Insights

On February 4, 2025, U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency’s Powering the Great American Comeback Initiative, signaling five pillars that will guide EPA’s work in the short term, which are summarized below:

On August 6, 2024, the Environmental Protection Agency (“EPA”) took the rare action of announcing the emergency suspension of all registrations for pesticide products containing the active ingredient dimethyl tetrachloroterephthalate (“DCPA” or “Dacthal”) under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). This is the first time in almost 40 years that EPA has issued an emergency suspension order.[1] EPA’s reasoning for the present action is that DCPA can cause adverse health effects in the fetuses of women exposed to DCPA.

On April 19, 2024, EPA signed the highly anticipated final rule designating two types of PFAS as hazardous substances under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  At the same time, David M. Uhlmann, Assistant Administrator for Enforcement and Compliance Assurance of the EPA, released an enforcement policy memorandum that provides “direction to all EPA enforcement and compliance staff about how EPA will exercise its enforcement discretion under CERCLA in matters involving PFAS, just as EPA exercises enforcement discretion regarding other hazardous substances.”  This alert summarizes key points from the enforcement policy and flags various uncertainties that lie ahead. 

On April 20, the Biden Administration published final changes to the rules governing how federal agencies consider the environmental impacts of their proposed actions, returning to previous standards that required consideration of indirect and cumulative effects of a proposed action. Although the rule changes may appear minimal, encompassing modifications to two specific regulatory subsections and updates to two definitions, the changes could be significant in how agencies consider impacts on environmental justice communities or effects of climate change from proposed federal actions, including federal agency authorizations and approvals for energy, transportation, and other infrastructure projects. 

On April 20, 2020, the Supreme Court of the United States issued its opinion in Atlantic Richfield Co. v. Christian, et al., allowing Montana landowners to pursue state law claims for damages within an EPA-managed Superfund site, but requiring EPA approval of any remedial work beyond the originally selected remedy. Many commentators and legal scholars have suggested the case opens a veritable Pandora’s Box of new litigation. We submit that the consequences will likely be less dramatic, in part because of the unusual legal remedy under Montana law for a landowner whose property becomes contaminated by another party is not widely available outside Montana.

On April 10, 2020, EPA released an interim guidance document on response field activities under CERCLA, RCRA, and other EPA response programs during the COVID-19 pandemic. Entitled “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19,” the policy reflects a careful balance between the need to prevent exposure to environmental threats (such as a spreading groundwater plume that could contaminate drinking water supplies) and the need to avoid unnecessary risks associated with exposure to the coronavirus (such as routine sampling that could be postponed). The below Q&A addresses key aspects of the new interim guidance.

As part of our continuing commitment to help our clients address the effects of COVID-19, we are providing the initial, anonymized, and aggregated results from our benchmarking questionnaire. We continue to gather information and update the responses, but given the rapidly changing environment, we wanted you to have this information sooner than later.

Many businesses face mounting disruption and, in some cases, temporary shutdown as a consequence of the ongoing coronavirus (COVID-19) pandemic. As owners and operators confront these challenges, they face the added challenge of continuing to satisfy applicable federal, state, and local environmental laws and regulations. Unprecedented obstacles to maintaining routine compliance include, for example, the lack of staff to collect water samples, the inability to obtain physical signatures of documents such as air permits and compliance reports, and difficulty constructing, repairing, upgrading, and maintaining emissions controls and monitoring systems because of disruptions to the supply chain or work force.

We thank our clients for your input on our effort to help trade associations benchmark what they are doing as part of COVID-19 contingency planning. Please use the survey link below to access the brief benchmarking questionnaire. Assuming we have a sufficient number of responses, we will aggregate and share responses (on an anonymous basis).

In recent months, environmental groups have ramped up their legal campaign against the petrochemical industry and have sued the U.S. Environmental Protection Agency (EPA) to impose stricter regulations on the manufacturers of plastic and sources of marine pollution.

On Wednesday, June 26, 2019, the Federal Register published the White House Council on Environmental Quality’s (CEQ) proposed National Environmental Policy Act (NEPA) Guidance on Consideration of Greenhouse Gas (GHG) Emissions. If adopted, the guidance would fill a void created by the rescission of the Obama-era NEPA guidance on climate change in March 2017 by President Trump’s “Promoting Energy Independence and Economic Growth” executive order.

On June 10, in a case that could have a significant impact on CERCLA cleanup efforts across the country, the U.S. Supreme Court granted certiorari in Atlantic Richfield Company v. Christian, a Montana Supreme Court case involving state law claims related to environmental contamination at a Superfund site. By agreeing to hear the case, the Court appears set to resolve the conflict between the Montana Supreme Court and various federal circuits over whether CERCLA preempts or bars private landowners from bringing common law claims for environmental remediation of sites undergoing cleanup under CERCLA. Specifically, the Court will consider:

In Hawai’i Wildlife Fund v. County of Maui, the U.S. Court of Appeals for the Ninth Circuit held that a Clean Water Act (CWA) permit is required when pollutants in more than de minimis amounts are “fairly traceable from a point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.” By requiring a permit under this test for pollutants that eventually reached navigable waters via groundwater migration, the County of Maui decision threatens to significantly expand the scope of the Act’s National Pollutant Discharge Eliminations System (NPDES) permit program, potentially incorporating an array of discharges — from all manner of industry — that did not formerly require CWA permits.

