As the saying goes, “no good neighbor rule goes unpunished.” Thus, the latest attempt by the U.S. Environmental Protection Agency (“EPA”) to promulgate a Revised Cross-State Air Pollution Rule (“CSAPR”) Update under the “good neighbor provision” of the Clean Air Act and in response to the D.C. Circuit’s remand of the previous version of the CSAPR Update has been challenged in court. On June 25, 2021, Midwest Ozone Group—an affiliation of companies, trade organizations, and associations created to advance its members interests regarding national ambient air quality programs—filed a petition for review of the final rule of EPA published in the Federal Register at 86 Fed. Reg. 23,054 (April 30, 2021) entitled the “Revised Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS.” The petition does not provide any details at this point regarding the basis for the group’s challenge to the Revised CSAPR Update.
As we previously reported on this Blog, the Revised CSAPR Update became effective 60 days after it was published (effective on June 29, 2021), and has requirements that begin right away in the 2021 ozone season (the ozone season is May 1 through September 30). The rule requires additional emissions reductions of nitrogen oxides (“NOX”) from power plants in 12 states: Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and West Virginia. EPA determined that additional emissions reductions were necessary in these 12 states because projected 2021 ozone season NOX emissions from these states were found to significantly contribute to downwind states’ nonattainment and/or maintenance problems for the 2008 ozone National Ambient Air Quality Standards (“NAAQS”). NOX is an ozone precursor, which can react with other ozone precursors in the atmosphere to create ground-level ozone pollution (a/k/a smog). These pollutants can travel great distances, often crossing state lines and making it difficult for downwind states to meet or maintain the ozone NAAQS.
One part of the Revised CSAPR Update that may be of particular interest to the challengers is that EPA issued new or amended Federal Implementation Plans (“FIPs”) for these 12 states that replaces those states’ existing CSAPR emissions budgets for power plants. The revised emission budgets take effect immediately with the 2021 ozone season and will adjust through 2024. The 2021 emission budgets will require power plants in these states to take advantage of existing, already-installed selective catalytic reduction (“SCR”) and selective non-catalytic reduction (“SNCR”) controls. Emissions reductions in the 2022 budgets will require installation or upgrade of state-of-the-art NOX combustion controls at power plants. Emission budgets will continue to be adjusted, through 2024, until air quality projections demonstrate that the upwind states are no longer significantly contributing to downwind states’ nonattainment of the 2008 ozone NAAQS.
Midwest Ozone Group is required to submit a Statement of Issues to be Raised by July 28, 2021, which should shed more light on the strengths or weaknesses of the petitioner’s challenges to this rule. Stay tuned to the Corporate Environmental Lawyer Blog for additional analysis at that time and if any other significant developments arise in the meantime.
On Friday, April 30, 2021, the Biden Administration’s Environmental Protection Agency (EPA) announced significant steps the agency intends to take under the Toxics Release Inventory (TRI) Program to implement expanded reporting requirements for companies that store and utilize hazardous chemicals, including new obligations to report the storage, use and any releases of ethylene oxide, a commonly used industrial chemical and sterilant for medical equipment and supplies. The TRI Program, which was established under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), serves as a resource for the public to learn about annual chemical releases, waste management, and pollution prevention activities reported by nearly 22,000 industrial and federal facilities. Under the TRI Program, U.S. facilities operating in various industry sectors must report annually the quantity of certain chemicals they release to the environment and/or manage through recycling, energy recovery and treatment. A “release” of a chemical in the context of the TRI Program means that the chemical is emitted to the air or water, or placed in some type of land disposal.
A major component of EPA’s announcement is the agency’s intent to regulate ethylene oxide. The use and release of ethylene oxide by medical device sterilization companies have prompted a number of recent high-profile lawsuits alleging that releases of the chemical into the environment have caused increased cancer rates in communities adjacent to the facilities. EPA’s announcement notes that many existing sterilization facilities “are located near areas with Environmental Justice concerns,” and that individuals living adjacent to these facilities may be at a heightened risk from exposure to ethylene oxide. “Every person in the United States has a right to know about what chemicals are released into their communities,” EPA Administrator Michael S. Regan stated. “By requiring new and more data on chemical releases from facilities, EPA and its partners will be better equipped to protect the health of every individual, including people of color and low-income communities that are often located near these facilities but have been left out of the conversation for too long.” In the coming months, EPA will provide further details regarding the specific actions the agency intends to take to require sterilization facilities that use ethylene oxide to report under the TRI Program.
In addition to implementing new reporting requirements for companies utilizing ethylene oxide, EPA announced several other steps the agency plans to take that will increase reporting and public access to information under the TRI Program, including:
- Finalizing a longstanding proposed rule that will add natural gas processing facilities to the industry sectors covered under the TRI Program thereby increasing the publicly available information on chemical releases and other waste management activities of TRI-listed chemicals from this sector;
- Continuing to add new per- and polyfluoroalkyl substances (“PFAS”) to the list of chemicals that require reporting under the TRI Program, including the addition of perfluorobutane sulfonic acid (PFBS) following EPA’s toxicity assessment of the substance;
- Proposing a new rule to add high-priority substances under the Toxic Substances Control Act (TSCA) and chemicals included in the TSCA workplan to the list of chemicals that require reporting under the TRI Program; and
- Increasing public access to TRI data through improved search functionality and improved website interface.
EPA’s announcement marks the most recent step by the agency to implement the Biden Administration’s focus on environmental justice as a top priority of its environmental agenda. On the same day that EPA announced the agency’s updated TRI policy, EPA circulated a memorandum to all EPA-staff, indicating the additional actions the agency intends to take to fulfill its environmental justice commitment. These actions include: (1) increasing inspections of facilities that pose the most serious threats to overburdened communities; (2) focusing on implementing remedies that benefit communities, including through the incorporation of supplemental environmental projects; (3) increasing communications with overburdened communities to develop improved cleanup and non-compliance solutions; and (4) identifying locations where state regulators are not adequately protecting local communities and taking increased enforcement actions to “pick up the slack” if state regulators have not taken appropriate or timely actions.
The Corporate Environmental Blog will continue to follow developments on this issue in the coming months as EPA provides additional details on the specific actions it intends to take to expand the TRI Program.
On May 4, Jenner & Block Partner Steven M. Siros and Associate Leah M. Song will present a CLE webinar on environmental, health, and safety (EHS) issues facing the cannabis industry. The market value of the cannabis industry in the United States is expected to reach $30 billion by 2025. Currently, 36 states allow the use of cannabis for medicinal purposes and 15 states allow the recreational use of cannabis. To sustain this rapid industry growth, and avoid potential penalties and lawsuits, it is crucial that cannabis companies ensure consistent compliance with EHS rules and regulations.
In this CLE Program, Mr. Siros and Ms. Song will cover the particular EHS challenges that the cannabis industry currently faces, including issues related to emissions, water resources, waste regulation, and pesticides. The program will also address worker safety issues and the state and federal OSHA regulations cannabis operations are subject to as well as post-consumer issues cannabis companies face such as packaging issues and recycling. Please email firstname.lastname@example.org if you are interested in attending. Space is limited.
Mr. Siros is chair of the Environmental Litigation Practice and co-chair of the Environmental Workplace Health & Safety Law Practice. He focuses primarily on environmental and toxic tort matters.
Ms. Song is an associate in the firm’s Environmental and Workplace Health & Safety Law Practice.
By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice
A key platform of President Biden’s environmental agenda is increased regulatory scrutiny with respect to chemical substances under the Toxic Substances Control Act (TSCA). Regulating chemicals in order to minimize the threat to human health and the environment is clearly also critical to achieving the aims and goals of Earth Day, especially considering that the publication of Rachel Carson’s Silent Spring helped spark the global environmental movement that eventually culminated in the first Earth Day in 1970.
Turning now to the present, in the waning months of the Trump administration, there was a flurry of U.S. EPA activity under TSCA, including the issuance of risk evaluations for a number of high-priority chemical substances, including asbestos, 1,4-dioxane, and trichloroethylene. Notwithstanding that these risk evaluations concluded that at least some uses of each of the ten high priority chemicals posed an unreasonable risk, these risk evaluations were widely criticized for failing to take into consideration reasonably foreseeable uses or failing to adequately consider various scientific studies. There had been much speculation that President Biden would reject all of the Trump-era TSCA risk evaluations and in fact, one of President Biden’s first actions in the White House was to direct U.S. EPA to review the TSCA risk evaluation process as well as the methylene chloride risk evaluation specifically.
Rather than throwing the baby out with the bathwater, however, U.S. EPA is moving forward to develop risk mitigation plans for each of these high priority chemicals. At the same time, Michal Freedhoff, the acting assistant administrator for U.S. EPA’s Office of Chemical Safety and Pollution, noted that U.S. EPA would be taking a hard look at these risk evaluations. In a prepared statement, Ms. Freedhoff stated:
Our goal is to allow risk management actions on these first ten chemicals to move forward as much as possible, while looking back surgically at specific areas in some of the risk evaluations to supplement them as appropriate in order to ensure we are meeting our statutory obligations and using the best available science to truly protect human health and the environment.
As to the next 20 chemicals in the risk assessment pipeline, U.S. EPA has already announced that it will reassess its TSCA risk evaluation process, including refining its approach for selecting and reviewing scientific studies. U.S. EPA noted that it would not rely on U.S. EPA’s Application of Systematic Review in TSCA Risk Evaluations, a guidance document issued by U.S. EPA in 2018 that was much maligned by the National Academy of Scientists.
One can also expect an increased focus on environmental justice issues by U.S. EPA in connection with evaluating the risks posed by chemical substances. This will most likely play out in connection with an increased focus on chemical substance exposure for fence-line and front-line communities during the risk evaluation process.
Finally, there will also be increasing pressure on the Biden Administration to regulate new emerging contaminants such as per- and polyfluoroalkyl substances (PFAS) under both TSCA and the Safe Drinking Water Act. PFAS compounds have not yet been considered for prioritization under TSCA but are likely to be on a list of high priority chemicals in the future. In the meantime, U.S. EPA is likely to move forward with designating at least PFAS compounds as hazardous substances under CERCLA as well as evaluating whether to set an MCL for these compounds under the Safe Drinking Water Act.
Please check back on Jenner & Block’s Corporate Environmental Lawyer for more Earth Day content throughout the week.
By Leah Song
President Biden has made climate change a main focus of his administration. At the beginning of his term, President Biden issued several executive orders addressing climate change: “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (January 20, 2021) and “Executive Order on Tackling the Climate Crisis at Home and Abroad” (January 27, 2021) (“Day 7 Environmental Executive Order”). This article will highlight the administration’s international focus, climate justice, climate litigation, and several priorities of the recent executive orders.
