Dear Section Members, Here is the news roundup from the past month. From Law360: Tyco's $750M PFAS Deal In Foam Co. MDL Gets Initial OK<https://www.law360.com/environmental/articles/1846803/tyco-s-750m-pfas-deal-in-foam-co-mdl-gets-initial-ok> A South Carolina federal judge gave his blessing Tuesday to the $750 million settlement Johnson Controls International PLC subsidiary Tyco Fire Products LP entered to resolve public water systems' federal claims that some forever chemicals they detected in their supplies came from firefighting foam it made. Ore. County Climate Suit Sent To State Court<https://www.law360.com/environmental/articles/1846670/ore-county-climate-suit-sent-to-state-court> An Oregon federal judge sent Multnomah County's climate change lawsuit against Chevron, Exxon Mobil Corp. and other fossil fuel companies back to state court, adopting a magistrate judge's findings rejecting arguments the complaint was fraudulently crafted to evade federal jurisdiction. Watchdog Says EPA's Lead Exposure Notice Program Lagging<https://www.law360.com/environmental/articles/1846549/watchdog-says-epa-s-lead-exposure-notice-program-lagging> The U.S. Environmental Protection Agency is not on track to roll out a public warning system for exposure to lead in drinking water by an October deadline, the EPA's internal watchdog said in a new report. Calif. Targets Oil Giants' Profits In Amended Climate Suit<https://www.law360.com/environmental/articles/1846292/calif-targets-oil-giants-profits-in-amended-climate-suit> California Attorney General Rob Bonta on Monday tweaked the state's climate deception suit against Exxon Mobil Corp., Shell, Chevron, ConocoPhillips and BP to also target the oil and gas companies' "illegally obtained" profits under a recently enacted state law. 9th Circ. Partially Revives Puget Sound Pollution Row<https://www.law360.com/environmental/articles/1846140/9th-circ-partially-revives-puget-sound-pollution-row> The Ninth Circuit sided with an environmental group Monday in a regulation enforcement case against the Port of Tacoma, Washington, partially overturning a lower court to find previous iterations of state stormwater permitting rules do extend across marine cargo terminals and other transportation facilities. Split 4th Circ. Tosses Suit Over 'Forever Chemicals' In NC<https://www.law360.com/environmental/articles/1845988/split-4th-circ-tosses-suit-over-forever-chemicals-in-nc> The Fourth Circuit ruled Monday that environmental groups couldn't challenge in district court the U.S. Environmental Protection Agency's selection of particular so-called forever chemicals for testing after the agency agreed, at the groups' request, to research the chemicals' effects in North Carolina. EPA Air Compliance Rule Trumps State Powers, DC Circ. Told<https://www.law360.com/environmental/articles/1845885/epa-air-compliance-rule-trumps-state-powers-dc-circ-told> The U.S. Environmental Protection Agency usurped state authority when it issued a final rule changing the deadline for states to submit Clean Air Act compliance plans for power plants and other existing facilities within their borders, 25 Republican-led states told the D.C. Circuit. Supreme Court Rejects WWII Oil Refinery Cleanup Appeal<https://www.law360.com/environmental/articles/1846076/supreme-court-rejects-wwii-oil-refinery-cleanup-appeal-> The U.S. Supreme Court left intact on Monday a Sixth Circuit decision that the federal government can't be held liable for environmental contamination left behind by oil refineries during World War II, rejecting a petition for certiorari filed by Valero Energy Corp. States Urge DC Circ. To Smoke EPA Particulate Matter Rule<https://www.law360.com/environmental/articles/1845430/states-urge-dc-circ-to-smoke-epa-particulate-matter-rule> A coalition of 25 Republican-led states and eight industry groups have urged the D.C. Circuit to strike down the U.S. Environmental Protection Agency's final rule tightening federal standards for fine particulate matter pollution in separate opening briefs. Red States Target EPA's Tribal Water Rights Rule<https://www.law360.com/environmental/articles/1843982/red-states-target-epa-s-tribal-water-rights-rule> A group of red states has told a federal court that the U.S. Environmental Protection Agency has turned the Clean Water Act into what they derisively called the "Tribal Rights Act," through a rule that protects Native American rights to water resources. Mich. Asks 6th Circ. To Keep Airport PFAS Suit In State Court<https://www.law360.com/environmental/articles/1843560/mich-asks-6th-circ-to-keep-airport-pfas-suit-in-state-court> Michigan's Department of Environment, Great Lakes and Energy and the state attorney general are asking the Sixth Circuit to keep the department's suit against Gerald R. Ford International Airport Authority over so-called forever chemicals in state court, saying the Airport Authority is not entitled to removal as a "federal officer." States, Energy Organizations Urge Demise Of EPA Water Rule<https://www.law360.com/environmental/articles/1842931/states-energy-organizations-urge-demise-of-epa-water-rule> Conservative-leaning states and energy industry groups have asked a Louisiana federal judge to strike down the U.S. Environmental Protection Agency's rule broadening states' and tribes' power to veto projects like pipelines, export terminals and dams over water quality concerns. State Climate Superfund Laws Will Face Fossil Fuel Fightback<https://www.law360.com/environmental/articles/1842848/state-climate-superfund-laws-will-face-fossil-fuel-fightback> A first-of-its-kind law in Vermont will impose Superfund-like liability and cleanup tabs on fossil fuel companies for climate change-related damages, though legal experts predict the industry will fight such laws as fiercely as it's fought climate tort lawsuits brought by state and local governments. 3 Things To Watch In SF's High Court Water Standards Case<https://www.law360.com/environmental/articles/1842555/3-things-to-watch-in-sf-s-high-court-water-standards-case> The U.S. Supreme Court has granted San Francisco's request that it review the U.S. Environmental Protection Agency's decision to incorporate narrative pollution standards in a Clean Water Act permit, throwing into question the use of a common permitting feature. Ill. Made 'Big Concession' In 3M PFAS Suit, 7th Circ. Judge Says<https://www.law360.com/environmental/articles/1842400/ill-made-big-concession-in-3m-pfas-suit-7th-circ-judge-says> A Seventh Circuit judge observed Thursday that the state of Illinois made a "big concession" in its suit accusing 3M of polluting local waters with toxic "forever chemicals" when the state said 3M could avoid liability if Illinois can't prove contamination came exclusively from a particular facility. Enviro Groups Launch Fresh Alaska LNG Fight In 9th Circ.