Dear Section Members, I hope you are doing well, and in a part of the country that is not getting scorched. I’m in the Bay Area and while we have it better than most, it’s still pretty warm. Oh well, turning to more pertinent matters, here is the news roundup.. On BBKlaw<https://www.bbklaw.com/news-events/insights?p=0&c=f27c8ea4-b509-44ad-8922-2a28e7115aef>: Environmental Protection Agency Issues New Drinking Water Health Advisories<https://www.bbklaw.com/news-events/insights/2022/legal-alerts/06/environmental-protection-agency-issues-new-drinkin>, June 17, 2022, The Environmental Protection Agency (EPA) released new drinking water health advisories for four of the most common per- and polyfluoroalkyl substances (PFAS): Perfluorooctanoic acid (PFOA), Perfluorooctane sulfonate (PFOS), Hexafluropopropylene oxide dimer acid and its ammonium salt (GenX), Perfluorobutane sulfonic acid and its potassium salts (PFBS). In this June 15 health advisory, the EPA recommends an interim lifetime exposure limit of 0.004 parts per trillion (ppt) for PFOA and 0.02 ppt for PFOS. The health advisory also recommends a final exposure limit of 10 ppt for Gen X and 2,000 ppt for PFBS. On Law 360<https://www.law360.com/environmental/news?page=1>: Biden Orders Agencies To Rein In Illegal Fishing Practices<https://www.law360.com/environmental/articles/1506416/biden-orders-agencies-to-rein-in-illegal-fishing-practices->, June 27, 2022, President Joe Biden moved to crack down on fishing practices that threaten ocean health, directing federal agencies Monday to fully leverage their regulatory and diplomatic powers to curb illegal, unreported and unregulated fishing. Biden said in a memorandum that the executive branch will make full use of its existing conservation, labor, trade, economic, diplomatic, law enforcement and national security authorities to combat illegal fishing practices that are rife with labor abuses and result in ecologically dangerous overfishing. EPA's Coronavirus Policies Left Superfund Cleanup Gaps<https://www.law360.com/environmental/articles/1505511/epa-s-coronavirus-policies-left-superfund-cleanup-gaps>, June 23, 2022, People's exposure to hazardous substances and pollutants at Superfund sites has been prolonged because of U.S. Environmental Protection Agency coronavirus pandemic-related travel restrictions and local stay-at-home orders, the agency's internal watchdog said in a report on Thursday. Measures taken to adapt to the COVID-19 pandemic caused schedule delays and drew out exposure to contaminants at 31 Superfund sites across the nation, the EPA Office of Inspector General said. The report also said the agency's response to the pandemic contributed to disproportionate impacts on some communities. Elephants Lack Right To Fight Captivity, NY Top Court Rules<https://www.law360.com/environmental/articles/1502578/elephants-lack-right-to-fight-captivity-ny-top-court-rules>, June 14, 2022, Elephants aren't entitled to the same legal right to challenge unjust confinement as people, New York's highest court ruled Tuesday, rejecting an appeal from an animal rights group seeking to move an elephant named Happy from the Bronx Zoo to a wildlife sanctuary. In a 5-2 ruling, the court held that habeas corpus relief, the legal mechanism intended to protect against unlawful confinement, is only available to human beings and can't be used to challenge animals' confinement to captivity. The ruling leaves in place two lower court rulings that habeas relief is not available to Happy. On The National Law Review<http://www.natlawreview.com/practice-groups/Environment-Energy-EPA>: U.S. Department of Transportation Federal Highway Administration Issues Notice of Proposed Rulemaking Setting Minimum Standards for Projects Funded Under the National Electric Vehicle Infrastructure Program<https://www.natlawreview.com/article/us-department-transportation-federal-highway-administration-issues-notice-proposed>, June 25, 2022, The National Electric Vehicle Infrastructure (NEVI) Formula Program ($5 billion) was enacted under the Infrastructure Investment and Jobs Act (IIJA), also known as the Bipartisan Infrastructure Law (BIL).1 On June 9, 2022, the U.S. Department of Transportation’s (USDOT) Federal Highway Administration (FHWA) announced a Notice of Proposed Rulemaking setting minimum standards for State programs funding projects under the NEVI Formula Program and all projects that install electric vehicle (EV) charging infrastructure under title 23 of the United States Code.2 Each State must file an EV Infrastructure Deployment Plan implementing these minimum standards by August 1, 2022. FHWA will approve eligible plans by September 30, 2022 and allocate funds to States for fiscal years 2022 through 2026. EPA Proposes Changes (Again) to CWA Water Quality Certification Rule<https://www.natlawreview.com/article/epa-proposes-changes-again-to-cwa-water-quality-certification-rule>, June 24, 2022, Recently, the Environmental Protection Agency (EPA) issued a proposed rule to replace existing regulatory requirements for water quality certifications under Section 