As President Biden promised prior to inauguration, he recommitted the U.S. to the Paris Climate Agreement, which is intended to limit the global temperature increase to 2 degrees Celsius above pre-industrial levels. Trump had announced his intent to terminate the U.S.’s involvement in the Paris Climate Agreement shortly after taking office, but due to the rules, was not able to formally withdraw until November 4, 2019, which became final a year later on November 4, 2020. The U.S. had originally committed to cut GHG emissions by at least 26% below 2005 levels by 2025. Countries were supposed to submit new targets for 2030 by the end of 2020. The Biden administration will likely submit its updated Nationally Determined Contribution (“NDC”) by the end of 2021 in time for the COP26 event scheduled at the end of the year. Given the rollbacks during the Trump administration and predicted increase in emissions as the world recovers from the COVID-19 pandemic, President Biden will need to carefully consider the new target NDCs.
Keeping with the international focus, the Biden administration committed to treating climate change as a national security threat and fully integrating climate change into foreign policy and national security strategies. President Biden selected former Secretary of State John Kerry as the Special Presidential Envoy for Climate and to sit on the National Security Council. Kerry’s role is complemented by Gina McCarthy, White House National Climate Advisor, and Ali Zaidi, Deputy White House National Climate Advisor, in the White House Office of Domestic Climate Policy. The Day 7 Environmental Executive Order also discusses the establishment of a National Climate Task Force, working across 21 federal agencies and departments to enable a “whole-of-government” approach to combatting the climate crisis. For summaries of the recent National Climate Task Force meetings, click here and here.
During his campaign and into his presidency, President Biden has made clear his focus on environmental and climate justice. The Day 7 Environmental Executive Order establishes the White House Environmental Justice Advisory Council and the White House Environmental Justice Interagency Council in order to prioritize environmental justice and ensure a “whole-of-government” approach to addressing current and historical environmental injustices. There will be a focus on environmental justice monitoring and enforcement through new or strengthened offices at the U.S. Environmental Protection Agency, Department of Justice, and Department of Health and Human Services.
In time for Earth Day, the administration invited 40 world leaders to the Leaders Summit on Climate that will be hosted on April 22 and 23. The virtual Leaders Summit will be live streamed for public viewing. For an initial overview of the Leaders Summit, click here.
Check back on Jenner & Block’s Corporate Environmental Lawyer for more Earth Day content throughout the week.
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
This week, as we celebrate Earth Day on April 22, Jenner & Block’s Environmental and Workplace Health and Safety Law Practice will be focusing, each day, on a different aspect of the environment and how this year will affect our planet. I thought I would begin our week-long focus on Earth Day with a more personal reflection.
This past pandemic year on Earth gave me a chance to spend more time reading and lots more time thinking about our society and how we communicate with each other. Purely by coincidence, I had a chance to read two pieces of fiction that focus on both the environment and communication. In Richard Powers’s Pulitzer Prize winning, “The Overstory,” we learn about trees’ ability to communicate with each other as part of their survival network. The female scientist who makes this discovery in “The Overstory” calls to mind the work of Dr. Suzanne Simard, a professor of in the Department of Forest and Conservation Sciences at the University of British Columbia, who demonstrated how trees, even of different species, communicate and support each other through underground networks of fungi, known as mycorrhizal networks. The need to communicate, to support each other, to have deep, underground roots is central to all living things. Our ability to communicate as humans starts and ends with our planet.
A complementary novel to “The Overstory” is “A Children’s Bible” by Lydia Millet. Millet’s dystopian view of our planet’s future also has an understory about each generation’s inability to communicate their perspectives about their roles in taking care of each other and society. In my reading of “Children’s Bible,” the ultimate collapse occurs not just because of an environmental disaster, but because the generations stopped being able to communicate with and rely on each other.
Using one of our most useful forms of communication—humor, our first Earth Day cartoonist, Walt Kelly, tied together the need for both protection and connection in an elegant and powerful drawing:
We are all like trees in a giant forest called Earth. We have tentacles and roots touching each other in ways we cannot see, and we cannot continue living if we fail to acknowledge these connections. As we care for each other, we are also caring for our common home. As we communicate with each other, we must remember that we are connected to each other in ways that science is continuing to discover and that our personal experience is still learning.
As with many yearly events, Earth Day gives us an opportunity to reflect, discuss, and share. Thank you for letting me have the opportunity to connect with you.
Environmental Organizations Petition EPA to Expand Enforcement of Clean Air Act’s General Duty Clause
Various environmental organizations, led by the Environmental Integrity Project (“EIP”), are urging the United States Environmental Protection Agency (“EPA”) to expand enforcement of Section 112(r)(1) of the Clean Air Act (CAA)—commonly known as the General Duty Clause (“GDC”)—in order to more closely regulate the handling of hazardous substances at industrial facilities permitted under the CAA. EIP’s ongoing efforts include petitioning EPA to require that the obligations of the GDC be incorporated in state-issued Title V air emission permits, such that these obligations may be enforced against permit holders by state regulators or through citizen suits. As explained below, efforts to expand enforcement of the GDC were for the most part blocked under the Trump Administration’s EPA, but it remains to be seen whether these efforts may achieve renewed success under the Biden Administration.
The GDC, which was first enacted as part of the 1990 amendments to the CAA, requires that owners and operators of regulated facilities that handle, process, or store “extremely hazardous substances” take certain actions to “prevent the accidental release and … minimize the consequences of any  release” of such substances. Specifically, the GDC requires facility owners and operators to: (i) conduct a hazardous risk assessment to identify potential risks from extremely hazardous substances at their facilities; (ii) design and maintain safe facilities that protect against releases; and (iii) develop and implement protocols to minimize the consequences from any accidental releases. While “extremely hazardous substances” is not defined by the GDC, the Senate Report from the 1990 CAA amendments provides that “extremely hazardous substance” includes any agent “which may as the result of short-term exposures associated with releases to the air cause death, injury or property damage due to its toxicity, reactivity, flammability, volatility, or corrosivity.” Although not necessarily exhaustive, EPA has created a list of extremely hazardous substances in 40 CFR part 68. Jurisdiction for enforcement of the GDC remains an issue of contention between EPA and environmental organizations. While enforcement of the GDC has traditionally been left to the exclusive purview of EPA, environmental groups are increasingly arguing that state air authorities can and should request delegation authority from the EPA to enforce the GDC at permitted facilities within their jurisdiction.
A key example of EIP’s efforts to increase enforcement of the GDC is provided in the organization’s April 14, 2020 Petition Objecting to a Title V Permit issued to Hazlehurst Wood Pellets LLC (“Hazlehurst”), a wood pellet mill operating in the State of Georgia. At the time of the petition, Hazlehurst’s Title V permit had been approved by state authorities, but remained subject to final review by EPA. EIP’s Petition asked EPA to deny Hazlehurst’s air emissions permit on the grounds that the permit failed to recognize or incorporate the requirements of the GDC. According to the Petition, ensuring compliance with the GDC was critical due to the fact that Hazlehurst regularly handles hazardous products, including “copious amount of wood dust,” which had previously caused flash fires at the facility. The Trump Administration EPA’s subsequent Order Denying the Petition rejected EIP’s request, finding that the GDC is not an “applicable requirement” for the purposes of Title V, and as such, “Title V permits need not—and should not—include terms to assure compliance with the [GDC] as it is an independent requirement…” EPA reasoned that if the requirements of the GDC were integrated into a Title V permit, the obligations would ostensibly be enforceable through citizen suits. Concluding that “neither citizens nor state and local air agencies may enforce the [GDC] under the CAA,” EPA rejected the Petition. At the same time, EPA clarified that because the GDC is “self-implementing,” it is independently enforceable by EPA and applies even when it is not expressed as part of a facility’s air permit.
While EPA’s Order denied the environmental organization’s request to expressly require GDC compliance in Title V permits, the Order did make clear that facilities holding Title V permits are still subject to the GDC’s requirements which may be enforced by EPA. According to recently issued EPA Guidance on the GDC, owners and operators who maintain extremely hazardous substances must adhere, at a minimum, to recognized industry standards and any applicable government regulations for handling such substances. While it remains to be seen whether the Biden Administration EPA will continue to resist expressly incorporating the GDC in Title V permits, the Biden Administration’s emphasis on regulatory compliance and environmental justice indicates that future enforcement of the GDC is likely to increase. For this reason, facilities holding air emission permits should review their existing protocols for handling and storing hazardous substances and ensure these protocols are consistent with prevailing industry standards and the requirements of the GDC.
By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice
Breaking from the pack and potentially creating a circuit split, the Second Circuit’s decision in City of New York v. Chevron, et al. dismissing New York’s City’s climate change lawsuit is a significant victory for the oil and gas industry. The unanimous ruling from the Second Circuit affirmed a district’s court decision dismissing New York’s common law claims, finding that issues such as global warming and greenhouse gas emissions invoked questions of federal law that are not well suited to the application of state law.
Taking a slightly different tact than state and local plaintiffs in other climate change lawsuits, the State of New York sued five oil producers in federal court asserting causes of action for (1) public nuisance, (2) private nuisance, and (3) trespass under New York law stemming from the defendants’ production, promotion and sale of fossil fuels. New York sought both compensatory damages as well as a possible injunction that would require defendants to abate the public nuisance and trespass. Defendants filed motions to dismiss that were granted. The district court determined that New York’s state-law claims were displaced by federal common law and that those federal common law claims were in turn displaced by the Clean Air Act. The district court also concluded that judicial caution counseled against permitting New York to bring federal common law claims against defendants for foreign greenhouse gas emissions.
The Second Circuit agreed with the district court, noting that the problems facing New York can’t be attributed solely to greenhouse gas emissions in the state nor the emissions of the five defendants. Rather, the greenhouse gas emissions that New York alleges required the City to launch a “$20 billion-plus multilayered investment program in climate resiliency across all five boroughs” are a byproduct of emissions around the world for the past several hundred years.
As the Second Circuit noted, “[t]he question before it is whether municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by greenhouse gas emissions. Given the nature of the harm and the existence of a complex web of federal and international environmental law regulating such emissions, we hold that the answer is ‘no.’”
Finding that New York’s state common law claims were displaced by federal common law, the Second Circuit then considered whether the Clean Air Act displaced these federal common law claims. The Second Circuit noted that the Supreme Court in Am. Elec. Power Co. v. Connecticut (AEP) (2011) had previously held that the “’Clean Air Act and the EPA actions it authorizes displace any federal common-law right to seek abatement’ of greenhouse gas emissions.” As to the State’s damage claims, the Second Circuit agreed with the Ninth Circuit’s reasoning in Native Vill. Of Kivalina v. Exxonmobil Corp. (9th Cir. 2012) that the “displacement of federal common law does not turn on the nature of the remedy but rather on the cause of action.” As such, the Second Circuit held that “whether styled as an action for injunctive relief against the Producers to stop them from producing fossil fuels, or an action for damages that would have the same practical effect, the City’s claims are clearly barred by the Clean Air Act.
The Second Circuit was careful to distinguish its holding from the holdings reached by the First, Fourth, Ninth and Tenth circuits in prior climate change cases, noting that in those other cases, the plaintiffs had brought state-law claims in state court and defendants then sought to remove the cases to federal courts. The single issue in those cases was whether defendants’ federal preemption defenses singlehandedly created federal question jurisdiction. Here, because New York elected to file in federal as opposed to state court, the Second Circuit was free to consider defendants’ preemption defense on its own terms and not under the heightened standard applicable to a removal inquiry.
