Dear Section Members, Here is the news roundup from the past month. From Law360: Green Group Backs Feds' Denial Of Water Co.'s Right-Of-Way<https://www.law360.com/environmental/articles/1870434/green-group-backs-feds-denial-of-water-co-s-right-of-way-> Save Our Forest Association urged a D.C. federal judge on Thursday to reject the company behind Arrowhead Mountain Spring Water's attempt to block the federal government from requiring it cease operation of its 23,000-foot-long water pipeline in Berkeley, California's Strawberry Canyon. Monsanto Gets 3rd Circ. Win In Roundup Failure-To-Warn Case<https://www.law360.com/environmental/articles/1870304/monsanto-gets-3rd-circ-win-in-roundup-failure-to-warn-case> The Third Circuit ruled Thursday that a Pennsylvania state law failure-to-warn claim in a suit alleging the weed killer Roundup caused a Keystone State man's cancer is preempted by federal law, creating a circuit split on central issues in multidistrict litigation over the Monsanto product. Colorado, Suncor Back EPA In Denver Refinery Permit Fight<https://www.law360.com/environmental/articles/1870217/colorado-suncor-back-epa-in-denver-refinery-permit-fight> Colorado and Suncor Energy USA Inc. told the Tenth Circuit the U.S. Environmental Protection Agency was right to refuse to object to a series of permit changes state regulators approved for the company's Denver-area oil refinery, as fights over the facility's emissions are heating up. Fed. Circ. Won't Rehear Utah Tribe's Water Dispute<https://www.law360.com/environmental/articles/1869038/fed-circ-won-t-rehear-utah-tribe-s-water-dispute-> A Federal Circuit panel refused to rehear a Utah tribe's challenge to the U.S. government that looked to overturn a Federal Claims Court ruling that held it didn't violate a 19th century law by not securing new water and infrastructure rights for the Indigenous community. Michigan's Airport PFAS Pollution Suit Escapes Foam MDL<https://www.law360.com/environmental/articles/1869770/michigan-s-airport-pfas-pollution-suit-escapes-foam-mdl> A Michigan federal judge has agreed to disentangle state regulators' PFAS pollution claims against an airport from claims against manufacturers of the chemicals, a move that prevents the state's case from being absorbed into multidistrict litigation over firefighting foam. The Biggest Enviro Decisions Of 2024: Midyear Report<https://www.law360.com/environmental/articles/1858853/the-biggest-enviro-decisions-of-2024-midyear-report> 2024 has already been one of the most consequential years for environmental law, and it's only half over. The U.S. Supreme Court issued groundbreaking administrative law decisions, while lower appeals courts resolved questions about California's right to promulgate its own vehicle emissions standards, among other rulings. Santa Monica Sues 3M, DuPont Over PFAS Contamination<https://www.law360.com/environmental/articles/1869592/santa-monica-sues-3m-dupont-over-pfas-contamination> The city of Santa Monica, California, has hit 3M, DuPont de Nemours Inc., RTX Corp., formerly known as Raytheon, and more than a dozen other companies with a suit over PFAS contamination stemming from the use of aqueous film-forming firefighting foams. DC Circ. Backs EPA's Ethylene Oxide Cancer Risk Value<https://www.law360.com/environmental/articles/1869296/dc-circ-backs-epa-s-ethylene-oxide-cancer-risk-value> The D.C. Circuit on Tuesday upheld federal environmental regulators' assessment of the cancer risk from exposure to certain chemical manufacturers' ethylene oxide emissions, rejecting a challenge from a chemical company and two chemical associations that argued the risk assessment was arbitrary and capricious. Monsanto, PCB Plaintiffs Want It Both Ways, Judge Says<https://www.law360.com/environmental/articles/1867586/monsanto-pcb-plaintiffs-want-it-both-ways-judge-says> A Washington state court judge expressed frustration on Wednesday with counsel for both sides of a toxic tort against Monsanto, remarking during a summary judgment hearing that the parties can't "pick and choose" which parts of a recent appellate ruling apply to their case. DC Circ. Declines To Block EPA Mercury Air Toxics Rule<https://www.law360.com/environmental/articles/1867280/dc-circ-declines-to-block-epa-mercury-air-toxics-rule> The D.C. Circuit on Tuesday refused to stay the U.S. Environmental Protection Agency's new rule tightening mercury and other toxic metal emission standards for some coal-fired power plants as a legal challenge filed by states and industry groups plays out. 7th Circ. Keeps 3M PFAS Pollution Suit In State Court<https://www.law360.com/environmental/articles/1867378/7th-circ-keeps-3m-pfas-pollution-suit-in-state-court> The Seventh Circuit on Wednesday rejected 3M's bid to send back to federal court a lawsuit brought by the state of Illinois alleging that the company polluted local waters with