Environmental Regulatory Practice
District of Columbia, 1996
Harvard University (J.D., 1986, cum laude)
University of Illinois (B.A., 1983, magna cum laude, Phi Beta Kappa)
SAMUEL B. BOXERMAN is a partner in the environmental practice group. Mr. Boxerman joined Sidley & Austin from the U.S. Department of Justice where he was a Trial Attorney in the Environmental Enforcement Section from 1987-1991. There, he litigated complex civil enforcement cases brought under federal environmental statutes, including CERCLA, RCRA, TSCA, the Clean Water Act and Clean Air Act. At Sidley, Mr. Boxerman has represented clients in a variety of environmental regulatory, administrative, and complex litigation matters, including defending federal civil enforcement actions and private party environmental actions. Mr. Boxerman also regularly counsels clients on a wide range of environmental compliance matters and assists clients developing and implementing environmental management systems under the ISO 14001 environmental management systems standard. After graduating from the Harvard Law School, Mr. Boxerman clerked for Judge Bernard M. Decker, Senior U.S. District Judge for the Northern District of Illinois. He also served as a Special Assistant U.S. Attorney for the District of Columbia.
The White House Council on Environmental Quality recently published an advance notice of proposed rulemaking in the Federal Register, seeking comment on how best to update its implementing regulations for the National Environmental Policy Act. The Trump administration has identified the National Environmental Policy Act process as a key contributor to slowing down infrastructure projects and has floated changes to it on several occasions.
The Agency for Toxic Substances and Disease Registry recently released a draft toxicological profile for perfluoroalkyl compounds which asserted that they may be harmful to human health at low levels. Due to their non-stick properties, perfluoroalkyl compounds have been used as non-stick coatings for cookware, as paper and cardboard surface coatings and in firefighting foam.
The US District Court for the Southern District of Georgia recently enjoined the Environmental Protection Agency's rule defining the term 'waters of the United States' under the Clean Water Act, which establishes the act's jurisdictional reach. The court determined that the plaintiffs were likely to succeed on the merits of their case and faced a substantial threat of irreparable injury without the preliminary injunction.
The Environmental Protection Agency recently approved Oklahoma's proposed permitting programme for the disposal of coal combustion residuals (CCR) in landfills and surface impoundments, making the state the first to have a federally approved CCR disposal programme under Subtitle D of the Resource Conservation and Recovery Act.
Farm worker groups recently sued the Environmental Protection Agency (EPA), claiming that the agency had failed to publish national training materials that provide guidance to agricultural field workers on how to best protect themselves against harmful exposure to pesticides. The suit alleges that the EPA's responsibility to develop and publish these materials was triggered by the federal Agricultural Worker Protection Standard.
The US Court of Appeals for the District of Columbia Circuit recently upheld the Environmental Protection Agency's (EPA's) 2016 amended Clean Air Act regional consistency regulations. These regulations state in relevant part that the EPA will apply decisions of the US Supreme Court or DC Circuit on Clean Air Act matters uniformly across its 10 regions.
From July to November 2016, Delaware and Maryland respectively (and together) filed Clean Air Act 126(b) petitions to the Environmental Protection Agency (EPA) alleging that upwind states such as Pennsylvania, West Virginia, Indiana, Kentucky and Ohio were significantly contributing to their non-attainment of eight-hour ozone national ambient air quality standards. The EPA recently published its notice of proposed action denying each of these 126(b) petitions.
Environmental Protection Agency (EPA) Administrator Scott Pruitt recently announced his intention to initiate the process to propose to list the fluorochemicals perfluorooctanoic acid and perfluorooctane sulfonate as hazardous substances for the purposes of some federal environmental statutes, including the Comprehensive Environmental Response, Compensation and Liability Act (or Superfund).
California is leading a challenge by 17 states and the District of Columbia claiming that the Environmental Protection Agency's (EPA's) revised position on tailpipe exhaust standards for light-duty vehicles for model years 2022 to 2025 was arbitrary and capricious. In its revised mid-term evaluation, the EPA found that new information on fuel prices and technology meant that assumptions underlying its January 2017 evaluation had been unrealistically optimistic.
The state of New York recently filed a petition with the Environmental Protection Agency (EPA) under Section 126 of the Clean Air Act, asserting that nine upwind states were interfering with New York's compliance with national ambient air quality standards for ground-level ozone. Although the Clean Air Act directs the EPA to respond to Section 126 petitions within 60 days, it allows the agency to extend its time to respond for six months.
The Supreme Court will not review the Second Circuit's decision that the New York State Department of Environmental Conservation was justified in denying a Clean Water Act Section 401 certification for a proposed natural gas pipeline. Constitution Pipeline, LLC argued that states had abused their Clean Water Act certification authority to block federally approved interstate pipelines, raising national security concerns.
The Environmental Protection Agency (EPA) has proposed a rule which would prohibit the use of scientific studies to support new regulations unless the studies' underlying data is publicly available for independent validation. The EPA asserts that the rule is necessary for more transparent rulemaking and to restore public confidence in how the agency regulates.