Whether the Second Circuit’s decision has any impact on BP PLC, et al. v. Mayor and City Council of Baltimore, a case that has now been fully briefed and argued before the Supreme Court remains to be seen. The Baltimore case was one of the state court cases discussed above that was removed to federal court. The defendants had alleged a number of different grounds for removal, one of which is known as the “federal officer removal statute” that allows removal to federal court of any lawsuit filed against an officer or person acting under that office of the United States or an agency thereof. The limited issue before the Supreme Court was whether the appellate court could only consider the federal-officer removal ground or whether it could instead review any of the grounds relied upon in defendants’ removal petition.
Some commenters have noted that the Second Circuit’s decision creates a circuit split that may embolden the Supreme Court to address these climate change cases in one fell swoop. The more likely scenario, however, is that the Supreme Court limits its opinion to the narrow issue before it and leaves resolution of whether state law climate change nuisance actions are preempted by federal law for another day.
EPA Finalizes Revised Cross-State Air Pollution Rule Update: Emissions Reductions Required at Certain Power Plants Beginning in May
On March 15, 2021, EPA finalized the Revised Cross-State Air Pollution Rule (“CSAPR”) Update for the 2008 ozone National Ambient Air Quality Standards (“NAAQS”). This final rule is issued pursuant to the “good neighbor provision” of the Clean Air Act and in response to the D.C. Circuit’s remand of the previous version of the CSAPR Update in Wisconsin v. EPA on September 13, 2019. The previous version of the CSAPR Update was issued in October 2016, and was found to be unlawful because it allowed certain states to continue their significant contributions to downwind ozone problems beyond the statutory dates by which the downwind states were required to be in compliance with the NAAQS. The Revised CSAPR Update attempts to address the deficiencies identified by the D.C. Circuit.
Beginning in the 2021 ozone season (the ozone season is May 1 through September 30), the Revised CSAPR Update will require additional emissions reductions of nitrogen oxides (“NOX”) from power plants in 12 states: Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and West Virginia. EPA determined that additional emissions reductions were necessary in these 12 states because projected 2021 ozone season NOX emissions from these states were found to significantly contribute to downwind states’ nonattainment and/or maintenance problems for the 2008 ozone NAAQS. NOX is an ozone precursor, which can react with other ozone precursors in the atmosphere to create ground-level ozone pollution (a/k/a smog). These pollutants can travel great distances, often crossing state lines and making it difficult for downwind states to meet or maintain the ozone NAAQS.
By Steven M. Siros, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On January 19, 2021, four days after the close of the comment period, U.S. EPA issued its final guidance document to aid in implementation of its Significant New Use Rule (SNUR) for long-chain perfluoroalkyl carboxylate and perfluoroalkyl sulfonate chemical substances (PFAS). Not surprisingly, in light of the short time between the close of comments and issuance of the guidance, the final guidance remained largely unchanged from the draft version.
In July 2020, U.S. EPA finalized its PFAS SNUR that requires notice and U.S. EPA review before manufacturing and processing for use certain long-chain PFAS that have been phased out in the United States. In addition, articles containing these long-chain PFAS as part of a surface coating cannot be imported into the United States without submission of a Significant New Use Notice (SNUN).
The guidance provides examples of what would and would not be articles subject to the SNUR as well as clarification on what is meant as a “surface coatings.” Although U.S. EPA declined to provide a regulatory definition of “surface coating” in the PFAS SNUR, the guidance indicates that any long-chain PFAS meeting one of the following two criteria would be a surface coating covered by the SNUR:
- Coating on any surface of an article that is in direct contact with humans or the environment during the article’s normal use or reuse, whether the coating is oriented towards the interior or exterior of the article; or
- Coating on any internal component, even if facing the interior of the article, if that component is in contact with humans or the environment during the article’s normal use or reuse.
Many environmental groups noted that the “direct contact” standard and the refusal to consider potential exposures associated with the disposal and/or misuse of these articles was contrary to the provisions of the PFAS SNUR and these groups are urging the Biden Administration to revisit the guidance. Because the new guidance is not labeled as “significant”, it did not need to follow the formal notice-and-comment process but this would also arguably allow the incoming Biden administration to quickly rework and issue its own guidance for implementing the PFAS SNUR.
We will continue to provide updates on efforts by the Biden Administration to implement the PFAS SNUR on the Corporate Environmental Lawyer blog.
By Steven M. Siros, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On December 18, 2020, U.S. EPA issued its long awaited draft interim guidance on disposal and destruction methods for per- and polyfluoroalkyl substances (PFAS). The guidance, which U.S. EPA was required to issue pursuant to the National Defense Authorization Act for Fiscal Year 2020, discusses three disposal/destruction technologies—thermal treatment, landfilling and underground injection.
In discussing these technologies, the guidance acknowledges that it does not address what concentrations of PFAS in wastes, spent products, or other materials or media would necessitate destruction or disposal, noting that other regulatory mechanisms or risk based guidance are more appropriate for establishing such concentrations. Instead, the guidance is intended to provide information and suggested considerations to assist in evaluating destruction and disposal options for PFAS waste.
The guidance does not endorse any single technology—rather, the guidance generally discusses the following technologies in order of lower to higher uncertainty in terms of the ability to control the migration of PFAS into the environment during the disposal/destruction process.
- Interim Storage. Acknowledging that this is not a destruction or disposal method, the guidance notes that interim storage may be an option if the immediate destruction of the PFAS materials is not necessary. Interim storage (from two to five years) could be relied upon while research continues to minimize uncertainties associated with the other options.
Permitted Deep Well Injection (Class I). Underground injection would be limited to liquid-phase waste streams. However, the guidance notes that there are a limited number of wells and logistical issues could limit the practicability of this option.
- Permitted Hazardous Waste Landfills (RCRA Subtitle C). The guidance notes that RCRA Subtitle C landfills have the most stringent environmental controls in place and therefore have a higher potential to prevent the migration of PFAS into the environment.
Solid Waste Landfills (RCRA Subtitle D) with Composite Liners and Leachate Collection. These landfills can only receive non-hazardous wastes and therefore have less stringent environmental controls that vary from state to state.
Hazardous Waste Combustors. These consist of commercial incinerators and cement/aggregate kilns that can achieve temperatures and residence times sufficient to break apart the PFAS. However, the guidance notes that emissions from these combustion sources haven’t been adequately characterized to confirm that the PFAS compounds are in fact destroyed.
- Other Thermal Treatment. These consist of carbon reactivation units, sewage sludge incinerators, municipal waste combustors, and thermal oxidizers. However, the same uncertainties that were referenced in the previous bullet would also apply to these technologies.
The appropriate methodology for dealing with PFAS waste has been subject to controversy with environmental groups such as Sierra Club suing the Department of Defense (DoD) in an effort to prevent DoD from incinerating its stockpile of PFAS-based firefighting foams. Although U.S. EPA set a 60-day comment period on the interim guidance, U.S EPA could certainly elect to delay issuance of any final guidance to give the new Biden Administration an opportunity to put its imprint on the guidance )especially considering the emphasis that the new administration has placed on PFAS).
We will continue to track this guidance as well other PFAS-related issues on the Corporate Environmental Lawyer blog.
On December 7, 2020, EPA completed its five-year review of the National Ambient Air Quality Standards (“NAAQS”) for Particulate Matter (“PM”), a criteria air pollutant under the Clean Air Act. In a final action set to be published in the Federal Register in the coming days, EPA decided to retain the current NAAQS for PM, which have been in place since 2012.
PM is measured in two categories:
- Fine particles, or PM2.5, which are particles with a diameter of 2.5 micrometers and smaller; and
- Coarse particles, or PM10, which are particles with a diameters between 2.5 and 10 micrometers.
PM2.5, emitted from numerous sources including power plants, vehicle exhaust, and fires, is generally the more significant health concern, as it has been linked to serious respiratory disease, increased mortality rates, and recent studies have even linked a history of PM2.5 exposure to increased COVID-19 mortality rates.
The Clean Air Act requires EPA to set both primary and secondary NAAQS for PM2.5 and PM10. Primary NAAQS must be set at levels that will protect public health and secondary NAAQS must be set at levels that will protect public welfare. All NAAQS must be reviewed by EPA every five years. EPA has regulated PM emissions through the NAAQS since 1971, and revised the PM NAAQS four times since then—in 1987,1997, 2006 and 2012.
The current primary and secondary NAAQS for PM are as follows:
According to EPA data, there are currently 16 counties in the U.S. currently in nonattainment of the primary PM2.5 NAAQS and 23 counties currently in nonattainment of the primary PM10 NAAQS.
EPA’s decision to keep the existing PM NAAQS comes despite warnings from its own scientists. Notably, in the Policy Assessment for the Review of the National Ambient Air Quality Standards for Particulate Matter, one of the technical documents used by EPA in support of its final decision, EPA scientists concluded that:
“When taken together, we reach the conclusion that the available scientific evidence, air quality analyses, and the risk assessment…can reasonably be viewed as calling into question the adequacy of the public health protection afforded by the combination of the current annual and 24-hour primary PM2.5 standards.”
This Policy Assessment also states that under the current PM2.5 standards, long-term PM2.5 exposures are estimated to be associated with as many as 45,000 total deaths per year. However, the Policy Assessment also noted certain uncertainties and limitations in the evidence and risk assessments that could lead the agency to decide to keep the existing standards.
EPA received over 60,000 public comments on the PM NAAQS proposal, which was closely watched by environmentalists and industry alike. Because of this close public interest, this may be an issue that will be reviewed sooner than the normal five-year review once the Biden Administration begins in 2021. As always, we will keep you updated on any further developments at the Corporate Environmental Lawyer.
By Steven M. Siros, Co-Chair, Environmental and Workplace Health and Safety Law Practice
The Trump administration continues its efforts to issue new regulations in advance of January 20, 2021, with the Department of Energy (DOE) issuing a final rule that will exempt certain liquefied natural gas (LNG) projects from National Environmental Protection Act (NEPA) review. The final rule, published in the Federal Register on December 4, updates DOE’s NEPA implementing procedures with respect to authorizations issued under the Natural Gas Act in accordance with the recent revisions to the NEPA regulations as further described below.
According to DOE, the focus of the new rule is to clarify the scope of DOE’s NEPA obligations with respect to LNG projects and more specifically, to eliminate from the scope of DOE’s NEPA review potential environmental effects that the agency has no authority to prevent. Because DOE’s discretionary authority under Section 3 of the Natural Gas Act is limited to the authorization of exports of natural gas to non-free trade agreement countries, the rule limits the scope of environmental impacts that DOE must consider to the impacts associated with the marine transport of the LNG commencing at the point of export.
To that end, the final rule revises DOE’s existing Categorical Exclusions (CATEX) to reflect that the only elements of LNG projects subject to NEPA review is the following:
B5.7 Export of natural gas and associated transportation by marine vessel.
Approvals or disapprovals of new authorizations or amendments of existing authorizations to export natural gas under section 3 of the Natural Gas Act and any associated transportation of natural gas by marine vessel.
