Dear Section Members, I hope you are not suffering too badly with the heat this summer. For a distraction from the heat, here is the news roundup. On Law 360<https://www.law360.com/environmental/news?page=1>: Colonial's NC Spill Was Country's Largest Onshore Fuel Leak<https://www.law360.com/environmental/articles/1514445/colonial-s-nc-spill-was-country-s-largest-onshore-fuel-leak>, July 25, 2022, Newly released Colonial Pipeline Co. oil spill data shows the company's 2020 leak started earlier than thought and ranks as the largest recorded in U.S. history, releasing 2 million gallons into a North Carolina nature preserve. The North Carolina Department of Environmental Quality said Friday it had discovered that figure while reviewing updated volume estimates submitted by the pipeline company under the terms of a $5 million consent decree reached earlier this month. Canada Joins US In Challenging Mexican Energy Policies<https://www.law360.com/environmental/articles/1513905/canada-joins-us-in-challenging-mexican-energy-policies>, July 21, 2022, Canada is joining the U.S. in challenging Mexico's recent decision to prioritize domestically generated power, calling for consultations under the U.S.-Mexico-Canada Agreement to settle the dispute. The Mexican government confirmed on Wednesday that Canada raised its own objections to President Andrés Manuel López Obrador's measures prioritizing energy from the state-owned Comisión Federal de Electricidad, or CEF, over all private providers, including clean-energy suppliers. On The National Law Review<http://www.natlawreview.com/practice-groups/Environment-Energy-EPA>: Environmental Justice Update: Chicago Forcing Facility Relocation to Environmental Justice Area Puts Federal HUD Funding at Issue<https://www.natlawreview.com/article/environmental-justice-update-chicago-forcing-facility-relocation-to-environmental>, July 26, 2022, Environmental justice (EJ) issues continue to be at the forefront of the Biden Administration's regulatory agenda, with promises to deploy non-environmental statutes - most notably, federal civil rights laws - to address issues either outside or incompletely remedied by traditional environmental statutes like the Clean Air Act, Clean Water Act, or CERCLA. Using non-environmental statutes to force change in the environmental arena grants the executive branch significant leverage against regulated businesses directly and indirectly through the communities where they operate. A final finding (Finding) issued by the US Department of Housing & Urban Development (HUD) regarding the City of Chicago's efforts to move a recycling facility from a wealthy, majority white neighborhood to a community which had been previously classified as "environmentally overburdened" illustrates how leveraging non-environmental statutes can work in practice, as well as some big-picture lessons related to EJ and related equity issues. New York's Implementation of Climate Act Heats Up<https://www.natlawreview.com/article/new-york-s-implementation-climate-act-heats>, July 21, 2022, Relying mostly on draft guidance, New York is requiring immediate compliance with its Climate Leadership and Community Protection Act (CLCPA) (passed in June 2019), even while regulatory steps mandated under the climate legislation remain unfinished. Thus far, at least one court has embraced the State's position. The New York State Department of Environmental Conservation (NYSDEC) has issued several decisions denying permit applications, even for a renewal, based on CLCPA requirements, reinforcing the importance of establishing a strong record to support a finding of consistency with greenhouse gas emission limits under Section 7(2) of the law. And while NYSDEC has not yet finalized the criteria for identifying disadvantaged communities (DACs) under Section 7(3), the agency-at least in some regions-requires permit applicants to evaluate burdens on the proposed DACs. FDA PFAS Action Targets Food Packaging<https://www.natlawreview.com/article/fda-pfas-action-targets-food-packaging>, July 21, 2022, Today, the Food and Drug Administration (FDA) opened a docket seeking information regarding PFAS in food packaging. The FDA PFAS action was taken in order to evaluate possible health risks to humans from food packaging, which could ultimately lead to additional regulations. The latest federal action regarding PFAS comes on the heels of heightened PFAS scrutiny by the EPA in 