<https://www.law360.com/environmental/articles/1842432/enviro-groups-launch-fresh-alaska-lng-fight-in-9th-circ-> Environmental groups on Thursday petitioned the Ninth Circuit to overturn federal approvals for the Alaska liquefied natural gas project covering impacts on endangered and threatened species, the latest court challenge lodged against the $43 billion project. Groups Fight Calif. AG's Subpoenas In Plastic Waste Probe<https://www.law360.com/environmental/articles/1841211/groups-fight-calif-ag-s-subpoenas-in-plastic-waste-probe> Two chemical and plastic industry groups have accused California Attorney General Rob Bonta of violating their First Amendment rights by demanding they hand over privileged documents as part of an investigation into global plastics pollution, in a pair of complaints filed in D.C. federal court. Red States Target Blue States In Push To End Climate Torts<https://www.law360.com/environmental/articles/1840781/red-states-target-blue-states-in-push-to-end-climate-torts> A novel red-state request that the U.S. Supreme Court nix climate change torts brought by state governments against fossil fuel companies can be seen as an attempt to urge the justices not to pass up another opportunity to weigh in on the issue, legal experts told Law360. 22 States Seek To Defend EPA Heavy-Duty Truck GHG Rule<https://www.law360.com/environmental/articles/1840137/22-states-seek-to-defend-epa-heavy-duty-truck-ghg-rule> A coalition of 22 Democrat-led states and four cities moved to intervene on Thursday in defense of the U.S. Environmental Protection Agency's final rule establishing greenhouse gas emission standards for heavy-duty vehicles, arguing that vacating the rule would lead to direct injuries to state lands and resources. FERC Cements 1-Year Window For State, Tribal Water Permits<https://www.law360.com/environmental/articles/1840392/ferc-cements-1-year-window-for-state-tribal-water-permits> The Federal Energy Regulatory Commission on Thursday said it will give states and tribes one year to act on water quality certificate requests from developers of any energy project seeking agency approval, the maximum amount of time allowed under the Clean Water Act. Int'l Tribunal Says Countries Must Do More To Protect Oceans<https://www.law360.com/environmental/articles/1839891/int-l-tribunal-says-countries-must-do-more-to-protect-oceans> In a historic unanimous ruling, an international tribunal has concluded that greenhouse gas emissions are polluting the oceans and that nations have an obligation under international law to "take all necessary measures" to prevent, reduce and control these emissions. 20 States Challenge Biden Admin's NEPA Rule<https://www.law360.com/environmental/articles/1839587/20-states-challenge-biden-admin-s-nepa-rule> A group of 20 states sued the Biden administration's Council on Environmental Quality on Tuesday in North Dakota federal court, challenging a recent environmental permitting rule they claim unlawfully changes the National Environmental Policy Act's review procedures "into a substantive set of requirements to achieve broad and vague policy goals." Drinking Water Systems At Risk Of Cyberattack, EPA Says<https://www.law360.com/environmental/articles/1839208/drinking-water-systems-at-risk-of-cyberattack-epa-says> More than 70% of the nation's drinking water systems are not in compliance with federal law requiring them to assess the risks of and develop plans for cybersecurity attacks, which could leave them vulnerable to foreign interference, the U.S. Environmental Protection Agency said Monday. BASF Agrees To $316.5M Settlement In PFAS Foam MDL<https://www.law360.com/environmental/articles/1839415/basf-agrees-to-316-5m-settlement-in-pfas-foam-mdl> Attorneys representing public water systems in a South Carolina multidistrict litigation over so-called forever chemicals in drinking water announced Tuesday that they've reached an agreement in principle with defendant BASF Corp., which will pay $316.5 million to resolve the claims. 10th Circ. Oral Args. Poised To Shape NM Pollution Coverage<https://www.law360.com/environmental/articles/1838962/10th-circ-oral-args-poised-to-shape-nm-pollution-coverage> The Tenth Circuit said there were "good arguments on both sides" of an appeal at oral arguments Monday over whether absolute pollution exclusions doomed a New Mexico property owner's quest for defense coverage of underlying contamination litigation, in a case that could set the tone for insurance battles in the state. Oil & Gas Groups Press DC Circ. To Block EPA Methane Rule<https://www.law360.com/environmental/articles/1838894/oil-gas-groups-press-dc-circ-to-block-epa-methane-rule> Oil and gas industry groups have urged the D.C. Circuit to block the U.S. Environmental Protection Agency's expanded methane emissions control requirements while they're being challenged in court, saying the agency failed to reckon with the requirements' outsized impacts on owners of low-producing oil and gas wells. Plant Gas Emissions Suit Tossed For Lack Of Injury Standing<https://www.law360.com/environmental/articles/1836690/plant-gas-emissions-suit-tossed-for-lack-of-injury-standing> A West Virginia federal judge has thrown out a proposed class action alleging a plant operated by Union Carbide Corp. and Covestro LLC emitted carcinogenic gas and increased the likelihood of cancer in nearby residents, finding the claim of injury too speculative to support the case. Oil Giants Say Tribal Climate Change Row Must Stay Federal<https://www.law360.com/environmental/articles/1835985/oil-giants-say-tribal-climate-change-row-must-stay-federal-> Several giant oil companies are fighting a bid by two Native American tribes to remand their consolidated case to state court, telling a Washington federal district court that the claims brought by tribes have always been governed by federal law. From Law.com: Tackling Plastics Pollution: We Can Do Better<https://www.law.com/thelegalintelligencer/2024/06/07/tackling-plastics-pollution-we-can-do-better/> Plastic products are inexpensive to manufacture and are durable. They can be formulated to perform well in a wide range of products such as pipes, fishing gear, food and beverage containers, packaging and wrapping, household products, clothing containing synthetic fibers, and vehicle tires, among other products. They are ubiquitous. Recent Spate of EPA Action on PFAS Could Have Far-Reaching Implications<https://www.law.com/thelegalintelligencer/2024/06/05/recent-spate-of-epa-action-on-pfas-could-have-far-reaching-implications/> I will explore two of the most significant recent EPA actions in its continuing effort to regulate PFAS, as well as the likely effects of those actions. I will also discuss the possible implications of the Supreme Court’s widely anticipated repeal of the Chevron doctrine on the EPA’s recent PFAS actions. Pollution Exclusions and PFAS Claims: Reading Tea Leaves From Early Coverage Rulings in New York and