toxic "forever chemicals," saying a federal government contractor defense would be "wholly irrelevant" to the state's case. EPA Emergency Bans Pesticide Chem Over Risks To Unborn<https://www.law360.com/environmental/articles/1866839/epa-emergency-bans-pesticide-chem-over-risks-to-unborn> The U.S. Environmental Protection Agency said Tuesday it's imposing an emergency ban on all pesticide products that contain a chemical used since the 1950s that it says puts fetuses at risk of thyroid problems and a cascade of other health issues. Washington, Tribes Back EPA's Health Criteria For The State<https://www.law360.com/environmental/articles/1866380/washington-tribes-back-epa-s-health-criteria-for-the-state-> The state of Washington and five Native American tribes have argued that the U.S. Environmental Protection Agency rightly restored more than 140 human health criteria aimed at protecting the state's residents from toxic pollutants, urging a D.C. federal judge to reject several business groups' attempt to overturn the agency's rule. 9th Circ. Denies Rehearing Bid In ESA Fish Protection Suit<https://www.law360.com/environmental/articles/1865941/9th-circ-denies-rehearing-bid-in-esa-fish-protection-suit> The Ninth Circuit denied conservation groups' request to rehear a ruling affirming the federal government's approval of water supply contracts for the Central Valley Project in California. Wolverine, Travelers Drop Coverage Claims Over PFAS Suits<https://www.law360.com/environmental/articles/1866106/wolverine-travelers-drop-coverage-claims-over-pfas-suits> Footwear company Wolverine and various Travelers units have agreed to end their coverage battle over underlying lawsuits accusing the company of injuring individuals through its leather tannery operations and exposing individuals to so-called forever chemicals, the parties told a Michigan federal court. Conservation Groups Take Aim At ESA Regs<https://www.law360.com/environmental/articles/1864808/conservation-groups-take-aim-at-esa-regs> Conservation groups are asking a California federal judge to throw out Endangered Species Act regulations put forward earlier this year, claiming federal agencies shortchanged their environmental review duties and moved ahead with changes that will harm the imperiled plants and animals the statute is supposed to protect. 5th Circ. Backs Louisiana's Block Of EPA Chemical Rule<https://www.law360.com/environmental/articles/1864607/5th-circ-backs-louisiana-s-block-of-epa-chemical-rule> The Fifth Circuit on Wednesday refused to overturn a Louisiana agency's move to block the U.S. Environmental Protection Agency from enforcing a chemical rule that a neoprene maker says would force it to shut down. From Law.com: PFAS' Regulatory Scrutiny Here to Stay Despite Legal Challenges, Environmental Experts Say<https://www.law.com/nationallawjournal/2024/08/14/pfas-regulatory-scrutiny-here-to-stay-despite-legal-challenges-environmental-experts-say/> Regulation of "forever chemicals" is "an issue that's not going to go away for industry and will have to be dealt with,” said attorney Gerald Higdon. Third Circuit Breaks With Sister Courts in Ruling on Monsanto's Preemption Arguments<https://www.law.com/thelegalintelligencer/2024/08/16/third-circuit-breaks-with-sister-courts-in-ruling-on-monsantos-preemption-arguments/> While the Third Circuit held that the Federal Insecticide, Fungicide, and Rodenticide Act preempted plaintiffs’ state failure-to-warn claims, prior rulings from the U.S. Courts of Appeals for the Ninth and Eleventh Circuits on the same issue rejected Monsanto’s preemption arguments. From The National Law Review: DC Circuit Remands and Vacates FERC’s Order Approving the Transco Project<https://natlawreview.com/article/dc-circuit-remands-and-vacates-fercs-order-approving-transco-project> On July 30, 2024, the D.C. Circuit Court of Appeals in New Jersey Conservation Foundation, et al. v. FERC vacated FERC’s order approving Transcontinental Gas Pipe Line Company (Transco)’s Regional Energy Access Expansion Project. This project involves the construction and operation of approximately 36.1 miles of new natural gas pipeline facilities, including 22.3 miles of 30-inch-diameter lateral pipeline and 13.8 miles of 42-inch-diameter loop pipeline, as well as a new compressor station and modifications to existing stations, running through New Jersey, New York, Delaware, Maryland, and Pennsylvania. The project is designed to expand natural gas delivery capacity by 829,400 dekatherms per day. This blog post explores three notable aspects of the court’s opinion. State of Hawaii Enters into Climate Change Settlement With Youth Plaintiffs<https://natlawreview.com/article/state-hawaii-enters-climate-change-settlement-youth-plaintiffs> On June 24, the State of Hawaii entered into a settlement agreement with a group of thirteen plaintiffs, all minor children, concerning the impact of climate change and the efforts the State of Hawaii would make to reduce its contributions to climate change. Specifically, Hawaii committed to achieving “zero [greenhouse gas] emissions across all transportation modes within the State” by “no later than 2045.” Perhaps more significantly, the State of Hawaii recognized that “Youth Plaintiffs have constitutional rights to a clean and healthful environment consistent with . . . the Hawai'i Constitution,” and this includes “a right to a life-sustaining climate system”--i.e., that there is a constitutional right to be protected from climate change. Litigation Minute: Microplastics—Everything, Everywhere, All at Once?