2022. Companies involved in the food packaging industry must take steps now to prepare not only for the FDA's likely inquiries into product specifics, but also plan for future regulatory and litigation that may result from the FDA's research. US Supreme Court Limits EPA's Authority to Regulate Carbon Emissions from Existing Power Plants Under Major Questions Doctrine with Implications for Agency Rulemaking Generally<https://www.natlawreview.com/article/us-supreme-court-limits-epa-s-authority-to-regulate-carbon-emissions-existing-power>, July 12, 2022, On June 30, 2022, the US Supreme Court held that the Obama-era Clean Power Plan (CPP) "[c]apping carbon dioxide emissions at a level that [would] force" energy generation shifting from coal to natural gas to renewables nationwide was not within the statutory authority that Section 111(d) of the Clean Air Act (CAA), codified as 42 U.S.C. § 7411(d), granted to EPA. West Virginia v. Env't Prot. Agency, 597 U. S. ____, 2022 U.S. LEXIS 3268, at *54 (2022). Applying the major questions doctrine, the court held that Congress must be express in granting EPA the authority to adopt the kind of transformational regulatory scheme that EPA tried to implement under Section 111(d). Under the major questions doctrine, a court will not follow the general rule of deferring to an agency's interpretation of a statutory provision in certain "extraordinary cases" that involve "highly consequential power beyond what Congress could reasonably be understood to have granted." On JD Supra Business Advisor Environmental Updates<http://www.jdsupra.com/law-news/environmental-law/>: Ohio's New Ephemeral Stream Law<https://www.jdsupra.com/legalnews/ohio-s-new-ephemeral-stream-law-9760430/>, July 26, 2022, On July 21, 2022, new Ohio law governing regulation of ephemeral streams went into effect. The new law is the result of House Bill 175, which was passed by the Ohio General Assembly on April 6, 2022. With this legislation, the definition of "Waters of the State" set forth in Ohio law was changed to now exclude those ephemeral features that are not also federally jurisdictional, as determined by the U.S. Army Corps of Engineers. For those ephemeral features that are federally jurisdictional, Ohio law now sets forth best management practices (BMPs), mitigation and restoration requirements, performance standards, and monitoring and reporting requirements to be included in Ohio EPA's issuance of Section 401 Water Quality Certifications. Focus on Plastics Intensifies in California with New Legislation<https://www.jdsupra.com/legalnews/focus-on-plastics-intensifies-in-6711058/>, July 26, 2022, Governor Newsom recently signed Senate Bill 54 ("SB 54"), heralding an unprecedented commitment to reducing plastic production and consumption in California. The Plastic Pollution Prevention and Packaging Producer Responsibility Act requires single-use packaging to be at least 30% recycled, reused or composted by 2028, 40% by 2030 and 65% by 2032. SB 54 marks a compromise between legislators and supporters of a ballot initiative that was slated to appear on the November 2022 ballot, that would have required all single-use plastics to be reusable, recyclable or compostable by 2030, and eliminated the use of Styrofoam, among other provisions. Crucially, the legislation shifts much of the plastic-reducing burden from consumers to industry. Plastic producers must contribute $5 billion over the next ten years to fund recycling and reduce or eliminate single-use plastic packaging. Supplemental Environmental Projects: Environmental Settlement Tool Poised to Advance Environmental Justice<https://www.jdsupra.com/legalnews/supplemental-environmental-projects-1995837/>, July 25, 2022, Future federal environmental settlements are likely to include more creative remedies to address the impacts of violations on communities, thanks to recent policy changes at the US Department of Justice (DOJ). A new rule-issued by DOJ in May and briefly summarized in a WilmerHale ESG blog post here (the DOJ SEP Rule)-revives the use of supplemental environmental projects (SEPs) in environmental settlement agreements, allowing an alleged violator to undertake a project that provides a tangible environmental or public health benefit to the affected community, and goes beyond what is required under federal or local laws, in lieu of civil penalties. Unlike civil penalties, which go to the US Treasury, SEPs allow companies to voluntarily fund projects that provide important environmental benefits directly to affected communities, such as investments in enhanced monitoring or remediating the effects of emissions. Is California Actually Embracing Energy Realism?