Elsewhere<https://www.law.com/newyorklawjournal/2024/05/24/pollution-exclusions-and-pfas-claims-reading-tea-leaves-from-early-coverage-rulings-in-new-york-and-elsewhere/> Lawsuits have been filed across the country that allege harms purportedly caused by PFAS chemicals. The underlying litigations have resulted in billions of dollars in settlements, which, in turn, have led to demands for insurance coverage and associated coverage litigation. A Cautionary Tale: EPA Lists PFOA and PFOS as Hazardous Substances<https://www.law.com/2024/05/22/a-cautionary-tale-epa-lists-pfoa-and-pfos-as-hazardous-substances/> "The EPA’s new PFAS rule is the agency’s first-ever exercise of its authority under Section 102(a) to directly identify CERCLA-specific hazardous substances," write Andrea Driggs, Meredith Weinberg and Benjamin Longbottom of Perkins Coie. SCOTUS, Common Sense and the Limits of Climate Change Litigation<https://www.law.com/nationallawjournal/2024/05/30/scotus-common-sense-and-the-limits-of-climate-change-litigation/> In defense of our legal system, the law that is developed in courts and legislatures quite regularly reflects the wisdom of the average citizen. When it does not, we should be skeptical. California Leads Coalition to Defend EPA's Heavy-Duty Vehicle Rule in Litigation<https://www.law.com/nationallawjournal/2024/05/28/california-leads-coalition-to-defend-epas-heavy-duty-vehicle-rule-in-litigation/> “We cannot let groundless claims derail our prompt action against this climate crisis,” California Attorney General Rob Bonta said. The EPA's Latest Efforts to Regulate Greenhouse Gas Emissions<https://www.law.com/thelegalintelligencer/2024/05/24/the-epas-latest-efforts-to-regulate-greenhouse-gas-emissions/> In the last few months, the EPA has finalized several regulations pertaining to GHG emissions, including revising the Greenhouse Gas Reporting Rule (GHGRR); issuing new source performance standards (NSPS) applicable to fossil-fuel powered power plants; and finalizing updated standards applicable to the crude oil and natural gas sector. Democratic Attorneys General Back EPA's Power Plant Rule Against GOP Lawsuit<https://www.law.com/nationallawjournal/2024/05/20/democratic-attorneys-general-back-epas-power-plant-rule-against-gop-lawsuit/> “The rule would meaningfully limit greenhouse gas emissions from some of the largest sources in the nation, thereby helping to address the significant harms our states, cities, and residents are facing from climate change,” Democratic attorneys general wrote in their motion to intervene. The Rule of Professional Conduct 1.1. and Climate Change<https://www.law.com/thelegalintelligencer/2024/05/13/the-rule-of-professional-conduct-1-1-and-climate-change/> Just as a lawyer must have a basic understanding of many things that may affect a client’s business or activities, the lawyer also has to have a basic understanding of how a changing climate will have changing effects on clients From National Law Review: EPA Proposes SNUR for Multi-Walled Carbon Nanotubes (Generic) (P-21-216 and P-21-217)<https://natlawreview.com/article/epa-proposes-snur-multi-walled-carbon-nanotubes-generic-p-21-216-and-p-21-217> On June 11, 2024, the U.S. Environmental Protection Agency (EPA) published proposed significant new use rules (SNUR) for certain chemical substances that were the subject of premanufacture notices (PMN) and are also subject to a TSCA Order, including multi-walled carbon nanotubes (generic) (P-21-216 and P-21-217). 89 Fed. Reg. 49121. The SNURs would require persons who intend to manufacture (including import) or process any of these chemical substances for an activity that is proposed as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification initiates EPA’s evaluation of the conditions of use for that chemical substance. In addition, the manufacture or processing for the significant new use may not commence until EPA has conducted a review of the required notification, made an appropriate determination regarding that notification, and taken such actions as required by that determination. Comments are due July 11, 2024. Appellate Court Affirms Decision That TSCA Section 21 Petition Seeking PFAS Testing Is Not Subject to Review<https://natlawreview.com/article/appellate-court-affirms-decision-tsca-section-21-petition-seeking-pfas-testing-not> On June 10, 2024, the U.S. Court of Appeals for the Fourth Circuit affirmed the U.S. District Court for the Eastern District of North Carolina’s decision to dismiss a case challenging the U.S. Environmental Protection Agency’s (EPA) response to a petition seeking a test order for 54 per- and polyfluoroalkyl substances (PFAS) for lack of jurisdiction. CEH v. EPA, No. 23-1476. The district court granted EPA’s motion to dismiss, finding that EPA granted the petition and that the court lacks jurisdiction to review such a grant. The appellate court affirmed the decision, with one judge concurring in part and dissenting in part. Appellate Division Vacates NJDEP Freshwater Wetlands GP#1 Issued to NJDOT<https://natlawreview.com/article/appellate-division-vacates-njdep-freshwater-wetlands-gp1-issued-njdot> In a second go around in the Appellate Division for the same case, the Court vacated a Freshwater Wetlands General Permit #1 issued by the New Jersey Department of Environmental Protection (“NJDEP”) to the New Jersey Department of Transportation (“NJDOT”), which allowed for the rehabilitation and reconstruction of a Confined Disposal Facility (“CDF”) to be used for storing dredged materials from multiple waterways. In the Matter of Reauthorization of The Freshwater Wetlands General Permit #1 and Permit Modifications, A-2758-21 (App. Div. June 7, 2024). The Court found that NJDEP’s decision to issue the GP1 was legally erroneous and arbitrary under the plain meaning of the Freshwater Wetlands Protection Act (“FWPA”) Rules, N.J.A.C. 7:7A-1.1 et seq. Biden Administration Announces Voluntary Carbon Market Principles<https://natlawreview.com/article/biden-administration-announces-voluntary-carbon-market-principles> The recent Joint Policy Statement and Principles (Principles) released by the Biden Administration, and related remarks by Secretary of the Treasury Janet L. Yellen, mark a significant milestone in the development of the voluntary carbon market (VCM). Treasury Department and IRS Guidance Encourages Fuel Producers Eligible for Clean Fuel Production Credit to Register as Soon as Possible<https://natlawreview.com/article/treasury-department-and-irs-guidance-encourages-fuel-producers-eligible-clean-fuel> On May 31, 2024, the Department of the Treasury (Treasury Department) and the Internal Revenue Service (IRS) issued Notice 2024-49 for the Clean Fuel Production Credit. The Inflation Reduction Act allows a credit for the production of clean transportation fuels beginning on January 1, 2025. For purposes of the Clean Fuel Production Credit, transportation fuel is divided into two broad categories of fuel: sustainable aviation fuel (SAF) and non-SAF transportation