By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice
On February 4, 2021, in accordance with President Biden’s Executive Order 13,990 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis), DOJ directed its ENRD Section and Deputy Section Chiefs to withdraw nine environmental policies that were put in place by the Trump Administration. The February 4th memorandum identifies the following nine withdrawn policies:
- “Enforcement Principles and Priorities,” January 14, 2021;
- “Additional Recommendations on Enforcement Discretion,” January 14, 2021;
- “Guidance Regarding Newly Promulgated Rule Restricting Third-Party Payments, 28 C.F.R. § 50.28,” January 13, 2021;
- “Equitable Mitigation in Civil Environmental Enforcement Cases,” January 12, 2021;
- “Civil Enforcement Discretion in Certain Clean Water Act Matters Involving Prior State Proceedings,” July 27, 2020;
- “Supplemental Environmental Projects (“SEPs”) in Civil Settlements with Private Defendants,” March 12, 2020;
- “Using Supplemental Environmental Projects (“SEPs”) in Settlements with State and Local Governments,” August 21, 2019;
- “Enforcement Principles and Priorities,” March 12, 2018; and
- “Settlement Payments to Third Parties in ENRD Cases,” January 9, 2018.
In support of rescission of these policies, DOJ’s Deputy Assistant Attorney General noted that these policies were inconsistent with longstanding DOJ policy and practice and inappropriately impeded DOJ’s exercise of its enforcement discretion. Two of the more controversial policies rescinded by DOJ’s February 4th memorandum related to the prohibition on the use of supplemental environmental projects (SEPs) in settlement agreements. Under the Trump Administration, DOJ had argued that the use of SEPS violated the Miscellaneous Receipts Act which requires that monies paid to the Government be deposited into the Treasury so that Congress could decide how the monies would be appropriated.
DOJ noted that it would continue to assess the matters addressed by the withdrawn policies and might elect to issue new guidance on these matters in the future. We will continue to track efforts by the Biden Administration the environmental policies of the Trump Administration at the Corporate Environmental Lawyer.
The Biden Effect: What to Expect from the New Administration’s Environmental Agenda--January 27th--1-2 pm CST
A Jenner & Block Series
The Biden Effect: What to Expect from the New Administration’s Environmental Agenda
A key component of the Biden platform has been the promised rollback of many of the Trump administration’s environmental policies and a different future for environmental regulation. Please join us for a discussion of what to expect from the new Biden administration on environmental issues facing the regulated community. Topics to be discussed include:
- Procedural Mechanisms for Implementing Biden Administration Priorities
- Clean Air Act
- Climate Change
- Safe Drinking Water Act
- Clean Water Act
- RCRA and CERCLA
- NEPA & Endangered Species Act
Steven Siros, Partner, chair of the Environmental Litigation Practice and co-chair of the Environmental Workplace Health and Safety Practice
Gay Sigel, Partner, co-chair of the Environmental and Workplace Health and Safety Law Practice and of the Climate and Clean Technology Law Practice
Allison Torrence, Partner
Andi Samuels Kenney, Of Counsel
Matt Lawson, Associate
Leah Song, Associate
Wednesday, January 27, 2021
2:00 – 3:00 pm EST / 1:00 – 2:00 pm CST / 11:00 am – 12:00 pm PST
|Click here to register|
Jenner & Block has been certified by the State Bar of California, the MCLE Board of the Supreme Court of Illinois and the New York State Continuing Legal Education Board as an accredited CLE provider. The following CLE credit is being sought:
- California: 1.00 Credit (1.00 General, 0.0 Ethics)
- Illinois: 1.00 Credit (1.00 General, 0.0 Professional Responsibility)
- New York: 1.00 Transitional & Non-Transitional Credit (1.00 Professional Practice, 0.0 Ethics)
Please contact firstname.lastname@example.org with any CLE related questions.
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.
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On the afternoon of November 30, 2020, the California Office of Administrative Law (OAL) issued the final approval, allowing the emergency COVID‑19 regulation proposed by the California Division of Occupational Safety and Health (Cal-OSHA) and approved by the California Occupational Safety and Health Standards Board (Board) on November 19. The emergency regulation, establishing new sections 3205, 3205.1 through 3205.4 to Title 8, Division 1, Chapter 4 (General Industry Safety Orders) of the California Code of Regulations (CCR) is titled “COVID‑19 Prevention.” The COVID‑19 Prevention Rule is attached here as approved by the OAL. The COVID‑19 Prevention Rule is immediately effective on November 30, 2020. As an emergency regulation, it expires by October 21, 2021, unless it is extended or made permanent.
California, which as a “state-plan State,” can adopt workplace safety and health regulations more stringent than US OSHA regulations and guidance, has through its emergency regulatory process adopted a COVID‑19 regulation that applies to “all employees and places of employment” in California, except if the employees are working from home, the place of employment has only one employee “who does not have contact with other persons,” or employees when covered by California’s Aerosol Transmissible Diseases regulation, 8 CCR § 5199, which applies only to health care services, facilities, and operations. 8 CCR § 3205(a)(1).
The basic construction of the COVID‑19 Prevention Rule follows the elements of California’s Injury and Illness Prevention Program (IIPP) rule, 8 CCR § 3203, and requires that all employers prepare and adopt a written program with the same elements of employee communication, hazard identification, inspections, hazard correction, training, controls, reporting, recordkeeping and access, but adds substantive requirements relating to COVID‑19 within each of those elements, and adds elements unique to an employer’s response to and control of COVID‑19. The COVID‑19 Prevention Rule also has provisions affecting aspects of an employer’s operations beyond its traditional safety and health scope, including an obligation to “continue and maintain an employee’s earnings, seniority and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job” for employees who are otherwise able to work, but are excluded from the worksite for work-related COVID‑19 exposures and quarantines. 8 CCR § 3205(10)(C).
