Latest updates

EPA proposes to allow aerosol can recycling
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 23 2018

The Environmental Protection Agency (EPA) recently announced a proposed rule that would add hazardous waste aerosol cans to the category of universal wastes regulated under the Resource Conservation and Recovery Act. The EPA stated that adding aerosol cans to the universal waste rule will simplify the handling and disposal of the waste for generators and ensure that aerosol cans are sent to the appropriate facilities.

Mandamus denied in climate change litigation
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 23 2018

The Court of Appeals for the Ninth Circuit has denied without prejudice a Department of Justice request to issue a writ of mandamus and halt the district court proceedings in a case involving a group of child plaintiffs. The plaintiffs have alleged that the US government violated their constitutional rights by refusing to prevent the use of fossil fuels despite the alleged effects of the fuels on global climate change. In the absence of reconsideration or a further appeal, the matter will return to the district court.

Court of Appeals sides with industry on definition of solid waste rule
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 16 2018

The DC Circuit recently modified a previous ruling which had upheld in part and vacated in part the Environmental Protection Agency's 2015 definition of solid waste rule, which outlines when certain hazardous materials should be deemed discarded as opposed to recycled. On reconsideration, the court reversed its holding that spent petroleum catalysts qualify for the transfer-based exclusion from hazardous waste requirements and vacated Factor 4 in its entirety.

Climate change nuisance suit to remain in federal court
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 16 2018

The US District Court for the Northern District of California recently denied a motion by Oakland and San Francisco to remand their climate change nuisance suit back to state court. The two municipalities had filed a suit against a group of multinational oil and gas producers, claiming that the defendants' products would allegedly contribute to climate change. According to the court "the scope of the worldwide predicament demands the most comprehensive view available".

Bureau of Land Management proposes significant revisions to gas venting and flaring rule
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 02 2018

The Bureau of Land Management recently proposed to rescind significant portions of the Waste Prevention Rule 2016, imposing limits on the venting and flaring of gas from oil and gas wells on federal and American Indian lands. A key aspect of the proposed rule is a revised cost-benefit analysis that uses an interim social cost of methane calculation with much lower numbers than that used for the 2016 rule.

Court preliminarily enjoins Bureau of Land Management methane suspension rule
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 02 2018

‚ÄčA US district court recently granted environmental groups a preliminary injunction against a Bureau of Land Management (BLM) rule that suspended the compliance dates for its Waste Prevention Rule 2016. Among other things, the court agreed with state attorney generals and environmental groups which argued that the BLM had never provided a detailed, record-based justification as to why it now found the Waste Prevention Rule's requirements legally questionable and too costly for the purported benefits.

Court dismisses challenge to two-for-one executive order
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • March 26 2018

The US District Court for the District of Columbia recently dismissed challenges to Executive Order 13,771, which requires federal agencies to rescind two regulations for every new regulation issued. The court held that the environmental group and union plaintiffs lacked standing and that the groups could not show how their members would be harmed by the order.

Waters of the United States challenges proceed in district courts
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • March 26 2018

The Supreme Court recently held that challenges to the Waters of the United States Clean Water Act 2015 jurisdictional rule issued by the Environmental Protection Agency and the Army Corps of Engineers could be raised only in the US district courts. A number of legal challenges to the rule are pending in the district courts.

Department of Justice pursues private equity firm for portfolio company False Claims Act violations
Sidley Austin LLP
  • Healthcare & Life Sciences
  • USA
  • March 21 2018

The US Department of Justice (DOJ) recently filed a complaint in intervention against a compounding pharmacy, alleging that it had violated the False Claims Act by paying illegal kickbacks to induce prescriptions for drugs reimbursed by TRICARE, the federal healthcare programme for active duty military personnel, retirees and their families. Notably, the DOJ was also pursuing claims against a private equity firm that had a substantial ownership stake in the pharmacy.

New DOJ policy on guidance documents may affect environment enforcement cases
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • February 26 2018

The Department of Justice (DOJ) recently issued a new policy in order to prohibit the department from using its civil enforcement authority to compel compliance with agency guidance documents. The policy has major implications for civil environmental enforcement actions, such as new source review cases and Clean Water Act matters in which the DOJ relies heavily on Environmental Protection Agency guidance documents to establish violations of law.