Based on prior NEPA reviews and technical reports, DOE has determined that the transport of natural gas by marine vessel normally does not pose the potential for significant environmental impacts and therefore qualifies for a CATEX. As such, the only reason that DOE would be obligated to engage in a NEPA review of a LNG project would be if “extraordinary circumstances” were deemed to be present that could not be mitigated and therefore would preclude DOE's reliance on this CATEX.
The revised CATEX also removes the reference to import authorizations from CATEX B5.7 because DOE has no discretion with respect to such approvals. Finally, the final rule also removes and reserves CATEX B5.8 and classes of actions C13, D8, D9 because these actions are outside of the scope of DOE’s authority or are covered by the revised CATEX B5.7.
Interestingly, although the Federal Energy Regulatory Commission (FERC) has responsibility for approving the construction of LNG export terminals, it has previously declined to analyze the greenhouse emissions associated with such projects, noting that DOE is the appropriate agency to consider such impacts. However, with DOE now concluding that these projects are categorically excluded from such reviews, it remains to be seen if FERC will reconsider its approach to these operations.
The final rule is scheduled to take effect on January 4, 2021 and it remains to be seen what if any action a new Biden administration might take in response to this rule. Assuming that the Republicans retain control of the Congress, DOE would be required to go through the formal withdrawal process. Alternatively, if the Democrats take control of the Senate, the regulation could be repealed pursuant to the Congressional Review Act.
We will continue to track the Trump administration’s ongoing effort to finalize regulations in advance of January 20th as well as efforts by any new administration to rollback these regulations on the Corporate Environmental Lawyer.
On Friday, October 2, 2020, the United States Supreme Court granted a writ of certiorari to review of a decision by the Fourth Circuit Court of Appeals holding that climate change litigation brought against various fossil fuel were not subject to federal court subject matter jurisdiction. While the Supreme Court’s review is limited to a somewhat narrow, jurisdictional question regarding the ability of an appellate court to review a district court’s order remanding a case to state court, the decision will likely have far reaching impacts on whether the growing number of climate changes cases in the United States will be litigated in state or federal courts.
As previously discussed by the Corporate Environmental Lawyer, the underlying litigation involves claims asserted in Maryland state court by the City of Baltimore against various fossil-fuel companies for damages associated with Climate Change. In its complaint, Baltimore asserted claims against the industry for public nuisance, private nuisance, strict liability failure to warn, strict liability design defect, negligent design defect, negligent failure to warn, trespass, and violations of Maryland’s Consumer Protection Act.
In response, the fossil fuel companies sought to remove the action to federal court. However, the district court remanded the case back to state court after finding that it lacked subject matter jurisdiction over the asserted claims following the lead of several other district courts that have decided similar issues. On March 6, 2020, the Fourth Circuit affirmed the district court’s remand order. Importantly, the Fourth Circuit found that its appellate jurisdiction was limited to reviewing the district court’s conclusion that it lacked subject matter jurisdiction under the Federal-Officer Removal Statute pursuant to 28 U.S.C. § 1447(d) and 28 U.S.C. § 1442 notwithstanding that the fossil fuel companies had raised and the district court ruled on additional arguments in support of the removal petition. The Fourth Circuit found that it lacked jurisdiction to consider whether the district court should have granted removal to federal court on these alternative grounds.
With respect to the Federal Officer Removal Statute, the Fourth Circuit rejected the companies’ arguments that the case belonged in federal court because the companies had entered into fuel supply and strategic petroleum reserve agreements with the federal government. The court concluded that these contractual agreements failed to establish that the companies were “acting under” the direction of a federal officer and were “insufficiently related” to Baltimore’s claims. On March 31, 2020, the fossil-fuel companies filed a petition for a writ of certiorari in the United States Supreme Court, seeking review of the question of whether the statutory provision prescribing the scope of appellate review of remand orders “permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court…” The companies argued that the Fourth Circuit had improperly ignored several alternative grounds justifying removal of the case to federal court, including that federal common law governs claims of interstate air pollution.
While the Supreme Court’s review of the case will be limited to the appellate jurisdictional question, the decision will undoubtedly influence the growing trend of climate change litigation. At present, twenty-one U.S. States and numerous municipalities have brought lawsuits in state court against the fossil fuel industry for damages related to climate change. In nearly all such cases, the industry has sought to remove the case to federal court where it is believed the companies have a better chance of successfully securing dismissals on the grounds that such claims are preempted by the Clean Air Act and/or addresses a “political question” which is better left to the discretion of Congress. Thus, the Supreme Court’s decision will likely impact the ability of the fossil fuel industry to seek appellate review of unfavorable district court remand orders.
On August 13, 2020, EPA issued two final rules that will have a significant impact on methane emissions, a potent greenhouse gas. The final rules were issued under the Clean Air Act’s New Source Performance Standards (“NSPS”) for the oil and natural gas industry and rescind Obama-era rules issued in 2012 and 2016. EPA categorized the two new rules as (1) Policy Amendments and (2) Technical Amendments.
Key provisions from these two rules include the following:
- Policy Amendments:
- Removes the natural gas transmission and storage segment of the oil and natural gas industry from regulation.
- Rescinds methane and volatile organic compounds (“VOCs”) emissions standards for the natural gas transmission and storage segment of the oil and natural gas industry.
- Rescinds methane emissions standards for the production and processing segments of the oil and natural gas industry and finds that EPA is no longer required or authorized to issue emission guidelines for methane from existing sources in the industry’s production and processing segments.
- Finds that the Clean Air Act requires, or authorizes, EPA to make a “significant contribution finding” as a predicate to regulating any air pollutant that was not considered when EPA first listed or regulated an industry “source category.”
- Technical Amendments:
- Reduces the frequency of required fugitive emissions monitoring for gathering and boosting compressor stations from quarterly to twice a year and exempts low-production wells from fugitive monitoring requirements altogether.
- Reduces the recordkeeping and reporting requirements of the fugitive emissions program.
- Changes include allowing owners and operators to determine the best means to ensure all components are monitored, rather than having to include a site map and an observation path in the monitoring plan.
- Updates fugitive emissions repair requirements.
- Provides additional technical updates covering fugitive emissions monitoring and repairs, alternative means of emissions limitations, pneumatic pumps, engineer certifications for closed vent systems, and storage vessels.
As we discussed on this Blog previously, these rules were originally proposed on August 28, 2019. EPA held public hearings on the proposed amendments, and received nearly 300,000 written comments on the Policy Amendments and more than 500,000 written comments on the Technical Amendments.
According to EPA’s analysis:
The Regulatory Impact Analysis (RIA) for the two rules estimates that, combined, the two actions will yield $750 to $850 million in net benefits over the period from 2021-2030, (7 percent and 3 percent discount rates, respectively), the annualized equivalent of nearly $100 million in net benefits a year.
EPA also estimates that from 2021-2030, the combined rules will result in an increase in 850,000 short tons of Methane emissions and 140,000 tons of VOC emissions.
Environmental groups, liberal states and other interest groups are all but certain to sue to try to block implementation of the new rules, with Earthjustice staff attorney Tim Ballo recently making the following statement:
The Trump administration is once again putting industry interests over people and public health by gutting these common-sense emission standards. The rollback would only further exacerbate a climate crisis that is already near a point of no return. We cannot afford to go back. We’ve successfully sued the Trump administration in their attempt to dismantle methane emission standards in the past, and we’ll sue again to keep these standards in place.
More information about these rules is available at EPA’s website. The rules will take effect 60 days after they are published in the Federal Register.
Back on April 23, 2020, Illinois State Representative (R) Darren Bailey filed a complaint in the Clay County Circuit Court with two counts for declaratory judgment and a request for injunction, alleging that Governor Pritzker’s extension of the stay-at-home order exceeded the authority afforded to the Governor under the Illinois Emergency Management Agency Act (“IEMAA”). Specifically, the lawsuit alleged that the IEMAA grants certain enumerated powers to the Illinois Governor following the proclamation of a “public health emergency,” but that Section 7 of the IEMAA limits these authorities to “a period not to exceed 30 days” following the declaration. Thus, Rep. Bailey alleged that any extension of the stay-at-home order 30 days after the original Executive Order was void. On the same date that he filed his complaint, Rep. Bailey filed a motion seeking a temporary restraining order (“TRO”) to enjoin Governor Pritzker from enforcing the stay-at-home order against him or entering any further executive orders that would limit Rep. Bailey’s ability to travel within the state.
On April 27, 2020, Illinois Circuit Court Judge Michael McHaney temporarily blocked enforcement of Governor Pritzker’s stay-at-home order by granting Rep. Bailey the TRO, solely as to him. In its order granting the TRO, the circuit court found that Rep. Bailey had “shown he will suffer irreparable harm if the [TRO] is not issued” and had “shown he has no adequate remedy at law or in equity in that absent a [TRO] being entered, plaintiff, will continue to be isolated and quarantined in his home.” On that same day, Governor Pritzker filed a notice of interlocutory appeal to the Appellate Court of Illinois, Fifth Judicial District, requesting that the court reverse and vacate Judge McHaney’s decision and dissolve the TRO. On April 30, 2020, Rep. Bailey filed in the Fifth District Appellate Court a consent to entry of order vacating the TRO and remanding the case back to the circuit court, which the court agreed to do on May 1, 2020.
On remand, Rep. Bailey filed an amended complaint on May 13, 2020, consisting of four counts seeking the follow relief:
- “Declaratory judgment finding that the April 30 Proclamation is void for failing to meet the definition of a disaster as defined in the IEMAA;”
- “Declaratory judgment finding that Pritzker had no authority to utilize emergency powers after April 08, 2020;”
- “Declaratory judgment finding that the Illinois Department of Public Health Act governs the conduct of the state actors in this context;” and
- “[I]njunctive relief.”
Shortly after, on May 18, 2020, Rep. Bailey filed a motion for summary judgment. Before the hearing on the summary judgment motion, the Governor removed the case to federal court, but it was ultimately remanded. The U.S. Department of Justice got involved in this legal battle, filing a brief in federal court arguing that this case belonged in state court.
Following the remand from federal court, Rep. Bailey filed a notice of hearing on his summary judgment motion. On July 2, 2020, Judge McHaney ruled in favor of Rep. Bailey and held that Governor Pritzker’s COVID-19 Executive Orders were void and granted summary judgment on two counts (“July 2 Order”). The court concluded that the “30-days of emergency powers provided in Section 7 of IEMAA … lapsed on April 08, 2020,” such that all COVID-19 Executive Orders after April 8, 2020 are “void ab initio.” Further, the Governor had no authority “to restrict a citizen’s movement or activities and/or forcibly close business premises.” The court also granted Rep. Bailey’s “oral request that his Amended Complaint be a representative action” such that this ruling shall “apply to all citizens of the State of Illinois.”
The court must rule on the remaining issue of whether COVID-19 “meets the definition of a disaster as defined in the IEMAA.” Until then, the July 2 Order is neither enforceable nor appealable. The Illinois Attorney General moved to dismiss the remaining count and a hearing was set for July 17, but it was vacated by agreement. On July 22, Rep. Bailey filed a motion for leave to amend and add an additional count, seeking a declaratory judgment that a “public health emergency” as defined by the IEMAA did not exist in Clay County on June 26, 2020, when Governor Pritzker issued a proclamation that a “public health emergency” existed within all Illinois counties as a result of COVID-19.
