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Environmental and Energy Brief
Perspectives for the Environmental and Energy Community
U.S. Department of Transportation Publishes Final Rule on State Greenhouse Gas Performance Measures
On December 7, U.S. Department of Transportation Federal Highway Administration (FHWA) published a final rule providing state Departments of Transportation (DOTs) and Metropolitan Planning Organizations (MPOs) a national framework to track transportation-related greenhouse gas (GHG) emissions and set targets for reduction. The rule adds a new GHG performance management measure to the existing FHWA national performance measures and creates a system under which state DOTs and MPOs must set targets for reducing roadway travel GHG emissions. Stakeholders that contract with states to build infrastructure should take note of these new mandates.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Rob Abrams
U.S. Publishes Fifth National Climate Assessment
On November 14, 2023, the U.S. Global Change Research Program (USGCRP) published the Fifth National Climate Assessment. The National Climate Assessment (NCA) is a federal initiative formed under the Global Change Research Act of 1990, which requires a report to the President and the Congress every four years that integrates, evaluates, and interprets the findings of the USGCRP; analyzes the effects of global change on the natural environment, agriculture, energy production and use, land and water resources, transportation, human health and welfare, human social systems, and biological diversity; and analyzes current trends in global change and projects major trends for the subsequent 25 to 100 years. Before this NCA, four assessments were published (in 2000, 2009, 2014, and 2017).
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Jack Raffetto
Washington, D.C.
jraffetto@sidley.com
Rob Abrams
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.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Rob Abrams
Eric D. McArthur
Washington, D.C.
emcarthur@sidley.com
Daniel J. Feith
Washington, D.C.
dfeith@sidley.com
Peter Whitfield
Washington, D.C.
pwhitfield@sidley.com
Peter Bruland
Washington, D.C.
pbruland@sidley.com
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.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Jack Raffetto
Washington, D.C.
jraffetto@sidley.com
Rob Abrams
EPA Lists PFAS as “Chemicals of Special Concern” for Toxic Release Inventory Reporting
On October 31, the Environmental Protection Agency (EPA) issued a rule finalizing Toxic Release Inventory (TRI) data reporting requirements for per- and polyfluoroalkyl substances (PFAS), designating PFAS as “chemicals of special concern.” TRI data is reported by various industrial sectors to disclose to the surrounding community how listed chemicals are managed. Under this “chemicals of special concern” designation, PFAS are no longer eligible for the use of a de minimus exception, and, as a result, PFAS manufacturers must identify PFAS and notify downstream manufacturers of inclusion even if PFAS is used in low concentrations in such products as food packaging, carpet stain repellent, shampoo, dental floss, and nonstick cookware. Prior to this designation, PFAS inventories less than 100 pounds did not require reporting. This final rule is effective November 30, 2023 and applies for the reporting year beginning January 1, 2024 (reports due July 1, 2025).
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Brittany A. Bolen
Washington, D.C.
bbolen@sidley.com
Aaron L. Flyer
White House Announces Plan to Use Transportation Funding to Convert Commercial Properties Into Residential Use
On Friday, October 27, 2023, the White House announced an effort to utilize over $35 billion in federal assistance for affordable housing projects using funding appropriated under the Transportation Infrastructure Finance and Innovation Act and Railroad Rehabilitation & Improvement Financing programs. The White House, through the Department of Transportation, is now seeking to use these programs, which provide lending support for transit-oriented development projects at below-market interest rates, to convert properties no longer needed for transit into residential properties and develop residential properties near public transportation hubs. The White House suggests that these conversions and development projects will not only provide necessary affordable residential housing capacity but also reduce greenhouse gas emission by repurposing existing structures and siting residential housing projects near public transportation hubs.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Aaron L. Flyer
U.S. EPA Bans Hydrofluorocarbons 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 hydrofluorocarbons (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.
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Hannah Posen
Chicago
hposen@sidley.com
Brittany A. Bolen
Washington, D.C.
bbolen@sidley.com
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
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.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Justin A. Savage
Washington, D.C.
jsavage@sidley.com
Heather M. Palmer
Houston
hpalmer@sidley.com
Brittany A. Bolen
Washington, D.C.
bbolen@sidley.com
Nicole E. Noëlliste
Washington, D.C.
nnoelliste@sidley.com
Jack Raffetto
Washington, D.C.
jraffetto@sidley.com
Beth J. Dickstein
Chicago
bdickstein@sidley.com
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Samuel B. Boxerman
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Keturah A. Brown
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Grace Dickson Gerbas
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Terence T. Healey
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Kenneth W. Irvin
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Christopher J. Polito
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Casey Khan
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Michael L. Lisak
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Brittany A. Bolen
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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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