The Nickel Report

On December 15, 2021, the Texas Commission on Environmental Quality (TCEQ) approved the publication of proposed changes to its compliance history rules to allow the agency to reclassify a site’s compliance history classification if an emergency incident results in significant impacts to the public and the environment.[1] In describing the background and reasons for the rulemaking, the agency noted the occurrence of a number of emergency incidents at industrial facilities in the state and resulting scrutiny of the facilities involved in those incidents. The proposed rulemaking is intended to “communicate to the regulated entity and the public that a review of such a site’s performance is underway, provide a more immediate and accurate measure of a site’s performance in light of such an event, and make compliance history a more effective tool to provide oversight and ensure regulatory consistency.”[2] If the rules are adopted as proposed, facilities involved in significant emergency incidents would face heightened regulatory scrutiny in agency decisions.

With the busy holiday shopping season underway, retailers should remain vigilant in their efforts to protect consumers and themselves from the risks of selling potentially unsafe, ineffective or misbranded products in violation of the U.S. Environmental Protection Agency (EPA’s) federal pesticide law, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).  As concerns with the spread of COVID-19 and new variants increase over the winter months, consumers are likely to stock up disinfectant products and devices like air purifiers and air filters marketed to reduce the transmission of COVID-19 and other microorganisms.  These products are tightly regulated under FIFRA, and retailers can unwittingly become entangled in regulatory enforcement actions for selling and distributing products that do not comply with EPA’s regulations.  FIFRA extends legal liability not only to the makers of violative products, but also retailers who sell them to consumers, whether or not the retailer was necessarily aware of the violation. In addition to EPA, state agencies also enforce state regulatory requirements applicable to these products.

This week, two senior U.S. Department of Justice (DOJ) Environment and Natural Resource Division (ENRD) officials used their remarks to the American Bar Association’s annual National Environmental Enforcement Conference to convey a clear message: environmental enforcement, and in particular criminal enforcement, is back. Companies and individuals should expect more robust investigations that draw on the expertise and jurisdiction of various federal agencies, while prosecutions will be driven by enhanced DOJ criminal enforcement policies.

The American Bar Association published an article, Navigating Environmental Justice Issues in Federal Permitting, which discusses Environmental Justice in federal permitting by Hunton Andrews Kurth attorneys Kerry McGrath, Andrew Turner, John Bobka, and Mayer Brown attorney Lauren Bachtel.

To continue reading this article, originally published by the American Bar Association, please visit the ABA website here or download a PDF version of the article here. 

Published in Natural Resources & Environment Volume 36, Number 2, Fall 2021. © 2021 by the American Bar ...

On December 7, 2021, the California Air Resources Board (CARB) held a public workshop to preview potential changes to the groundbreaking California Low Carbon Fuel Standard (LCFS) program, which has served as a model for other low carbon fuel programs across the country.  CARB is accepting written public comments on the concepts presented in the workshop through January 7, 2022.

The US Fish and Wildlife Service’s (USFWS or the Service) revocation of the Trump administration’s Migratory Bird Treaty Act (MBTA) rule took effect last Friday, December 3.  On the same date, the public comment period closed on the Service’s Advanced Notice of Proposed Rulemaking (ANPR), in which USFWS announced its plan to issue a proposed regulation codifying an interpretation of the MBTA that prohibits incidental take, and to propose a system of regulations to authorize the incidental take of migratory birds under certain conditions.