On Tuesday, December 7, 2021, the U.S. Environmental Protection Agency and the Army Corps of Engineers published for public comment a proposed rule revising the definition of “Waters of the United States” (“WOTUS”). The agencies indicate the proposal would “meet the objective of the Clean Water Act and ensure critical protections for the nation’s vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States.”
The proposed rule replaces the “interstate commerce” test ...
Per- and polyfluoroalkyl substances, or "PFAS" as they are commonly known, are a group of thousands of man-made chemicals that have been manufactured in the United States and around the globe for several decades. These days, PFAS are a frequent topic of discussion for many environmental professionals, as affected clients make efforts to prepare themselves for seemingly inevitable regulation. But the prep work that is involved depends on where the client is operating, as the type of and speed at which regulatory changes are occurring varies across the nation.
In her article ...
In a March 15, 2021 address to the Center for American Progress, SEC Acting Chair Lee was clear:
No single issue has been more pressing for me than ensuring that the SEC is fully engaged in confronting the risks and opportunities that climate and ESG pose for investors, our financial system, and our economy.
That’s been apparent from the steady stream of climate and ESG-focused initiatives she has been announcing since January. Her reasoning is that because many investors (and indeed asset managers and other market participants) think these issues are significant, then they are:
On March 4, Acting Chair Allison Herren Lee announced the creation of a “Climate and ESG Task Force” of 22 members from across the Enforcement Division:
Consistent with increasing investor focus and reliance on climate and ESG-related disclosure and investment, the Climate and ESG Task Force will develop initiatives to proactively identify ESG-related misconduct. The task force will also coordinate the effective use of Division resources, including through the use of sophisticated data analysis to mine and assess information across registrants, to identify potential ...
Acting SEC Chair Allison Herren Lee issued a February 24 statement directing the Commission Staff to review public-company climate-change-related disclosures. The staff will assess current disclosures in light of the SEC’s prior 2010 guidance and “update” that guidance.
The prior guidance did not mandate specific climate disclosures but instead focused on how climate-change issues might affect existing disclosure obligations regarding, for example, material legal compliance or litigation issues, material risks, and the effect of known trends, developments, or a ...
The U.S. Climate Finance Working Group released its February 18, 2021 policy statement, “Financing a U.S. Transition to a Sustainable Low-Carbon Economy.” The Working Group comprises eleven of America’s leading financial-services industry associations, broadly representing “Wall Street.”
With climate-change initiatives among the top priorities announced by the new Biden administration, the Working Group
“seeks to engage with incoming leaders and members of Congress on a bipartisan basis to help establish a shared vision for U.S. climate policy. By so doing ...
In late July, the Environment and Natural Resources Division (“ENRD”) of the Department of Justice released a memo setting forth the Division’s policy for handling enforcement of civil Clean Water Act matters when a State has previously instituted a civil penalty proceeding under an analogous state law arising from the same operative facts. The policy reflects a cooperative federalism theme, which follows the current U.S. EPA’s commitment to work cooperatively with states and to acknowledge, respect, and promote the critical role they play in implementing the Federal ...
Three months after issuing its COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program temporary policy memorandum suspending enforcement of certain environmental requirements, the U.S. Environmental Protection Agency has announced it is supplementing the temporary policy to include a specific termination date.
The supplement, described as an Addendum on Termination, indicates EPA’s temporary enforcement policy will terminate on August 31, 2020. As EPA’s Office of Enforcement and Compliance Assurance explains, EPA will not base an ...
In early 2020, the Alabama Environmental Management Commission promulgated rules establishing procedures by which the Department of Environmental Management will regulate land application of eligible non-hazardous by-product materials within the State. The rules became effective April 13, 2020, and are intended to work in conjunction with the U.S. EPA’s Biosolids Program governing the use or disposal of sewage sludge.
The term “land application” is not defined in the ADEM rules, but, in general, it is the spreading, spraying, injection, or incorporation of ...
Apropos of the ongoing celebrations for the 50th anniversary of Earth Day, the U.S. Supreme Court today released its opinion in the Clean Water Act case of County of Maui v. Hawaii Wildlife Fund, et al. Justice Breyer delivered the majority opinion, joined by Justices Roberts, Ginsburg, Sotomayor, Kagan, and Kavanaugh. Justices Thomas and Gorsuch, as well as Justice Alito, filed dissenting opinions.
The Court’s analysis addresses the question of whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a ...