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Emerging Issues
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How Many Have Seen Schrödinger’s Cat?: D.C. Circuit Strikes Down FERC’s Longstanding Use of Tolling Orders in Response to Rehearing Requests

In Allegheny Defense Project, et al. v. FERC (Allegheny), the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, ruled last week that the Federal Energy Regulatory Commission (FERC or Commission) could not delay reconsideration of its approval of gas infrastructure projects for the purpose of postponing judicial review. In essence, in a 10-1 decision, the court said FERC’s “tolling policy”—something used in every gas pipeline case (39 to be exact) of the last 12 years—violates the strictures of the …

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California / Emerging Issues
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Does This Mean My Trucker Hat is Cool Again? CARB Enacts First Mandate for Implementation of Zero-Emission Trucks in the U.S.

The California Air Resources Board (CARB) adopted a rule on June 25, 2020, setting a deadline of 2045 for all trucks sold in California to be zero-emission models. The rule is the first of its kind in the United States. Globally, the rule represents one of the most ambitious efforts to date to replace diesel trucks with battery-powered and other zero-emission vehicles.

“It is clear this is the first of its kind in the world,” said California Air Resources Board Chairwoman Mary Nichols. “It’s part …

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Clean Water Act / Colorado / Emerging Issues
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Outside of Colorado, the Navigable Waters Protection Rule Takes Effect

As previously discussed in the Environmental Law Monitor, the Trump Administration has taken action throughout 2020 to narrow the scope of which wetlands and waterways are protected under the Clean Water Act (CWA). The recently limited rule took effect on June 22, 2020, which in essence, opens the doors for developers anxious to get to work ahead of future legal action and the 2020 presidential election.

The EPA first unveiled its planned Navigable Waters Protection Rule in January 2020. The regulation, also known as …

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New Jersey
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NJDEP Extends Comment Period for Proposed Revisions to Remediation Standards Due to Pandemic

The New Jersey Department of Environmental Protection (NJDEP) is required to develop remediation standards for contaminated sites to be protective of the public health, safety, and environment pursuant to the state’s Brownfield and Contaminated Site Remediation Act. In April, the NJDEP published proposed revisions to the remediation standards, codified at N.J.A.C. 7-26D. Since the proposed revisions were announced amid the beginning of the COVID-19 pandemic, the public comment period, originally scheduled to close on June 5, 2020, was extended to August 5, 2020 after the …

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Litigation / New York / Water Contamination
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Long Island Water Districts’ 1,4-Dioxane Lawsuits Survive Motion to Dismiss

In March 2019, we posted about the strategy behind the Long Island water districts’ 1,4-dioxane litigations against major manufacturers—and then in October 2019, we followed that post with another report on the increasing number of those suits , which became the subject of a 12(b)(6) motion to dismiss. These suits filed by public water suppliers seek to recover costs against major manufacturers and promoters of the chemical for the design, construction, installation, operation, and maintenance of water treatment facilities and equipment required to remove …

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EPA
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Mercurial Mercury Reporting: A Second Circuit Story

The Natural Resources Defense Council and the State of Vermont challenged the Environmental Protection Agency’s recently-enacted Mercury Reporting Rule, and they came away with a mixed bag. The case came before the U.S. Court of Appeals for the Second Circuit, which issued its decision on June 5.

The Toxic Substances Control Act directs the EPA to promulgate rules requiring manufacturers and processors of chemical substances to maintain records of their use of chemicals and report that information to the EPA. In 2016, Congress amended the …

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Clean Water Act / EPA
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Pencils Down! New EPA Rule Limits States’ Time and Ability to Review Energy Infrastructure Projects

On June 1, the United States Environmental Protection Agency announced it had enacted a rule to limit states’ ability to block the construction of energy infrastructure projects. Under the rule, first proposed in August 2019, the EPA will alter Section 401 of the U.S. Clean Water Act to make it impossible for a state to block a water permit for a project for reasons other than direct impacts of discharges into state waters and set a one-year deadline for a decision. The proposed rule can …

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EPA / Water Contamination
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EPA Set to Abandon Perchlorate Limits

On May 14, 2020, the EPA indicated it will not be imposing any limits on perchlorate, a chemical compound the EPA previously characterized as “a persistent contaminant of concern.” Perchlorate can be man-made or it can form naturally in the atmosphere in arid states in the Southwest U.S., in large deposits of sodium nitrate fertilizer in Chili, and in potash ore in the Northwest and Canada. Manufactured perchlorate is used in rocket propellant, munitions, explosives, fireworks, road flares, and in food containers and equipment that …

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Water Contamination
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National Implications of New Jersey Color Coded HAB Warnings

As many readers are aware, harmful algal blooms, or HABs, have presented significant concerns for many states with lake regions and communities. HABs occur when algae grows out of control in an area, resultantly producing toxic or harmful effects on people, fish, marine mammals, and birds. There are a variety of HAB types, as they can be caused by a variety of algal groups with different chemical toxin compositions. The human illnesses caused by HABs, though rare, can be debilitating or even fatal. As a …

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COVID-19 / EPA
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EPA’s COVID-19 “Enforcement Discretion” Policy Challenged in Suit Commenced by Nine States’ Attorneys General

The United States Environmental Protection Agency (U.S. EPA) continues to face backlash over its policy relaxing certain monitoring and reporting obligations under various federal environmental laws amid the COVID-19 pandemic. Last week nine states’ attorneys general sued the U.S. EPA in the Southern District of New York in the action titled State of New York et al. v. U.S. Environmental Protection Agency et al., No. 1:20-cv-03714, in which New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont, and Virginia contend the U.S. EPA’s decision …

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