A Court-Side Seat: Rulemaking Proposed, Comments Solicited


We interrupt our usual scrutiny of the courts to focus (mostly) on the important developments in notices and rulemaking issued by and concerning federal regulatory agencies and departments in the past several weeks.

Environmental Protection Agency (EPA)
On August 30, 2021, the U.S. District Court for Arizona, in a summary judgment proceeding, remanded and vacated EPA and the Corps of Engineers 2020 “Navigable Waters Protection Rule” (which replaced the 2018 revised definition of “Waters of the U.S.”), determining that the agencies’ rulemaking process contained many serious errors. Then, a few weeks later, the U.S. District Court for the Northern District of California remanded and vacated EPA’s revision of the Clean Water Act 401 state water quality provisions. Apparently, these rulings have persuaded the Corps of Engineers to pause its use of its revised and reinstated Nationwide Permit provisions. In the meantime, EPA and the Corps will be holding nationwide “roundtable discussions” of the Act’s definition of “Waters of the U.S.” over the next few months.

The Council on Environmental Quality
In October 2021, the Council on Environmental Quality published a notice of proposed rulemaking soliciting comments on its determination that the recently revised NEPA procedural rules must be rescinded in order to restore the regulatory NEPA procedures that were in effect since 1971.

Department of Defense
On October 15, 2021, DOD, the GSA and NASA published a notice of proposed rulemaking (see 86 FR 57404) announcing that the federal government was considering revising its federal acquisition rules to “minimize the risk of climate change” through the federal procurement process. Comments are due by December 14, 2021.

Department of the Interior

  • On October 27, 2021, the Fish and Wildlife Service of the Department of the Interior published a notice of proposed rulemaking to rescind and revise the last administration’s revised standards for designating “critical habitat” under the Endangered Species Act. See 86 FR 59353. The present rules became effective on January 19, 2021.
  • On October 29,2021, the Interior Department’s Bureau of Land Management notified the regulated community that its state offices will be soliciting public comment on the proposed on shore oil and gas lease sale to be held in 2022, pending an environmental review. The Bureau’s environmental assessments will analyze greenhouse gas emissions , including the social cost of carbon. The President announced early upon taking office that the Interior Department would be undertaking a thorough analysis such oil and gas leases on federal land.

U.S. Department of Health and Human Services
On October 29, 2021, several agencies that are components of the U.S. Department of Health and Human Services published a notice of proposed rulemaking announcing their intention to withdraw a unique “sunset rule” that would require these agencies to terminate any existing rule, in accordance with a prescribed review process pursuant to the Regulatory Flexibility Act. Over the years, each President has expressed the desire to rescind outmoded regulations that no longer serve the purpose for which they had been promulgated. However, past attempts have fallen short, and the Department then determined that it needed to impose a strong incentive on its agencies to expedite the review of 17,000 or 18,000 existing regulations. However, with the change in administrations, that initiative has been rejected. The notice is published at 86 FR 59906, and comments are due by December 28, 2021.

Occupational Safety and Health Administration (OSHA)
On November 5, 2021, OSHA’s new Emergency Temporary Standard for COVID-19 vaccination and testing was published in the Federal Register at 86 FR 61402. The rule was made immediately effective, but compliance would not be required for several weeks.

Department of Transportation

  • The Infrastructure bill, HR 3684, now known as the “Infrastructure Investment and Jobs Act”, was approved by the House of Representative and signed by the President on November 15, 2021. The new law reinstates some federal Superfund taxes, and it would suspend a new DOT rule that permits the transport of LNG via rail cars, pending the completion of an evaluation of the standards contained in this legislation. This is a massive bill, which will require a careful review of its many provisions.
  • On November 8, 2021, the DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) agency published a notice of proposed rulemaking to consider suspending the recent rule that allowed LNG to be transported by rail car. (See 86 FR 62731.) The pending enactment of the Infrastructure Act may make this action superfluous.


Environmental Justice: A Legislative and Regulatory Update

In Review: SCOTUS Environmental and Administrative Decisions in the 2020 Term