The Nickel Report

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 August 30th, EPA granted the 2007 Petition from the Pesticide Action Network North America (PANNA) and the Natural Resources Defense Council (NRDC) requesting that EPA revoke all chlorpyrifos tolerances. This followed the Ninth Circuit order earlier this year for EPA to: “(1) grant the 2007 Petition; (2) issue a final regulation within 60 days following issuance of the mandate that either (a) revokes all chlorpyrifos tolerances or (b) modifies chlorpyrifos tolerances and simultaneously certifies that, with the tolerances so modified, the EPA "has determined that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information," including for "infants and children"; and (3) modify or cancel related FIFRA registrations for food use in a timely fashion consistent with the requirements of 21 U.S.C. § 346a(a)(1).”

Consistent with President Biden’s Executive Order (EO) 13990, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, the “Services”) recently announced that they “will initiate rulemaking in the coming months to revise, rescind, or reinstate five [Endangered Species Act] regulations finalized by the prior administration.”  The Biden Administration is the third consecutive administration to undertake revisions to the Services’ Endangered Species Act (“ESA”) regulations.

The lesser prairie-chicken—a grouse whose range covers the western portions of Kansas and Oklahoma; the Texas Panhandle, including the Llano Estacado; eastern New Mexico; and southeastern Colorado—is subject to yet another proposed listing under the Endangered Species Act (“ESA”).  On June 1, 2021, the US Fish & Wildlife Service (“FWS” or the “Service”) proposed to re-list two distinct population segments (“DPS”) of the species.  86 Fed. Reg. 29,432 (June 1, 2021).  The proposal is subject to a 60‑day public comment period, through August 2.  FWS is expected to issue a final decision within a year.

On October 8, 2020, Wyoming federal district court Judge Skavdahl struck down the Bureau of Land Management’s (BLM) “Waste Prevention Rule,” otherwise known as the “Venting and Flaring Rule,” which had been promulgated on November 18, 2016, in the closing months of President Obama’s second term (“2016 Rule”).  See Order on Pets. for Review of Final Agency Action, Wyoming v. U.S. Dep’t of Interior, No. 2:16-CV-0285-SWS (D. Wyo. Oct. 8, 2020) (Order vacating 2016 Rule).  The detailed fifty-seven-page decision concludes that in issuing the 2016 Rule, BLM exceeded its statutory authority and acted arbitrarily.  The core of the court’s holding was that the 2016 Rule was grounded in air quality motivations, which was the purview of the Environmental Protection Agency (EPA) and, therefore, beyond BLM’s statutory authority to promulgate.