Dear Section Members, Here is the news roundup from the past month. Additionally, the Loper opinion regarding the Chevron doctrine is available here<https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf>. From Law360: Appliance Co. Must Face Stove Pollutant Risk Claims<https://www.law360.com/environmental/articles/1854723/appliance-co-must-face-stove-pollutant-risk-claims> Sub-Zero Group Inc., a maker of luxury kitchen appliances, can't get out of a proposed class action accusing it of selling gas stoves that emit pollutants, a Wisconsin federal judge has ruled, saying federal energy efficiency laws do not "at this point" invalidate the state law claims. Tribal Nations Want In On Red States' Water Rule Dispute<https://www.law360.com/environmental/articles/1853367/tribal-nations-want-in-on-red-states-water-rule-dispute> Seven tribal nations are asking a North Dakota federal court for permission to intervene in a group of red states' challenge to a U.S. Environmental Protection Agency rule revision that considers tribal rights in addressing water quality standard regulations, arguing that their rights to aquatic resources could be harmed should the law be overturned. Washington State, Tribes Can Wade Into Water Regs Dispute<https://www.law360.com/environmental/articles/1853266/washington-state-tribes-can-wade-into-water-regs-dispute-> A D.C. federal judge said Washington state and five Native American tribes can intervene in a business group's lawsuit trying to overturn the U.S. Environmental Protection Agency's decision to reestablish water quality standards for the Evergreen State that it had rolled back during the Trump administration. EPA Inks Deal To Take Action On States' Haze Plans<https://www.law360.com/environmental/articles/1853489/epa-inks-deal-to-take-action-on-states-haze-plans> The U.S. Environmental Protection Agency has agreed to take action on plan revisions submitted by more than 30 states aimed at curbing haze-forming air pollution, resolving environmental groups' claims the agency has unlawfully delayed approving or denying the various plan revisions. EPA Coal Ash Rules Are Nothing New, DC Circ. Rules<https://www.law360.com/environmental/articles/1852748/epa-coal-ash-rules-are-nothing-new-dc-circ-rules> The U.S. Environmental Protection Agency was enforcing existing rules rather than illegally issuing new ones when it rejected requests by power companies to extend a deadline to comply with regulations governing the cleanup of coal-ash waste facilities, a D.C. Circuit panel ruled Friday. States Say Revised EPA Water Rule Worse Than Original<https://www.law360.com/environmental/articles/1851590/states-say-revised-epa-water-rule-worse-than-original> Two dozen states are seeking a quick win against the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers and several Native American tribes in their suit challenging a revised rule defining the Clean Water Act's reach, saying it doesn't solve many problems found in the original rule. Calif. AG Defends Chemical Org's Subpoena In Pollution Probe<https://www.law360.com/environmental/articles/1851715/calif-ag-defends-chemical-org-s-subpoena-in-pollution-probe> California Attorney General Rob Bonta is urging a D.C. federal judge to reject a bid from the American Chemistry Council that would block his office from enforcing a subpoena on the organization as part of an investigation into fossil fuel and petrochemical industries' role in global plastics pollution. Conn. Firefighters Sue Over PFAS In Protective Gear<https://www.law360.com/environmental/articles/1851599/conn-firefighters-sue-over-pfas-in-protective-gear> Connecticut firefighters slapped 3M, DuPont and 17 others with a proposed class action on Tuesday, alleging they have been exposed to dangerous levels of per- and polyfluoroalkyl substances, or PFAS, contained in their protective gear manufactured and sold by the companies. Monsanto Can't Plead Ignorance On PCB Pollution, Cities Say<https://www.law360.com/environmental/articles/1847358/monsanto-can-t-plead-ignorance-on-pcb-pollution-cities-say> Chicago suburbs looking to hold Monsanto and related businesses accountable for their financial share of reducing pollutants in water that flows into Lake Michigan urged an Illinois state court to keep their case alive, arguing the companies should have known about the dangers of the chemicals in products. From Law.com: Consumer Class Actions May Be the Next Wave of PFAS Litigation<https://www.law.com/2024/07/02/consumer-class-actions-may-be-the-next-wave-of-pfas-litigation/> A new wave of litigation about PFAS (per- and polyfluoroalkyl substances) has begun. If it gains momentum, it could be the biggest yet. Industry Groups Sue EPA Over PFAS Drinking Water Regulation, Calling Rule 'Arbitrary, Capricious'<https://www.law.com/nationallawjournal/2024/06/12/industry-groups-sue-epa-over-pfas-drinking-water-regulation-calling-rule-arbitrary-capricious/> "I believe that we're going to see more of a proactive, as opposed to a reactive, approach from chemical manufacturers