<https://natlawreview.com/article/litigation-minute-microplastics-everything-everywhere-all-once> Microplastics, as a seemingly ubiquitous contaminant, have increasingly become the subject of online exposés and class action challenges. The Environmental Protection Agency (EPA) states on its microplastics research page that, “[m]icroplastics have been found in every ecosystem on the planet, from the Antarctic tundra to tropical coral reefs, and have been found in food, beverages, and human and animal tissue.” With quotes like this, it does feel like microplastics are everything, everywhere, all at once. Connecticut Lawsuit Against Major Fossil Fuel Company Survives Motion to Dismiss<https://natlawreview.com/article/connecticut-lawsuit-against-major-fossil-fuel-company-survives-motion-dismiss> A couple of weeks ago, a lawsuit brought by the State of Connecticut against a major fossil fuel company, alleging various violations of the consumer protection laws in Connecticut (specifically, the Connecticut Unfair Trade Practices Act) revolving around allegations that the company “misled and deceived Connecticut consumers about the negative effects of its business practices on the climate” survived a motion to dismiss. This case will now proceed to the next phase of litigation, namely discovery, and constitutes yet another example of a climate change case brought by a state or local governmental entity overcoming initial legal hurdles, leading to the potential of a significant future impact on the fossil fuel industry. EPA Seeks Applications for Research on Nanosensor Technology to Detect, Monitor, and Degrade PFAS in Drinking Water Sources<https://natlawreview.com/article/epa-seeks-applications-research-nanosensor-technology-detect-monitor-and-degrade> The U.S. Environmental Protection Agency (EPA) is seeking applications for research to develop and demonstrate nanosensor technology with the potential to detect, monitor, and degrade per- and polyfluoroalkyl substances (PFAS) in groundwater or surface water that may be used as drinking water sources. EPA states that advances in nanoscience and nanotechnology have the potential to address the challenges of detection and treatment of PFAS-contaminated waters. EPA Announces Initial Recipients for Historic Community Change Grants Program<https://natlawreview.com/article/epa-announces-initial-recipients-historic-community-change-grants-program> The United States Environmental Protection Agency (EPA) has announced more than $325 million in funding for 21 projects aimed at addressing environmental and climate justice issues in disadvantaged communities. This funding is the first round of nearly $2 billion from the new Community Change Grants Program, the largest environmental justice investment in history. What’s Next for California Climate Disclosure and Accountability Laws?<https://natlawreview.com/article/whats-next-california-climate-disclosure-and-accountability-laws> Recent developments could impact implementation timing and compliance obligations under California’s landmark climate emissions disclosure and financial risk reporting laws that were enacted last year: From JD Supra: For the First Time in Four Decades, EPA Uses Emergency Suspension Power on a Pesticide<https://www.jdsupra.com/legalnews/for-the-first-time-in-four-decades-epa-9154923/> On August 6, the Environmental Protection Agency issued an Emergency Order directing the suspension of all registrations issued under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for pesticide products containing the active ingredient dimethyl tetrachloroterephthalate (DCPA), also marketed under the trade name Dacthal. According to EPA, this is the “first time in almost 40 years that EPA is using its emergency suspension authority to stop the use of a pesticide.” EPA Seeks Input from Small Businesses on Proposed Regulations for Drinking Water<https://www.jdsupra.com/legalnews/epa-seeks-input-from-small-businesses-2490947/> Opportunity knocks for water treatment entities to provide their input on new regulations about to be rolled out by EPA that could either boost or harm their businesses. The Regulatory Flexibility Act requires EPA to establish