fuel. According to the IRS, the credit is equal to the product of the applicable amount per gallon (or gallon equivalent) for any transportation fuel that is produced by the taxpayer at a qualified facility during the taxable year and the emissions factor for such fuel as determined under the code. The notice states that a taxpayer must have a signed registration letter from the IRS dated on or before January 1, 2025, to be eligible to claim the credit for production starting January 1, 2025. According to the notice, the IRS intends to process completed applications for registration received by July 15, 2024, so that an eligible taxpayer can receive its letter of registration by January 1, 2025. The IRS “cautions that a taxpayer that applies for registration after that date is less likely to receive its registration by January 1, 2025. In no event can the IRS guarantee that any application for registration will be processed by a certain date.” The Treasury Department and the IRS intend to issue additional guidance on other aspects of the credit “at a later date.” Deep-Sea Mining–Article 1: What Is Happening With Deep-Sea Mining?<https://natlawreview.com/article/deep-sea-mining-article-1-what-happening-deep-sea-mining> Debate continues on whether the UAE Consensus achieved at COP28 represents a promising step forward or a missed opportunity in the drive towards climate neutral energy systems. However, the agreement that countries should “transition away from fossil fuels” and triple green power capacity by 2030 spotlights the need for countries to further embrace renewable power. Congressional Democrats Urge SEC Action on Climate Disclosures<https://natlawreview.com/article/congressional-democrats-urge-sec-action-climate-disclosures> On June 4, 2024, a number of Congressional Democrats (10 Senators; 28 Congressmen) sent a letter to Chairman Gensler of the Securities & Exchange Commission, urging that the SEC “enforce[] [] existing SEC climate disclosure-related guidance” while the legal challenge to the SEC's mandatory disclosure rule is pending. In particular, the letter suggested action on the SEC's 2010 guidance on climate-change developments, and that the SEC “remind issuers that U.S. companies that are subject to alternative climate-related disclosure regimes must comply with those reporting regimes, including those from California and the European Union.” GAO Finds EPA Implemented Three Open Recommendations Related to Assessing and Controlling Toxic Chemicals<https://natlawreview.com/article/gao-finds-epa-implemented-three-open-recommendations-related-assessing-and> On May 28, 2024, the U.S. Government Accountability Office (GAO) publicly released a report entitled Priority Open Recommendations: Environmental Protection Agency. According to the report, since GAO’s May 2023 letter, the U.S. Environmental Protection Agency (EPA) implemented four of GAO’s 15 open priority recommendations, including three recommendations related to assessing and controlling toxic chemicals: May 2024 PFAS Legislative Developments<https://natlawreview.com/article/may-2024-pfas-legislative-developments> Lists federal and state legislation developments from May 2024 invloving PFAS. EPA Finalizes New Greenhouse Gas Reporting Obligations for Petroleum and Natural Gas Systems: More Companies Impacted; More Fees Charged<https://natlawreview.com/article/epa-finalizes-new-greenhouse-gas-reporting-obligations-petroleum-and-natural-gas> On May 14, 2024, the U.S. Environmental Protection Agency (EPA) published the final Greenhouse Gas Reporting Rule requirements for petroleum and natural gas systems under 40 C.F.R. Part 98, Subpart W in the Federal Register. The changes to this rule resulted from passing the Inflation Reduction Act of 2022 (IRA) which required EPA to develop standards to collect payment on methane from facilities that exceed specific thresholds. The new rule expands the reporting requirement to apply to additional facilities, adds and improves methods for calculating and detecting emissions, and finalizes confidentiality determinations for certain data elements. The final rule applies to a wide range of oil and gas facilities operated by the petroleum production, gas transmission, and utility industries. It will impose significant administrative and recordkeeping costs on those industries, as well as requiring them to pay fees for reported methane emissions. Polyoxymethylene Added to List of Chemical Substances Subject to Superfund Excise Tax<https://natlawreview.com/article/polyoxymethylene-added-list-chemical-substances-subject-superfund-excise-tax> The Internal Revenue Service (IRS) published a notice of determination on May 31, 2024, that the list of taxable substances is modified to include polyoxymethylene. 89 Fed. Reg. 47238. As reported in our December 29, 2022, blog item, the IRS announced in December 2022 that it received a petition requesting the addition of polyoxymethylene to the list of taxable substances under Section 4672(a) of the Internal Revenue Code. Celanese Ltd., an exporter of polyoxymethylene, submitted the petition. According to the petition, “the taxable chemical methane constitutes 50.08 percent, by weight, of the materials used to produce polyoxymethylene.” The IRS states that “[a] review of the stoichiometric material consumption equation and other information in the petition shows that methane, a taxable chemical, constitutes more than 20 percent by weight of the materials used in the production of polyoxymethylene, based on the predominant method of production. Therefore, the test in section 4672(a)(2)(B) is satisfied.” The effective date of the modification for tax purposes is October 1, 2024. The effective date of this modification for purposes of refund claims under Section 4662(e) of the Internal Revenue Code is July 1, 2022. More information on the Superfund excise tax on chemicals is available in our July 13, 2022, memorandum, “Superfund Tax on Chemicals: What You Need to Know to Comply” and our May 19, 2022, memorandum, “Reinstated Superfund Excise Tax Imposed on Certain Chemical Substances.” Vermont Governor Allows Nation’s First Climate Change Cost Recovery Bill to Become Law Without Signature<https://natlawreview.com/article/vermont-governor-allows-nations-first-climate-change-cost-recovery-bill-become-law> On May 30, 2024, Vermont Governor Philip Scott allowed S.259, An act relating to climate change cost recovery, to become law without his signature. S. 259, entitled the Climate Superfund Act, will require the development of claims to shift the cost of alleged climate-related impacts in Vermont onto the companies that produced fossil fuels responsible for greenhouse gas (GHG) emissions. A Louisiana Judge May Strike Down Another EPA Clean Water Act Regulation and the Supreme Court Would Likely See it the Same Way.