Other notable aspects of the regulation include:
- Definitions of COVID‑19 “exposure”, “symptoms”, “high-risk exposure period”, “exposed workplace”, periods of exclusion from the workplace (quarantine and isolation) and return-to-work criteria, that do not match the CDC’s current approach for essential workforces and which do not allow for any future changes in CDC guidelines regarding the length of isolation, quarantine, or return-to-work criteria.
- Employers must provide viral testing for all employees excluded under Cal-OSHA’s broad definition of “exposed workplace,” up to twice weekly depending on the severity of an outbreak at the workplace.
- Employers, with employee participation, must “conduct a workplace-specific identification of all interactions, areas, processes, equipment and materials that could potentially expose employees to COVID‑19 hazards.” 8 CCR § 3502 (c)(2)(D).
- Specific requirements regarding controls, including physical distancing, face coverings, ventilation, disinfection, cleaning, hygiene, PPE and engineering controls.
- Employers must provide notice within one business day of all COVID‑19 cases in the exposed workplace to employees “who may have had COVID‑19 exposures and [their union representative] and to all other employers/contractors in the workplace. 8 CCR § 3502 (c)(3)(B)3. (See also recently enacted revision to Labor Code § 6409.6 (AB 685).)
- Employers must communicate hazards, policies and procedures to employees and all “other employers, persons, and entities within or in contact with the employer’s workplace.” 8 CCR § 3502 (c)(1)(D)
- Specific requirements regarding COVID‑19 case investigation that must be documented and provided to any employee, employee representative, Cal-OSHA, or local health agencies.
- Employers must have a documented procedure for investigation of COVID‑19 cases in the workplace, with many specific steps required in the COVID‑19 Prevention Rule.
- Requirements for employer-provided transportation to and from the workplace and employer-provided housing. 8 CCR §§ 3205.3 and 3205.4.
Merely preparing the written program document, in addition to the required procedures and protocols, will be a significant undertaking for almost all California employers. In the public hearing before the Board, Cal-OSHA representatives minimized the additional burden placed on employers given its view that employers already should have already undertaken much of the effort to update their basic IIPP document. Cal-OSHA representatives stated, however, that it recognized that employers would have to take some time to get all the requirements in place and would exercise enforcement discretion given the regulation’s immediate effective date. Cal-OSHA also informed the Board that it planned to issue interpretive guidance and other materials, but did not specify a date by which it would do so. Cal-OSHA stated that it would hold Advisory Committee meetings with employers and employees regarding refining the Rule, but noted that the agency did not expect to propose any changes in the regulatory language in the near-term.
For more information or advice on how to comply and implement the COVID‑19 Prevention Rule, please contact the author. Additional information regarding working during the COVID‑19 pandemic can be found on this blog and in Jenner & Block’s COVID‑19 Resource Center.
The chemical industry has received some relief from a November 30th deadline to submit information to U.S. EPA pursuant to the Chemical Data Reporting Rule (“CDR”). Section 8(a) of the Toxic Substances Control Act (“TSCA”) authorizes U.S. EPA to promulgate rules pursuant to which manufacturers and processors of chemical substances must maintain records and submit information to U.S. EPA. To that end, U.S. EPA promulgated the CDR that requires entities that manufacture certain chemicals listed on the TSCA inventory in excess of 25,000 pounds annually (lower thresholds apply for certain listed chemicals) to report basic production information to U.S. EPA every four years. The 2020 reporting deadline had been November 30, 2020.
U.S. EPA recently revised the CDR to comply with the 2016 TSCA amendments. These revisions were intended to improve the reliability and usefulness of the data collected and reduce the overall reporting burden on regulated entities. For example, the revised rule allows for the use of data and processing codes based on those already in use by the Organization for Economic Cooperation and Development. The rule also incorporates exemptions for certain byproducts and amends the requirements to claim that the submitted data constitutes confidential business information (“CBI”) (requiring the upfront substantiation of all CBI claims).
On October 26th, the American Chemical Council requested a 60-day extension from the November 30th deadline, noting significant technical issues with the electronic CDR submission platform. Notwithstanding objections from a variety of environmental groups, U.S. EPA has extended the CDR reporting deadline to January 29, 2021. The extension is good news for the regulated community as it works to compile the substantial information necessary to comply with the CDR requirements.
We will continue to track and provide updates on the CDR and other reporting obligations for chemical manufacturer on Jenner & Block’s Corporate Environmental Lawyer blog.
On November 2, 2020, Judge Cogan of the U.S. District for the Eastern District of New York dismissed the amended complaint of workers at Amazon’s Staten Island JFK8 fulfillment center (“JFK8”) against their employer over its alleged non-compliance with state and federal public health guidance and law during the COVID‑19 pandemic. Palmer. v. Amazon.com Inc., No. 20-cv-02468, U.S. Dist. Ct. E.D.N.Y., Doc. 73, Nov. 2, 2020 (“Op.”).
The workers alleged issues with the company’s productivity requirements preventing basic hygiene, limited air-conditioned break rooms impeding social distancing, inadequate contact tracing, and lack of communication and pay regarding COVID‑19 leave at the JFK8 facility. The amended complaint asserted claims for (i) public nuisance, (ii) breach of the duty to provide a safe workplace under New York Labor Law (“NYLL”) § 200, (iii) failure to timely pay COVID‑19 leave under NYLL § 191, and (iv) an injunction against future failure to timely pay COVID‑19 leave. Plaintiffs sought injunctive relief for their first, second, and fourth causes of action, and damages for their third cause of action.
