The Nickel Report

On October 27, 2020, in a succinct order, the United States Court of Appeals for the District of Columbia Circuit (“the Court” or “D.C. Circuit”) denied motions for stay and for summary vacatur filed by several environmental advocacy groups, including the Environmental Defense Fund and Sierra Club, as well as states and local governments, with leadership from the States of New York and California in litigation challenging EPA’s Oil and Natural Gas Sector:  Emission Standards for New, Reconstructed, and Modified Sources Review, 85 Fed. Reg. 57,018 (Sept. 14, 2020) (“Methane Repeal Rule,” or the “Rule”).  Order at 1, California, et al. v. Andrew Wheeler, et al., No. 20-1357 (D.C. Cir. Oct. 27, 2020).  In addition to an opposition filed by EPA, regulated industry trade groups, including the American Petroleum Institute (“API”), weighed in with the Court on EPA’s behalf to oppose the stay.

Over the last decade, regulators have accelerated their focus on vapor intrusion risk at hazardous cleanup sites. This has led to new cleanup standards, policies and guidance to evaluate potential risks, environmental investigation requirements for brownfield redevelopments, and the reopening of previously closed remedial actions. Recently, attention has turned from chronic to acute vapor intrusion risk. Although protection of human health is paramount, this recent focus has been plagued with concerns about the validity of the underlying science and a lack of comprehensive guidance from regulators on how to respond. This article explores the evolution of vapor intrusion regulation, particularly developments addressing acute risk, as well as trends in vapor intrusion- related litigation.

The latest news is full of stories of federal agencies reviewing and, in some cases, rescinding environmental regulations and cutting agency spending. From these reports, it could seem the federal government might also cut back its enforcement of environmental laws. But in fact, even in this turbulent regulatory and fiscal appropriations landscape, enforcement–particularly criminal enforcement–of core existing environmental laws is one aspect of environmental regulation that is sure to continue.

A common question that we all ask whenever we meet someone new in a social setting is “what do you do?” This seemingly innocuous question always makes me brace myself for the inevitable exchange that will follow. When I say that I am an environmental attorney, the next question is almost always whether I work for the “good” or “bad” guys. The clear assumption in this question is that environmental advocacy groups are “good,” while industry parties are “bad.” But is this issue really that black and white? Based on my experience, no. The issue is far from being that simplistic.

This week President Donald Trump issued an executive order (EO) making good on vows to reduce regulations coming out of Washington. The Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs sets two objectives — first, to eliminate two old regulations for every new one promulgated and, second, to impose a cap on the economic costs of regulations each year.

On Friday, January 20, President Trump’s Chief of Staff Reince Priebus issued a memorandum to executive branch department and agency heads placing an immediate hold on federal regulations that are under development.

This regulatory “freeze” has become standard practice in recent Administrations. In 2009, President Obama issued a temporary halt to regulations being developed by the outgoing George W. Bush Administration. In 2001, President Bush issued a temporary stay on regulations under development by the outgoing Clinton Administration. New presidents want to ensure that federal regulations reflect their policies and priorities.