Most recently, on August 5, 2020, Rep. Bailey filed a Petition for Adjudication for Indirect Civil Contempt, seeking to hold Governor Pritzker in civil contempt of court for disregarding the July 2 Order and continuing to issue COVID-19 Executive Orders. Judge McHaney ordered Governor Pritzker to appear in the Clay County Courthouse on August 14, 2020 to “show cause why he should not be held in indirect civil contempt and sanctioned for his willful disregard with the previously entered order of the Court.” The order stated that failure to appear may result in a warrant for the Governor’s arrest. But on August 11, 2020, the Illinois Supreme Court issued an order to stay the contempt hearing set for this Friday.
On July 23 and 24, 2020, Rep. Bailey’s attorney filed similar cases in various counties across the state, including Bond, Clinton, Edgar, Richland, and Sangamon counties, all seeking a declaratory judgment that a “public health emergency” as defined by the IEMAA did not exist as of June 26, 2020 and to void the Governor’s Executive Orders. . See Craig v. Pritzker, No. 2020-MR-589 (Sangamon Cty. Cir. Ct., Ill.); Allen v. Pritzker, No. 2020-MR-45 (Edgar Cty. Cir. Ct., Ill.); DeVore v. Pritzker, No. 2020- MR-32 (Bond Cty. Cir. Ct., Ill.); Gorazd v. Pritzker, No. 2020-MR-79 (Clinton Cty. Cir. Ct., Ill.); English v. Pritzker, No. 2020-MR-48 (Richland Cty. Cir. Ct., Ill.).
On August 11, 2020, in response to a motion for a supervisory order filed by the Illinois Attorney General on behalf of the Governor, the Illinois Supreme Court consolidated, in the Sangamon County Circuit Court before Judge Grischow, all of the cases filed in various counties, including Rep. Bailey’s lawsuit. Sangamon County includes the city of Springfield, the Capitol of Illinois.
An analysis of the Governor’s successes upholding his Executive Orders in federal court can be found here. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.
Several state and federal court lawsuits have been brought challenging Illinois Governor Pritzker’s proclamations and executive orders related to COVID‑19 (“Executive Orders”). In federal court, in contrast with state court, the Governor has been successful defending his Executive Orders. Most recently, on July 29, 2020, in a written opinion issued on August 1, 2020, the Village of Orland Park, and certain of its residents lost their motion to obtain immediate invalidation of the Executive Orders, when Judge Andrea Wood, of the United States District Court for the Northern District of Illinois (“the Northern District”), found that their claims had less than a “negligible likelihood” of succeeding. Village of Orland Park v. Pritzker, No. 20-cv-03528.
As background to the Village’s lawsuit, in response to the COVID‑19 pandemic, Governor Pritzker issued Executive Orders on March 9, March 20, April 1, April 30, May 29, and June 26, 2020 declaring a statewide public health disaster and restricting business operations, gatherings above a certain size, and other measures consistent with both stay-at-home and reopening orders. On June 16, 2020 the Village of Orland Park, the owner of a restaurant in the Village, and two Village residents (“Plaintiffs”) sued Governor Pritzker seeking to have the federal court issue a temporary restraining order and preliminary injunction prohibiting enforcement of the Executive Orders.
Plaintiffs’ complaint alleged that the Executive Orders violate their due process rights, the equal protection clause of the Fourteenth Amendment, and their procedural and substantive rights under the Illinois constitution and the Illinois Department of Public Health Act. The Village claimed that the Executive Orders illegally attempt to prevent the home-rule municipality from implementing its own order, allowing a faster reopening. The restaurant owner claimed that the Executive Orders caused economic losses. The individual plaintiffs claimed that the Executive Orders caused personal isolation and restricted medically necessary exercise.
Based on Plaintiffs’ verified complaint, the facts of which were uncontested by the Governor at that early stage of proceedings, the court heard oral argument on June 30, 2020. The court ruled that Plaintiffs did not meet the standards for injunctive relief, which require them to show a “greater than negligible likelihood of success on the merits,” and that the balance of harms Plaintiffs may suffer as a result of their claimed injury are greatly outweighed by burdens on the Governor and the public interest. The court began its analysis of the merits of Plaintiffs’ claims by finding that “the COVID‑19 pandemic constitutes the very sort of extraordinary threat to public health and safety contemplated by the Supreme Court in Jacobson [v. Massachusetts, 197 U.S. 11 (1905)].” Slip op. at 13. Pursuant to the standards in Jacobson, because Plaintiffs could not show that “the Executive Orders have a real or substantial relationship to preventing the spread of COVID‑19 or beyond all question plainly and palpably invade Plaintiffs’ constitutional rights,” Plaintiffs’ federal claims did not have more than a negligible chance of success. Id.
Moreover, even without relying on deference to state authority during a public health emergency recognized in Jacobson, Judge Wood also was unpersuaded by the merits of any of Plaintiffs’ federal claims when analyzed based on “traditional constitutional analyses.” Slip op. at 14. With respect to Plaintiffs’ procedural and substantive due process claims, while the complaint was unclear as to the liberty or property interests at stake, the court considered that Plaintiffs “may be asserting rights to work, rights to travel, or rights to freedom of association.” Slip op. at 15. However, the court found that Plaintiffs failed to show that they were deprived of those interests without due process of law. For example, the court reasoned that “there is no constitutional procedural due process right to state-mandated procedures.” Id. Even if Plaintiffs “are ultimately correct that the Governor should have complied with the procedures…in implementing his response to COVID‑19, they still will not have established a federal constitutional violation.” Id. The court also found that Plaintiffs could not establish that their rights were, in fact, violated. The court dispensed with Plaintiffs’ equal protection claim by noting the “many rational bases for the distinctions drawn among different types of business in the Executive Orders.” Slip op. at 23. The court also found that the Governor’s defense under the doctrine of sovereign immunity under the Eleventh Amendment to the U.S. Constitution barred all of the state law claims in federal court. Slip op. at 27.
After finding that Plaintiffs had less than a negligible chance of prevailing on the merits of their claims, the court considered the balance of harms to “further demonstrate[ ] that a preliminary injunction would be inappropriate.” Id. “Granting a preliminary injunction to Plaintiffs would do extraordinary damage to the state’s interest (and the public interest) in preventing the spread of COVID‑19…. On the other side of the balance, Plaintiffs have made no showing that they are experiencing substantial harm as a result of the Executive Orders at this time or that they are likely to experience substantial harm in the near future.” Slip op. at 28. Therefore, the court denied Plaintiffs’ motion for injunctive relief.
On July 27, 2020, the Governor moved to dismiss the entire case for failure to state a claim and lack of jurisdiction. Judge Wood arranged a briefing schedule on the Governor’s motion, and set September 29, 2020, for the next telephonic hearing in the case.
The ruling in Village of Orland Park follows three other successes for the Governor thus far in federal court. Judge John Lee heard the first Northern District case opposing the Governor’s Executive Orders in a case filed by The Beloved Church and its pastor against the Governor and the Stephenson County Sheriff and other officials on April 30, 2020. Cassell v. Snyders, No. 20-cv-50153. The church claimed that the Governor’s April 30, 2020 Executive Order violated the First Amendment’s Free Exercise Clause and three state statutes. On May 2, 2020, the court denied the church's request for injunctive relief. In a written decision issued on May 3, 2020, after finding, based on Jacobson, that the “traditional tiers of constitutional scrutiny do not apply” during an epidemic (slip op. at 14), the court ruled that the Order was a “neutral, generally applicable law” that is supported by a rational basis (slip op. at 26). The court then invoked the Governor’s Eleventh Amendment sovereign immunity with respect to the state law claims, and found the state law claims also unlikely to succeed on the merits. After this denial of injunctive relief in the district court, the church’s interlocutory appeal remains pending in the U.S. Court of Appeals for the Seventh Circuit as of this writing.
In a second federal case brought by a religious institution, in Elim Romanian Pentecostal Church v. Pritzker, No. 20‑cv‑02782, two churches contested the Governor’s Executive Order, which limited gatherings of more than ten people and imposed social distancing requirements, including on churches. They filed their complaint and a motion for emergency injunctive relief on May 7 and 8, 2020, respectively. The complaint challenged the Governor’s Order on federal and state constitutional grounds and state statutory grounds, but their motion for injunctive relief rested only on U.S. First Amendment rights. On May 13, 2020, Judge Robert Gettleman found that the Governor’s Order was both neutral and of general applicability; therefore, because it was supported by a rational basis, it was not unconstitutional. The court further found that “Plaintiffs’ request for an injunction, and their blatant refusal to follow the mandates of the Order are both ill-founded and selfish.” Slip op. at 11. When the district court denied injunctive relief, the churches appealed to the Seventh Circuit. Their requests for injunctive relief were denied on appeal. In its June 16, 2020 decision, the Seventh Circuit, in part relying on Chief Justice Roberts’ concurring opinion to the denial of injunctive relief in a case brought by churches in the Ninth Circuit, ruled that “Illinois has not discriminated against religion and so has not violated the First Amendment.” Slip op. at 12. The Seventh Circuit then denied the churches’ request for rehearing en banc on July 27, 2020.
On June 15, 2020, several Illinois Republican Party organizations filed a complaint and motion for a TRO and preliminary injunction in the Northern District, alleging that because Governor Pritzker’s Executive Order prohibited gatherings greater than fifty people but exempted the free exercise of religion from this limit, the organizations’ rights under the First and Fourteenth Amendments were violated. Illinois Republican Party v. Pritzker, No. 20-cv-03489. Specifically, the Republican organizations alleged that, by exempting the free exercise of religion from the gathering limit, Governor Pritzker created an unconstitutional content-based restriction on speech. On July 2, 2020. Judge Sara Ellis, denied plaintiffs' motion for preliminary injunctive relief, ruling that their likelihood of success on the merits of their constitutional claims was less than negligible and the balance of harms weighed heavily against them. The court based its ruling on both Jacobson and a “traditional First Amendment analysis.” Slip op. at 9. The court found that “by exempting free exercise of religion from the gathering limit [in the Executive Order], the Order creates a content-based restriction.” Id. at 15. The court held, however, that the Executive Order survives “strict scrutiny” because the content-based restriction may “eliminate[ ] the increased risk of transmission of COVID‑19 when people gather while only exempting necessary functions to protect health, safety, and welfare and free exercise of religion. Therefore, the Governor has carried his burden at the stage in demonstrating that the Order is narrowly tailored to further a compelling interest….” Id. at 18. The political organizations filed for emergency relief on appeal. The U.S. Court of Appeals for the Seventh Circuit ruled that the Governor’s compelling interest in controlling the spread of COVID‑19 passed strict scrutiny, and denied their motion for emergency relief on July 3, 2020, and the U.S. Supreme Court denied plaintiffs’ emergency application for write of injunctive relief on July 4, 2020. Further proceedings on appeal to the Seventh Circuit are pending as of this writing.
