Recent Regulatory Activity

Selected federal regulatory actions taken or proposed by several federal agencies, including the Environmental Protection Agency:

EPA Actions
On September 15, 2021, EPA’s Water Office issued a memo rescinding a January 2021 guidance document that purported to provide the regulatory community with EPA’s understanding of the Supreme Court’s Clean Water Act ruling in the case of County of Maui v. Hawaii Wildlife Fund. That case involved a discharge of pollutants to groundwater which eventually made their way to the Pacific Ocean. Was an NPDES permit required to authorize this discharge, which was not initially made to a navigable body of water? The text of the Clean Water Act provided little guidance, and the matter has become very controversial. The Court held that if the discharge was the “functional equivalent” of a direct discharge, a permit may be required, and the Court described some factors that could influence a determination that there was the functional equivalent of a direct discharge. However, EPA has rescinded the January 2021 guidance, opining that EPA’s earlier analysis was inconsistent the Court’s opinion, and that the guidance was issued without proper deliberation within EPA or with its federal partners. Until new guidance is prepared, EPA will continue to apply “site-specific, science-based evaluations” to resolve these questions. On October 1, 2021, EPA released its “Climate Adaption Action Plan.” Briefly, EPA will take steps to ensure that its programs and policies consider current and future impacts of climate change and how the impacts disproportionately affect certain underserved or environmental justice communities. The agency’s air and water quality programs, contaminated sites activities and chemical safety and pollution prevention programs will be analyzed to determine their impact. Also on October 1, 2021, EPA released its draft FY 2022-2026 Strategic Plan to protect health and the environment. The plan, essentially an internal directive to all offices and regions, reflects a new “foundational principle”—to advance justice and equity by taking on the climate crisis and taking decisive action to advance civil rights and environmental justice.

Other Regulatory Actions

• On August 4, 2021, the Department of Homeland Security made a number of technical and organizational and conforming amendments to its Chemical Facility Anti-Terrorism Standards, located at 6 CFR Part 27. The rule was made effective on August 4, 2021. See 86 FR 41889.
• On August 5, 2021, the Department of Veterans Affairs revised its VA adjudicatory rules to establish a “presumptive service connection” for certain chronic respiratory health conditions affecting many veterans who served in Afghanistan, Iraq and related theaters and were exposed to smoke and particulate matter from huge open-air burn pits operated in those regions. This is certainly a development that many veterans wanted to see. The notice is published at 86 FR 42724, and this interim final rule was made effective on August 5, 2021.
• On September 1, 2021, the Fish and Wildlife Service of the Department of the Interior published a proposed rule to remove the celebrated snail darter from the ESA list of endangered and threatened wildlife. Comments are due by November 1, 2021, and the notice can be found at 86 FR 48953.
• On September 3, 2021, the National Highway Traffic Safety Administration of the Department of Transportation published a notice of proposed rulemaking to revise upward the fuel economy standards for Model Years 2021-2026 Passenger Cars and Light Trucks. A more modest proposal was published in 2020, and it was reviewed by DOT pursuant to a January 21, 2021 Executive Order by President Biden. Comments are due on October 21, 2021. The notice was published at 86 FR 49602.
• On September 30, 2021, the Office of Natural Resources Revenue (ONRR) of the Department of the Interior published a final rule withdrawing an earlier 2020 ONRR Valuation Reform and Civil Penalty Rule. See 86 FR 54045. The 2020 rule had not become effective and was withdrawn because of an “inadequate comment period, absence of discussion of alternatives, and a lack of reasoned explanation for many of its changes.” The agency also notes that the 2020 rule constituted an “unwarranted and overbroad attempt to incentivize production.”
• On October 4, 2021, the Fish and Wildlife Service promulgated a final rule revoking a January 7, 2021 rule that narrowed the scope of the provisions of the Migratory Bird Treaty Act which applied to conduct resulting in the incidental death of birds protected by the Act. The last Presidential Administration “decriminalized” many aspects of the former enforcement policy following complaints by the energy industry that its routine operations often resulted in incidental deaths of protected birds. In addition, an influential 2015 ruling of the U.S. Court of Appeals for the Fifth Circuit held that Congress did not intend to criminalize incidental takings. The Service disputes this ruling, and it devotes several pages of this notice to rebutting the Court’s reading of the law. However, the Service published a concurrent notice asking the public for suggestions of potential alternatives for authorizing the incidental take of migratory birds.
• Finally, on October 7, 2021, the Council on Environmental Quality published a notice of proposed rulemaking that would revise and modify the CEQ’s 2020 revisions to the agency’s 1978 NEPA procedural rules that govern the federal agencies environmental review of projects requiring a federal permit. CEQ states that it is its view that “the 2020 NEPA regulations may have the effect of limiting the scope of NEPA analysis with negative repercussions for environmental protection and environmental quality, including in critical areas such as climate change and environmental justice.” CEQ requests that the public submit comments on this proposed rule by November 22, 2021.