with products containing PFAS," said environmental lawyer Kayla Weiser-Burton. EPA Wins Federal Court Challenge to Amended 'Waters of the United States' Rule<https://www.law.com/nationallawjournal/2024/06/25/epa-wins-federal-court-challenge-to-amended-waters-of-the-united-states-rule/> The North Carolina ruling is unlikely to influence other pending litigation challenging the agency’s regulation, environmental lawyers said. 4th Circuit Revives CERCLA Hazardous Waste Lawsuit Against Holdout Defendants<https://www.law.com/nationallawjournal/2024/06/26/4th-circuit-revives-cercla-hazardous-waste-lawsuit-against-holdout-defendants/> “It’s a very important decision for Superfund sites across the country. The district court’s decision, had it not been reversed on appeal, could have had the potential to disrupt these types of cases all across the country,” said Gary D. Justis, who argued the appeal successfully on behalf of 68th Street Group. From The National Law Review” Implications of Recent Supreme Court Decisions on Administrative, Environmental and Natural Resources Law<https://natlawreview.com/article/implications-recent-supreme-court-decisions-administrative-environmental-and> The final days of the U.S. Supreme Court’s 2023 term saw the release of several decisions that may – or may not, depending on one’s perspective and desired strategy – hold significant implications for administrative law practice as well as the interpretation and enforcement of environmental and natural resource law (among other areas of law). These include Loper Bright Enterprises v. Raimondo, Relentless, Inc. v. Department of Commerce, Securities and Exchange Commission v. Jarkesy, and Corner Post, Inc. v. Board of Governors of the Federal Reserve System, along with Ohio. v. Environmental Protection Agency (in which B&D successfully represented a petitioner in securing stay of the U.S. Environmental Protection Agency’s (EPA) Good Neighbor Rule). Major media outlets have covered each case and its potential ramifications at a high level. B&D provided summaries of these cases earlier this year in our Litigation Look Ahead series. EPA Announces Final Cancellation Order and Updates to Existing Stocks Provisions for Several Chlorpyrifos Products<https://natlawreview.com/article/epa-announces-final-cancellation-order-and-updates-existing-stocks-provisions> On June 25, 2024, the U.S. Environmental Protection Agency (EPA) announced the issuance of a final cancellation order for Corteva’s chlorpyrifos product “Dursban 50W in Water Soluble Packets” and three Gharda chlorpyrifos products, and an amendment to the existing stocks provisions for two Liberty and three Winfield chlorpyrifos end-use products. EPA also states that it has updated its frequently asked questions about chlorpyrifos. Energy & Sustainability Litigation Updates — July 2024<https://natlawreview.com/article/energy-sustainability-litigation-updates-july-2024> On June 4, 2024, a number of Congressional Democrats (10 Senators; 28 Congressmen) sent a letter to SEC Chairman Gensler, urging that the SEC “enforce existing SEC climate disclosure-related guidance” while the legal challenge to the SEC’s mandatory climate disclosure rule is pending. In particular, the letter suggested action based on the SEC’s 2010 guidance on climate-change developments. This letter increases the pressure on the SEC from liberal policymakers to fully defend the mandatory climate disclosure rule in the courts, as well as to pursue other actions to advance a climate agenda in regulatory matters. Minnesota Department of Health Highlights Recent Publications on PFAS Bioaccumulation and PFAS in Infant Formula<https://natlawreview.com/article/minnesota-department-health-highlights-recent-publications-pfas-bioaccumulation-and> The Minnesota Department of Health (MDH) recently noted that Health Risk Assessment scientists at MDH have published two articles in the Journal of Environmental Exposure Assessment related to per- and polyfluoroalkyl substances (PFAS) State Law Requiring PFAS Disclosure Leads to Class Action Lawsuit<https://natlawreview.com/article/state-law-requiring-pfas-disclosure-leads-class-action-lawsuit> A Maine law that required (at least until recently amended) consumer products companies to disclose the presence of “intentionally added” per- and perfluoroalkyl substances (PFAS) in products sold within the state has led to the filing of a consumer class action lawsuit against the disclosing company. Butler & Pai v. BIC USA, INC., No. 4:24-cv-02955 (N.D. Cal.) This lawsuit may be a harbinger of future litigation aimed at companies who must make similar disclosures in order to comply with a growing number of state PFAS disclosure mandates, such as in New York, Washington, Vermont, Connecticut, Colorado, California, Maine, Maryland, Minnesota, Rhode Island and Hawaii. In general, these state laws require companies selling products in the states to disclose if any of those products contain “intentionally added” PFAS. Although the term “intentionally added” remains