Although the Governor scored successes in the federal lawsuits brought against his COVID‑19 actions, he has not fared as well thus far in state court. The state court litigation against the Governor’s Executive Orders will be addressed in a separate blog, to be published shortly.
For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.
OEHHA Proposes Additional Safe Harbor Levels for Cooked or Heat-Processed Foods Containing Proposition 65 Chemicals
On Tuesday, August 4, 2020, the California Environmental Protection Agency Office of Environmental Health Hazard Assessment (OEHHA) issued a Notice of Proposed Rulemaking to adopt amendments to the regulations implementing the Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”). Specifically, OEHHA is proposing to amend Title 27 of the California Code of Regulations, by adopting a new Section 25505, to address listed chemicals formed by cooking or heat processing foods. The proposed amendments, if adopted, would provide new, specific “safe harbor” levels for Proposition 65 listed chemicals that are caused by cooking or heat processing in certain food groups. Manufacturers and sellers of these food products in California could then rely on these levels to demonstrate that their products do not require a consumer warning label under Proposition 65.
In general, Proposition 65 requires that parties manufacturing, distributing, or selling consumer products in California provide a “clear and reasonable warning” to the consumer whenever their product may expose the purchaser to a chemical that OEHHA has identified and listed as a carcinogen or reproductive toxin, unless an exception applies. A key exemption to Proposition 65’s warning requirements includes where a consumer product will not exposure a consumer to a listed chemical in quantities above certain OEHHA-designated Safe Harbor Levels. Safe Harbor Levels, which include No Significant Risk Levels (NSRLs) for cancer-causing chemicals and Maximum Allowable Dose Levels (MADLs) for chemicals causing reproductive toxicity, have been established for many of the chemicals listed under Proposition 65 and represent the maximum level of exposure to a chemical that has been deemed “safe” by OEHHA. Products that expose consumers to chemicals at or below a designated Safe Harbor Level are not required to provide a warning label or otherwise warn consumers about potential exposure to the listed chemical in their product. Critically, Proposition 65’s warning requirements are almost entirely forced through litigation brought by private party plaintiffs. In 2018 alone, defendants paid over $35 million in settlements to private party plaintiffs, with over 75% going to attorneys’ fees.
Of particular significance to OEHHA’s proposed regulatory amendment is the Proposition 65 listed chemical acrylamide, which can often form in certain plant-based foods during high-temperature cooking processes, such as frying, roasting, or baking. Acrylamide was first added as a Proposition 65 listed chemical in 1990 after studies showed it had the potential to produce cancer in laboratory mice. Acrylamide was additionally listed as a reproductive toxin in February 2011, when OEHHA determined that the chemical could cause reproductive effects in mice. Despite the relatively long period of time Acrylamide has been listed as a Proposition 65 regulated chemical, private party enforcement actions over the chemical have spiked heavily in recent years. In response, on October 7, 2019, the California Chamber of Commerce filed suit in federal court against the California Attorney General, Xavier Becerra, seeking to block enforcement of Proposition 65’s warning requirements for foods containing acrylamide as the result of the normal cooking process. The Chamber’s complaint alleged that more than 461 companies have received Proposition 65 notice of violations “in connection with alleged exposures to acrylamide in their food products over the past three years.” The complaint further noted that the creation of acrylamide is an unavoidable effect of cooking many plant-based foods and that “there is a lack of reliable scientific evidence suggesting a causal relationship between acrylamide in food products and cancer risk in humans.”
OEHHA’s proposed regulatory amendment appears aimed at addressing the specific concerns asserted in the Chamber of Commerce litigation. In its Statement of Reasons for the proposed amendments, OEHHA acknowledge that the regulatory amendment was needed because “some degree of formation of listed chemicals in many foods is unavoidable when the foods are cooked or otherwise processed with heat.” In addition, OEHHA noted that the agency would consider adding additional food groups to the proposed regulations at a later date.
The proposed regulations provide that a Proposition 65 “exposure” does not occur where a listed chemical in a food product “was created by cooking or other heat processing” and “the producer, manufacturer, distributor, or holder of the food has utilized quality control measures that reduce the chemical to the lowest level currently feasible.” In conjunction with this amendment, the amended regulations provide new Safe Harbor maximum concentration levels for listed chemicals in certain cooked or heated foods that are deemed by OEHHA to be the “lowest level currently feasible.” Food products containing a listed chemical at or below the listed levels are not required to provide a warning under Proposition 65. Listed food groups with specific new Safe Harbor Levels covered by the regulation include:
- Almonds, roasted, roasted almond butter, and chocolate-covered almonds;
- Bread, wheat and non-wheat-based products including loaves, rolls, buns, and baguettes;
- Cookies, including animal crackers, thin and crispy cookies, and sandwich wafers;
- Potatoes and sweet potato products, including french fried potatoes, sliced chips, and other potato products such as hash browns and potato puffs;
- Prune juice, including made from concentrate and non-concentrate; and
Notwithstanding the new proposed Safe Harbor Levels, the last sentence in new Section 25505(a) could still result in Proposition 65 claims. The sentence provides “[i]f a person does not reduce the level of the chemical in a food to the lowest level currently feasible, the resulting exposure must be calculated without regard to the levels set out in subsection (d).” Although this may not have been the intent of OEHHA, this language could be read to allow a Proposition 65 plaintiff to still claim that a manufacturer failed to utilize control measures that reduce the chemicals to the “lowest level currently feasible” even if below the Safe Harbor Level. Hopefully OEHHA will clear up this potential ambiguity in any final rule.
We also note that while the newly proposed amendments may assist many potential defendants, the updated Safe Harbor Levels explicitly will not apply “to parties to an existing court-ordered settlement or final judgment to the extent that such settlement or judgment establishes a concentration of the chemical in a specific product covered in the settlement or judgment.”
OEHHA is currently accepting written comments concerning its proposed regulatory action and intends to close its comment period no later than October 6, 2020. At present, OEHHA has not announced an intended final publication date for the proposed regulations, but the agency has noted that it anticipated its regulatory process may be delayed “due to the COVID-19 emergency.”
On Wednesday, July 15, 2020, the Trump Administration announced the publication of comprehensive updates to federal regulations governing the implementation of the National Environmental Policy Act (NEPA). The updated regulations—issued by the Council on Environmental Quality (“CEQ”)—are provided in the agency’s final rule titled “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act” (the “Final Rule”), which is expected to be published in a forthcoming Federal Register publication. The Final Rule significantly overhauls the responsibilities of federal agencies under NEPA, and represents the first major overhaul to NEPA’s regulations in over 30 years. During his announcement, President Trump promised that the overhaul would remove “mountains and mountains of bureaucratic red tape in Washington, D.C.” and speed up the approval and construction of major projects such as interstate highways and pipelines.
NEPA requires federal agencies to quantify and consider the environmental impacts of proposed actions “with effects that may be major and which are potentially subject to Federal control and responsibility.” The federal agency must conduct its NEPA review prior to “any irreversible and irretrievable commitments of resources” towards the proposed action. To fulfill its obligations under NEPA, federal agencies much first complete an “Environmental Assessment” (“EA”) that analyzes whether a proposed action will have a significant impact on the environment. If the EA concludes that an action could have significant environmental impacts, the agency is obligated to take the next step under NEPA and prepare a detailed “Environmental Impact Assessment” (“EIS”) that describes and quantifies the anticipated impacts. Federal agencies are required to undertake an EA and potentially an EIS before commencing public infrastructure projects such as roads, bridges and ports, or before issuing permits to certain private actions that require federal approval, such as the construction of pipelines or commencement of mining operations.
The Trump Administration has repeatedly voiced displeasure with the existing NEPA process, which the President has characterized as “increasingly complex and difficult to manage.” Legal challenges initiated under the existing NEPA regulations have also stalled a number of energy projects publicly supported by the administration, including the Keystone XL, the Dakota Access pipelines. The administration's new regulations are expected to reduce the obligations imposed on federal agencies under NEPA through a variety of measures, including reducing the types of environmental impacts that must be considered during a NEPA review; shortening the permitted time period for reviews; and exempting certain types of actions from the review requirements.
While the Final Rule provides numerous modifications to the language of the existing regulations, three changes expected to have substantial impact on the NEPA process include:
- Narrowing of “Effects” that Agencies Must Consider: The Final Rule seeks to narrow the scope of the environmental consequences that must be considered during an agency’s NEPA review by striking from NEPA’s definition of “effects” references to “direct”, “indirect”, and “cumulative” effects. Instead, the new definition provides that federal agencies must only consider environmental “effects” that “are reasonably foreseeable and have a reasonably close casual relational to the proposed action…” According to CEQ, NEPA’s existing definition of “effects” “had been interpreted so expansively as to undermine informed decision making, and led agencies to conduct analyses to include effects that are not reasonably foreseeable or do not have a reasonably close causal relationship to the proposed action or alternatives.” Under the Final Rule’s definition of “effects”, it is unclear whether agencies are ever required to consider a proposed project’s incremental contribution to “global” environment effects, such as Climate Change. Since global effects arguably do not have a “close causal relationship” with any single action, these impacts may now fall outside of NEPA’s purview.
By eliminating the reference to “indirect” emissions and requiring a “close causal relationship” between a project and its environmental effects, the Final Rule also appears to limit federal agencies’ obligation to consider indirect “upstream” and/or “downstream” impacts associated with a project. This issue is of particular significance to the ongoing legal debate regarding the scope of greenhouse gas (“GHG”) emissions that must be considered in NEPA reviews of interstate pipeline projects. Because the volume of GHG emissions caused by the burning of fossil fuels transported by a pipeline often far exceed the emissions directly associated with the pipeline’s construction, litigation can often arise as to whether these subsequent “downstream” emissions must be considered during the pipeline’s NEPA review. Under the Final Rule, it appears that upstream / downstream GHG emissions will often be excluded from NEPA’s requirements unless the emissions have a close relationship with the specific project. Ultimately, the manner in which federal agencies and courts interpret “close causal relationship” in the Final Rule has the potential to significantly reduce the scope of federal agencies’ evaluation of climate change impacts associated with federal projects.
- Limitations on Review Period and Report Length: The Final Rule seeks to expedite the NEPA review process by requiring federal agencies to limit all NEPA reviews to a maximum of two years. In addition, the final EIS issued by an agency may not exceed 150 pages of text or, for proposals of unusual scope of and complexity, 300 pages of text. Exceptions from the review period and/or EIS page limitations may only be granted through specific written approval from a senior agency official. The limitations imposed by the Final Rule appear to represent a significant departure from the existing NEPA process. According to a CEQ Report issued on June 12, 2020, the average final EIS is currently 661 pages in length and takes approximately 4.5 years to complete.
- Directive for Agencies to Expand Categorical Exclusions of NEPA Requirements for Certain Types of Projects: The Final Rule requires federal agencies to develop a list of actions that the agency does not expect to have a significant effect on the environment. Outside of “extraordinary circumstances,” agencies will not be required to conduct an EA for any projects falling within these categorical exclusions. Furthermore, the Final Rule clarifies that a NEPA review is not required where a proposed action would only have “minimal Federal funding or minimal Federal involvement,” such that the agency cannot control the outcome of the project.
