regulatory clarifications, with climate change and environmental justice featured prominently as a basis for many proposed changes. Interested parties will have 60 days to comment on the proposed rule following publication in the Federal Register.
EU Corporate Sustainability Reporting Directive — What Do UK- and U.S.- Headquartered Companies Need to Know?
Non–EU companies with a significant presence in the EU or with securities listed on an EU-regulated market will become subject to new EU rules on corporate sustainability disclosures (the Corporate Sustainability Reporting Directive, or CSRD). The text of the CSRD has now been agreed by the EU institutions.1 CSRD is expected to become EU law later this year. Once implemented into the national law of EU member states, its requirements will be phased in from 2024.
FERC Proposes Changes to Filing Requirements for Natural Gas Act Rate Cases
At its May 19, 2022, Open Meeting, the Federal Energy Regulatory Commission (FERC or the Commission) announced a Notice of Proposed Rulemaking (NOPR) on potential changes as to how natural gas pipelines submit supporting statements, schedules, and workpapers when filing a Natural Gas Act (NGA) Section 4 rate case. (more…)
EPA Rescinds Trump-Era Civil Inspection Rule
On Thursday, December 30, 2021, the U.S. Environmental Protection Agency (EPA) issued a final rule rescinding a Trump-era rule that changed EPA procedures for on-site inspections. The Trump-era inspection rule converted EPA civil inspection practices into rules that must be applied in all civil inspections. The December 30 recission “restor[es] the flexibility needed when carrying out civil inspections under a myriad of circumstances” by allowing inspectors to respond to site-specific conditions on a case-by-case basis. (more…)