a panel, including small businesses that may be economically impacted before any revisions to regulations become effective. But beware, the deadline only provides one week to apply. Contaminants Compass: August 2024 Edition<https://www.jdsupra.com/legalnews/contaminants-compass-august-2024-edition-8471241/> “Contaminants Compass” is a monthly newsletter that provides updates, legal observations and actionable tips to navigate the evolving legal challenges of per- and polyfluoroalkyl substances (PFAS). This edition discusses litigation against the Environmental Protection Agency concerning alleged failures to regulate under the Clean Water Act the spread of sludge contaminated by PFAS, three recent decisions by New York federal courts rejecting inadequate product testing in support of litigation claiming PFAS contamination, numerous enacted and promulgated state statutes banning PFAS in consumer and other products, and disclosure requirements in connection with home sales. The Supreme Court's Recent Clean Water Act Decision Forces Local Jurisdictions to Tackle Wetlands Issues<https://www.jdsupra.com/legalnews/the-supreme-court-s-recent-clean-water-2936008/> As someone who grew up in Southwest Colorado, Ayden Crosby's great reporting on Silverton's efforts to grapple with wetlands issues after Sackett v. EPA hits close to home and highlights the impacts on local communities who are wrestling with these issues in the wake of the regulatory vacuum created by the Supreme Court's curtailment of Clean Water Act protections. PFAS/Clean Water Act Citizen Suit Enforcement: Coosa River Basin Initiative and Georgia Municipality Enter into Consent Decree<https://www.jdsupra.com/legalnews/pfas-clean-water-act-citizen-suit-2675820/> The Coosa River Basin Initiative (“Initiative”) and City of Calhoun, Georgia (“Calhoun”) entered into a Consent Decree (“CD”) addressing alleged violations of the Clean Water Act. See Civil Action No. 4:24-cv-00068-WMR. PFAS[t] and Furious: Racing To Comply with the New Reporting Rule<https://www.jdsupra.com/legalnews/pfas-t-and-furious-racing-to-comply-9019709/> Back in 2023, the U.S. Environmental Protection Agency (EPA) issued a sweeping information-gathering rule under the Toxic Substances Control Act (TSCA) requiring manufacturers (including importers) to report on per- and polyfluoroalkyl substances (PFAS) in their products. The rule requires that manufacturers, including importers of PFAS and PFAS compounds in consumer products in any year from 2011 to 2022, submit detailed information regarding the manufacture, processing, use, disposal, and environmental and health effects of these substances. Numerous Groups Petition EPA to Suspend and/or Cancel Pesticide Registrations Based on a Class Definition of PFAS Alone<https://www.jdsupra.com/legalnews/numerous-groups-petition-epa-to-suspend-2500002/> Pesticide manufacturers and registrants, like many other companies, are facing increased pressure to remove per- and polyfluoroalkyl substances (PFAS) from their products. This pressure, however, is often focused on how the substances are defined as a class, rather than how science has measured the toxicity of each specific substance within it. Class-wide bans are particularly troubling with respect to PFAS where, depending on how the substances are defined, there are thousands in existence, most of which lack any scientific evidence of an ability to harm humans, animals or the environment. Actuaries Demonstrate EPA Severely Underestimated Water Remediation Costs<https://www.jdsupra.com/legalnews/actuaries-demonstrate-epa-severely-5591127/> On April 26, 2024, the United States Environmental Protection Agency (EPA) promulgated the first-ever national, legally enforceable maximum contaminant levels (MCLs) for six per- and polyfluoroalkyl substances (PFAS) in drinking water. EPA has set MCLs for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) at four parts per trillion (ppt), the lowest level that current technology can reliably detect. California Environmental Law & Policy Update 8.09.24<https://www.jdsupra.com/legalnews/california-environmental-law-policy-2694456/> Shell, Dow settle with Fresno for $230 million over claims of TCP water contamination Air Enforcement: Wisconsin Attorney General and Manitowoc Liquid Smoke Manufacturing Facility Enter into Settlement<https://www.jdsupra.com/legalnews/air-enforcement-wisconsin-attorney-4274673/> The State of Wisconsin through its Attorney General (“AG”) entered into a Stipulation of Judgement (“Judgement”) with Kerry Inc. (“KI”) addressing alleged violations of the Wisconsin Air Emission Laws. See State of Wisconsin v. Kerry Inc., Case No. 24-CX000002. EPA not Afraid of Changin’, Wants Landfills to Bring it (Methane Emission) Down<https://www.jdsupra.com/legalnews/epa-not-afraid-of-changin-wants-7470246/> The Environmental Protection Agency intends