The US Bureau of Land Management has filed an appeal with the US Court of Appeals for the Ninth Circuit to reverse a Northern District of California judge's preliminary injunction staying a final rule to delay compliance dates for the 2016 Waste Prevention Rule. The Waste Prevention Rule imposed methane emission reductions on oil and gas operations on federal and Indian lands.
A coalition of 14 states and two cities has sued the Environmental Protection Agency and Administrator Scott Pruitt, alleging that the agency had violated a non-discretionary duty under the Clean Air Act to promulgate regulations governing methane emissions from existing sources that produce, process and distribute oil and natural gas.
The Environmental Protection Agency (EPA) recently re-evaluated its January 2017 mid-term evaluation final determination of greenhouse gas emission standards for model year 2022-2025 light-duty vehicles, initially set in 2012. This re-evaluation culminated in an agency decision that it would revise those greenhouse gas emission standards. The EPA's reversal could lead to a legal battle with California over its Clean Air Act waiver.
Environmental non-governmental organisations recently filed a petition for review with the District of Columbia Circuit challenging the Environmental Protection Agency's decision to end its 'once in, always in' interpretation of Section 112 of the Clean Air Act. One of the plaintiffs also issued a report alleging that the policy's reversal could lead to a large increase in hazardous air pollutant emissions from major sources.
The assistant administrator of the Environmental Protection Agency's (EPA's) Office of Enforcement and Compliance Assurance recently issued to staff a memorandum establishing an interim process for providing her with early notice of referral of matters to the Department of Justice (DOJ) for civil judicial enforcement. The memorandum requests that EPA case teams contemplating a DOJ referral brief the relevant regional administrator or the assistant administrator before making the referral.
The Environmental Protection Agency (EPA) administrator recently issued a memorandum and accompanying revised Delegation of Authority 2-43 retaining the EPA headquarters' authority to make certain jurisdictional determinations under the Clean Water Act Section 404 discharge of dredged or fill material permitting programme. Jurisdictional determinations are important because they delineate whether, and to what extent, a water body is subject to Section 404 permitting.
Congress recently passed an omnibus spending bill – later signed by President Trump – which largely preserved the Environmental Protection Agency's (EPA's) 2017 budget. This is in marked contrast to the budget proposed by Trump earlier in 2018, which would have cut EPA funding by $2.5 billion in 2019. The spending bill also extended the applicability of the Pesticide Registration Improvement Act to September 30 2018.
The US District Court for the District of Columbia recently upheld a portion of the Environmental Protection Agency's (EPA's) regional haze rule that allows states to treat compliance with the Cross-State Air Pollution Rule as better-than-best available retrofit technology for states participating in the Cross-State Air Pollution Rule. Challenges to the EPA's interpretation of the rule came from two sides: environmental non-governmental organisations and power companies joined by trade groups.
The Supreme Court recently declined to hear several cases raising environmental law questions. One case sought a review of the Environmental Protection Agency's (EPA's) application of a Clean Water Act policy to prohibit blending storm water and sewage for discharge during heavy storms and the use of mixing zones. The Supreme Court also declined to review a Second Circuit ruling upholding the EPA's 2008 inter-basin water transfer rule.
The Environmental Protection Agency (EPA) has closed its investigation into a complaint alleging that the Alabama Department of Environmental Management violated the Civil Rights Act by allowing a coal ash landfill to operate near a majority African-American town. The EPA found that there was insufficient evidence to conclude that any violation had occurred, but did suggest measures that the state agency could use to ensure that issues affecting the community are understood.
The Environmental Protection Agency has announced amendments to provisions of the 2016 New Source Performance Standards for the oil and natural gas production and distribution sectors. The amendments revise the programme by removing a requirement that oil and gas operators conduct repairs during unscheduled or emergency shutdowns. Owners and operators must still complete repairs during the next scheduled shutdown opportunity or within two years, whichever comes first.
A coalition of environmental groups recently petitioned the Fifth Circuit for review of the Environmental Protection Agency's (EPA's) renewal of the general permit for wastewater discharges from offshore oil platforms in the western Gulf of Mexico. The group contended that the EPA had failed to consider the potential harm to marine wildlife from chemicals in oil and gas wastewater and that it should have undertaken formal consultation.
The Environmental Protection Agency recently announced that it was seeking comment on whether discharges to groundwater which then migrate to jurisdictional waters should be regulated under the Clean Water Act. The notice came shortly after the Ninth Circuit held that pollutant discharges from wastewater wells that had seeped into groundwater and migrated to the Pacific Ocean required a Clean Water Act permit.
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.
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.
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".
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.
A 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The Environmental Protection Agency (EPA) recently issued a guidance memo clarifying its interpretation of the Clean Air Act's New Source Review (NSR) regulations, including outlining when and under what criteria the EPA will consider the emission projections that a source makes under the rules. The memo is part of the EPA's implementation of the president's directive to streamline regulatory permitting requirements for manufacturing and other facilities.
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.