EPA reverses 'once in, always in' policy for maximum achievable control technology standards
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • February 26 2018

The Environmental Protection Agency has issued a guidance memo that reverses its interpretation of the 'once in, always in' policy, which locked a source into meeting the maximum achievable control technology standards for major sources of hazardous air pollutants under the Clean Air Act. The revised guidance may provide sources that no longer exceed the major source threshold with the opportunity to reduce burdensome monitoring, record-keeping and reporting requirements.

Federal Reserve revises FR Y-7 and responds to questions on enhanced prudential standards for FBOs
Sidley Austin LLP
  • Banking
  • USA
  • February 16 2018

The Board of Governors of the Federal Reserve System has announced revisions to the Annual Report of Foreign Banking Organisations (FR Y-7) which will enable foreign banking organisations (FBOs) to certify their compliance with US risk committee and home country capital stress testing requirements under Regulation YY. The FR Y-7 is an annual report submitted by qualifying FBOs to provide financial, organisational, shareholder and managerial information to the board.

Mandatory reporting deadlines approach for manufacturers, importers and users of chemicals
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • February 12 2018

The Toxic Substances Control Act inventory reset process is now taking place. The reporting deadline for chemical manufacturers and importers was February 7 2018 and the deadline for all other companies that use chemicals is October 5 2018. Meeting these deadlines is important because a chemical will not be legal for use in the United States if it is not identified, reported (or subject to an exemption) and included in the active Toxic Substances Control Act inventory.

Court rules North Dakota lacks standing to intervene to challenge EPA settlement
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • February 05 2018

The US Court of Appeals for the District of Columbia Circuit recently issued an order rejecting North Dakota's bid to intervene to oppose an Environmental Protection Agency (EPA) settlement. In 2015 the environmental groups sued the EPA in district court, alleging that the EPA had failed to undertake non-discretionary statutory duties periodically to review and, if necessary, revise its Resource Conservation and Recovery Act solid waste rules.

California Supreme Court decides groundwater charges are neither taxes nor tied to property ownership
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • February 05 2018

The California Supreme Court recently ruled that the charges that the city of Ventura pays to the United Water Conservation District for groundwater conservation activities are neither taxes nor fees that require approval by property owners or vote. This decision limits to some degree the ability of the municipal water supplier to set rates for water service and will have an effect on both agricultural and residential water users.

Second Circuit finds government's continued payment in face of fraud allegations undercuts materiality
Sidley Austin LLP
  • Healthcare & Life Sciences
  • USA
  • January 31 2018

In its recent decision, the Second Circuit held that the relator's failure to plead sufficiently that the allegedly defrauded agency had changed its reimbursement practices after becoming aware of information supposedly withheld by the defendant doomed the complaint on materiality grounds. The decision underscores the significance of the materiality requirement at the motion to dismiss stage.

EPA reaches Clean Air Act settlement with outdoor products manufacturer
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • January 29 2018

Husqvarna, a Swedish company that makes outdoor power tools, has agreed to settle with the Environmental Protection Agency over allegations that it overstated the emission reduction capabilities in certain engine models, according to a consent decree. Husqvarna will pay more than $2.8 million in penalties to the United States for air pollution testing violations from its leaf blowers, trimmers and chainsaws.

Commission issues rules that would ban hydraulic fracturing within Delaware River Basin
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • January 29 2018

The Delaware River Basin Commission has issued draft regulations that would ban fracking in portions of Delaware, New Jersey, New York and Pennsylvania. If implemented, the rules would make permanent a de facto moratorium on fracking in the basin that has been in place since 2010. The commission will hold four hearings at the end of January 2018 and will accept written comments on its proposal until February 28 2018.

California credit card surcharge prohibition found unconstitutional on First Amendment grounds
Sidley Austin LLP
  • Banking
  • USA
  • January 26 2018

The US Court of Appeals for the Ninth Circuit recently held that California's statute prohibiting credit card surcharges violated the First Amendment as applied to the proposed surcharge practices of the merchant-plaintiffs. The Ninth Circuit used the same reasoning as a recent Supreme Court case to hold that California's surcharge ban regulated speech rather than conduct, therefore posing First Amendment concerns.

EPA announces decision not to issue final regulations for hard rock mining
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • January 22 2018

The Environmental Protection Agency (EPA) recently announced its decision on its proposed regulations for financial responsibility requirements for hard rock mining and mineral processing facilities. According to the EPA, it decided not to issue final regulations because it determined that they were inappropriate based on the EPA's interpretation of the statute and its analysis of its record developed for this rulemaking.