In a landmark decision issued May 25, 2023, the U.S. Supreme Court jettisoned a judicial rule on the scope of the Clean Water Act’s applicability that had been used to justify an expansive exercise of authority by federal agencies regulating certain wetlands under the Act. The ruling significantly curtails the jurisdiction of the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers under the Act, precluding their regulation of wetlands that are not directly connected to surface water bodies. The ruling addresses what constitutes “the waters of the United States” (WOTUS) to which the Act applies – a topic that has been the subject of much agency rulemaking, litigation, and controversy in recent years.
Environmental Statutes & Regulations
Supreme Court Limits Reach of Clean Water Act Over Wetlands, Leaving Questions for Owners and Developers
Interstate Air Pollution Transport From Power Plants and Industrial Facilities. EPA’s Good Neighbor Rule Addresses Ground-Level Ozone
On March 15, 2023, the U.S. Environmental Protection Agency (EPA) issued its final Good Neighbor Plan addressing reductions in ozone-forming emissions of nitrogen oxides (NOX) from power plants and industrial facilities. The new rule will restrict smokestack emissions in 23 states that impact other states downwind from the source. The objective is to assist downwind states to attain and maintain the 2015 ground-level ozone National Ambient Air Quality Standards (NAAQS).
On March 14, the United States Environmental Protection Agency (EPA) proposed the first federally enforceable drinking water limits for members of the widely used family of compounds commonly known as PFAS. EPA is proposing drinking water maximum contaminant levels (MCLs) for six per- and polyfluoroalkyl substances (PFAS). The levels for two common constituents, PFOA and PFOS, would be set at four parts per trillion (4 ppt), which is the level EPA says laboratories can reliably measure. Other constituent levels would be based on a Hazard Index, using combined levels of the constituents and a mathematical formula.
The EPA is proposing to strengthen the wastewater discharge standards that apply to coal-fired power plants. The agency’s proposal addresses discharges of toxic metals and other pollutants into water bodies.
Climate Adaptation Plans – Will Words Be Translated to Actions? COP27, U.S., State, and Local Action Plans
Clients will have to adapt to the certainty of increased regulation at the international, federal, state and local levels to meet the aggressive carbon-reduction goals set by governmental authorities. John Doerr in his recent book “Speed & Scale, An Action Plan for Solving our Climate Crisis Now” summarizes the actions he submits that politicians, industries and investors must undertake to reach net-zero by 2050. He begins his blueprint for action with an admonition from his 15-year-old daughter voiced at a dinner he hosted in 2006 after a screening of An Inconvenient Truth: “Dad, your generation created this problem. You better fix it.”
Following up on President Biden’s 2020 Climate Change Executive Order 14008 issued in his first week in office, EPA Administrator Michael Regan issued a policy statement on May 26, 2021 that directed all EPA offices to update their 2014 Climate Implementation Plans to:
First came the whistleblowers’ letter from Colorado state agency staff to the Environmental Protection Agency’s (EPA) Office of the Inspector General (OIG). The EPA’s OIG referred the matter to EPA’s Region 8 office for review. Then came the Troutman Report requisitioned by the Colorado Attorney General.
Companies that store hazardous waste liquids with organics or other volatile and light vapors should ensure that the tanks, containers, and equipment used at those facilities satisfy the RCRA Organic Air Emission Standards in Subparts AA, BB, and CC under 40 CFR Parts 264 and 265. Over the past month, EPA has announced at least five separate penalty enforcement actions for air emission violations under the Subpart BB and Subpart CC standards. EPA promulgated the RCRA hazardous waste air emission standards to reduce the release of air emissions and organic vapors into the atmosphere from hazardous waste tanks, containers, equipment, and process vents, to prevent ozone precursors and other air toxics.
Manufacturers, suppliers, retailers, and other entities in supply chains for consumer products sold in California might soon need to provide warnings regarding certain per- and polyfluoroalkyl substances (PFAS) in their products. California’s Office of Environmental Health Hazard Assessment (OEHHA) recently announced its intent to further regulate and study certain per- and polyfluoroalkyl substances under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. Proposition 65 prohibits companies from knowingly exposing California consumers to chemicals “known to cause cancer or reproductive toxicity” (i.e., “listed chemicals”) in consumer products without first providing a “clear and reasonable warning.” (Although not the focus of this article, Proposition 65 also addresses occupational and environmental exposure to listed chemicals.)
EPA on February 22, 2021, announced new steps to address PFAS (per- and polyfluoroalkyl substances) in drinking water. These actions will collect new data on the presence of PFAS in drinking water and could lead EPA to establish maximum contaminant levels, commonly known as MCLs, for these substances under the Safe Drinking Water Act (SDWA).