On August 11, 2020, Amazon moved to dismiss the action based on the theory of primary jurisdiction, workers’ compensation law exclusivity, and other grounds. Judge Cogan granted Amazon’s motion to dismiss the public nuisance and workplace safety duty claims, without prejudice, based on the federal doctrine of primary jurisdiction, which “seeks to maintain a proper balance between the roles of courts and administrative agencies,” allowing a district court to choose not to rule in favor of having a matter addressed by an administrative agency. Op. at 8. Judge Cogan found that the “central issue in this case is whether Amazon’s workplace policies at JFK8 adequately protect the safety of its workers during the COVID‑19 pandemic,” which the court framed as a question of whether that issue is best handled by OSHA or the court. Id. at 10. The court noted that, although OSHA has not issued a regulatory standard specific to COVID‑19, this “does not mean…that OSHA has abdicated its responsibilities during the pandemic. Rather, the agency has exercised its discretion in determining how to proceed in the face of an evolving pandemic fraught with uncertainty.” Id. The court reasoned that it was “not expert in public health or workplace safety matters, and lack[s] the training, expertise, and resources to oversee compliance with evolving industry guidance.” Id. at 11. Furthermore, the court found that “[p]laintiffs’ claims and proposed injunctive relief go to the heart of OSHA’s expertise and discretion.” Id. The court further held that the “risk of inconsistent rulings further weighs in favor of applying the doctrine of primary jurisdiction” as “[c]ourts are particularly ill-suited to address this evolving situation” and OSHA would be able to impose more flexible and uniform policies across the industry. Id. Therefore, the court dismissed plaintiffs’ public nuisance and NYLL § 200 claims, “so that plaintiffs may determine whether to seek relief through the appropriate administrative and regulatory framework.” Id. at 12.
Moreover, the court held that, even if the court did not defer to OSHA’s primary jurisdiction, it would dismiss the public nuisance claim because New York law requires that a private action for public nuisance allege that the plaintiff sustained special injury not common to the public at large. Finding that an increased risk of contracting COVID‑19 is “common to the New York City community at large” and the JFK8 facility is “not the source of COVID‑19,” the court held that plaintiffs could not maintain a public nuisance claim. Id. at 13-14. The court also found that, although the state safe workplace claim under NYLL § 200 is not preempted by the OSH Act, plaintiffs’ claims for past injuries, even for injunctive relief, are precluded by the language of New York’s workers’ compensation law, which makes workers’ compensation the exclusive remedy for workers’ claims against employers “for any liability whatsoever.” Id. at 14-20.
The court also dismissed plaintiffs’ NYLL § 191 claims regarding failure to pay timely COVID‑19 sick leave, finding that the statute addresses claims for prompt payment of “wages,” not sick leave. In reaching that decision, the court rejected the NY State Department of Labor’s recent COVID‑19 guidance in which it stated that prompt payment of COVID‑19 sick leave was subject to NYLL § 191’s requirements. Id. at 21-24.
Another example of a case in which a court relied on the primary jurisdiction clause to dismiss COVID‑19 workplace safety claims against an employer is Rural Community Workers Alliance (“RCWA”) v. Smithfield Foods, Inc., No. 5:20-cv-06063 (N.D. Mo.) from May 5, 2020. In that case, the United States District Court for the Western District of Missouri granted Smithfield Foods’ (“Smithfield”) motion to dismiss pursuant to the primary jurisdiction doctrine. The RCWA plaintiffs alleged two common law claims: (1) Smithfield’s practices at the meat processing plant constituted a public nuisance; and (2) Smithfield had breached its duty to provide a safe workplace. The plaintiffs, an employee and a workers advocacy group, sought only injunctive relief to require Smithfield to comply with OSHA/CDC guidance issued for the entire meat processing industry, and importantly, did not allege that they or any of their members had contracted COVID‑19 at the plant.
The Missouri federal case dismissed the case with prejudice, based on the federal primary jurisdiction doctrine. The court found and deferred to OSHA’s primary jurisdiction to interpret and apply its guidance and to the rights, albeit limited, that plaintiffs can seek through OSHA’s administrative and judicial processes. Id. at 14-17. In addition, the court found that plaintiffs had not met their “extraordinary burden” of proving a right to preliminary injunctive relief. Id. at 17. The court found that, despite the prevalence of COVID‑19 in the community and in the plant, the plaintiffs had not suffered “irreparable harm” because they alleged only the possibility of death or serious illness in the future. Id. at 18-20. The court found that “unfortunately, no one can guarantee health for essential workers – or even the general public – in the middle of this global pandemic.” Id. at 19. Thus, because the employer was taking measures to control the spread and there no confirmed COVID‑19 cases currently, “the court cannot conclude that the spread of COVID‑19 at the Plant is inevitable or that Smithfield will be unable to contain it if it occurs.” Id. at 20. The court also noted, when balancing the harms of granting (or denying) the injunction that “no essential-business employer can completely eliminate the risks that COVID‑19 will spread to its employees through the workplace. Thus, it is important that employers make meaningful, good faith attempts to reduce the risk.” Id.
The court also found that plaintiffs were unlikely to prevail on the merits of their nuisance claim because the employer had taken “significant measures” and there were no occurrences of the disease. Id. at 21-22. Similarly, the court found that plaintiffs would not be able to prove that Smithfield had breached its duty to provide a safe place to work, because the company “has taken substantial steps to reduce the protection for COVID‑19 exposure” and appeared to be complying with the OSHA/CDC guidance. Id. at 22.
Please feel free to contact the authors 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.
CDC Changes Definition of “Close Contacts” for Contact Tracing Purposes: What Does This Mean for Employers?
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
I. The New CDC Definition of Close Contacts
On October 21, 2020, the CDC published a new definition of “Close Contact” for contact tracing purposes. This new definition will affect how employers determine Close Contacts for purposes of internal contract tracing to limit and prevent exposures and spread of the coronavirus within the workplace. The new CDC definition can be found here: https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/appendix.html#contact Quoting from the CDC link:
“Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.
* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE. At this time, differential determination of close contact for those using fabric face coverings is not recommended.”
Previously, CDC had defined “Close Contact” to mean someone who spent at least 15 consecutive minutes within six feet of a person confirmed to be have COVID-19, the disease caused by SARS-CoV-2.
II. What Does the New Definition Mean for Employers (Outside the Healthcare Industry)
Under CDC guidance, an employer should quarantine any Close Contact employee, i.e., the Close Contact employee should not be allowed on the worksite and should be told to quarantine per CDC guidance. If the Close Contact develops symptoms or tests positive, in which case the Close Contact becomes an infected person who is in isolation per CDC guidance. Notably, the CDC also states that, at this time, whether an infected person or the exposed person was wearing a mask during the exposure period does not affect the determination of a Close Contact for these purposes. However, the CDC does recognize that the determination of a Close Contact is “difficult to precisely define” and suggests that other factors may be considered, such as whether the infected person had symptoms at the time of exposure, whether the infected person was engaged in activities “likely to generate respiratory aerosols,” and environmental conditions, such as whether the exposure occurred indoors and the adequacy of indoor ventilation.
Per CDC guidance, the quarantine period is for 14 days, which typically means that the employee is not at the worksite, but can work remotely if their circumstances, including any labor agreement, so allows. The CDC recognizes, however, that a mandatory worksite quarantine period for Close Contacts could cause severe consequences for employers of “Critical Infrastructure Workers,” typically as defined by the Cybersecurity & Infrastructure Security Agency (“CISA”). Thus, the CDC provides an exception to the 14-day worksite quarantine for asymptomatic Critical Infrastructure Workers – they may continue to work at the standard workplace(s) if they adhere to protective measures prior to and during their work shift, including: pre-screening and regular monitoring for fever and other symptoms; wearing a face mask “at all times while in the workplace;” maintaining at 6-foot distance and practice social distancing “as work duties permit;” and working in areas that are frequently cleaned, including common areas and commonly shared equipment.
Although the CDC suggests that determinations of close contact can be affected by factors other than proximity and duration of exposure, it provides no guidance on how to account for those other factors in the course of the determination. Most employers are going to need to rely on clearly defined and easily understood rules, so that a workplace contact tracing program can be appropriately administered. Thus, most employers likely will continue to rely only on the more easily determined proximity and duration factors.
As a result of CDC’s change to the definition of Close Contact to include anyone in close proximity within a cumulative 15-minute period, rather than a consecutive 15-minute period, more employees may be designated as Close Contacts and, therefore, more employees may need to be precluded from working on-site, particularly those who cannot be classified as Critical Infrastructure Workers. Although an employer typically cannot prevent an exposure from occurring outside the workplace, an employer’s best “defense” to potential coronavirus exposure in the workplace, and the resulting Close Contact designation, is adherence to and enforcement of 6-foot distancing for all workplace activities, both during more social activities (such as in breakrooms, cafeterias, restrooms) and during job tasks.
Other Related CDC Sites:
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.
On October 8, 2020, the Conservation Law Foundation filed a lawsuit challenging a DOJ policy that barred the use of supplemental environmental projects (SEPs) in federal enforcement settlements with private parties. SEPs have been used since the 1980s and typically involve a project intended to provide some tangible environmental or public health benefit that could not necessarily be compelled by U.S. EPA.
DOJ, in a March 12, 2020 memorandum, announced that it was terminating its policy of allowing companies to agree to perform SEPs in exchange for reductions in civil penalties in environmental enforcement settlements. According to DOJ, the practice of using SEPs in lieu of civil penalties violates the Miscellaneous Receipts Act, a statute that prevents cash from legal settlements being diverted from the Treasury to third parties. As further described in the March 2020 DOJ memorandum, DOJ claims that the SEPs basically substitute payments to third parties for payments to the Treasury, circumventing Congress’ Constitutional power of the purse.
The lawsuit claims that DOJ’s conclusion that the use of SEPs violates the Miscellaneous Receipts Act is arbitrary and capricious and otherwise lacks reasoned decision-making. The lawsuit highlights U.S. EPA’s history of using SEPs and its various guidance documents encouraging the use of SEPs in environmental enforcement matters. The lawsuit asks that the Court declare that DOJ’s March 2020 memo violates the Administrative Procedures Act, vacate the memo, and enjoin DOJ from implementing or relying on the memo in the future. .
We will continue to provide updates on this lawsuit as well as other important environmental, health and safety issues on Jenner & Block’s Corporate Environmental Lawyer Blog.
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 30, 2020, the California legislature passed the Toxic Free Cosmetics Act making California the first state to ban certain chemicals from cosmetics. Governor Newson signed the bill into law on October 1, 2020. The new law amends existing regulatory programs in California and provides that cosmetics containing any of a specific list of 24 chemicals will be considered “adulterated” and therefore unable to be sold in California. The specific list of chemicals includes certain phthalates and formaldehyde. However, the chemicals that have received the most attention are various per- and polyfluoroalkyl (PFAS) substances. Although some states have previously implemented legislation banning certain chemicals in cosmetic products (Minnesota banned formaldehyde in certain children’s personal care products; Washington requires that certain chemicals in children’s products be reported), California has become the first state to implement such a broad ban on these listed chemicals in cosmetics generally.
The ban will take effect on January 1, 2025 providing companies with time to take the necessary steps to eliminate any of the 24 listed chemicals from their cosmetic products. Of course, many companies have already taken steps to eliminate these chemicals from their products especially since many of these chemicals are already on California’s Proposition 65 list. However, unlike with Proposition 65 where compliance can be demonstrated by the provision of the requisite warnings, the Toxic Free Cosmetics Act will require elimination of these chemicals (with the exception of unavoidable trace quantities).