<https://natlawreview.com/article/louisiana-judge-may-strike-down-another-epa-clean-water-act-regulation-and-supreme> Several “red” states and three energy industry NGOs have filed a motion for summary judgment in their Louisiana Federal Court challenge to EPA's 2023 rule regarding the state water quality certifications required under Section 401 of the Federal Clean Water Act. The challengers' main argument is that EPA has exceeded its statutory authority by allowing states to withhold a required Section 401 Water Quality Certification for reasons having nothing to do with the discharge of a pollutant triggering the certification requirement in the first place. Energy & Sustainability Litigation Updates — June 2024<https://natlawreview.com/article/energy-sustainability-litigation-updates-june-2024> List of litigation in the energy and sustainability sector for June 2024 EPA Expands Role of Tribal Rights in Setting Water Quality Standards<https://natlawreview.com/article/epa-expands-role-tribal-rights-setting-water-quality-standards> EPA issued final revisions to its Clean Water Act (CWA) water quality regulations, establishing a framework to ensure that states adequately consider Tribal reserved rights in aquatic and/or aquatic-dependent resources when establishing water quality standards (WQS). As B&D previously reported, EPA published its proposed 2023 Water Quality Standards Revision Rule in December 2022 for public comment and Tribal consultation. Based on the Tribal input and comments from 162 organizations and individuals, EPA then developed the Final Rule, which will take effect on June 3, 2024. PEER Files Request for Correction Regarding Verification Analysis for PFAS in Pesticide Products<https://natlawreview.com/article/peer-files-request-correction-regarding-verification-analysis-pfas-pesticide#google_vignette> Public Employees for Environmental Responsibility (PEER) announced on May 28, 2024, that it filed a request for correction (RFC) under the Information Quality Act (IQA) regarding a U.S. Environmental Protection Agency (EPA) research memorandum entitled “Verification Analysis for PFAS in Pesticide Products (ACB Project B23-05b)” dated May 18, 2023, and the accompanying press release. As reported in our June 2, 2023, memorandum, EPA completed a verification analysis of a study published in September 2022 in the Journal of Hazardous Materials entitled “Targeted analysis and Total Oxidizable Precursor assay of several insecticides for PFAS.” The study reported the presence of perfluorooctanesulfonate (PFOS) in six of ten pesticide products tested. EPA released a summary of its laboratory analysis of the same ten pesticide products reported to contain per- and polyfluoroalkyl substance (PFAS) residues. EPA stated it did not find any PFAS in the tested pesticide products, differing from the results of the published study. According to PEER, “[i]n an effort to protect its reputation,” EPA issued false statements that the pesticides it tested contained no detectable PFAS. PEER claims that EPA did not reveal that: Regulatory Revisions to Water Quality Standards Protect Tribal Reserved Rights<https://natlawreview.com/article/regulatory-revisions-water-quality-standards-protect-tribal-reserved-rights> The U.S. Environmental Protection Agency (“EPA”) has finalized revisions to the Clean Water Act (“CWA”) Water Quality Standards (“WQS”) at 40 CFR Part 131. The final rule will be effective on June 3, 2024. The new rule considers tribes’ explicit and implicit rights to natural and cultural resources. The revised regulatory framework expressly (1) defines Tribal reserved rights, (2) establishes and clarifies the responsibilities of states regarding Tribal reserved rights in the WQS context, and (3) establishes and clarifies EPA’s role and responsibilities. FERC Reinvigorates Authority over Interstate Transmission Projects, Recognizing Tribal Interests but Stopping Short of Implementing Presumption Based on Adverse Tribal Impact<https://natlawreview.com/article/ferc-reinvigorates-authority-over-interstate-transmission-projects-recognizing> On May 13, 2024, the Federal Energy Regulatory Commission issued a Final Rule under Order 1977 reinvigorating what is known as the Commission’s “backstop siting authority,” which governs applications for permits to site interstate electric transmission facilities when state authorizations are either not attainable for various reasons or are denied or not received by a project proponent within a year of filing with the state. While the Commission recently adopted a position that it will deny hydropower licenses in the event a tribe upon whose reservation the project will sit protests the application, even when prompted, the Commission declined to do the same here. Specifically, the Yaruk Tribe asked the Commission to adopt a presumption that when states deny projects based on adverse tribal impacts, the project is not in the public interest. Rather than aligning its transmission policy under its backstop siting authority with its hydropower policy, the Commission concluded that it will consider only the adverse effects of a proposed transmission project on tribes, landowners, and local communities and impose mitigation requirements if the project moves forward. Increasing Civil Litigation Risks in the Wake of PFAS Regulation and Reporting Requirements<https://natlawreview.com/article/increasing-civil-litigation-risks-wake-pfas-regulation-and-reporting-requirements> On May 15, BIC USA Inc. was hit with a proposed class action in California federal court concerning allegations that some of its razors contain per- and polyfluoralkyl substances (PFAS), sometimes referred to as “forever chemicals.” The class action plaintiffs allege that BIC failed to disclose to consumers the presence of PFAS in the lubricated strip on some of its razors. The plaintiffs are pursuing causes of action under California’s Unfair Competition Law, False Advertising Law, Consumer Legal Remedies Act, and claims of fraud, unjust enrichment, and negligent failure to warn. Regulated Facilities Required to Report PFAS Chemicals Under New EPA Rules<https://natlawreview.com/article/regulated-facilities-required-report-pfas-chemicals-under-new-epa-rules> The U.S. Environmental Protection Agency (EPA) has finalized regulations adding seven per- and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI) program under the Emergency under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). Recently Effective & Pending State Housing Laws: 2024 Land Use, Environmental & Natural Resources Update<https://natlawreview.com/article/recently-effective-pending-state-housing-laws-2024-land-use-environmental-natural> Various state housing bills are currently making their way through the State Legislature that are expected to benefit mixed-income multifamily housing developers. The following summaries reflect the status of the legislation as of May 15, 2024. The legislative process is ongoing and future amendments are expected. EPA Releases Draft Risk Evaluation Documents for DIDP and DINP for Public Comment and Peer Review<https://natlawreview.com/article/epa-releases-draft-risk-evaluation-documents-didp-and-dinp-public-comment-and-peer> The U.S. Environmental Protection Agency (EPA) announced on May 20, 2024, the availability of and solicited public comment on the draft manufacturer-requested risk evaluation (MRRE) for di-isodecyl phthalate (DIDP) and the draft physical chemical, fate, and hazard assessments for di-isononyl phthalate (DINP) prepared under the Toxic Substances Control Act (TSCA). 