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While the texts of environmental laws do not change without an act of Congress, executive branch agencies that enforce those laws have a great deal of discretion in what kinds of violations to prioritize for investigation and enforcement and how aggressive to be in applying them to new or ambiguous fact patterns. Because the consequences of contesting a government enforcement case can be so onerous – financially, operationally, reputationally and otherwise – how the agencies exercise this enforcement discretion can often determine, for all practical purposes, how laws actually direct business conduct. So where should you be focusing your attention? Here are several key issues to watch over the upcoming year.
TSCA/FIFRA/TRI
EPA Seeks Comments On Draft Compliance Guide Addressing Surface Coatings Under PFAS SNUR: On December 16, 2020, the U.S. Environmental Protection Agency (EPA) announced the availability of a draft compliance guide that outlines which imported articles are covered by EPA’s July 2020 final significant new use rule (SNUR) that prohibits companies from manufacturing, importing, processing, or using certain long-chain per- and polyfluoroalkyl substances (PFAS) without prior EPA review and approval. 85 Fed. Reg. 81466. The draft guide provides additional clarity on what is meant by a “surface coating,” identifies which entities are regulated, describes the activities that are required or prohibited, and summarizes the notification requirements of the final SNUR. More information on the draft compliance guide is available in our December 14, 2020, memorandum, “EPA Publishes Draft Compliance Guide Addressing Surface Coatings under PFAS SNUR.” Comments on the draft g
Wednesday, January 20, 2021
A January 12, 2021 US Department of Justice (DOJ) memorandum extends and provides additional legal analysis to support the government’s increasing drumbeat against settling cases and reducing environmental penalties in recognition of Supplemental Environmental Projects or “SEPs.” The new memo addresses the limited circumstances under which attorneys in DOJ’s Environment and Natural Resources Division (ENRD), the division of DOJ that represents EPA and other federal agencies in enforcing environmental laws, may include certain mitigation requirements in settlement agreements. Issued last week by ENRD Assistant Attorney General Jeffrey Bossert Clark on the same day that he announced his departure from the Department, the memo bolsters the previously provided rationale for ENRD’s policy prohibiting SEPs in settlement agreements. It also distinguishes SEPs from “equitable mitigation,” which the memo defines more narrowly and co
Wednesday, January 20, 2021
Last week, the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) released its annual enforcement report detailing the results of the past year’s civil and criminal enforcement and compliance efforts. The report covers the 2020 fiscal year, which ran from October 1, 2019, through September 30, 2020, and thus provides some key insight into the effect of the COVID-19 pandemic on environmental enforcement.
The takeaway points from the 2020 report include that EPA:
Assessed nearly $160 million administrative and judicial penalties, a decrease from the $365.9 million in 2019 (though just more than double the 2018 number), and secured injunctive relief worth approximately $2.95 billion, the smallest figure in a decade;
The Biden administration identified environmental justice (“EJ”) as a campaign priority
1 and the Biden-Harris team has continually emphasized its commitment to environmental justice, stating that the administration would “[e]nsure that environmental justice is a key consideration in” among other things “righting wrongs in communities that bear the brunt of pollution.”
2 How the incoming administration translates its policy statements into action that directly impacts the regulated community in the enforcement context remains an open question.
There is a well-established framework for EJ programs going back several decades. EJ has grown to include a range of issues, many of which do not directly implicate enforcement. The Biden administration’s EJ focus will likely be evolutionary rather than revolutionary. The differentiators may prove to be the level of focus and resources devoted to EJ issues and the extent to which EJ practice and programs become further embedded