ambiguous, defenders of these laws have cited alleged benefits to consumer choice – arming consumers with the information they need in order to avoid products that have PFAS. However, the new consumer class action lawsuit signals a darker side to disclosure: plaintiffs may sue companies making such disclosures - ostensibly for not having made such disclosures previously. EPA’s Proposed NSR Rule for Project Emissions Accounting Will Mean Permitting Delays for Projects and Expansions<https://natlawreview.com/article/epas-proposed-nsr-rule-project-emissions-accounting-will-mean-permitting-delays> On May 3, 2024, the U.S. Environmental Protection Agency (EPA) published its proposal to revise the Clean Air Act’s (CAA) New Source Review (NSR) preconstruction permitting program regulations. The proposed revisions would affect project emissions accounting, a process used to determine whether a modification at an existing facility triggers NSR permitting. From JD Supra: The PFAS Matrix: Potential Risks, Corrective Actions, and Regulatory Compliance<https://www.jdsupra.com/legalnews/the-pfas-matrix-potential-risks-4700937/> Per- and polyfluoroalkyl substances (PFAS), often dubbed “forever chemicals,” are increasingly scrutinized for their environmental persistence and possible health risks. Businesses that manufacture, use, or dispose of PFAS face a growing web of regulations and potential liability for contamination. This PFAS matrix explores considerations for companies to review in coordination with legal counsel in efforts to proactively assess and address PFAS concerns, aiming for both regulatory compliance and minimized legal exposure. Environmental Law in a Post-Chevron World<https://www.jdsupra.com/legalnews/environmental-law-in-a-post-chevron-8759544/> Last week, Venable’s Government Division offered its general thoughts on the fallout from the Supreme Court’s reversal of the long-standing Chevron deference principle. Here, the Environmental Practice Group offers some of its own reactions. PFAS In Consumer Products: State-by-state Regulations - July 2024<https://www.jdsupra.com/legalnews/pfas-in-consumer-products-state-by-8926275/> Manufacturers, distributors, and retailers of consumer products across a broad spectrum of industries are being impacted by laws regulating the presence of per- and polyfluoroalkyl substances (“PFAS”) in their products. This area is rapidly developing as states create new laws or amend existing ones, and the penalties and litigation risks for non-compliance can be significant. PFAS as CERCLA Hazardous Substances: Impact on Commercial Real Estate Transactions<https://www.jdsupra.com/legalnews/pfas-as-cercla-hazardous-substances-9522757/> On July 8, 2024, the U.S. Environmental Protection Agency (EPA)’s Final Rule in the Federal Register officially designating Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) will become effective. This represents a significant shift in environmental regulation with profound implications for the real estate sector, particularly in commercial transactions. The move will also likely create uncertainty within the commercial real estate industry, which could result in broad impacts for current property owners and those involved in buying, selling, financing, or developing affected properties. The Differing Regulatory Definitions of PFAS-Containing Products<https://www.jdsupra.com/legalnews/the-differing-regulatory-definitions-of-7688023/> Consumer product laws regulating per- and polyfluoroalkyl substances (“PFAS”) have proliferated in the United States in the past few years with little consistency. States have enacted numerous consumer product laws addressing PFAS, using various approaches that often focus on regulation of any intentionally added PFAS in products, but that also can regulate specific amounts of PFAS based on total organic fluorine content (including for certain products in California and Vermont). Supreme Court Halts EPA’s Good Neighbor Plan<https://www.jdsupra.com/legalnews/supreme-court-halts-epa-s-good-neighbor-1958505/> In a 5-4 opinion on Thursday, the U.S. Supreme Court temporarily stayed the enforcement of the Environmental Protection Agency’s “Good Neighbor Plan” under the Clean Air Act. Supreme Court Decision Limits Ability to Curb Ozone and Other Air Emissions<https://www.jdsupra.com/legalnews/supreme-court-decision-limits-ability-8288039/> The Supreme Court has released its opinion in Ohio v. EPA, a case involving whether the federal government’s “good neighbor” ozone regulations were properly promulgated. This decision impacts the authority of the U.S. Environmental Protection Agency (“EPA”), state regulators, and those who breathe air in non-attainment areas. As aptly put by dissent author Justice Barrett, the Court’s decision “leaves large swathes of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems….” Emissions, Interstate Commerce, and Locomotives: California Seeks to Limit Older Trains from Doing the Loco-Motion<https://www.jdsupra.com/legalnews/emissions-interstate-commerce-and-5236901/> The