401 of the Clean Water Act (CWA). As with many other recent changes in environmental regulations, these proposed changes were prompted by President Biden’s January 2021 Executive Order 13990, which directed EPA to review agency actions taken by the Trump administration. As noted in our July 13, 2020 alert, under the Trump administration EPA replaced prior water quality certification regulations that had been in place for nearly 50 years, effective September 2020 (the 2020 Rule). China’s New Pollutant Control Action Plan: A Focused Plan that Could Impact the Chemical Industry Outside of China<https://www.natlawreview.com/article/china-s-new-pollutant-control-action-plan-focused-plan-could-impact-chemical>, June 23, 2022, It is no secret that China has long struggled with implementing measures for pollution control and regulating hazardous chemicals. We have watched this issue closely and published about it in years past here. However, on May 24, 2022, the China State Council issued its most focused plan yet, known as the “New Pollutant Control Action Plan” or “新污染物治理行动方案,” and it will likely have far-reaching impacts on companies manufacturing, using or discharging certain chemicals in China. It could also impact companies outside of China importing chemicals into China. Sheep’s Clothing: Court Dismisses Lawsuit Over Allbirds’ Carbon Footprint and Animal Welfare Claims<https://www.natlawreview.com/article/sheep-s-clothing-court-dismisses-lawsuit-over-allbirds-carbon-footprint-and-animal>, June 14, 2022, Judge Cathy Seibel of the Southern District of New York recently dismissed a putative class action lawsuit challenging various environmental impact and animal welfare claims made by Allbirds in ads for its wool shoes. In doing so, the court determined that plaintiff’s allegations, which largely consisted of criticisms of the wool industry in general, did not plausibly allege that Allbirds’s descriptions of its own practices were false or misleading. Dwyer v. Allbirds, Inc., 7:21-cv-05238-CS (S.D.N.Y. Apr. 18, 2022). On JD Supra Business Advisor Environmental Updates<http://www.jdsupra.com/law-news/environmental-law/>: U.S. Department of Justice and U.S. Environmental Protection Agency Launch Enhanced Environmental Justice Strategy<https://www.jdsupra.com/legalnews/u-s-department-of-justice-and-u-s-7446597/>, June 27, 2022, Environmental justice is one of the hottest topics in the environmental world. The New Jersey Department of Environmental Protection (NJDEP) recently rolled out its long-awaited proposed environmental justice regulations,1 and the U.S. Department of Justice (DOJ) and the U.S. Environmental Protection Agency (EPA) have now announced their joint allocation of agency resources to significantly bolster the federal government’s environmental justice policy. Environmental justice is here to stay in New Jersey and under the Biden administration. Regulated entities must remain cognizant of these policy shifts and be proactive in preparing for their impacts on enforcement discretion, permit applications, and other aspects of agency oversight. FAA Proposes New Fuel Efficiency Standards for Large Aircraft Flying in the United States<https://www.jdsupra.com/legalnews/faa-proposes-new-fuel-efficiency-6775230/>, June 24, 2022, On June 15, 2022, the Federal Aviation Administration (FAA) issued a proposed rule that would require large aircraft flying in the United States’ airspace to satisfy enhanced fuel efficiency standards. The proposal, reflecting the Biden-Harris administration’s “whole of government” approach to respond to the threat posed by climate change, would “require more fuel efficiency for new subsonic jet aircraft and large turboprop aircraft that are not yet certified and for new planes manufactured after January 1, 2028.” Some of the aircraft potentially affected by the proposed rule include the next generation Boeing 777, Dreamliner and certain business aircraft such as the Cessna Citation. As published, the proposed rule would not apply to aircraft that currently are in service. New Bat Rules May Affect Future Construction Projects, including New VDOT Tree Removal Limits<https://www.jdsupra.com/legalnews/new-bat-rules-may-affect-future-2658863/>, June 24, 2022, Contractors and owners with projects that may affect forested areas after December of 2022 may face more restrictive prohibitions against tree removal under a proposed rule that would list the northern long-eared bat as an endangered species. The northern long-eared bat is found in 37 states, including Virginia. Like most bats, it is a beneficial nighttime hunter that helps control insect populations, and so it enjoys various state and federal protections, including protections under Virginia regulations. At the federal level, the bat was listed as “threatened” under the Endangered Species Act (“ESA”) in 2015 due to the loss of habitat and the effects of a deadly disease affecting the species known as white-nose syndrome. Under the ESA, the U.S. Fish and Wildlife Service (“FWS”) can list a species as either endangered or threatened. A species listed as