The Nickel Report

Last week, the US Environmental Protection Agency (EPA) announced the results of its enforcement and compliance efforts for the federal government’s 2021 fiscal year (FY2021)—October 2020 through September 2021. Prepared by EPA’s Office of Enforcement and Compliance Assurance (OECA), the report offers the first high-level look at the EPA’s enforcement of environmental laws under the Biden Administration. “Coming off a challenging few years,” said EPA’s Acting Assistant Administrator for OECA, Larry Starfield, “these 2021 results make clear that rigorous enforcement is back at EPA.” Key metrics in the report appear consistent with that message.

On the heels of the November 2021 Tribal Nations Summit, a flurry of memoranda was signed by the White House and many government agencies. These memoranda seek to further the Biden administration’s promises of consulting with indigenous people and acknowledging their communities’ cultures, customs, sacred sites, and historical knowledge in the contexts of environmental planning, sustainability, and justice, and in ongoing and forthcoming federal decision making and regulatory rulemaking.

Center stage in the ongoing discussion is Indigenous Traditional Ecological Knowledge (ITEK), and the need for including and consulting with Tribal communities on the front end of planning as part of the environmental review process under the National Environmental Policy Act (NEPA)—something that inconsistently occurred in the past. Stakeholders from developers and investors to Tribes and regulators, among other parties, should expect increased focus and guidance from the Biden administration in 2022 on these issues. The additional focus on these issues will present opportunities, but also challenges, as it adds another step in the already time-consuming NEPA process.

Under a process known as Sunset Review, the Texas Commission on Environmental Quality (TCEQ) will be abolished in 2023 unless a bill is passed in the 88th Texas Legislative Session reauthorizing the agency. Sunset Review is performed by the Sunset Commission, and the process takes approximately two years. The TCEQ review process began last year with the preparation of the Self Evaluation Report (SER), completed by TCEQ in September of last year. The general public is encouraged to participate in the process. Public input is confidential and not passed on to the agency at this stage. Public comments should be provided by February 1, 2022 to be fully considered.

On December 29, the chemicals program at EPA closed out 2021 by proposing revisions to its risk determinations for the Cyclic Aliphatic Bromide Cluster (HBCD), a solvent used as a flame retardant and wetting agent which has not been manufactured in the United States in nearly five years. In doing so, the Biden EPA made good on its June 2021 promise to revisit risk determinations previously made during the Trump Administration in accordance with the Toxic Substances Control Act (TSCA). The draft “revisions” represent a significant shift from EPA’s prior approach to existing chemical risk evaluation and foreshadow increased regulatory and litigation risk for all companies—not just those whose operations may have historically involved HBCD.

On January 11, the Bureau of Ocean Energy Management (BOEM) announced the beginning of a scoping period to prepare a draft environmental assessment (Draft EA) for the Gulf of Mexico (GOM) Call Area to assess potential impacts associated with offshore wind leasing. The area includes approximately 30 million acres of federal lands on the outer continental shelf (OCS) in the GOM, and covers areas in what is commonly known as the Western and Central Planning Areas of the GOM. This is the same area described in the Call for Information and Nominations published in the Federal Register on November 1, 2021. Comments will be received through February 9, 2022. BOEM anticipates completing the Draft EA this summer.

On December 27, 2021, the US Army Corps of Engineers (Corps) issued a final nationwide permit (NWP) rule  renewing a critical permitting tool for both the government and the regulated community. To comply with the Clean Water Act (CWA or the Act), projects with minimal adverse environmental effects can obtain authorization for the discharge of dredged or fill material into “waters of the United States” (WOTUS) through the Corps’ streamlined NWP process.  With this rule, the Corps reissued 40 existing NWPs and one new NWP.  These 41 NWPs will combine with 16 NWPs issued on January 13, 2021 to authorize use of the full suite of NWPs through March 14, 2026.