We will continue to provide regulatory updates as more states are likely to follow California’s lead in regulating these chemicals in various personal care products.
On September 14, 2020, the United States Environmental Protection Agency (“U.S. EPA”) issued a final rule intended to promote transparency and establish consistent requirements and procedures for the issuance of guidance documents. Consistent with Executive Order 13891 (Promoting the Rule of Law Through Improved Agency Guidance Documents) that directs federal agencies to finalize regulations that “set forth processes and procedures for issuance of guidance documents,” U.S. EPA’s final rule establishes internal policies and procedures for U.S. EPA’s issuance of future guidance documents and codifies the requirement that U.S. EPA maintain an internet portal that identifies all effective, active U.S. EPA guidance documents.
Under this new regulation, all active “guidance documents” shall appear on the U.S. EPA Guidance Portal. The regulation defines a “guidance document” as “an Agency statement of general applicability, intended to have future effect on behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issues, or an interpretation of a statute or regulation.” Any guidance document that is not posted to the Guidance Portal is not an active U.S. EPA guidance document and will have no effect except to establish historical facts. However, it is important to note the Guidance Portal is only intended to identify documents meeting the definition of “guidance documents,” and documents falling outside of this definition that are not posted to the Guidance Portal may still be in effect.
The new regulation also provides for public notice and comment for “significant guidance documents,” defined as guidance documents determined to be “significant” pursuant to Executive Order 12866 and Executive Order 13891 and includes guidance documents that would have an annual effect on the economy in excess of $100 million or that raise novel legal or policy issues. The regulation provides that U.S. EPA would seek a significance determination from the Office of Information and Regulatory Affairs pursuant to Executive Order 12866.
Finally, the new regulations establish procedures to allow the public to petition U.S. EPA for modification and/or withdrawal of any active guidance document posted on the Guidance Portal. In addition, in response to comments that the new rule will allow U.S. EPA to quietly rescind previously issued guidance by simply not posting the guidance on the Guidance Portal, the new regulations also establish a formal mechanism to allow the public to request that a rescinded guidance document be reinstated and added to the Guidance Portal.
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.
Environmental Groups Allege EPA Failed to Engage in Endangered Species Act Consultation Before Implementing COVID-19 Enforcement Discretion Policy
On August 18, 2020, the Center for Biological Diversity, Waterkeeper Alliance, Inc., and Riverkeeper, Inc. (“Conservation Groups”) filed a new lawsuit in the U.S. District Court for the Southern District of New York against the U.S. Environmental Protection Agency and Administrator Wheeler (“EPA”) for failing to comply with their mandatory duties under the Endangered Species Act (“ESA”) in connection with promulgation of EPA’s COVID-19 enforcement discretion policy. More specifically, the Conservation Groups argued that the EPA failed to “initiate and complete ESA Section 7 consultation to ensure that EPA’s actions in response to the COVID-19 pandemic,” as described in the March 26, 2020 “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” (“Temporary Enforcement Policy”), would not jeopardize any listed species or their habitats. An analysis of the Temporary Enforcement Policy can be found at Jenner & Block’s Corporate Environmental Lawyer blog here.
Other environmental groups had previously challenged EPA’s Temporary Enforcement Policy, claiming that EPA was unreasonably delaying its response to a petition filed by the groups requesting that EPA issue an emergency rule requiring written notice from regulated entities that elect to suspend required environmental reporting and/or monitoring due to the COVID-19 pandemic. On July 8, 2020, Judge McMahon of the United States District Court for the Southern District of New York ruled that the Natural Resources Defense Counsel and other environmental organizations failed to show that they were injured by EPA’s purported “unreasonable delay” and therefore granted summary judgment in favor of EPA.
In this latest lawsuit, the Conservation Groups claim that EPA failed to engage in a required ESA Section 7 consultation prior to promulgating its Temporary Enforcement Policy. Notwithstanding that EPA’s Temporary Enforcement Policy explicitly states that regulated entities should “make every effort to comply with their environmental compliance obligations” and merely provides guidance on how EPA’s plans to exercise its long-held enforcement discretion in light of the challenges posed by the COVID-19 pandemic, the Conservation Groups’ complaint explains how the regulatory programs affected by the Temporary Enforcement Policy implicate the interests of listed species and their habitat as those programs are “intended to limit pollution and prevent adverse environmental harm.” For example, the complaint asserts that suspension of Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”) effluent sampling program “potentially affects listed species and critical habitats by allowing unmonitored and unreported (and hence unrestricted) contamination of waterways such species depend on.”
The Section 7 consultation process is meant to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined . . . to be critical.” 16 U.S.C. § 1536(a)(2). The Section 7 consultation process must be initiated at “the earliest possible time” for any project that “may affect” listed species. 50 C.F.R. § 402.14(a). The Conservation Groups allege that the Temporary Enforcement Policy “clearly meets the ESA’s ‘may affect’ threshold for triggering the agency’s Section 7 consultation obligations.” While the Conservation Groups recognized the unique challenges posed by COVID-19, they stated “this does not mean that EPA may simply ignore its vitally important, and legally required, ESA Section 7 duties and disregard potential impacts on imperiled species and their critical habitats.” They argue there is no evidence that the EPA undertook Section 7 consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, or even followed the emergency consultation process provided for in the ESA.