President Trump’s desire to roll back regulations of his predecessor is once again proving easier to announce than to implement. On October 4, 2017, the Northern District of California declared unlawful an attempt by the U.S. Bureau of Land Management (BLM, an agency within the Department of the Interior) to relieve the oil and gas industry of the need to comply with certain requirements of a BLM regulation concerning methane venting, flaring, and leaks by the January 2018 deadline. California v. BLM, No. 17-3804, 2017 WL 4416409 (N.D. Cal. Oct. 4, 2017). BLM relied on a seldom-litigated provision of the Administrative Procedure Act (APA) that allows agencies in certain circumstances to stay the effective dates of newly promulgated rules that are the subject of pending litigation. States and environmental groups challenged the stay, saying it was illegal under the circumstances, and the federal court agreed. The decision showcases how litigation is being used to impede the Trump Administration’s deregulatory agenda, as discussed in an earlier alert.

For decades, courts have adjudicated claims alleging that Clean Water Act Section 402 requires a permit for discharges of pollutants to groundwater, where those discharges ultimately reach waters of the United States. In recent years, courts have seen a considerable uptick in cases involving such claims. For instance, last month, a federal district court in South Carolina dismissed a case alleging that petroleum products that leaked from a pipeline into groundwater are slowly migrating toward streams and wetlands. See Upstate Forever v. Kinder Morgan Energy Partners, L.P., No. 16-cv-4003 (D.S.C. Apr. 20, 2017). 

In the first of what promises to be a series of reversals of Obama-era EPA regulations, President Trump (through an executive order) and EPA and the Army Corps of Engineers (through a Federal Register notice) last week each announced the intention to rescind or revise the Obama Administration’s controversial and embattled Clean Water Rule.  The 2015 rule, which is currently stayed nationwide under an order from the United States Court of Appeals for the Sixth Circuit, codified EPA’s and the Army Corps of Engineers’ Clean Water Act jurisdiction over a wide array of water bodies, including normally dry landscape features that rarely contain water.  The White House has indicated its intention to implement a much more restrictive vision of Clean Water Act jurisdiction.  The move to undo the 2015 rule may well succeed in killing it, but what will replace it is unclear.

On March 1, 2017, the U.S. Senate voted to confirm Congressman Ryan Zinke as the new Secretary of the Interior, by a vote of 68 to 31. Zinke is a fifth generation Montanan, a former State senator, and a 23-year U.S. Navy SEAL veteran. Re-elected to his second term as Congressman at Large from Montana, he recently served on the U.S. House Armed Services Committee and the U.S. House Natural Resources Committee.

The U.S. Senate voted 52 to 46 today to confirm Scott Pruitt as the new Administrator of the Environmental Protection Agency. Pruitt is an attorney by trade and until his confirmation had served as the Attorney General of Oklahoma since 2010. Prior to his tenure as Attorney General, Pruitt served for several years in the Oklahoma State Senate.

On August 18, the U.S. Court of Appeals for the Fifth Circuit denied rehearing and upheld its May decision rejecting a district court’s ruling that had denied most of plaintiffs’ Clean Air Act (CAA) enforcement claims and refused to award any civil penalties or injunctive relief. In Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp., a case involving thousands of alleged CAA violations from Exxon’s operation of a refinery and two petrochemical plants in Texas, the Fifth Circuit held that the district court erred in its assessment of Exxon’s liability by conflating two distinct, but overlapping, claims of permit violations and by taking an overly restrictive view of what constitutes “repeated” or “ongoing” violations under the CAA’s citizen suit provision. The Fifth Circuit also found that the district court abused its discretion when analyzing three of the Act’s civil penalty factors (economic benefit of noncompliance; duration of the violation; and seriousness of the violation). The extensive and detailed decision breaks some new ground on these topics and should be reviewed by those subject to CAA citizen enforcement.

In U.S. Army Corps of Engineers v. Hawkes Co., No. 15-290 (U.S. May 31, 2016), the Supreme Court ruled, 8-0, that parties can immediately challenge Corps determinations of federal Clean Water Act (CWA) jurisdiction under the Administrative Procedure Act (APA). Read narrowly, the Court’s decision simply makes it easier for landowners to achieve regulatory certainty and allows them to challenge adverse affirmative jurisdictional determinations without having to undergo an “arduous, expensive, and long” permitting process. Read more broadly, however, the decision may also signal recognition by the Court that practical impacts may justify judicial review of some agency decisions that have their own legal consequences and serious practical effects, although they are but intermediate steps in a longer administrative process.