<https://www.jdsupra.com/legalnews/is-california-actually-embracing-energy-6554479/>, July 22, 2022, In a startling turnaround, California Governor Gavin Newsom announced that he would consider allowing the operator of the State's one remaining nuclear power plant, located at Diablo Canyon, to petition to keep the facility operating past its scheduled 2025 shutdown date. Citing a need for supplies of energy, Newsom stated "we need more tools in our toolbox." Newsom's position marks almost a complete break from his previous views and statements. As Lieutenant Governor in 2016, Newsom was part of a deal reached with environmentalists and union workers to close Diablo Canyon - long a target of environmentalists due to its proximity to several earthquake fault lines and because of other environmental issues - ostensibly due to the fact that the State's shift toward renewable supplies would obviate the need for continuing energy production at the site. While renewables have made significant strides in California, there is no possibility that they can be the primary energy source for California's nearly 40 million residents in the near future. New York State Continues to Slow Down Accelerating Crypto Mining Industry Growth Upstate<https://www.jdsupra.com/legalnews/new-york-state-continues-to-slow-down-1920472/>, July 22, 2022, Just weeks after both houses of the New York State legislature finally passed an environmental-conservation moratorium on new cryptocurrency mining operations (as previously reported by ELM here: New York is Ready to Attack Crypto Mining), the Department of Environmental Conservation (NYSDEC) announced its long-awaited decision concerning the air permit renewal application by a former coal-fired plant near Seneca Lake. The facility, purchased and refurbished by Greenidge Generation to run an extensive crypto mining business, has been dependent on roughly 17,000 servers. As previously addressed by ELM here: Crypto: A Virtual Currency with Real-Life Energy Consequences, such extensive mining operations at the facility consumed an extraordinary amount of energy, as is typical for the crypto mining businesses which have been springing up upstate over the past few years. The resulting dramatically increased demand on the electrical grid led to thousands of complaints made by local individuals, businesses, and environmental groups to the NYSDEC, just as Greenidge's initial 2016 permit was set to expire towards the end of 2021. Governor Signs Bill Extending A-901 Licensing Deadline for Dirty Dirt Law<https://www.jdsupra.com/legalnews/governor-signs-bill-extending-a-901-2585289/>, July 21, 2022, New Jersey has extended the deadline for businesses engaged in "soil and fill recycling services" to comply with key provisions of N.J.S.A. 13:1E-127, et seq., which was enacted on January 21, 2020 and is known as the 'Dirty Dirt Law.' The law requires businesses engaged in "soil and fill recycling services" to register as such and apply for the very strict and difficult-to-obtain A-901 license which was previously applicable only to waste haulers. Following confusion and controversy over the applicability of the Dirty Dirt Law, Governor Murphy signed Assembly Bill A4255 on July 5, 2022, extending the deadline for businesses to apply for the A-901 license. Please contact me if you have any questions or comments. Thanks, Gene [http://clients.bbklaw.net/images/logos/bbklogohires.jpg]<http://www.bbklaw.com/> Gene Tanaka <https://www.bbklaw.com/our-team/gene-tanaka> Partner gene.tanaka@bbklaw.com T: (925) 977-3301 C: (951) 334-7261 www.BBKlaw.com <http://www.BBKlaw.com> [http://clients.bbklaw.net/images/logos/LinkedIn-rescaled.jpg] <https://www.linkedin.com/company/bestbestkrieger/> [http://clients.bbklaw.net/images/logos/Twitter_logo_white.jpg] [http://clients.bbklaw.net/images/logos/instagram.jpg] <https://www.instagram.com/bbklawfirm/> This email and any files or attachments transmitted with it may contain privileged or otherwise confidential information. If you are not the intended recipient, or believe that you may have received this communication in error, please advise the sender via reply email and immediately delete the email you received.