The updated regulations are set to take effect 60 days after the publication of the Final Rule in the Federal Register. CEQ has further clarified that federal agencies may apply the updated regulations to any ongoing NEPA reviews, including environmental reviews started before the effective date of the regulations. However, environmental groups have already publicly stated that they intend to challenge the new rule, claiming at least in part that CEQ failed to respond to the more than one million comments that were submitted in response to the proposed new rules.
By Leah M. Song
On May 26, 2020, the Ninth Circuit agreed with plaintiffs that two climate change lawsuits—County of San Mateo v. Chevron Corp. et al. and City of Oakland v. BP p.l.c. et al.—had been improperly removed to the federal courts, continuing courts’ recent trend of remanding these types of cases back to state court.
A growing form of climate change litigation in the United States consists of lawsuits filed by states or municipalities against private industry, and more specifically, the fossil-fuel industry. States, cities and other units of local government have filed lawsuits alleging state common law theories, including nuisance, trespass, failure to warn of the known impacts of climate change, and unjust enrichment. The outcome of these cases thus far has hinged on whether or not the fossil fuel companies are able to successfully remove the litigation to federal court where they stand a much greater chance of getting the litigation dismissed. Generally, plaintiffs (including states, units of local government, and non-governmental organizations) asserting climate change claims against corporations prefer to be in state court where they can take advantage of perceived plaintiff-friendly common law or state statutes. On the other hand, defendants inevitably seek to remove such cases to federal court where they have had a higher level of success securing dismissals on the grounds that the issue is preempted by the Clean Air Act and/or addresses a “political question” which is better left to the discretion of Congress. See City of N.Y. v. BP P.L.C.. 325 F. Supp. 3d 466 (S.D.N.Y. 2018).
In County of San Mateo v. Chevron Corp. et al., six California municipalities and counties sued more than 30 fossil-fuel companies in California state court. The plaintiffs brought a variety of claims under state common law including nuisance, negligence, failure to warn, and trespass. In City of Oakland v. BP p.l.c. et al., the Cities of Oakland and San Francisco sued five fossil-fuel companies in state court under a theory of nuisance. The fossil-fuel companies removed both cases to federal court. The San Mateo district court remanded the case back to state court while the Oakland district court refused to remand the case back to state court, finding that plaintiffs’ public nuisance claims were governed by federal common law, but then proceeding to dismiss the lawsuit. Both cases were appealed to the Ninth Circuit.
On May 26th, the Ninth Circuit joined the Fourth Circuit (Mayor and City Council of Baltimore v. BP P.L.C., et al., No. 19-1644 (4th Cir. Mar. 6, 2020)) in concluding that these climate change cases alleging only state-common law claim belonged in state court. In County of San Mateo v. Chevron Corp. et al., the Ninth Circuit emphasized its limited authority to review an order remanding a case back to state court under 28 U.S.C. § 1447(d). The Ninth Circuit therefore limited its review to determining whether the district court erred in holding that the federal court lacked subject matter jurisdiction under the federal-officer removal statute.
In order to determine whether the district court erred in holding that it did not have subject matter jurisdiction, the Ninth Circuit examined whether the companies were “acting under” a federal officer’s directions. The companies argued that they were “persons acting under” a federal officer based on several agreements with the government. However, the Ninth Circuit concluded that the companies’ activities under these agreements did not give rise to a relationship where they were “acting under” a federal officer. Accordingly, the Ninth Circuit court held that the fossil fuel companies failed to meet their burden for federal-officer removal and therefore affirmed the district court’s remand order.
In City of Oakland v. BP p.l.c. et al., the Ninth Circuit considered whether “the district court erred in determining that it had federal-question jurisdiction under 28 U.S.C. § 1331” and ultimately held that plaintiffs’ state common-law public nuisance claims did not arise under federal common law. The court acknowledged that there are exceptions to the well-pleaded complaint rule for claims that arise under federal law, but concluded that none of those exceptions applied here.
The court reasoned that “[t]he question whether the Energy Companies can be held liable for public nuisance based on production and promotion of the use of fossil fuels and be required to spend billions of dollars on abatement is no doubt an important policy question, but it does not raise a substantial question of federal law for the purpose of determining whether there is jurisdiction under § 1331.” Furthermore, evaluation of the public nuisance claim would require factual determinations which are “not the type of claim for which federal-question lies.” The fossil fuel companies argued that the plaintiffs’ public nuisance claim was completely preempted by the Clean Air Act, but the court was not persuaded.
In response to defendants’ argument that by amending their complaint to assert a federal common law claim, the district court properly had subject matter jurisdiction under 28 U.S.C. § 1331, the Ninth Circuit noted that plaintiffs only amended their complaint in response to the district court’s statements that plaintiffs’ claims were governed by federal common law. Moreover, the Ninth Circuit noted that since a party violates § 1441(a) “if it removes a cases that is not fit for federal adjudication, a district court must remand the case to state court, even if subsequent action conferred subject-matter jurisdiction on the district court.”
Notwithstanding these conclusions, the Ninth Circuit noted that the district court had not addressed alternative bases for removal raised by defendants and therefore remanded the case back to the district court. However, the Ninth Circuit specifically noted that if the district court concludes that there are no valid bases for federal jurisdiction, the case should be remanded back to state court.
Although these rulings did not address the merits of plaintiffs’ common-law claims, these cases will certainly pose challenges for defendants seeking to remove these types of cases to federal court, and will likely affect plaintiffs’ and defendants’ strategies in climate change litigation moving forward. Jenner & Block’s Corporate Environmental Lawyer will continue to update on those matters, as well as other important climate change litigation cases, as they unfold.
New Executive Order Presses Agencies to Continue to Seek Regulatory Flexibility in Response to the Covid-19 Pandemic
By Leah M. Song
On May 19, 2020, the President issued an executive order titled “Regulatory Relief to Support Economic Recovery” (“Executive Order”). The Executive Order seeks to “overcome the effects the virus has had on [the] economy” and to that end, directs agencies and executive departments to "continue to remove barriers to the greatest engine ever known: the innovation, initiative and drive of the American people." To do so, executive departments and agencies are encouraged and directed to take appropriate action.
The Executive Order directs agencies to respond to the economic consequences of COVID‑19 by “rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.” Agencies are directed, "to use, to the fullest extent possible and consistent with applicable law, any emergency authorities” to support the economic response to COVID-19. Agencies are charged with identifying “regulatory standards that may inhibit economic recovery” and take appropriate action to promote job creation and economic growth. This includes issuing proposed rules, exempting persons or entities from requirements, exercising appropriate temporary enforcement discretion or temporary time extensions.
The Executive Order further instructs agencies to provide compliance assistance for regulated entities and to “accelerate procedures by which a regulated person or entity may receive a pre-enforcement ruling.” Agencies should consider enforcement discretion policies for those that “have attempted in reasonable good faith to comply with applicable statutory and regulatory standards.” Additionally, the Executive Order emphasized that agencies should “consider the principles of fairness” and “revise their procedures and practices in light of them.” The Executive Order recommends that agencies review regulatory standards and “determine which, if any, would promote economic recovery if made permanent.”
Consistent with this Executive Order, the Environmental Protection Agency (“EPA”) has previously issued a COVID-19-related policy regarding EPA's decision to exercise enforcement discretion with respect to non-compliance with certain environmental requirements (this enforcement policy was the subject of a prior Corporate Environmental blog). Although EPA's enforcement discretion policy has been challenged by several states and environmental organizations, the Executive Order would seem to diminish the likelihood that EPA will rescind its enforcement discretion policy in the near term.
Please feel free to contact the author with questions or for further information. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.
U.S. EPA Extends Comment Period on PFAS Safe Drinking Water Act Regulatory Determination to June 10, 2020
As discussed in more detail in a previous blog, on February 20, 2020, the U.S. Environmental Protection Agency (“U.S. EPA”) announced that it was seeking public comments on its preliminary regulatory determination that seeks to implement regulatory limits for Per- and Polyfluoroalkyl Substances (PFAS) in public drinking water across the United States. The regulatory determination is a key step in the creation of a Maximum Contamination Level (“MCL”) that will act to limit the quantity of PFAS permitted in public drinking water.
In its preliminary regulatory determination, U.S. EPA proposes setting MCL levels for two PFAS substances, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which EPA has determined meet the statutory criteria to become regulated contaminants under the Safe Drinking Water Act. To meet this criteria, U.S. EPA had to find that: (1) the consumption of PFOS and PFOA may result in adverse health effects; (2) PFOS and PFOA have been identified in public water supplies at frequencies and levels sufficient to cause a public health concern; and (3) that new regulation presents a meaningful opportunity to reduce the health risks posed by PFOS and PFOA.
The Association of Metropolitan Water Agencies and the American Water Works Association (collectively “AMWA”) submitted comments that were supportive of setting an MCL for PFOS and PFOA. In addition to targeting PFOA and PFOS, the AMWA recommended that U. S. EPA also include four other long-chain PFAS compounds in its regulatory determination. AMWA also recommended that U.S. EPA “thoroughly consider state standards and guidelines with significantly lower PFAS levels that [U.S. EPA’s] Health Advisory Level (HAL) of 70 parts per trillion (ppt) for combined concentrations of PFOA and PFOS.”
The AMWA also requested that U.S. EPA extend the comment period an additional 30 days to allow the AMWA to more fully engage with its members and to provide more meaningful and comprehensive comments on the proposal. To that end, U.S. EPA has now agreed to extend the comment period an additional 30 days May 10th to June 10th.
On Monday, April 27, 2020, Illinois Circuit Court Judge Michael McHaney temporarily blocked enforcement of Illinois Governor JB Pritzker's March 20, 2020 stay-at-home order, which had been extended through April 30, by granting a temporary restraining order (“TRO”) sought by Illinois State Representative (R) Darren Bailey. As issued, the judge’s decision prohibits Governor Pritzker from enforcing the pending stay-at home order—or any future executive orders that require home quarantine—against Rep. Bailey.
As background to the lawsuit, on March 9, 2020, in response to the COVID-19 pandemic, Governor Pritzker issued an Executive Order, declaring all counties within Illinois as disaster areas (the “Disaster Declaration”). Governor Pritzker’s Disaster Declaration was issued pursuant to the Illinois Emergency Management Agency Act, 20 ILCS 3305 et seq. (“Illinois Emergency Act”). On March 20, pursuant to the Governor’s authority under the Illinois Emergency Act, Governor Pritzker issued Executive Order 2020-10, which requires “individuals currently living within the State of Illinois…to stay at home or at their place of residence” (“the March Stay-at-Home Order”). The March Stay-at-Home Order provides an exception allowing individuals to leave the home to engage in an enumerated list of “essential activities,” including tasks essential to health and safety, certain approved outdoor activities, and to perform work for essential businesses. The March Stay-at-Home Order was originally set to end on April 7, 2020, but on April 1, Governor Pritzker issued an extension of the March Stay-at-Home Order through April 30, 2020, and on April 23, the Governor announced his intent to further extend the order through May 30, 2020.
