Articles Posted in Environmental

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Making good on a promise to redefine the Clean Water Act (CWA) term, “Waters of the United States” or WOTUS, on January 18, 2023, the latest revised definition of “Waters of the United States” was published in the Federal Register by the U.S. Army Corps of Engineers (ACOE) and the Environmental Protection Agency (EPA) at 86 FR 3004. The effective date of this rule was on March 20, 2023. Remarkably, this action marks the fourth time in eight years that these agencies have attempted to craft a workable definition of WOTUS and thereby affect far-ranging impacts on everything from infrastructure and agriculture to private land use. While the agencies indicate that the newly redefined WOTUS is, in many ways, a return to the longstanding regulatory regime, there are several notable changes.

Read more in Seeking Certainty: Redefining “Waters of the United States” by Anthony B. Cavender and Ashleigh Myers.

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Recently, two Federal policies have been released that could have a significant effect upon environmental remediation and the emergency response procedures and policies of the Environmental Protection Agency (EPA). The recent train derailment in Palestine, Ohio, may bring them into sharper focus. The regulated community may find it useful to take notice of these directives.

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In a “groundbreaking” complaint, environmental NGO Global Witness asked the Securities and Exchange Commission (SEC) Climate and ESG Task Force to investigate oil major Shell for possible violations of federal securities laws. The complaint, filed this February, alleges Shell misled its investors by including some of its gas-related spending in its “Renewables and Energy Solutions” (RES) reporting segment. Global Witness claims that, while Shell reports spending 12% of its annual expenditures on RES ($2.4 billion), removing expenditures related to integrated power, hydrogen, and carbon capture and storage reduces that percentage to only 1.5% ($288 million).

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If “Winter comes, can Spring be far behind?” It’s been a quiet term thus far for the Supreme Court, due in part to the hearing of oral arguments in many contentious cases. Below is a brief summary of some of the recent significant matters decided by the Federal Courts.

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On Friday, August 26, 2022, the U.S. Environmental Protection Agency (EPA) released a pre-publication notice of a long-awaited proposed rule to designate two of the most-studied per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In an accompanying statement, EPA indicated that the proposed rule will be published in the Federal Register within the next few weeks. That publication will commence a 60-day public comment period, and EPA appears to be targeting final rule promulgation by Summer 2023. The addition of PFOA and PFOS to the hazardous substances list may significantly expand CERCLA liability, thus increasing the number of responsible parties, expanding investigatory costs and duration, remediation, and where applicable, natural resource damages liability.

Click here to read the full client alert from Pillsbury’s Amanda Halter, Mark Plumer, and Ashleigh Myers

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Enacted in 1946, the Administrative Procedure Act (APA) has provided a lasting framework for federal agency rulemaking and adjudication, as well as establishing the power of the federal courts to exercise judicial review over these actions of the federal bureaucracy. The APA is codified at 5 U.S.C. §§ 551–559, and §§ 701-706. There have been very few amendments made to the APA over these years, which indicates that Congress is reasonably satisfied with its administration and implementation.

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