EPA announced that it will terminate its reliance on the Temporary Enforcement Policy on August 31, 2020 (although EPA stated that the termination in no way limits its ability to exercise enforcement discretion on a case-by-case basis). EPA’s termination announcement was previously discussed on Jenner & Block’s Corporate Environmental Lawyer blog here. In light of EPA’s announcement, several State Attorneys Generals that had also filed a complaint challenged EPA’s Temporary Enforcement Policy indicated that they intend to dismiss their lawsuit so long as EPA terminates its reliance on the policy on or before August 31st. In an attempt to preempt what is likely to be a motion to dismiss on mootness grounds, the Conservation Groups allege that “there is no assurance that the policy will be rescinded by that date, particularly given the recent surge in COVID-19 cases,” and that their case should therefore be allowed to proceed.
Please feel free to contact the authors 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.
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 July 30, 2020, New York’s Public Health and Planning Council voted to establish maximum contaminant levels (MCLs) for PFOA and PFOS, two of the more common per- and polyfluoroalkyl substances known as PFAS. The MCL for both PFOA and PFOS was set at 10 parts per trillion (ppt) and once approved by the state’s Health Commissioner, public water systems serving 10,000 people or more will be required to start testing for these compounds within 60 days of the date the regulations are published in the New York State Register. Systems serving between 3,300 and 9,999 person would have to begin testing within 90 days, while all other systems would need to begin testing within six months. In conjunction with setting the PFAS MCL, New York also set a 1 part per billion MCL for 1,4-dioxane, another emerging contaminant.
The most immediate impact of the new MCLs will be the testing obligation it imposes on drinking water providers. If these contaminants are detected in drinking water above the MCL, the drinking water provider will be required to notify its consumers and develop a plan to address the MCL exceedances. Although New York has historically provided grants to assist municipalities in addressing these types of emerging contaminants, these grants are unlikely to be sufficient in light of the wide-spread testing that will now be required. As such, one can likely expect a substantial increase in litigation as municipalities aggressively look to shift the burden of paying for these remedial measures from ratepayers to manufacturing and/or other industrial operations that may have contributed to the presence of these contaminants in the environment.
On July 27, 2020, Virginia became the first state to adopt an emergency workplace safety standard regarding exposure to COVID-19. Virginia is one of the 22 states which has jurisdiction to issue its own workplace safety and health regulations, which must be at least as stringent as regulations issued by U.S. OSHA, but can go beyond federal requirements. The Virginia regulation titled §16 VAC 25‐220, Emergency Temporary Standard, Infectious Disease Prevention: SARS‐CoV‐2 Virus That Causes COVID‑19 (“Emergency Standard”) was adopted during a meeting of the Virginia Safety and Health Codes Board on July 15, 2020. The Emergency Standard will expire “(i) within six months of its effective date, upon expiration of the Governor’s State of Emergency, or when superseded by a permanent standard, whichever occurs first, or (ii) when repealed by the Virginia Safety and Health Codes Board.” The Emergency Standard was available as of July 24, 2020, but will be formally published on July 27, 2020, and its legal effective date is July 27, 2020.
The Emergency Standard shall apply to every employer, employee, and place of employment in Virginia within the jurisdiction of the Virginia Occupational Safety and Health Program (“VOSH”), as described in §§ 16 VAC 25-60-20 and 16 VAC 25-60-30 for both public and private employers.
The “[a]pplication of this [Emergency Standard] to a place of employment will be based on the exposure risk level” (i.e., “very high,” “high,” “medium,” and “lower” of COVID-19 and “related hazards present or job tasks.” The Emergency Standard includes a minimum list of factors to be considered in determining exposure risk level, such as the work environment and employee contact, as well as employer requirements for each exposure risk level.
The Emergency Standard details mandatory requirements for all employers, regardless of exposure risk level, such as:
- Exposure assessment and determination, notification requirements, and employee access to exposure and medical records
- Return to work policies and procedures
- Physical distancing
- Limited access to common areas
- Compliance with respiratory protection and personal protective equipment standards
- Compliance with sanitation and disinfection standards
The Emergency Standard details additional requirements for each exposure risk level designated as “very high,” “high,” and “medium.” For all workplaces other than those with low exposure risk, the employer must develop and implement a written Infectious Disease Preparedness and Response Plan (“IDPR Plan”). The IDPR Plan, employers shall consider contingency plans for outbreaks, identify basic infection prevention measures, and address interaction with outside businesses.
In addition, the Emergency Standard requires that in workplaces in the “very high” and “high” exposure risk levels, the employer shall implement protective measures such as isolation facilities and physical barriers. For the “medium” exposure risk level, the employer shall consider protective measures such as flexible work arrangements and increasing physical distancing.
With regard to face coverings, the Emergency Standard defines “face covering” as not PPE. The Emergency Standard states: “Employee use of face coverings for contact inside six feet of coworkers, customers, or other persons is not an acceptable administrative or work practice control to achieve minimal occupational contact. However, when it is necessary for an employee to have brief contact with others inside the six feet distance a face covering is required.” §16 VAC 25‐220-30. At the “medium” exposure level, employers of "medium" exposure level workplaces are required, “to the extent possible,” to provide and have their employees wear face coverings where it is not feasible to physically distance between employees or in customer-facing jobs for the “medium” exposure level. Face coverings may not be required under certain circumstances, such due to the wearer’s medical condition and religious waivers.
To the extent that an employer actually complies with a recommendation contained in CDC guidelines, and those guidelines provide “equivalent or greater protection than provided by a provision of this [Emergency Standard], the employer’s actions shall be considered in compliance with this [Emergency Standard].” “An employer’s actual compliance with a recommendation contained in CDC guidelines … shall be considered evidence of good faith in any enforcement proceeding related to this [Emergency Standard].”
The Emergency Standard also expressly addressed the notification requirements when there is an employee with a positive COVID-19 case. Employers must notify (a) the building or facility owner if any employee in the building tests positive for COVID-19; (b) the Virginia Department of Health within 24 hours of the discovery of a positive case; and (c) the Virginia Department of Labor and Industry within 24 hours of the discovery of three or more employees who test positive for COVID-19 within a 14-day period.
