Environment & Climate Change, USA updates

Ninth Circuit limits reach of anti-duplication provision
Sidley Austin LLP
  • USA
  • December 18 2017

The Ninth Circuit recently issued an opinion that reflected a limited interpretation of the scope of the Resource Conservation and Recovery Act's anti-duplication provision, which provides that the act must be construed to apply to or authorise state regulation of "any activity or substance" regulated under several other federal statutes, including the Clean Water Act.

EPA issues directive on advisory committees
Sidley Austin LLP
  • USA
  • December 11 2017

The Environmental Protection Agency (EPA) recently issued a directive intended to strengthen and improve membership on the agency's advisory committees. The directive calls for the EPA to apply the following principles in setting membership on its advisory committees: strengthen member independence; increase state, tribal and local government participation; enhance geographic diversity; and promote fresh perspectives.

Officials allegedly violating youth plaintiffs' constitutional rights by failing to fight climate change
Sidley Austin LLP
  • USA
  • December 11 2017

A pair of new lawsuits claim that various government officials and agencies are violating youth plaintiffs' constitutional rights due to a failure to combat climate change sufficiently. The first case is against the state of Alaska, its governor and various other state officials and agencies. The second case alleges that specific Trump administration actions violated the plaintiffs' due process and public trust doctrine rights.

EPA issues final attainment area designations for ozone NAAQS
Sidley Austin LLP
  • USA
  • December 04 2017

The Environmental Protection Agency (EPA) has issued a final rule addressing which areas of the United States are in attainment of the 2015 ozone National Ambient Air Quality Standard (NAAQS). The agency found that 2,646 of the over 3,100 counties in the United States are in attainment of the ozone NAAQS. The EPA will continue to review the designation of the remaining counties.

EPA issues NODAs regarding 2016 NSPS for oil and gas industry
Sidley Austin LLP
  • USA
  • December 04 2017

The Environmental Protection Agency recently issued two notices of data availability in support of its proposed stays of various portions of the 2016 New Source Performance Standards for the oil and gas industry (known as the 'Quad Oa' rule). The notices include a proposed two-year stay of the Quad Oa requirements and a proposed three-month stay to run during the gap between the publication and effective dates of the two-year stay.

District court partly dismisses claims for future climate change injuries
Sidley Austin LLP
  • USA
  • October 09 2017

In a recent opinion the US District Court of the District of Massachusetts partly dismissed an environmental group's challenge to a Boston Harbour terminal's stormwater permit, which claimed that the permit fails to protect the group's members from future harm caused by climate change. The court held that alleged injuries which would not occur until 2050 or 2100, as alleged in the complaint, could not be considered imminent and therefore dismissed the claim based on future effects.

Southeast market pipelines project certificate remanded to FERC for further environmental review
Sidley Austin LLP
  • USA
  • September 25 2017

The US Court of Appeals for the DC Circuit recently vacated and remanded a Natural Gas Act Section 7 certificate of public convenience and necessity granted by the Federal Energy Regulatory Commission (FERC). The ground to vacate and remand the certificate was FERC's failure under the National Environmental Policy Act to adequately discuss the downstream effects of carbon emissions from natural gas transported through the pipelines in the project's environmental impact statement.

EPA issues final framework rules for new chemical evaluation regulatory programme
Sidley Austin LLP
  • USA
  • July 24 2017

The Environmental Protection Agency recently took historic action under the Toxic Substances Control Act. The new rules will almost immediately affect chemical manufacturers and those who use products that contain chemicals. All companies that manufacture, use, process, import, export or sell products containing chemicals must understand the new regulatory regime and the new obligations and hurdles that it presents.

Trump announces withdrawal from Paris Agreement
Sidley Austin LLP
  • USA
  • June 19 2017

President Trump recently followed through on one of his signature campaign promises and announced that the United States will withdraw from the Paris Agreement on climate change. This fits firmly within the new administration's agenda to promote domestic fossil fuel development. There has been speculation that some signatories may attempt to use trade, such as a tariff on the carbon content of US exports, to take a tougher stance with the United States, which could result in additional costs for US businesses.

Shale and hydraulic fracturing update
Sidley Austin LLP
  • USA
  • June 12 2017

Recent environmental law developments include the US Court of Appeals for the District of Columbia Circuit's granting of the Environmental Protection Agency's request to indefinitely hold litigation in abeyance concerning the June 2016 new source performance standards for the oil and natural gas sector while the agency re-evaluates the rule. In addition, New York state recently released its Methane Reduction Plan, a collaborative effort by five state agencies.