89 Fed. Reg. 43847. In its May 17, 2024, press release, EPA states that it preliminarily determined that all but one of the uses of DIDP that EPA evaluated under TSCA do not contribute to unreasonable risk to human health. Additionally, EPA preliminarily determined that DINP causes liver damage at lower concentrations than DIDP, and unlike DIDP, could cause cancer at higher levels of exposure. Comments on the draft documents are due July 19, 2024. 2024 Land Use, Environmental, & Natural Resources Update<https://natlawreview.com/article/2024-land-use-environmental-natural-resources-update> As indicated in every year since the Update has been published, California housing remains one of the hottest issues in the public discourse. Last year’s legislative session produced another crop of bills aimed at stimulating housing production and the ongoing session looks to be similarly productive. Many in the firm are working on housing-related issues and closely following every development. ESG Update: Three Climate Change Decisions to Watch as the Temperature Rises<https://natlawreview.com/article/esg-update-three-climate-change-decisions-watch-temperature-rises> Below, we break down three recent decisions and explain why the regulated community should pay attention to them: the first from the Southern District of New York in City of New York v. Exxon Mobil Corporation; the second from a New York state intermediate appellate court; and the third from an international tribunal charged with interpreting state obligations imposed by the United Nations Convention on the Law of the Sea (UNCLOS). GSA Requiring Landlords to Conduct Baseline Drinking Water Testing in All Leased Space<https://natlawreview.com/article/gsa-requiring-landlords-conduct-baseline-drinking-water-testing-all-leased-space> The U.S. General Services Administration (GSA) recently initiated its Water Testing Modification Effort to assess and ensure the quality of drinking water in properties currently under lease with GSA. GSA began issuing unilateral lease amendments (ULAs) to landlords in February 2024, requiring the landlord to conduct one-time drinking water testing within the leased space and building common areas. Per GSA, the Water Testing Modification Effort is in response to water stagnation concerns, and especially the potential for legionella bacteria amplification. Importantly, landlords must complete the water testing pursuant to a prescribed scope of work provided with the ULA, and report the testing results to GSA within 90 days of receipt of the amendment. EPA Adds Seven More PFAS To Toxics Release Inventory Reporting Program for Reporting Year 2024<https://natlawreview.com/article/epa-adds-seven-more-pfas-toxics-release-inventory-reporting-program-reporting-year> The U.S. Environmental Protection Agency (EPA) continues to add specific per- and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI) program under Section 313 of the Emergency Planning and Community Right-to-Know Act, adding an additional seven chemicals via its final rule published in the Federal Register on May 17. Clean Energy Developers Beware! EPA Will Prosecute You for Runoff from Your Solar Farm Sites.<https://natlawreview.com/article/clean-energy-developers-beware-epa-will-prosecute-you-runoff-your-solar-farm-sites> EPA issued a press release yesterday that caught my eye and if you're in the business of building things, including solar projects, it is worthy of your attention too. The press release announces a settlement between a solar farm developer and EPA relating to the alleged discharge of “sediment-laden water” from a solar farm site to “a neighbor's pond and well water”. Designation of PFOA and PFOS as CERCLA Hazardous Substances<https://natlawreview.com/article/designation-pfoa-and-pfos-cercla-hazardous-substances> On May 8, 2024, the United States Environmental Protection Agency (“EPA”) published its final rule designating two types of per- and polyfluoroalkyl substances (“PFAS”) — specifically, perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”), along with their salts and structural isomers, as “hazardous substances” under the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). PFAS, also known as “forever chemicals” because they are persistent in the environment, are a group of manmade chemicals widely used historically in a broad range of industrial processes and consumer products, including textiles, cosmetics, cookware, food packaging and firefighting foam. EPA Issues Final Rule Requiring TRI Reporting for Seven Additional PFAS<https://natlawreview.com/article/epa-issues-final-rule-requiring-tri-reporting-seven-additional-pfas> The U.S. Environmental Protection Agency (EPA) published a final rule on May 17, 2024, to update the list of chemicals subject to Toxics Release Inventory (TRI) reporting to include seven additional per- and polyfluoroalkyl substances (PFAS) for Reporting Year 2024(reporting forms due by July 1, 2025). 89 Fed. Reg. 43331. The Fiscal Year (FY) 2020 National Defense Authorization Act (NDAA) includes a provision that automatically adds PFAS to the TRI list upon EPA’s adoption of a final toxicity value. As reported in our January 18, 2024, blog item, EPA announced on January 9, 2024, that six PFAS were automatically added for Reporting Year 2024 due to EPA having adopted a final toxicity value during 2023: CEQ Finalizes Highly Anticipated NEPA Phase 2 Rule<https://natlawreview.com/article/ceq-finalizes-highly-anticipated-nepa-phase-2-rule> On May 1, the Council on Environmental Quality (CEQ) published the final Phase 2 rule overhauling the National Environmental Policy Act (NEPA) implementing regulations. The final rule, titled the “Bipartisan Permitting Reform Implementation Rule” (Phase 2 Rule), will apply to all actions starting the NEPA processes beginning after July 1, 2024, and the agencies have discretion to apply to NEPA reviews that are currently underway. Michigan AG Announces Intent to Pursue Climate Change Tort Litigation Against the Fossil Fuel Industry<https://natlawreview.com/article/michigan-ag-announces-intent-pursue-climate-change-tort-litigation-against-fossil> Last week, the Attorney General of Michigan announced that her office “will begin seeking proposals from attorneys and law firms . . . to pursue litigation related to the climate change impacts caused by the fossil fuel industry on behalf of the