Additionally, employers are prohibited from using antibody testing to “make decisions about returning employees to work who were previously classified as known or suspected to be infected” with COVID-19.
The Emergency Standard also confirms an employee’s right to “refus[e] to do work or enter a location that the employee feels is unsafe.” Section 16 VAC 25-60-110 provides requirements regarding the “discharge or discipline of an employee who has refused to complete an assigned task because of a reasonable fear of injury or death.” That provision states that such discharge or discipline will be considered retaliatory “only if the employee has sought abatement of the hazard from the employer and the statutory procedures for securing abatement would not have provided timely protection.”
Under Emergency Standard §16 VAC 25‐220‐80, covered employers will have until August 26, 2020, to train employees, covering topics such as the requirements of the Emergency Standard, COVID-19 symptoms and methods of transmission, safe and healthy work practices, and anti-discrimination provisions. It is important to note that training requirements for exposure risk levels “very high,” “high,” and “medium” differ from the less-comprehensive requirements for the “lower” risk level. Under subsection 16 VAC 25‐220‐70, if an employer is required to have an IDPR Plan, the employer must develop and train employees on their IDPR Plan by September 25, 2020.
Training and outreach materials, including training PowerPoints, FAQs, an IDPR Plan template, and an exposure risk level flow chart, are being developed by the VOSH Cooperative Programs Division, with some available here, as of July 24, 2020.
At the federal level, OSHA has come under scrutiny for its decision not to adopt a COVID-19 emergency temporary standard. The American Federation of Labor and Congress of Industrial Organizations’ (“AFL-CIO”) and other unions asked OSHA to issue an Emergency Temporary Standard (“ETS”), rather than have employers rely solely on existing OSHA regulations and new COVID-19 guidance to no avail. On May 18, 2020, the AFL-CIO filed a petition for a writ of mandamus in the U.S. Court of Appeals to compel OSHA to issue an ETS within 30 days. However, on June 11, 2020, the court held that “OSHA reasonably determined that an ETS is not necessary at this time” given the “unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environment.” On June 18, 2020, the AFL-CIO filed for a rehearing en banc. Please see Jenner & Block’s analysis of the AFL-CIO lawsuit here. In addition, the U.S. House of Representatives introduced legislation, titled “The COVID-19 Every Worker Protection Act” (H.R. 6559), which would require OSHA to issue an ETS. The provisions of H.R. 6559, including the provisions relating to the ETS, were included in H.R. 6800, The Heroes Act. H.R, passed by the House on May 15, 2020, and which is set to be part of the upcoming political debates and votes by the House and the Senate on new COVID-19 economic stimulus and related legislation.
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.
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.
Lawsuits Challenging EPA’s Temporary Enforcement Discretion Policy for COVID‑19 Pandemic Hit Dead End
By Leah M. Song
As an update to our July 1st blog regarding EPA’s notice that its COVID-19 Temporary Enforcement Policy will end on August 31, 2020, there have been some new developments in the lawsuits filed challenging that policy.
On July 8, 2020, Judge McMahon of the United States District Court for the Southern District of New York ruled that the Natural Resources Defense Counsel and other environmental organizations (“Plaintiffs”) failed to show that they were injured by EPA’s purported “unreasonable delay” in responding to the petition. The Plaintiffs had petitioned EPA to publish an emergency rule requiring an entity to provide written notice if they were suspending monitoring and reporting because of COVID-19.
The court held that the Plaintiffs failed to establish the standing requirements. The Plaintiffs did not establish that they were “legally entitled to the information they seek” and lacked association standing as well. The Plaintiffs did not demonstrate that they “suffered a sufficiently concrete injury nor that that alleged injury is fairly traceable to EPA’s purported delay in responding to the Petition.”
The court said it was “perfectly obvious that, at the time Plaintiffs brought this lawsuit, the EPA had not ‘unreasonably’ delayed its response to the Petition.” Judge McMahon said that “the real litigation – over the legality of the [Enforcement Policy] itself – is presently being briefed in an action brought by nine State Attorneys General. That is where the action will – and should – take place.” Accordingly, the court granted summary judgment in favor of the EPA.
One day later on July 9, the State Attorneys General indicated that they will drop their lawsuit against EPA given the upcoming Enforcement Policy deadline. “EPA does not intend to extend the [Enforcement] Policy beyond August 31 and, should the policy terminate on (or before) August 31, Plaintiffs currently intend to voluntarily dismiss the Complaint without prejudice.” The parties prepared a “contingent, expedited briefing schedule” should EPA not terminate the Enforcement Policy by that date. This announcement is unlikely to cause Judge McMahon to revisit the summary judgment ruling since this decision doesn’t change that Plaintiffs lacked standing to bring the claims.
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 Leah M. Song
On June 29, 2020, the U.S. Environmental Protection Agency (“EPA”) issued a termination addendum to the COVID‑19 temporary enforcement policy previously issued on March 26, 2020. As further discussed below, EPA’s temporary enforcement policy will now terminate no later than August 31, 2020.
The temporary enforcement policy discussed EPA enforcement of environmental legal obligations during the COVID‑19 pandemic. The temporary policy made clear that the EPA expected regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy also required facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID‑19 pandemic. The temporary enforcement policy was analyzed in Jenner & Block’s Corporate Environmental Lawyer blog here.
In the recent termination addendum, EPA pointed to various federal and state guidelines developed in response to the pandemic, but noted that as restrictions begin to be relaxed or lifted, so too are compliance obstacles. However, EPA also noted that in some states, the resurgence of COVID‑19 cases could result in a pause in reopening and EPA acknowledged that “there will be a period of adjustment as regulated entities plan how to effectively comply both with environmental legal obligations and with public health guidance.”
