LATEST INSIGHTS

Emerging Issues
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Is the “Safe Rule” as Safe as it Sounds? Developments Regarding the Fight Over Automobile Emissions Standards

The battle surrounding the regulation of automobile emissions standards lost some steam last week after a number of major automakers withdrew their support of the Safer Affordable Fuel-Efficient (SAFE) Vehicles rule enacted by the Trump administration.

Certain major car manufactures are looking to exit the federal litigation, in which automaker trade groups intervened on behalf of the federal government to support the SAFE rules that sought to strip states of the ability to set their own vehicle greenhouse gas emissions and fuel economy standards. These …

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California
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California Aims for Big Businesses to Stop the Burning

In a new bid to stop the onslaught of climate-related crises, including successive, record-setting wildfire seasons, increased flooding, and paradoxically increased and more frequent droughts, the California legislature has seized on a new initiative: corporate accountability.

Senate Bill 260, or “The Climate Corporate Accountability Act,” would apply to both publicly-traded and private corporations making more than $1 billion per year doing business in California. If adopted, it will require the approximately 5,000 companies to which it would apply to log every single element of their …

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EPA
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U.S. EPA Issues Final Risk Evaluation for 1,4-Dioxane

We recently wrote about the U.S. Environmental Protection Agency’s (EPA) supplemental analysis on consumer uses of 1,4-dioxane under the Toxic Substances Control Act (TSCA). Now the EPA has issued its final risk evaluation for the chemical, setting the stage for potential future regulation.

1,4-dioxane was selected in 2016 as one of the first 10 chemicals for risk evaluation under section 6 of TSCA. In general, the chemical is likely present at many sites contaminated with certain chlorinated solvents because of its widespread use as a …

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Emerging Issues / EPA
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Are SEPs Dead? Outgoing DOJ Strengthens Prohibition on SEPs as Mitigating Remedies

During the final days of the Trump administration, the U.S. Department of Justice’s Environment and Natural Resources Division (ENRD), which represents the Environmental Protection Agency (EPA) in environmental enforcement actions, issued a memorandum that summarizes new polices relating to Supplemental Environmental Projects (SEPs). SEPs are environmentally beneficial projects that settling parties had previously been allowed to undertake either to diminish fines or to serve in lieu of paying civil penalties in order to resolve environmental law violations, and had been popular with alleged violators and …

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EPA
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EPA’s Affordable Clean Energy Rule Rejected

On the last full day of the Trump presidency, the U.S. Court of Appeals for the District of Columbia issued a strong rebuke of the Trump administration’s deregulatory agenda in its January 19, 2021 American Lung Assoc. v. EPA decision rejecting the EPA’s industry-friendly climate rule for power plants.

In rejecting the Affordable Clean Energy rule and remanding it back to the EPA, the Biden administration now has a clear opportunity for regulating greenhouse gas emissions from the power industry. The district court called the …

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Emerging Issues / Legislation
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Hawaii’s Ban on Oxybenzone and Octinoxate-Containing Sunscreen Takes Effect

Hawaii’s sunscreen ban has officially taken effect. In May 2018, Hawaii became the first state in the nation to ban the sale of over-the-counter sunscreens containing oxybenzone and octinoxate. The law went into effect on January 1, 2021, with the goal of preserving Hawaii’s marine ecosystems.

According to the language of the bill, Hawaii’s legislature found that oxybenzone and octinoxate, two chemicals found in many sunscreens, “have significant harmful impacts on Hawaii’s marine environment and residing ecosystems, including coral reefs that protect Hawaii’s shorelines.” Studies …

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CERCLA
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SCOTUS to Resolve Circuit Split Regarding CERCLA Liability

On January 8, 2021, the Supreme Court of the United States (SCOTUS) granted the Government of Guam’s petition for a writ of certiorari in a Superfund cost recovery case in which Guam faces a $160 million cleanup bill for a landfill leaking toxic waste at a site that the U.S. Navy created in the 1940s. The case, Government of Guam v. United States, Docket No. 20-382, presents two longstanding circuit splits before SCOTUS, which address CERCLA’s settlement provisions and their impact on a settling …

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Clean Air Act / EPA
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Ethylene Oxide: The Coming Storm?

Ethylene oxide is a gas commonly used to make other chemicals utilized in a variety of consumer and industrial goods, including fabric, detergents, medicines, and adhesives. It’s even used to sterilize medical devices and spices and to kill microorganisms in grains. But ethylene oxide is acknowledged as a known human carcinogen (cancer-causing compound or substance) in high-level concentrations and extended periods of exposure. Ethylene oxide has been linked to non-Hodgkin lymphoma, leukemia, multiple myeloma, and breast cancer, among many other cancers and physical ailments.

The …

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Clean Air Act / EPA
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EPA Finalizes Cost-Benefit Rule for Clean Air Act Rulemaking

Recently, the U.S. Environmental Protection Agency (EPA) finalized its Clean Air Act (CAA) cost-benefit rule, which it proposed in June 2018 and held a public hearing on in July 2020. A procedural rule, it is meant to “improve the rulemaking process under the Clean Air Act by establishing requirements to ensure consistent, high-quality analyses of benefits and costs are provided to the public for significant rules,” according to the EPA’s press release. The final rule codifies “best practices” for benefit-cost analyses (BCA) in CAA rulemaking. …

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wetlands; Florida; Everglades
Clean Water Act / EPA / Florida
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Does Florida’s Plan to Take Over the Federal Wetlands Permitting Process Hold Water?

On December 17, 2020, two years after the Florida legislature overwhelmingly passed a bill serving as an initial step to promote the transfer of permitting authority from the U.S. Army Corps of Engineers to the state of Florida, the U.S. Environmental Protection Agency (EPA) granted the Sunshine State’s request and approved a plan transferring federal authority to the state to issue permits for projects affecting the state’s wetlands. Florida will be only the third state in the United States to be granted such broad permitting …

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