The compromise – the Inflation Reduction Act of 2022 – was announced on July 27, 2022 by Senate Majority Leader Chuck Schumer (D-New York), and Sen. Joe Manchin (D-West Virginia), and by a 51:50 party-line vote survived the August 6-7 “vote-a-rama” gauntlet in the full Senate. Calling it the “single biggest climate investment in U.S. history,” with a goal of reducing carbon emissions in the U.S. by up to 40% by 2030, the legislative summary says the bill will:
For companies in the supply chain for consumer products sold in California, the California law known as Proposition 65 is well worth considering. Private enforcement of Prop. 65 is so widespread that many companies have been forced to learn about this law. For those still unaware of Prop. 65 and those aware but hoping they will not be targeted, taking proactive steps to address the law is likely the most economical path forward, both financially and in terms of company resource drain and stress.
On June 30, 2022, the United States Supreme Court addressed Section 111(d) of the Clean Air Act and reversed a D.C. Circuit Court ruling that had struck down the Affordable Clean Energy Rule (ACE rule) (84 Fed. Reg. 32520) promulgated by the Environmental Protection Agency (EPA) during the Trump administration. See the Supreme Court decision here.
Drinking water systems that supply tap water need to begin preparing for how they will meet new National Drinking Water Standards set for proposal in Fall 2022 based on EPA’s recently issued Interim Health Advisory for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) near zero. On June 15, 2022, EPA announced a new Interim Lifetime Health Advisory for PFOA at 0.000000000000004 g/L (4 parts per quadrillion) and for PFOS at 0.000000000000020 g/L (20 parts per quadrillion) in tap water.
EPA’s new advisory level is thousands of times more stringent than EPA’s 2016 Health Advisory of PFOA and PFOS at 70 parts per trillion and the Agency for Toxic Substances and Disease Registry’s current risk levels for PFOA: 78 ppt (adult) and 21 ppt (child), and PFOS: 52 ppt (adult) and 14 ppt (child). And the new levels are significantly below any current laboratory detection or quantification limits, currently around 2 ppt. Consequently, it defies logic how EPA expects drinking water supply systems to even currently assess PFAS levels in relation to the newly released levels.
On April 20, 2022, in the first leg of a two-phase process, the Council on Environmental Quality (CEQ) issued its final rule amending its regulations for implementing the National Environmental Policy Act (NEPA). To be effective May 20, 2022, the amendments restore provisions that were in effect for forty-two years before being modified in 2020 by the Trump administration. These “Phase 1” changes focus on the (a) purpose and need of a proposed action, (b) an agency’s NEPA procedures for implementing the rules, and (c) the definition of “impacts’ and “effects.”
With a stated goal of increasing transparency and preventing workplace injuries and illness, employers across a wide spectrum of industries need to be aware of two separate recordkeeping and reporting efforts by OSHA. On April 5, 2022, the agency outlined a new enforcement initiative for employers failing to submit 300A annual electronic submissions as required under 29 CFR 1904.41. OSHA’s new enforcement priority comes on the heels of the agency’s March 28, 2022, proposed rule that would significantly alter the manner and methodology of workplace injury and illness reporting.
Publicly traded companies will be required to disclose climate-related risks to investors under a newly announced U.S. Securities and Exchange Commission (SEC) proposed rule. On March 21, 2022, the SEC announced proposed rule amendments regarding disclosure of climate-related risks and impacts from greenhouse gas emissions (GHG). Citing the growing demand from investors regarding environmental, social, and governance (ESG) issues, and what the SEC calls “fragmented and inconsistent” disclosure requirements, the SEC’s proposed rule amendments will be issued in the Federal Register in the coming weeks for public comment.
On March 8, 2022, the U.S. EPA issued a memorandum to guide equitable funding decisions to support the agency’s purpose in providing flexibility to local water treatment providers and increasing investments in disadvantaged communities. Water treatment providers, municipalities, and other entities seeking to obtain and procure infrastructure funding will want to carefully review and consider EPA’s guidance.
The EPA and Colorado Partnership For Environmental Justice
Colorado focuses on environmental justice as a core priority. In 2021, Governor Polis signed the Environmental Justice Act (HB21-1266) into law, and subsequently appointed members to Colorado’s first Environmental Justice Advisory Board. The Colorado Department of Public Health and Environment (CDPHE) then launched the new Environmental Justice Action Task Force and the agency created a new Environmental Justice Unit to reduce environmental health disparities for communities of color and low-income communities across Colorado.
Weld County Lacks Standing to Challenge New Oil and Gas Air Rules
On February 24, 2022, a division of the Colorado Court of Appeals upheld a district court’s dismissal of a challenge to regulations issued by the Colorado Air Quality Control Commission (“Commission”) which address oil and gas operations. In Bd. of Cnty. Comm’rs v. Ryan, the appellate court addressed whether Weld County had standing to seek judicial review of the air quality rules. See opinion here.