EPA therefore selected August 31, 2020, as the termination date for the temporary enforcement policy. EPA stated that the termination date reflects “the changing circumstances on facility operations, worker shortages, and other constraints caused by the public health emergency,” but “ensures that there is adequate time to adjust to the changing circumstances.”
EPA reminded entities that “[a]s stated in the temporary policy, entities should make every effort to comply with their environmental compliance obligations and the policy applies only to situations where compliance is not reasonably practicable as a result of COVID‑19” which “should become fewer and fewer.” EPA made clear that it “will not base any exercise of enforcement discretion on this temporary policy for any noncompliance that occurs after August 31, 2020.” However, EPA will still consider exercising its enforcement discretion on a “case-by-case basis regarding any noncompliance, including noncompliance caused by the COVID‑19 public health emergency, before or after the temporary policy is terminated.”
Finally, EPA floated the possibility that the temporary enforcement policy could terminate even before August 31, 2020. EPA will continue to assess national and state conditions, such as “the expiration or lifting of ‘stay at home’ orders” and “the status of federal and/or state COVID‑19 public health emergency guidelines.” In the event that EPA determines conditions warrant earlier termination of the policy, EPA will provide at least 7 days’ notice prior to termination of the policy.
By Leah M. Song
As we have discussed in our previous blog posts, 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 following cases are the primary cases that are currently ongoing: Rhode Island, Baltimore, Oakland, and San Mateo.
Defendants in these cases have universally tried to remove these cases to federal court where defendants presumably believe that 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).
As further discussed below, in most of these cases, the district courts have remanded the cases back to state court and those decision have been appealed to the appellate courts. At the same time, defendants have sought to stay the court’s remand orders while the appeals proceed in federal court. These efforts to stay these remand orders have universally been unsuccessful, with the U.S. Supreme Court refusing to stay these orders, as seen here.
The following provides a brief overview and status update on each of these cases:
- In Mayor and City Council of Baltimore v. BP PLC, Baltimore brought action against various fossil-fuel companies 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. As noted above, defendants sought to remove the case to federal court but the district court remanded the case back to the state court.
On March 6, 2020, the Fourth Circuit Court of Appeals affirmed the district court’s order remanding the case back to state court. The district court rejected each of the fossil-fuel companies’ stated grounds for removal, but the Fourth Circuit held that its appellate jurisdiction was limited to a review of 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. The Fourth Circuit found none of the three contractual relationships on which the fossil-fuel companies based their claims for federal officer removal were sufficient to justify removal from state court, either because the relationships failed to satisfy the requirement that the fossil-fuel companies were “acting under” the direction of a federal officer or because the contractual relationships were “insufficiently related” to Baltimore’s claims for purposes of the nexus prong.
On March 31, 2020, the fossil-fuel companies filed a petition for a writ of certiorari in the 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 where the removing defendant premised removal in part on the federal officer removal statute… or the civil-rights removal statute.” Baltimore’s response was due by April 30, 2020, but has been extended to June 29, 2020 due to the COVID-19 pandemic.
- Rhode Island v. Chevron Corp. et al. was the first climate change damages case to be brought by a In this case, Rhode Island brought action against 21 different fossil-fuel companies for nuisance, strict liability, failure to warn, design defect, trespass, impairment of public trust resources, and violations of the Rhode Island Environmental Rights Act. Rhode Island’s lawsuit asserts that the state’s extensive coastline will be damaged through rising sea levels, increased frequency and severity of flooding and ocean acidification. The fossil-fuel companies had removed to federal court and Rhode Island tried to remand back to state court. On July 22, 2019, the federal court ordered the litigation to be remanded back to Rhode Island state court. While acknowledging that at least two federal courts had reached opposite conclusions, the court held that Rhode Island’s climate change claims were not preempted by the Clean Air Act and did not implicate a substantial federal question such that removal to federal court was appropriate. With respect to the Clean Air Act, the court found that the statute did not act to preempt all state-law causes of action for air pollution, including Rhode Island’s claims against defendants for releases of greenhouse gases. In addition, the court held that Rhode Island’s claims did not implicate a substantial federal question because “[t]he rights, duties, and rules of decision implicated by the complaint are all supplied by state law, without reference to anything federal.”
Rhode Island promptly notified the First Circuit of the Fourth Circuit’s decision in Baltimore, noting that that the Fourth Circuit’s decision “rejects the exact arguments raised … as to the proper scope of … appeal” as well as the fossil-fuel companies’ “tenuous justification for federal officer removal.” In response, Chevron filed a letter seeking to distinguish the Baltimore decision on the grounds that the Fourth Circuit “considered itself bound by [c]ircuit precedent” and had based its holding that federal officer removal was inapplicable on an incorrect characterization of plaintiffs’ claims in that case.
- On May 26, 2020, the Ninth Circuit joined the Fourth Circuit in Baltimore in concluding that these climate change cases alleging only state-common law claims (County of San Mateo v. Chevron Corp. et al. and City of Oakland v. BP p.l.c. et al.) belonged in state court. 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. Defendants sought to remove 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 its case, finding instead that plaintiffs’ public nuisance claims were governed by federal common law, but then proceeding to dismiss the lawsuit for failure to state a claim. Both cases were appealed to the Ninth Circuit.
The Ninth Circuit agreed with plaintiffs that two climate change lawsuits had been improperly removed to the federal courts, continuing courts’ recent trend of remanding these types of cases back to state court. These cases were recently analyzed on Jenner & Block’s Corporate Environmental Lawyer here.
Shortly after these rulings, both Rhode Island and Boulder filed letters informing the respective courts of the Ninth Circuit’s San Mateo and Oakland decisions.
Although San Mateo and Oakland 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 climate change litigation cases as they unfold.