A federal investigation has revealed that US EPA violated federal law by utilizing “covert propaganda” and illegal grassroots lobbying to encourage voters to support its Waters of the United States Rule (the “Clean Water Rule“).  US EPA’s legal violations in the context of the Clean Water Rule could lead to additional trouble for the agency.  Members of the House Energy and Commerce Committee are investigating whether US EPA employed similar tactics to bolster support for US EPA’s controversial Clean Power Plan.

The Obama administration recently released a presidential memorandum (Memorandum)—a tool the executive branch uses to direct the actions of government officials and federal agencies—designed to encourage private and non-profit sector investment in natural resources restoration and public-private partnerships. The Memorandum aims to instill a policy of first avoiding and then minimizing adverse effects to natural resources. Its broad scope affects everything from energy production on federal lands to construction of federal facilities. Specifically, it encourages five federal agencies—the Department of Defense, Department of Interior, Department of Agriculture, US EPA, and National Oceanic and Atmospheric Administration—to streamline regulations for offsetting environmental harm and promoting independent mitigation efforts through clear and consistent implementation of the Memorandum’s policy objectives.

The Memorandum seeks to accomplish its goals by first encouraging proactive development, directing agencies to sequentially avoid negative environmental impacts, minimize impacts, and then to seek compensatory offsets for harm that still occurs only if necessary.  Second, it promotes, as a baseline, “no net loss” within the limits of existing laws.  Third, it encourages transparency and cooperation, directing agencies to fully incorporate local, state, and federal plans to identify the best places for development and priority areas for protection, paying special attention to irreplaceable resources.  To implement this last objective, the Memorandum suggests that agencies take advantage of large-scale plans from any sector or level of government. As a working example of the type of collaboration encouraged, interagency collaborations that resulted in keeping the greater sage grouse from being listed under the Endangered Species Act paved the way for a shift towards landscape-scale mitigation. Successful collaboration to keep the greater sage grouse from being listed influenced the White House in adopting a similar approach in other natural resources contexts.

Healthcare facilities take note: US EPA recently issued a proposed rule for outlining management and disposal standards for hazardous waste pharmaceuticals that are generated specifically by healthcare facilities. The proposed rule addresses the “regulation of the reverse distribution mechanism used by healthcare facilities for the management of unused and/or expired pharmaceuticals” and aims to “strengthen…

On September 10, 2015, in Pollinator Stewardship Council et al. v. EPA, the Ninth Circuit Court of Appeals invalidated US EPA’s unconditional registration of the insecticide sulfoxaflor, concluding that the scientific data relied upon by the agency regarding the product’s potential impact on honey bees did not support approval of the insecticide.  Sulfoxaflor, which is produced by Dow Agrosciences LLC (Dow), is intended to target the same receptors in insects as other neonicotinoid pesticides, but uses a different mechanism.  Opponents of neonicotinoids claim that they may harm honey bees and contribute to honey bee colony collapse disorder.

When analyzing Dow’s registration application for  sulfoxaflor under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), US EPA utilized its recently developed Pollinator Risk Assessment Framework (the Framework), which provides for  a two-tiered review process. Tier I consists of an initial assessment, which looks at laboratory-based toxicity data from studies involving individual bees to determine whether the pesticide poses a risk to bees. If US EPA affirmatively determines that the pesticide poses such a risk, Tier II semi-field studies are required to determine if usage would result in unreasonable adverse environmental effects. Tier II, unlike Tier I, is designed to examine the effects of the insecticide on bees in the environment, not in the laboratory, and focuses the analysis on the colony as a whole rather than individual bees.