EPA announces review of final rule governing methane emissions
Sidley Austin LLP
  • USA
  • May 15 2017

The Environmental Protection Agency (EPA) recently granted industry requests to reconsider certain aspects of its new source performance standards for the oil and natural gas sector, which were issued as a Clean Air Act final rule in June 2016.​ In response to concerns raised in administrative petitions in August 2016, the EPA has stated that it will reconsider the final rule's fugitive emissions monitoring requirements, alternative emissions limitations and coverage of low-production wells.

2016 environmental year in review
Sidley Austin LLP
  • USA
  • April 17 2017

With a new US president and Environmental Protection Agency administrator, the changing environmental priorities and policies have been a major point of emphasis during the first few months of 2017, and there is little doubt that other significant policy developments or rule changes are forthcoming. Notwithstanding these changes, 2016 saw a number of noteworthy rulemakings, court decisions and policy developments.

Challenge to two-for-one executive order may affect environmental regulations
Sidley Austin LLP
  • USA
  • March 13 2017

President Donald Trump recently issued an executive order requiring executive branch agencies to repeal two rules for every one issued. The order also directs that all new agency regulations promulgated during fiscal year 2017 should not impose a net increase in costs. Two environmental groups and a union have challenged the order, contending that, among other things, it directs agencies to violate numerous health, safety and environmental statutes.

Court allows claims related to alleged contamination of drinking water by fracking to go forward
Sidley Austin LLP
  • USA
  • January 23 2017

​The US District Court for the District of Wyoming has denied defendant Encana Oil & Gas (USA) Inc's motion for summary judgment, allowing the plaintiffs' fraud, nuisance, negligence and other common law claims in connection with alleged water contamination from hydraulic fracturing near Pavillion, Wyoming to go forward. The case will now proceed to a trial.

EPA must determine whether to revise solid waste disposal regulations
Sidley Austin LLP
  • USA
  • January 16 2017

​The US District Court for the District of Columbia recently approved a consent decree that resolves a Resource Conservation and Recovery Act citizen suit filed by environmental non-governmental organisations against the Environmental Protection Agency (EPA) concerning the oil and gas industry. The consent decree requires the EPA to determine whether it should revise Subtitle D rules governing solid waste generated by oil and gas exploration, development and production.

California OEHHA issues final Proposition 65 "clear and reasonable warning" regulations
Sidley Austin LLP
  • USA
  • October 03 2016

The California Office of Environmental Health Hazard Assessment recently released its final amendments to the Proposition 65 warning regulations. The new warning standards may apply to any products sold in California or to any business operations in California. The warning rules are changing for manufacturers, distributors and retailers and, for the first time, specific rules will govern warnings for internet sales.

Council on Environmental Quality finalises guidance for assessing climate impact
Sidley Austin LLP
  • USA
  • August 22 2016

The White House Council on Environmental Quality has issued guidance to provide direction for federal agencies in addressing the effects of greenhouse gas emissions and climate change as they satisfy their duties. Many projects may now require federal permits, approvals or funding from federal agencies and thereby require the preparation of an environmental impact statement or environmental assessment.

Legislative changes will affect companies that manufacture and use chemicals
Sidley Austin LLP
  • USA
  • July 04 2016

Congress recently passed the landmark Frank R Lautenberg Chemical Safety for the 21st Century Act, the first time the Toxic Substances Control Act has been substantively amended since its enactment in 1976. It is important that all companies that manufacture, use, process, import, export or sell products containing chemicals become familiar with the new regulatory regime.

Federal rule would require indication of whether contractors publicly disclose GHG emissions data
Sidley Austin LLP
  • USA
  • June 20 2016

The Federal Acquisition Regulatory Council recently published a proposed rule in the Federal Register that would require federal contractors with awards cumulatively exceeding a given threshold to indicate whether they publicly disclose information on their greenhouse gas emissions. The rule would enable the federal government to consider greenhouse gas emissions when deciding what items to procure and which contractors to use.

Fracking: latest environmental regulation developments
Sidley Austin LLP
  • USA
  • May 23 2016

Environmental groups recently filed suit seeking an order compelling the Environmental Protection Agency to issue new rules regulating oil and gas wastes under the Resource Conservation and Recovery Act. Meanwhile, the Pennsylvania House Environmental Resources and Energy Committee has approved a resolution to block new rules for hydraulically fractured and conventionally developed oil and gas wells.

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