On July 7, 2017, the D.C. Circuit Court of Appeals issued a decision striking down portions of US EPA’s Definition of Solid Waste (DSW) Rule, which defines when certain hazardous secondary materials (i.e. recyclable materials generated as the remainder of industrial processes) become “discarded” and thus subject to regulation as a solid waste.  The Rule, issued in 2015, was the latest effort to define “solid waste” under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§6901 et. seq., and was challenged by both industry and environmental groups.  Squire Patton Boggs was actively involved in the appeal on behalf of an industrial intervenor-movant.

In a per curiam decision, the Court sided with the industry petitioners in large part, dismissed the environmental groups’ challenges, and vacated two key aspects of the 2015 DSW Rule.  First, the Court vacated the fourth prong of the “legitimacy” test to distinguish between “true” and “sham” recycling, which must be met to qualify for exclusion from regulation as a solid waste.  Second, the Court vacated most of the “Verified Recycler” Exclusion and reinstated the pre-existing 2008 “Transfer-Based” Exclusion.  In so ruling, the Court also severed and retained requirements from the vacated 2015 exclusion relating to emergency preparedness and containment standards.

Since President Nixon signed into law the Endangered Species Act (ESA) in 1973, the ESA has directed the identification and protection of endangered and threatened species in the United States. While President Obama remarked that his Administration had “seen more victories under the Endangered Species Act than any previous administration,” the Obama Administration generally applied the ESA in a fashion designed to avoid significant legal and political battles. By contrast, advocates and politicians on both sides have brought the ESA front and center during the first few months of the Trump Administration.

In June, for example, the General Land Office of the State of Texas (TXGLO), a state agency charged with land and natural resource stewardship in Texas, sued the Department of the Interior and the US Fish & Wildlife Service (FWS) in an attempt to remove a bird, the golden-cheeked warbler, from the endangered species list. TXGLO pointed to a 2015 Texas A&M study concluding that the warbler’s population had increased to 19 times more than had been assumed when the bird was listed as endangered. In a corresponding press release, TXGLO Commissioner George P. Bush stated: “The restoration of the golden-cheeked warbler population is a success story worth celebrating by removing it from the endangered list and restoring the rights of Texas landowners to effectively manage our own properties.”  As discussed below, the ESA is receiving significant political and legal attention.  This raises the question of whether TXGLO will pursue a legal decision mandating the delisting of the golden-cheeked warbler or whether will it take advantage of a friendly political administration and utilize the “sue and settle” strategy to begin the delisting process.

Today, EPA and the Corps released a highly anticipated proposal to rescind the Obama Administration’s controversial 2015 Clean Water Rule. The June 2015 rule, which has been stayed since October 2015, would broadly define the scope of “waters of the U.S.” (WOTUS) subject to federal regulation and permitting requirements under the CWA. The proposed rescission is the first step of a two-step process to repeal and replace the 2015 Clean Water Rule with a new WOTUS rule. With today’s proposal, EPA and the Corps are proposing to officially rescind the 2015 rule and continue to implement the regulatory definition in place prior to the 2015 rule while they work to promulgate a new rule to define WOTUS.…

As part of his regulatory reform agenda, President Donald Trump instructed federal agencies to review their regulations to identify requirements that burden businesses and industry.  See EO 13771 and EO 13777.  In order to comply with these directives, on June 8, 2017, the U.S. Department of Transportation (DOT) requested public comments to identify statutes, rules, regulations, and interpretations in policy statements or guidance “that unjustifiably delay or prevent completion of surface, maritime, and aviation transportation infrastructure projects.”

On June 1, 2017, New York Governor Cuomo, California Governor Brown and Washington State Governor Inslee declared their states’ commitment to the ideals of the Paris Climate Agreement (“Agreement”) by forming a United States Climate Alliance (“Alliance”). This action came in response to President Trump’s announcement earlier that day which stated the United States would immediately cease implementation of the Agreement which they joined in 2016. Governor Cuomo also issued an Executive Order which condemned President Trump’s decision as “an abdication of leadership” which “threatens the environmental and economic health of all New Yorkers.”

Technology can offer new business opportunities and efficiencies to businesses. However, it can also present new and on-going challenges to the regulation and control of health, safety and environmental issues (and ultimately the potential liability of any business exploiting new technology). One of the ‘key points’ of the Health and Safety Executive Strategy 2016 was…

Local governments have a new forum on Capitol Hill focusing on the many challenges and opportunities they face: the Intergovernmental Affairs Subcommittee in the US House of Representatives. The new Subcommittee was created in January at the start of the new Congress and is led by Chairman Gary J. Palmer (AL-6) and Ranking Member Val Butler Demings (FL-10). The Subcommittee has broad responsibility over “the relationship between the federal government and states and municipalities, including unfunded mandates, federal regulations, grants, and programs.”

Chairman Palmer is especially interested in addressing how environmental laws and regulations can be a “roadblock to states and local communities and infrastructure projects.” For example, testimony by one local official at the Subcommittee’s first hearing indicated that federal environmental regulations can double the cost of building a road per mile, increasing the cost from $80,000 to $160,000. The Chairman said at that hearing that he hopes his new Subcommittee will help “find ways to continue protecting our environment while simultaneously encouraging infrastructure development and economic growth” and also “play a role in beginning to streamline the regulatory process and devolve control back the States” and their local governments.

In recent weeks, California appellate courts issued two decisions regarding California Air Resources Board (CARB) programs implemented under AB32, the Global Warming Solutions Act, with mixed results.  The first decision upheld the legality of a key element of CARB’s cap-and-trade program, the auction of emission credits.  In that case, the Third Appellate District rejected an industry challenge and found that the auctions are within the authority granted to CARB by AB32 and are not an illegal tax. In the second case, the Fifth Appellate District delivered a setback—the second in that court—for CARB’s Low Carbon Fuel Standard (LCFS), finding the agency failed under the California Environmental Quality Act (CEQA) to adequately analyze the potential effects of NOx emissions resulting from the increased use of biofuels mandated by the LCFS.  CARB was first ordered by the court to correct this CEQA violation in a 2013 writ of mandate, but the agency failed to do so in its 2015 re-adoption of the LCFS.  The court, noting the environmental benefits of this program, however, did not invalidate the LCFS and only froze the required standards at 2017 levels until CARB corrects the CEQA deficiencies.  These decisions do little to clarify the muddy waters around how agencies should analyze greenhouse gas emissions under CEQA, as that analysis is inextricably intertwined with the effectiveness of the State’s greenhouse gas regulatory programs.

The Health and Safety Executive (the “HSE”) operates a Fee for Intervention cost recovery scheme (“FFI”), which came into force on 1 October 2012. FFI was introduced to reduce the amount of public funding spent by the HSE, and to shift certain costs to dutyholders. If upon an inspection an HSE inspector identifies a material breach of health and safety legislation they are entitled to issue an FFI invoice to cover the costs of its investigation, which the dutyholder is liable to pay. There is no charge if the company is compliant with the law; the breach is not material; or the inspector simply issues verbal advice. If there is disagreement on the HSE’s decision, or the amount of the FFI invoices, the dutyholder can appeal by way of starting a ‘dispute’.

Disputes are currently considered by a panel consisting of two members from the HSE and one independent person. If the panel doesn’t approve the appeal, the dutyholder must pay the adjudication costs at £129 an hour. Following a recent application for a judicial review by the OCS Group UK (“OCS”), however, the HSE is now to consult on making the process fully independent.