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Environmental and Energy Brief
Perspectives for the Environmental and Energy Community
U.S. Department of the Interior Bureau of Ocean Energy Management Proposes Update for Offshore Renewable Energy Regulations
On January 10, 2023, the Department of the Interior (DOI) Bureau of Ocean Energy Management (BOEM) signed a Notice of Proposed Rulemaking (NOPR) regarding an update to the regulations governing the development of offshore wind energy on the Outer Continental Shelf (OCS) in an effort to modernize the existing regulations and facilitate development to meet the U.S. climate and renewable energy objectives. The existing regulations for leasing and managing OCS renewable energy activities were promulgated by the Minerals Management Service (BOEM’s predecessor) on April 29, 2009 (as authorized by the Energy Policy Act of 2005 and the OCS Lands Act).
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Marissa Prieto
Sarah Tucker
Washington, D.C.
stucker@sidley.com
EPA Proposes Enforcement Initiatives Addressing PFAS, Climate Change, and Environmental Justice
On January 19, 2023, the U.S. Environmental Protection Agency (EPA) published a Notice soliciting public comment on its proposal to add environmental justice, climate change, and per- and poly-fluoroalkyl substances (PFAS) contamination to its National Enforcement and Compliance Initiatives (NECIs) for the 2024–2027 fiscal year cycle.
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Timothy K. Webster
Washington, D.C.
twebster@sidley.com
Greta T. Carlson
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
FERC Opens 2023 With Leadership Transition
Former U.S. Federal Energy Regulatory Commission (FERC or the Commission) Chairman Richard Glick has officially departed the independent Commission after failing to secure a reconfirmation hearing before the Senate in December 2022. Glick’s departure leaves the Commission with a 2–2 split between Democrats and Republicans that could stall a number of major initiatives that were ongoing under the former Chairman and the Commission’s Democratic majority.
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Karl Pielmeier III
Sarah Tucker
Washington, D.C.
stucker@sidley.com
EPA Publishes Extensive Guidance on Agency Authority to Address Cumulative Impacts
On January 11, 2023, the U.S. Environmental Protection Agency (EPA) issued guidance on the agency’s legal tools to address cumulative impacts. In “EPA Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum,” (“Cumulative Impacts Guidance” or “Cumulative Impacts Addendum”), the agency set forth a host of legal authorities that it believes it and other stakeholders can use to address the cumulative effect of pollutants on overburdened communities. While EPA was careful to note that the guidance does not have any legal force, the document suggests numerous ways that EPA might seek use legal process to address cumulative impacts. Stakeholders need to be aware of this guidance because EPA’s broad interpretation of its authority to address cumulative impacts could affect the full range of agency action from permitting to enforcement to project siting to cleanup decisions and more.
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Jack Raffetto
Washington, D.C.
jraffetto@sidley.com
Nicole E. Noëlliste
Washington, D.C.
nnoelliste@sidley.com
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Third Circuit Rejects Challenges to Decades-Old Consent Decree
On January 6, 2023, the U.S. Court of Appeals for the Third Circuit rejected several challenges to a consent decree (CD) originally entered in 1996. United States v. Brace et al. involved conduct on defendant’s farm that allegedly violated the 1996 consent decree. Defendant argued that the CD was unenforceable because it was ambiguous and that a government official had approved of the allegedly violative actions. The Third Circuit rejected these arguments and upheld the district court’s ruling that defendant had violated the CD.
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Jack Raffetto
Washington, D.C.
jraffetto@sidley.com
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
EPA Publishes Principles to Address Environmental Justice in Air Permitting
On December 22, 2022, the U.S. Environmental Protection Agency’s (EPA or the Agency) Office of Air and Radiation (OAR) published a memorandum, which outlines “an interim operating framework” to OAR division directors in all EPA regions “for identifying, analyzing, and addressing environmental justice concerns in Clean Air Act (CAA) permitting” (Guidance).
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Nicole E. Noëlliste
Washington, D.C.
nnoelliste@sidley.com
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
J. Simone Jones
Washington, D.C.
jsimone.jones@sidley.com
EPA Amends All Appropriate Inquiries Rule
On December 15, 2022, the U.S. Environmental Protection Agency (EPA) published a Final Rule to amend its All Appropriate Inquiries (AAI) Rule. The AAI Rule is the EPA regulation that sets the process for conducting an inquiry into a property’s environmental conditions in order to obtain protections from liability under the federal Superfund Law, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The amended rule updates the reference to the latest American Society for Testing and Materials (ASTM) E1527-21 Standard Practice as one method for conducting a Phase I Environmental Site Assessment (Phase 1 ESA) that would satisfy EPA’s AAI requirements. The rule takes effect on February 13, 2023 — but allows a one-year transition before EPA will no longer accept the former ASTM Phase I ESA standard (E1527-13) as meeting the AAI requirement.
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Rob Abrams
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Allison H. In
Jack Raffetto
Washington, D.C.
jraffetto@sidley.com
Maureen M. Crough
New York
mcrough@sidley.com
2022 Sidley Energy Enforcement Update
This Sidley Energy Enforcement update covers:
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Jimmie Zhang
Sarah Tucker
Washington, D.C.
stucker@sidley.com
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Samuel B. Boxerman
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Terence T. Healey
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Brooklyn Hildebrandt
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Nicole E. Noëlliste
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Hannah Posen
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Jack Raffetto
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