endangered is afforded all of the ESA’s legal protections, including designation of a species’ “critical habitat,” or habitat that is essential to the conservation of the species. Biden-Harris Administration Announce New Proposed Rules for National Electric Vehicle Charging Network<https://www.jdsupra.com/legalnews/biden-harris-administration-announce-6887849/>, June 23, 2022, On June 9, 2022, the Biden-Harris Administration announced a notice of proposed rulemaking to set minimum standards and requirements for projects funded through the National Electric Vehicle Infrastructure Formula Program (“NEVI”), which was created by the Infrastructure Investment and Jobs Act. Generally, NEVI will distribute $1 billion per year, for FY 2022-2026, in appropriations to help fund the construction of EV charging stations and related infrastructure. States, territories, Indian tribes, and local governments are all eligible to receive funds. The NEVI program envisions that these government actors will contract with private entities in public/private partnerships to build the EV infrastructure. See our prior blog post for more details about the NEVI funding program. The purpose of the rule is to “establish the groundwork for states to build federally-funded charging station projects across a national EV charging network.” In addition, the rules purpose is to set “minimum standards [that] will ensure a unified network of chargers with similar payment systems, pricing information, [and] charging speeds.” It’s All in the Packaging: Regulators Work to Adopt Rules to Mitigate Plastic Pollution<https://www.jdsupra.com/legalnews/it-s-all-in-the-packaging-regulators-3324846/>, June 23, 2022, It used to be all about glass—glass was too heavy, too expensive, and too dangerous to you or others if it fractured—so we invented plastics—strong, lightweight, less expensive. Half of all plastics ever made have been made in the last 17 years. It is estimated almost 500 million tons was produced in 2018 alone. As much as 50% of all plastics are considered single-use plastics—one use and discard. As incredible as these materials are, however, plastics are very stable and thus have significant recycling challenges. Because of their long-chain molecule structure, they are difficult to break down. Those plastics that cannot be recycled into other uses and are haphazardly discarded into the environment, under certain conditions, can break down into smaller pieces such as microplastics (<5 mm or 0.2 in.) or nanoplastics (<1,000 nm), which can end up in soil, surface water, and air. Microplastics are also present in some cosmetics, clothing, and other chemical products, such as agrochemicals. The full scope and scale of human health and environmental concerns is yet unknown. Three Key Takeaways of New Jersey DEP’s Proposed EJ Rules<https://www.jdsupra.com/legalnews/three-key-takeaways-of-new-jersey-dep-s-3742703/>, June 20, 2022, On June 6, the New Jersey Department of Environmental Protection (DEP) officially published the highly-anticipated proposed implementing rules of the state’s Environmental Justice Law, N.J.S.A. 13:1D-157. The statute requires environmental justice-specific analyses for enumerated facilities that are seeking DEP approval for new, renewal, or expansion permits where the facility is located in an "overburdened community," defined as any Census block group with low-income, minority, or non-English speaking populations exceeding specified thresholds (see our earlier coverage of the law’s passage here). The proposed rules, currently open for public comment until September 4, detail how DEP will implement the legislation. New Report Offers Solutions for Low-Income Californians to Switch to EVs<https://www.jdsupra.com/legalnews/new-report-offers-solutions-for-low-5561669/>, June 17, 2022, The Center for Law, Energy, and the Environment (CLEE) at Berkeley Law last month­, in conjunction with the Emmett Institute on Climate Change and the Environment at UCLA Law, ­issued Driving Equity, a new reportaimed at presenting important policy solutions to make California’s switch to electric vehicles more realistic for lower income citizens. Topping their list of priorities was offering more rebates and incentives for lower-income car owners, enhancing funding and groundwork for charging stations, and offering financial assistance to greater outreach for community-based groups. Microplastics Found for the First Time in Freshly Fallen Snow<https://www.jdsupra.com/legalnews/microplastics-found-for-the-first-time-3233057/>, June 17, 2022, In a study published last week, researchers at the University of Canterbury in New Zealand identified microplastics in freshly fallen snow samples collected from 19 different sites across the Ross Island region of Antarctica. According to the authors, this finding, which is the first evidence of microplastics in Antarctic snow, “adds to the growing body of literature regarding microplastics as a ubiquitous airborne pollutant…” Please tell us if you have any questions or comments. 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