State of Michigan.” This is a noteworthy development, to say the least. EPA Holds Webinar on “Reducing PFAS in Products: Progress and Challenges”<https://natlawreview.com/article/epa-holds-webinar-reducing-pfas-products-progress-and-challenges> . On May 8, 2024, the U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention (OCSPP) held a webinar on “Reducing PFAS in Products: Progress and Challenges.” The webinar was the third in EPA’s series on “Pollution Prevention in Action.” Jennie Romer, EPA Deputy Assistant Administrator for Pollution Prevention, hosts webinars featuring businesses, Pollution Prevention grantees, and other experts about innovations and successes in implementing source reduction strategies to advance sustainability across sectors. EPA will post a recording of the May 8, 2024, webinar on its website. Recordings of previous webinars are already available. EPA Bans Most Uses of Methylene Chloride, Requires Stronger Worker Safety Requirements for Remaining Industrial Uses<https://natlawreview.com/article/epa-bans-most-uses-methylene-chloride-requires-stronger-worker-safety-requirements> The U.S. Environmental Protection Agency (EPA) issued on May 8, 2024, a final rule to address unreasonable risks of injury to health EPA identified caused by methylene chloride under its conditions of use (COU). 89 Fed. Reg. 39254. According to EPA, the final rule will prevent serious illness and death associated with uncontrolled exposures to methylene chloride by preventing consumer access methylene chloride and by restricting the industrial and commercial use of methylene chloride while also allowing for a reasonable transition period where an industrial and commercial use of methylene chloride is being prohibited, will provide a time-limited exemption for a critical or essential use of methylene chloride for which no technically and economically feasible safer alternative is available, and will protect workers from the unreasonable risk of methylene chloride while on the job. The final rule will be effective July 8, 2024. Florida Adopts Laws Erecting Roadblocks to the Climate Transition<https://natlawreview.com/article/florida-adopts-laws-erecting-roadblocks-climate-transition> This week, Governor DeSantis of Florida signed into law certain legislation that expressly seeks to minimize ongoing efforts to combat climate change, and indeed erects various roadblocks to actions designed to promote sustainable energy. In particular, these laws (according to a legislative summary analysis): (1) “remove[] current legislative findings related to global climate change, and the [] list of energy policy goals does not specifically address global climate change”; and (2) “prohibit[] the construction or expansion of offshore wind energy facilities and certain wind turbines located on real property within a mile of the state's coastline or intracoastal waterways or on waters of the state.” In effect, Florida has banned offshore wind turbines and deleted the issue of climate change from state law. PFOA and PFOS Are CERCLA Hazardous Substances – Now What?<https://natlawreview.com/article/pfoa-and-pfos-are-cercla-hazardous-substances-now-what> EPA recently issued its long-awaited rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Along with the rule, EPA issued PFAS Enforcement Discretion and Settlement Policy Under CERCLA. This policy document provides the regulated community with some insight as to how EPA may roll out this rule in practice. EPA Amends Procedural Framework Rule for Conducting TSCA Risk Evaluations<https://natlawreview.com/article/epa-amends-procedural-framework-rule-conducting-tsca-risk-evaluations> The U.S. Environmental Protection Agency (EPA) released a final rule on April 23, 2024, that amends the procedural framework rule for conducting risk evaluations under the Toxic Substances Control Act (TSCA). According to the final rule, published in the Federal Register on May 3, 2024, EPA reconsidered the procedural framework rule for conducting such risk evaluations and is revising certain aspects of that framework to align better with the statutory text and applicable court decisions, to reflect its experience implementing the risk evaluation program following enactment of the 2016 TSCA amendments, and to allow for consideration of future scientific advances in the risk evaluation process without the need to amend further the Agency’s procedural rule. 89 Fed. Reg. 37028. The final rule will take effect July 2, 2024. EPA Issues New Power Plant Rules<https://natlawreview.com/article/epa-issues-new-power-plant-rules> The United States Environmental Protection Agency (EPA) recently finalized four separate rules1 (Power Plant Rules) that set new standards for power plant emissions in the United States. Collectively, these Power Plant Rules are a latticework of regulation focused on four areas of potential contamination and seek to limit emissions from natural gas and coal energy generation and derivative sources. NEW Frequently Asked Questions About EPA’s Expansive PFAS Reporting Rule Under the Toxic Substances Control Act<https://natlawreview.com/article/new-frequently-asked-questions-about-epas-expansive-pfas-reporting-rule-under-toxic> Back in October of 2023, we provided a list of “Frequently Asked Questions” and answers regarding the US Environmental Protection Agency’s (EPA’s) final reporting rule for per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act (TSCA). As of May 8, 2024, many companies are facing a one-year countdown to the deadline for submitting their reports to EPA. To help you prepare for this impending deadline, we are providing a second installment of “Frequently Asked Questions” and answers about EPA’s rule. From JD Supra: EPA and DOI Regulatory Roundup: Air Toxics and Carbon, Coal Ash, Wastewater, Methane, and Offshore Wind<https://www.jdsupra.com/legalnews/epa-and-doi-regulatory-roundup-air-2820169/> The Biden-Harris Administration recently issued a suite of new rules aimed at addressing water and air quality, reducing methane emissions, protecting environmental justice communities, and accelerating the nation’s transition toward renewable energy sources. These regulations represent significant federal action on issues ranging from toxic air pollution to offshore wind leases. The new rules will impact companies across a range of industries: toxic air rules apply to sterilization facilities, carbon pollution regulations apply to fossil fuel power plants, wastewater controls apply to coal power plants, methane reporting rules impact the oil and gas sector, and offshore energy rules aim to incentivize development in the offshore wind sector. This client alert summarizes key environmental rulemakings through early May 2024. Deep-Sea Mining – Article 1: What Is Happening With Deep-Sea Mining?