to issue a rule updating its Clean Air Act emission standards for new and existing municipal solid waste (MSW) landfills to cut methane and other harmful landfill gas emissions. Back to the PFuture: Required Reporting of Historical PFAS Use Poses Risks Going Forward<https://www.jdsupra.com/legalnews/back-to-the-pfuture-required-reporting-2387214/> The U.S. Environmental Protection Agency (EPA) recently established a one-time per- and polyfluoroalkyl substances (PFAS) reporting rule pursuant to the federal Toxic Substances Control Act (TSCA). Most companies that manufactured or imported certain PFAS chemicals or PFAS-containing “articles” from 2011 through 2022 (even if only once) must submit detailed information about those PFAS subject to the rule, compound by compound, to EPA by May 8, 2025. Expansion of PFAS Hazardous Substances Designation "To Be Determined"<https://www.jdsupra.com/legalnews/expansion-of-pfas-hazardous-substances-3189470/> In April 2024, the Environmental Protection Agency (EPA) designated perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund. August Means Back-to-[Microplastics] School<https://www.jdsupra.com/legalnews/august-means-back-to-microplastics-4664327/> Plastics are inescapable. They are used in packaging, home supplies, medical devices, and countless other items. Naturally then, over the past several years, and as covered by ELM and GS’s Toxic Tort and Environmental Law team, microplastics have gained notoriety in the United States. These small fragments of plastic, smaller five millimeters, have increasingly been released into the environment — often into bodies of water — via production, use, or degradation. Microplastics have also been found in aquatic life and human organs. Baltimore's Climate Change Lawsuit Dismissed<https://www.jdsupra.com/legalnews/baltimore-s-climate-change-lawsuit-2122581/> In City of Baltimore v. BP, et al., court holds that nuisance and tort claims are preempted by federal law and beyond the limits of state law. California Court of Appeal Clarifies What Constitutes a “Rare” Species Under CEQA<https://www.jdsupra.com/legalnews/california-court-of-appeal-clarifies-1599226/> On June 27, 2024, the California First District Court of Appeal affirmed the denial of a writ petition challenging the City of Lafayette’s (City) determination that a 12-unit residential condominium building qualified for the Class 32 infill development exemption under the California Environmental Quality Act (CEQA). (See Nassiri v. City of Lafayette, et al. (2024) ___ Cal.App.5th ___.) Specifically, the court determined the project was exempt from CEQA because no evidence confirmed the project site had value as habitat for rare or threatened species. Microplastics in our Meals: A Scientific Perspective<https://www.jdsupra.com/legalnews/microplastics-in-our-meals-a-scientific-8890748/> In light of the increasing reports highlighting the presence of micro- and nanoplastics (MNPs) in our food and beverages, it is essential for the scientific community and media to approach these findings with a balanced perspective. EPA Commences Proceedings to Investigate PFAS in Fluorinated Plastic Containers<https://www.jdsupra.com/legalnews/epa-commences-proceedings-to-3812765/> Companies that manufacture, use, distribute, and dispose of fluorinated plastic containers should take note that the U.S. Environmental Protection Agency (EPA) recently granted a petition from several environmental groups that asked the agency to address per- and polyfluoroalkyl substances (PFAS) formed during the fluorination of plastic containers. The petition, dated April 11, 2024, requests that the EPA promulgate a rule pursuant to Section 6(a) of the Toxic Substances Control Act (TSCA) that would prohibit the manufacture, processing, use, distribution in commerce, and disposal of fluorinated plastic containers containing one of three PFAS formed during the fluorination process. Pending Legal Challenge to EPA Designation of PFOA and PFOS as CERCLA Hazardous Substances<https://www.jdsupra.com/legalnews/pending-legal-challenge-to-epa-9962697/> A legal challenge is pending in the D.C. Circuit Court of Appeals with respect to EPA’s April 19, 2024 final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under CERCLA (discussed in the April 19 summary, below). A Petition for Review was jointly filed on June 10 by the U.S. Chamber of Commerce, the Associated General Contractors of America (AGC), and the National Waste & Recycling Association (NWRA). In that filing, the AGC describes itself as “the nation’s largest and most diverse trade association in the commercial construction industry, now representing more than 28,000 member companies,” and the NWRA is described as “the trade association representing the private sector recycling and waste industry.” Wendy Wang Partner wendy.wang@bbklaw.com T: (213) 787-2554 bbklaw.com|