California Air Resources Board has requested that the U.S. Environmental Protection Agency grant California an authorization pursuant to § 209(e)(2) of the Clean Air Act to, among other things, prohibit locomotives that are 23 years of age or older from operating in California starting in 2030, a rule many in the U.S. House Committee on Science, Space and Technology subcommittee believe could cripple the railroad industry. Federal Drinking Water Standards for PFAS Will Influence Groundwater Remediation Standards<https://www.jdsupra.com/legalnews/federal-drinking-water-standards-for-3802185/> As discussed in a previous post, EPA recently issued a final rule establishing drinking water standards, known as maximum contaminant levels (MCLs), for six per- and polyfluoroalkyl substances (PFAS). The final rule became effective on June 25, 2024. The rule, among other things, provides public water systems three years to conduct initial PFAS monitoring and five years to make any necessary capital improvements to comply with the new MCLs. California’s Advanced Clean Fleets Regulation Under Attack<https://www.jdsupra.com/legalnews/california-s-advanced-clean-fleets-1733996/> California’s ambitious zero-emission, heavy-duty truck regulations face new legal challenges. Our Environment, Land Use & Natural Resources Group outlines the status of California’s Advanced Clean Fleet (ACF) Regulation, pending litigation, and important deadlines. $850 Million Now Available for Methane Emission Reduction Efforts: Applications Due Aug. 26<https://www.jdsupra.com/legalnews/850-million-now-available-for-methane-1742996/> The U.S. Environmental Protection Agency (EPA) and U.S. Department of Energy (DOE) have introduced an $850 million initiative to reduce methane emissions from oil and natural gas operations, available under the Inflation Reduction Act. The funding application deadline is Aug. 26, 2024. California Environmental Law & Policy Update 6.21.24<https://www.jdsupra.com/legalnews/california-environmental-law-policy-2595649/> Summary of litigation from week of 6/21/2024 Significant Implications for Environmental Assessment of Major Projects<https://www.jdsupra.com/legalnews/significant-implications-for-3760678/> The Supreme Court’s judgment in R(Finch) v Surrey County Council [2024] UKSC 20 has potentially significant implications on how environmental impacts of major projects are assessed. The question at the heart of the case was how far ‘downstream’ from a development project the decision-maker has to look when assessing its likely environmental effects. The answer, according to a slim majority of the Supreme Court, is further than had previously been thought necessary. However, it’s not panic stations for all EIA development. Is Frack Wastewater the Secret Source of Lithium<https://www.jdsupra.com/legalnews/is-frack-wastewater-the-secret-source-8813411/> Over the last few weeks, numerous articles have appeared touting the residue in wastewater that had been used in hydraulic fracturing operations as a potential source of lithium. (Source 1) (Source 2) (Source 3). Lithium, of course, is a critical mineral needed for battery production. Batteries, in turn, are essential to store electric energy from the renewable sources at which it is captured and produced, such as solar, wind, and geothermal, so that energy can be transmitted to and used where it is intended to go for consumption. Chemical and Water Associations Challenge EPA's Maximum Contaminant Level Regulations<https://www.jdsupra.com/legalnews/chemical-and-water-associations-2983752/> On June 7, 2024, the American Water Works Association (AWWA) and the Association of Metropolitan Water Agencies (AMWA) filed suit challenging the United States Environmental Protection Agency’s (EPA) recent rule that established Maximum Contaminant Levels (MCLs) for certain per-and polyfluoroalkyl substances (PFAS) in drinking water. The American Chemistry Council (ACC) and National Association of Manufacturers (NAM) followed shortly thereafter, filing suit on June 10, 2024. Both suits were filed in the US Court of Appeals for the DC Circuit. Will Makeup Get a Makeover?: Titanium Dioxide in Cosmetics<https://www.jdsupra.com/legalnews/will-makeup-get-a-makeover-titanium-6740060/> On June 12, 2024, the U.S. District Court for the Eastern District of California entered a preliminary injunction in The Personal Care Products Council v. Bonta. EPA Action on “Forever Chemicals”<https://www.jdsupra.com/legalnews/epa-action-on-forever-chemicals-2528666/> Per- and polyfluoroalkyl substances (PFAS) are at the top of every environmental regulator’s list in 2024 and already this year the United States Environmental Protection Agency (EPA) has taken key steps toward regulating PFAS as hazardous substances. On April 19, 2024, EPA announced that it finalized its rulemaking designating perfluorooctanoic acid (PFOA) and per-fluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (also known as the Superfund law). Wendy Wang Partner wendy.wang@bbklaw.com T: (213) 787-2554 bbklaw.com|