Can an environmental organisation file suit under the Resource Conservation and Recovery Act's citizen suit provision claiming harm from stormwater run-off which could be, but was not, subject to limits under a Clean Water Act permit? The US Court of Appeals for the Ninth Circuit recently held that it could. The ruling is a portentous development at a time when environmental groups are actively seeking out litigation opportunities to enforce federal regulations.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Appellants, the United States and several non-governmental organisations recently filed opening briefs in their interlocutory appeal to the 10th Circuit of a preliminary injunction blocking the US Bureau of Land Management (BLM) rule governing hydraulic fracturing on federal and tribal lands. Appellants argued that the lower court based the injunction on an incorrect reading of federal law, asserting that the BLM is authorised to regulate the development of publicly held resources using hydraulic fracturing.
The Bureau of Land Management (BLM) recently announced that it intends to cancel 25 oil and gas leases in the White River National Forest. Although the BLM's draft environmental impact statement had recommended cancelling only 18 leases, the BLM stated that its preliminary preferred alternative was now to cancel all of the leases. The US Forest Service's recent oil and gas leasing plan would likewise ban oil and gas drilling in the White River National Forest.
An ad hoc panel of the Environmental Protection Agency's (EPA) Science Advisory Board recently issued a draft report raising concerns over some of the conclusions in the EPA's multi-year study that reviewed the potential impacts of hydraulic fracturing on drinking water supplies. In particular, the panel expressed concern with the EPA's conclusion that there is no evidence of "widespread, systematic impacts on drinking water".
Members of the Hydraulic Fracturing Research Advisory Panel of the Environmental Protection Agency's (EPA) Science Advisory Board recently continued their review of the EPA's June 2015 draft report assessing the potential affects of hydraulic fracturing for oil and gas on drinking water resources. The panel is scheduled to send its draft review to the EPA early next year.
The Environmental Protection Agency recently proposed three significant regulatory actions extending its controls over the energy sector by expanding regulations over the oil and gas industry. This is key to achieving the Obama administration's goal of reducing methane emissions from the oil and gas sector and its overall efforts to reduce greenhouse gas emissions by regulating the development and use of fossil fuels.
Several activists have petitioned the Environmental Protection Agency (EPA) Administrator to rescind its delegation of authority to Oklahoma to manage its wastewater disposal programme. According to the petition, the Oklahoma Corporation Commission is failing adequately to restrict the underground injection of oil and gas wastewater and to fine companies that inject wastewater, leading to continued low-level seismic activity.
New York's Department of Environmental Conservation has officially banned high-volume hydraulic fracturing after concluding that it poses risks to public health and the environment. The ban came after a more than six-year evaluation process during which time high-volume hydraulic fracturing was subject to a temporary moratorium.
Environmental group Public Employees for Environmental Responsibility has filed a petition with the Environmental Protection Agency (EPA) Environmental Appeals Board, challenging five federal national pollutant discharge elimination system permits allowing three oil and gas companies to dispose of wastewater in surface streams. The permits were issued by the EPA for hydraulically fractured drilling operations in Wyoming.
The White House has announced broad plans to reduce methane emissions over the next decade by 40% to 45% from 2012 levels. The plan will involve new regulations by a number of federal agencies – for example, the Environmental Protection Agency will issue new source performance standards under Section 111 of the Clean Air Act for new and modified wells.
A Madison County judge denied an injunction in the first lawsuit to challenge Illinois fracking rules, finding that the plaintiffs failed to demonstrate that they were in immediate danger. Two environmental groups filed suit in Franklin County Court, challenging approvals by the Ohio Department of Natural Resources for approximately 20 waste-disposal facilities handling wastewater from hydraulic fracturing operations.
Over 100 environmental groups have signed a petition to the Environmental Protection Agency and the Department of the Interior seeking rulemaking that would address emissions of air pollutants from hydraulic fracturing operations. The petition alleges that hydraulic fracturing emits hazardous air pollutants which are threatening the health of those living near drilling operations.
The Environmental Protection Agency has provided details on its ongoing study of the potential impacts of hydraulic fracturing on drinking water resources. The study will be consistent with the administration's support for unconventional oil and gas extraction within the context of its climate programme and will focus on best management practices.
On March 11, Environmental Protection Agency sent a draft advanced notice of proposed rulemaking to the Office of Management and Budget for regulatory review. The notice relates to reporting on the health and safety of chemicals used in hydraulic fracturing fluid under Sections 8(a) and 8(d) of the Toxic Substances Control Act.
In response to a petition for rulemaking, the Environmental Protection Agency (EPA) has announced that it will gather data on chemicals used in hydraulic fracturing fluid. The EPA will take comments on a process to gather data while avoiding duplication, protecting confidential information and consulting with other agencies.
Although the US Department of Energy has conditionally approved Freeport LNG Expansion's application to export liquefied natural gas to countries without a free trade agreement, it remains uncertain when further approvals will be forthcoming. Freeport is the second project that the department has approved after it imposed a two-year moratorium on reviewing applications.