The Nickel Report

Twenty Democratic candidates took the stage in Miami on June 26-27, with the hopes of winning over voters in the first 2020 Democratic presidential debate. During the four-hour event, top Democratic candidates contentiously debated hot button issues, such as immigration, gun control and healthcare. When it came to the topic of climate change, however, the debate left some viewers wanting more.

Although climate change has been deemed one of the most important issues for Democratic voters ahead of the 2020 presidential election, only about 15 minutes in total between the two nights were dedicated to the issue. Given the sheer number of participants and the debate format, it was difficult for the candidates, including those with fully formulated climate change platforms, to articulate any detailed substantive policy. Nevertheless, there were still some key takeaways from the first debate’s limited discussion on climate change.

On June 26, 2019, the Council on Environmental Quality (CEQ) released draft guidance instructing federal agencies on how to consider and document greenhouse gas (GHG) emissions and the effects of climate change when evaluating proposed federal actions, including rulemakings and permitting decisions, under the National Environmental Policy Act (NEPA). The guidance, if finalized, would replace a now-revoked Obama Administration 2016 guidance, which advanced broad positions on how agencies should evaluate GHG emissions and the effects of climate change when undertaking NEPA reviews for proposed federal actions.

Hunton Andrews Kurth’s environmental practice launches its video series, Inside Look, focusing on recent events and trends impacting regulated industries through discussions with our top attorneys and thought leaders.  Our inaugural video focuses on recent changes in the composition of the US Supreme Court and the potential impact on industry.  Partners F. William Brownell and Elbert Lin discuss the effect of the appointments of Justices Neil Gorsuch and Brett Kavanaugh on administrative law, voting patterns at the Court and the importance of originalism-type arguments in constitutional cases.

Watch for more Inside Look videos from the Hunton Andrews Kurth environmental practice by subscribing to the Nickel Report and Hunton Andrews Kurth’s YouTube channel.

Since retaking control of the House following the 2018 midterm elections, Democrats have introduced a flurry of climate change-related legislation. While the ambitious Green New Deal resolution grabbed much of the headlines earlier this year, Democrats have continued to roll out various other measures aimed at addressing climate change.

Standing may seem like an arcane concept, but, as lawyers, we know that this term has special legal meaning—and that it affects whether our clients or our clients’ opponents can successfully bring a lawsuit. In the field of environmental law, understanding standing (a little alliteration) is no easy task. In a decision by the DC Circuit last week, the Sierra Club was reminded just how important standing can be when challenging, or more to the point attempting to challenge, environmental laws.

The EU's Approach to Product Stewardship

While the European Union (EU) does not have any legal principle specific to product stewardship, it has applied the full range of EU environmental law principles to create a comprehensive framework for product stewardship. These principles include the prevention and precautionary principles, sustainability, extended producer responsibility, supply chain responsibility, and corporate social responsibility. In addition, product stewardship is a key instrument in the EU's latest strategic environmental focus areas: the circular economy and the toxic-free environment, two main themes of current EU environmental policy making.

The Bureau of Land Management (BLM) released a draft environmental assessment (EA) evaluating the potential environmental impacts of lifting the federal coal leasing moratorium. Publication of the draft EA opens a 15-day comment period that ends on June 6, 2019. This review was necessitated by the April 19 decision of the US District Court for Montana in Citizens for Clean Energy, et al v. Department of the Interior, et al. The court held that BLM’s actions in lifting the moratorium via a March 2017 secretarial order (Zinke Order) were arbitrary and capricious and in violation of National Environmental Policy Act (NEPA) because it was a major federal action for which there was no such review. The court did not immediately reinstate the coal leasing moratorium or require a specific environmental review, but instead stated that BLM had an obligation to study the environmental impacts of lifting the coal leasing moratorium and required the parties to submit additional briefing on the remedy.

On May 15, 2019, EPA released its draft Study of Oil and Gas Extraction Wastewater Management under the Clean Water Act (Draft Study). The Draft Study addresses the results of an extensive review initiated last year to evaluate the management of oil and gas wastewaters generated at onshore facilities and to assess the need for additional discharge options for onshore oil and gas wastewater under the Clean Water Act (CWA).^[1] Although EPA has not yet adopted any recommendations for regulatory action, it is evident that EPA is continuing to take a hard look at the merits of authorizing broader discharges of produced water to surface waters than those currently allowed for onshore discharges under the CWA effluent guidelines (and generally referred to as the zero discharge standard).^[2] See 40 CFR Part 435, Subpart C. EPA is now requesting additional public comment on the Draft Study by July 1 of this year with the goal of finalizing it and determining next steps this summer.

On March 15, 2019, the House Subcommittee on Environment and Climate Change held a hearing titled, “Protecting Americans at Risk of PFAS Contamination & Exposure.” The hearing examined approaches to eliminate or reduce environmental and health risks to workers and the public from per- and polyfluoroalkyl substances (PFAS).

The US Environmental Protection Agency (EPA) has recently determined that no revisions to existing RCRA Subtitle D regulations for the management of oil and gas wastes are necessary. This conclusion follows EPA’s completion of an extensive review to fulfill the requirements of a Consent Decree entered by the US District Court for the District of Columbia that settled litigation filed by certain environmental organizations over EPA’s alleged failure to update its rules for management of oil and gas wastes. EPA’s findings, released on April 23, 2019, are set forth in a report titled, Management of Oil and Gas Exploration, Development and Production Wastes: Factors Informing a Decision on the Need for Regulatory Action (Report). This means that, at least for now, EPA’s longstanding position on regulation of oil and gas wastes remains unchanged.