The Nickel Report

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 EPA Office of Water has taken a major step towards further regulation of per- and polyfluoroalkyl substances (PFAS) under the Clean Water Act.  On March 17, it published an advance notice of a proposed rulemaking (ANPRM) that could lead to development of effluent limitations guidelines (ELGs), pretreatment standards, and new source performance standards for PFAS manufacturers, formulators, and possibly other industries now being studied by EPA.  86 Fed. Reg. at 14,560.  These industries include pulp and paper manufacturers, textile and carpet manufacturers, metal finishing companies, and commercial airports.  The ANPRM is open for public comment through May 17.

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.

On August 11, the US Department of Justice (DOJ) released a new report that promotes constructive recommendations to modernize and improve the Administrative Procedure Act (APA).  In 1946, Congress enacted the APA to establish procedures as a check on administrative power, and to provide the public with some degree of due process in the face of regulatory action.  As it relates to the Clean Water Act, Clean Air Act, Endangered Species Act, and other relevant environmental regulatory programs, the APA provides the framework under which federal agencies develop and promulgate regulations to implement these programs.  Since Congress passed the APA over 70 years ago, the size and scope of federal regulatory authority has ballooned in size, leading at times to inefficiencies in the rulemaking process and a lack of accountability.  To address these shortcomings, DOJ hosted a summit in December 2019 that brought together leading regulatory practitioners, scholars, and policymakers to discuss possible reform.  Although legislative action in the near future is unlikely given the polarized political climate in Congress, the report puts forward a “rich menu of options” for Congress to revise the APA.

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.