Author: Daniel L. Klein

A view of the smoking chimneys of a coal-fired power plant against the backdrop of a dramatic sky with clouds.
Clean Air Act / EPA
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Mercury No Longer Rising

A decade ago, as part of a concerted effort to reign in industrial pollution, the Obama-era Environmental Protection Agency (EPA) promulgated the mercury and air toxics standards (MATS) pursuant to its authority under the Clean Air Act (CAA). The purpose, as implied by the title, was to limit the amount of mercury and other toxins released into the air by coal-fired power plants. It was heralded by proponents and environmentalists as a large step forward in reducing the risk of heart attacks and cancer, and …

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Clean Air Act / Emerging Issues
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Ethanol Industry Suffers After Supreme Court Decision Regarding Year-Round E15

The U.S. Supreme Court dealt a significant setback to the ethanol industry on Monday, January 10, 2022, when it refused to review a ban stopping the Environmental Protection Agency (EPA) from allowing the year-round sale of a higher ethanol blend of gasoline.  

The sale of gasoline with 15% ethanol (E15) is generally banned in the United States during the summer months (June 1 to September 15) because studies show that such a high concentration of ethanol likely contributes to smog and may damage older …

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EPA
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EPA Puts Natural Gas Facilities on its “Naughty” List for 2022

The Environmental Protection Agency (EPA) is moving to include natural gas processing (NGP) facilities, also referred to as “natural gas liquid extraction facilities”, to the expanding list of industry groups obligated to report releases of specific chemicals pursuant to the reporting requirements of Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), commonly known as the Toxics Release Inventory (TRI).

The TRI requires certain industrial entities that create, manufacture, or otherwise use certain identified chemicals including hexane, hydrogen sulfide, toluene, benzene, …

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EPA
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EPA Moves to Enlarge Its Footprint on Methane Regulation

Methane, the powerful greenhouse gas responsible for a disproportionate percentage of man-made global warming, has for years been targeted with increasing oversight and regulation as a result of growing concerns about climate change. As a result, the Environmental Protection Agency (EPA), under the Biden administration, is seeking to expand its stance on the issue with sweeping new proposals.

The EPA put out new regulations on November 2, 2021, including a proposal that would reduce more than 40 million tons of methane from 2023 to 2035 …

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EPA
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EPA Continuing to Move Swiftly to Curb HFCs

Coming shortly after the September 23, 2021, enactment of the U.S. Environmental Protection Agency’s rule calling for an 85% reduction in hydrofluorocarbons (HFCs) over the next 15 years, the agency maintained its momentum on October 8, 2021, granting 10 petitions submitted under the American Innovation and Manufacturing (AIM) Act to further reduce HFCs.

The AIM Act, enacted in December 2020, specifically directs the EPA to address HFCs in three areas; phase down their production and consumption, manage the use of existing HFCs and alternative chemicals, …

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EPA / PFAS
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PFAS Alert: New U.S. EPA Effluent Guidelines Program to take on PFAS

Each year, the U.S. Environmental Protection Agency prepares Preliminary Effluent Guidelines Program Plans pursuant to 33 U.S.C. 1251, more commonly known as the Clean Water Act (CWA). The purpose of these plans is to give an overview of the EPA’s Effluent Limitation Guidelines (ELG), or national standards for wastewater discharges to surface waters and municipal sewage treatment plants. The plans identify industrial categories, existing or new, which have been chosen for ELG regulation, and set forth the expected scope of that regulation.

On September 8, …

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Fracking / New Mexico
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Fracking Ban Defeated in New Mexico

On Aug. 3, 2021, Chief U.S. District Judge William P. Johnson rejected the effort to prevent hydraulic fracturing (fracking)—the method of extracting oil and natural gas by injecting high-pressure fluid into subterranean rock formations—near archeological and cultural sites in the Mancos Shale geological formation in New Mexico, determining that the Bureau of Land Management (BLM) had done sufficient environmental review to back up its decision and that it didn’t predetermine it would approve drilling permits.

In rejecting the injunction sought by the Sierra Club and …

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EPA
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9th Circuit: EPA’s Review of Methylene Chloride Will Remain Limited for Now

Methylene chloride (MC) is used as a paint-stripping solvent, an aerosol propellant, in the manufacture of film, and as a solvent in drug manufacturing. In the research laboratory and in food production, it is commonly used for extractions. It has also been clinically demonstrated to cause liver and lung cancer in animals and may be a carcinogen to humans, causing severe irritation and burning to the skin and eyes with exposure above recommended levels.

Because of these risks and in response largely to public pressure, …

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Climate Change / Regulations
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Environmental Disclosures: This Looks Like a Job for … the SEC?

$600 Billion. That is the amount of money directly attributed to weather events brought on or exacerbated by climate change over the past five years. Now a coalition of states, including Connecticut, Delaware, Illinois, Maryland, Michigan, Minnesota, New York, Oregon, Vermont, and Wisconsin, and led by California (the Coalition), are pushing for the U.S. Securities and Exchange Commission (SEC) to require U.S. companies to disclose their financial risks posed by climate change.

As stated in a press release by California Attorney General Rob Bonta, “Rising temperatures are …

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Litigation / New York
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NY Navigation Law Alert: Appellate Division Reaffirms “Method of Delivery” is Key for Strict Liability in Oil Spill Case

In the recently-decided Scott v. Triborough Energy Corp., NY Slip Op 03126 (May 13, 2021), the First Department considered a case where the defendant—the plaintiff’s residential heating oil supplier—allegedly caused oil to leak into the plaintiff’s basement while delivering to their home. The plaintiffs sued under Navigation Law § 181(5) (NL), which permits private causes of action in strict liability against a petroleum discharger, as long as the plaintiffs have “not caused or contributed to (and thus are not ‘responsible for’) the discharge. See…

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