<https://www.jdsupra.com/legalnews/deep-sea-mining-article-1-what-is-3875958/> Debate continues on whether the UAE Consensus achieved at COP28 represents a promising step forward or a missed opportunity in the drive towards climate neutral energy systems. However, the agreement that countries should “transition away from fossil fuels” and triple green power capacity by 2030 spotlights the need for countries to further embrace renewable power. EPA Compliance in 2024: 10 Key Areas of Concern (and 5 Tips for Success)<https://www.jdsupra.com/legalnews/epa-compliance-in-2024-10-key-areas-of-8689599/> Companies in a wide range of industries are subject to the oversight of the United States Environmental Protection Agency (EPA). The EPA enforces numerous environmental laws, environmental regulations, and executive orders to address violations that pose threats to human health and the environment—and, for companies that need to comply, noncompliance with these federal requirements can lead to inspections, investigations, and steep penalties. Along with administrative and civil penalties, these even include criminal penalties in some cases. Massachusetts’ First Networked Geothermal System Pilot Launches<https://www.jdsupra.com/legalnews/massachusetts-first-networked-9004123/> Eversource’s launch of its new networked geothermal system pilot project in Framingham has drawn significant interest as Massachusetts’ first gas utility-operated ground source heating and cooling project. Eversource’s Geothermal Pilot Project website explains that “[a] geothermal system uses water, wells, piping and pumps to pull heat out of the ground to warm buildings in winter, and pump heat from those buildings back into the ground in summer to cool them using heat pump technology.” Energy & Sustainability Litigation Updates — June 2024<https://www.jdsupra.com/legalnews/energy-sustainability-litigation-1719949/> On April 22, 2024, the federal government issued a rule “amending the Federal Acquisition Regulation (FAR)” to “implement a requirement for agencies to procure sustainable products and services to the maximum extent practicable.” In other words, federal contractors now have enhanced obligations to provide sustainable products and services as part of their contractual duties owed to the government. Renewable Energy Update 6.03.24<https://www.jdsupra.com/legalnews/renewable-energy-update-6-03-24-1548182/> Greenhouse Gas Emission Reporting for Petroleum and Natural Gas Industry Overhauled<https://www.jdsupra.com/legalnews/greenhouse-gas-emission-reporting-for-5121994/> The Situation: The United States Environmental Protection Agency ("EPA") was required to overhaul the greenhouse gas reporting requirements for the petroleum and natural gas industry by the Inflation Reduction Act ("IRA") in anticipation of the upcoming fee to be imposed on those emissions. This Week’s Climate Policy Update - May 2024 #5<https://www.jdsupra.com/legalnews/this-week-s-climate-policy-update-may-6499647/> Good morning! This is Akin’s newsletter on climate change policy and regulatory developments, providing information on major climate policy headlines from the past week and forthcoming climate-related events and hearings... Please see full publication below for more information. California Environmental Law & Policy Update 5.31.24<https://www.jdsupra.com/legalnews/california-environmental-law-policy-7617040/> U.S. Supreme Court to consider whether EPA must set specific limits in pollution permits Guide for Using Clean Water Act Discharge Permits to Protect Drinking Water Sources: Source Water Collaborative Report<https://www.jdsupra.com/legalnews/guide-for-using-clean-water-act-2641382/> A May 2024 report has been issued Sustainability and ESG Advisory Practice Update, May 2024<https://www.jdsupra.com/legalnews/sustainability-and-esg-advisory-6472129/> We are pleased to share the May 2024 issue of Wilson Sonsini's Sustainability and ESG Advisory Practice Update. Each issue combines news, key legal developments, and resources related to sustainability and environmental, social, and governance (ESG) matters relevant to public and private companies internationally. Designation of PFOA and PFOS as CERCLA Hazardous Substances to Become Effective on July 8, 2024<https://www.jdsupra.com/legalnews/designation-of-pfoa-and-pfos-as-cercla-3696462/> As previously reported, on April 19, 2024, the U.S. Environmental Protection Agency (“EPA”) released the pre-publication notice of its final rule designating perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). The rule was published in the Federal Register on May 8, 2024 and as a result will become effective 60 days later on July 8, 2024. Mandatory Disclosure on "Forever Chemicals," PFAS, in One State Propagates Consumer Class Action in Another<https://www.jdsupra.com/legalnews/mandatory-disclosure-on-forever-2111589/> In what appears to be a new pathway for PFAS litigation, California plaintiffs recently filed a lawsuit against the manufacturer of BIC razors stemming from disclosures the company made under Maine's PFAS law, which were subsequently publicized by a nonprofit group following a freedom of information request. Water System Restructuring Assessment Rule/Safe Drinking Water Act: U.S. Environmental Protection Agency Announces Proposed Rule<https://www.jdsupra.com/legalnews/water-system-restructuring-assessment-4796291/> The United States Environmental Protection Agency (“EPA”) announced what it describes as the: Water System Restructuring Assessment Rule (“WSRA”). White House Council on Environmental Quality Finalizes NEPA Phase II Rulemaking<https://www.jdsupra.com/legalnews/white-house-council-on-environmental-8465067/> On May 1, 2024, the White House Council on Environmental Quality (CEQ) finalized a rule to undo most of the remaining 2020 Trump Administration changes to the federal environmental review process under the National Environmental Policy Act (NEPA). The 2020 changes being reversed were intended to streamline federal environmental reviews, but were criticized for reducing consideration of issues such as climate change and for narrowing opportunities for public input into reviews. Sustainable Development and Land Use Update 5.28.24<https://www.jdsupra.com/legalnews/sustainable-development-and-land-use-4801803/> Various state housing bills are currently making their way through the State Legislature that are expected to benefit mixed-income multifamily housing developers. AB 2243 would amend AB 2011. AB 1893 and AB 1886 would amend Builder’s Remedy provisions under the Housing Accountability Act. AB 2560 and SB 951 would help facilitate housing development in the coastal zone. AB 3068 would provide for the streamlined ministerial (i.e., no CEQA) approval of qualifying adaptive reuse projects involving the conversion of an existing building to residential or mixed-uses. SB 1227 would help facilitate middle-income housing and other projects in the San Francisco Downtown Revitalization Zone. Wendy Wang Partner wendy.wang@bbklaw.com T: (213) 787-2554 bbklaw.com|