On April 23, 2020, Rep. Bailey—whose district includes Clay County, Illinois—filed a complaint in the Clay County Circuit Court alleging that Governor Pritzker’s April 1 extension of the stay-at-home order exceeded the authority afforded to the Governor under the Illinois Emergency Act. Specifically, the lawsuit alleges that the Illinois Emergency Act grants certain enumerated powers to the Illinois Governor following the proclamation of a “public health emergency,” but that Section 7 of the Illinois Emergency Act limits these authorities to “a period not to exceed 30 days” following the declaration. Thus, Rep. Bailey alleges that any extension of the stay-at-home order beyond April 8, 2020—i.e, more than 30 days beyond the March 9 Disaster Declaration, is void and that the Governor’s publicly announced plan to extend the Executive Order through May 30, 2020 is “void ab initio”. The lawsuit further alleges that Governor Pritzker’s unauthorized use of the Illinois Emergency Act has impermissibly limited Rep. Bailey’s constitutionally protected freedoms to travel within the state of Illinois. The complaint requests a declaratory judgment that Governor Pritzker’s April 1 extension of the March Stay-at-Home Order is void, and seeks a permanent injunction enjoining Governor Pritzker, or anyone under his authority, from enforcing the March Stay-at-Home Order, at any time, against Rep. Bailey.
On the same date that he filed his complaint, Rep. Bailey filed a motion seeking a TRO to enjoin Governor Pritzker from enforcing the March Stay-at-Home Order against him or entering any further executive orders as a result of the Disaster Declaration that would limit Rep. Bailey’s ability to travel within the state. To obtain a TRO, under Illinois law, the movant must establish: (1) a protectable right; (2) irreparable harm; (3) an inadequate remedy at law; and (4) a likelihood of success on the merits. See Smith v. Dep't of Nat. Res., 35 N.E.3d 1281, 1287 (Ill. App. Ct. 5th Dist. 2015). In its order granting the TRO, the circuit court found that Rep. Bailey had “shown he will suffer irreparable harm if the [TRO] is not issued” and had “shown he has no adequate remedy at law or in equity in that absent a [TRO] being entered, plaintiff, will continue to be isolated and quarantined in his home.” The court’s order provided that the TRO will stay in effect until “a date to be agreed upon by the parties, not to exceed 30 days from [April 27] wherein [plaintiff’s motion for] a preliminary injunction will be heard on that date.”
On Tuesday, April 28, 2020, Governor Pritzker filed a notice of interlocutory appeal to the Appellate Court of Illinois, Fifth Judicial District, requesting that the court reverse and vacate Judge McHaney’s decision and dissolve the TRO. Both Bailey and Pritzker will have an opportunity to file briefs before the appellate court. A date for oral argument before the court has not been set. “We are certainly going to act in a swift action to have this ruling overturned,” Pritzker said in a press briefing following the original decision. “Representative Bailey’s decision to go to the courts is an insult to all Illinoisans who have been lost during this COVID-19 crisis. It’s a danger to millions of people who might get ill because of his recklessness.”
While Judge McHaney’s ruling states that it only prohibits enforcement against Rep. Bailey, the lawsuit potentially opens the door for others in Illinois to file similar lawsuits or to resist compliance with the Governor’s Executive Orders issued since April 7, 2020. In addition, the complaint seeks a declaration that the stay-at-home order is void which arguably could have state-wide effect. In a statement concerning the lawsuit, Rep. Bailey said that he filed the complaint “on behalf of myself and my constituents who are ready to go back to work and resume a normal life,” although the TRO and Complaint as written did not state that it applied to any person other than Rep. Bailey. In the meantime, Governor Pritzker vowed to continue issuing new public health directives, as he deemed necessary, while the case remained unresolved.
Building on its March 26, 2020 temporary enforcement policy, on April 10, 2020, the U.S. Environmental Protection Agency (“EPA”) issued its interim guidance regarding new or ongoing cleanup activities during the COVID-19 situation.
The interim guidance focuses on decision making at emergency response and longer term cleanups sites where EPA is the lead agency or has direct oversight of, or responsibility for, the cleanup work. This includes, but is not limited to, Superfund cleanups, Resource Conservation and Recovery Act (RCRA) corrective actions, Toxic Substance and Control Act PCB cleanups, Oil Pollution Act spill responses, and Underground Storage Tank Program actions.
Discretion Vested With the Individual Regions
In general, the interim guidance vests each EPA Region with the authority to make site-specific decisions taking into consideration the possible impact of COVID-19 on sites, surrounding communities, EPA personnel, and response/cleanup partners. Importantly, at sites where the Region determines that work should move forward, the Region is charged with reviewing each site’s health and safety plan (“HASP”) to ensure that it appropriately incorporates CDC’s and other relevant COVID-19 guidelines.
Key Factors For Making Site Work Decisions
The interim guidance outlines a series of site-specific factors that should guide Region’s when making determinations as to whether field response actions will continue, be reduced, or be paused. When making this assessment, Regions are directed to consider all relevant site-specific factors, including but not limited to (i) the safety and availability of work crews, EPA, state or tribal staff; (ii) the critical nature of the work; (iii) logistical challenges (e.g., transportation, lodging, availability of meals, etc.); and (iv) other factors particular to a site.
Factors that would support continuing site work include where:
- a failure to continue response actions would likely pose an imminent and substantial endangerment to human health or the environment, and whether it is practical to continue such actions; and
- maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months.
Factors that would support a pause in work include:
- work that would not provide near-term reduction in human health risk could be more strongly considered for delay, suspension, or rescheduling of site work;
- state, tribal or local health officials have requested a stoppage;
- any workers have tested positive for or exhibited symptoms of COVID-19;
- workers may closely interact with high-risk groups or those under quarantine;
- contractors are not able to work due to state, tribal or local travel restrictions or medical quarantine; and
- workers can't maintain proper social distancing.
According to EPA, as of April 1st, EPA has reduced or paused on-site construction work at approximately 34 EPA or PRP-lead Superfund National Priority List sites, or 12% of all EPA sites with ongoing remedial actions, due to the evolving situation with COVID-19.
With respect to non-field work, given that much of the work to advance cleanup of sites is performed away from sites, to the extent possible, the interim guidance notes that this work should continue. Important work can be conducted virtually and represent opportunities to make progress on primary activities like investigation reports (including pre-NPL work), modeling, negotiations between the parties, decision documents, cleanup documentation, workplans, progress reports, and maintaining compliance with obligations such as financial assurance.
Interim Guidance Does Not Extend Compliance Deadlines
Importantly, the interim guidance does not excuse a parties’ compliance obligations under consent decrees or similar enforcement instruments. Instead, parties are directed to review the governing enforcement instrument, including provisions allowing for adjustments to schedules to be made at the discretion of EPA’s project manager and/or force majeure provisions, for directions on providing the requisite notice and other information described in the provisions. For further discussion regarding these types of provisions in enforcement instruments, please see our earlier blog titled “Does Environmental Investigation and Remediation Continue Despite COVID-19 Business Restrictions and Social Distancing.”
Jenner & Block’s Corporate Environmental Lawyer will continue to update on these matters, as well as other important COVID-19 related guidance, as they unfold.
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On April 3, 2020, U.S. OSHA issued two Enforcement Guidance memos which, for the first time, provide guidance to all industries, including healthcare, regarding how to comply with OSHA rules in the face of N95 shortages. The first document is entitled “Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to Coronavirus Disease 2019 (COVID-19) Pandemic” (N95 Shortage Guidance). The N95 Shortage Guidance informs all employers whose employees are required to use, or permitted to voluntarily use, respiratory protection, the limited circumstances in which an OSHA inspector may, on a “case-by-case basis, exercise enforcement discretion” when an employer deviates from OSHA’s current respiratory protection standards, including OSHA’s principal rules at 29 CFR §1910.134 (the Respiratory Standard). While offering some relief from the threat of an OSHA enforcement action, the N95 Shortage Guidance also serves to reemphasize employers’ continuing obligations under the Respiratory Standard despite the short, often non-existent, supply of respiratory protection equipment.
Employers’ continuing obligations in the face of shortages include:
- Manage your respiratory protection program (RPP) in accordance with the Respiratory Standard and “pay close attention to shortages of N95s.”
- Identify and evaluate respiratory hazards.
- Develop, implement, and document worksite-specific procedures to address changes in use of N95s and other respiratory protection.
- Revise your written RPP to reflect changes in workplace conditions caused by the N95 shortage and COVID-19.
For the first step completing these obligations, “all employers should reassess their engineering controls, work practices, and administrative controls” to identify how to decrease the need for N95s. OSHA suggests alternatives to use of N95s, e.g., use of wet methods or portable local exhaust systems and moving the task requiring use of respiratory protection outdoors. More cautiously, OSHA states that “[i]n some instances, an employer may also consider taking steps to temporarily suspend certain non-essential operations.” However, OSHA does not require that employers stop performing tasks with respiratory hazards.
Under the N95 Shortage Guidance, if N95 alternatives are not possible and “respiratory protection must be used” OSHA provides a series of decision-making options:
- Use alternative classes of NIOSH-approved respirators if they “provide equal or greater protection” compared to N95s.
- If NIOSH-approved alternatives are not available, or use of these alternatives create additional hazards, then employers may:
- Implement extended use or reuse of N95s, with extended use preferred over reuse; or
- Use NIOSH-approved N95s past the manufacturer’s recommended shelf life, but only if the equipment’s integrity has not been compromised.
OSHA then states further requirements for the use of any of these options, including documenting the use of options in written RPPs and providing additional training to employees on the new procedures. In the health care industry only, OSHA refers employers to the CDC’s guidance on the hierarchy of decisions applicable in case of expired N95s, but states that its N95 Shortage Guidance is not intended to cover COVID-19 “crisis standard of care” scenarios.
In the second guidance document issued on April 3, 2020, entitled “Enforcement Guidance for Use of Respirators Protection Equipment Certified under Standards of other Countries or Jurisdictions” (Respirator Use Guidance), OSHA provides the hierarchy of decision-making that constitutes making a “good-faith effort” to provide appropriate respiratory protection:
- Implement OSHA’s hierarchy of controls to eliminate or substitute out workplace hazards
- Prioritize efforts to acquire and use equipment as follows:
- Foreign-certified, as listed by OSHA, other than by China
- China-certified [without any NIOSH certificate]
- Only use equipment beyond shelf life if in non-compromised condition
- Extended use or reuse in accordance with CDC’s Strategies for Optimizing the Supply of N95 Respirators
- Use homemade masks or other improvised face coverings “only as a last resort”
The Respirator Use Guidance also summarizes other requirements for respiratory protection, including training, documenting changes in procedures and conditions, and equipment inspection.
The two April 3 Enforcement Guidance documents accompany OSHA’s March 14, 2020 enforcement guidance regarding respirator fit-testing for health care employers only, previously discussed by the author here. See Jenner & Block’s “Corporate Environmental Lawyer” blog and Jenner & Block’s COVID-19/Coronavirus Resource Center for frequently updated information for businesses and organizations worldwide.