Last month, in 89 FR 9920, the U.S. Fish and Wildlife Service (“USFWS”) published a final rule revising the eagle take permit (“ETP”) process. USFWS believes the new rule will encourage more participation in the ETP program and account for increased eagle populations nationwide.
Although colder weather makes spring construction seem far away, farmers and landowners would be wise to assess permitting and in-field environmental studies ahead of spring planting needs.
An important consideration for any future development is compliance with the U.S. Department of Agriculture (“USDA”) Food Security Act’s Swampbuster Program and wetland permitting requirements under the Clean Water Act’s Section 404 Nationwide Permit Program.
The Food Security and the Clean Water Act both contain provisions associated with wetlands in agriculture use, known as prior converted cropland (“PCC”). However, between the two programs, determining what lands fit into the PCC condition, how that determination is made, and the purpose of that determination can be difficult to understand. Here, we discuss the PCC distinction under each program and outline key considerations for landowners and developers.
The Bureau of Land Management (“BLM”) recently circulated a Proposed Rule on Waste Prevention, Production Subject to Royalties, and Resource Conservation (“2022 Proposal”). This iteration, as BLM acknowledges, is a revamp of its fraught 2016 attempt to issue a similar rule ostensibly aimed at reducing natural gas waste on federal and Indian leases (“2016 Rule”). The 2016 Rule was ultimately struck down two years ago as unlawful. To the Wyoming federal court, the 2016 Rule sought to regulate air emissions—a role reserved for the Environmental Protection Agency (“EPA”) and the states—rather than prevent the waste of resources through flaring and other means. Undeterred, the Biden Administration believes it has learned from and theoretically fixed the flaws in the 2016 Rule through the 2022 Proposal. The 2022 Proposal claims to focus on reducing operator costs and generating taxpayer revenue. This is a shift from the 2016 Rule, which relied on the benefits from reduced carbon emissions to justify its issuance. Nevertheless, the question to many stakeholders remains: does the 2022 Proposal still exceed BLM’s authority, or has the agency done enough to win a future legal challenge?
On September 21, 2022, the Senate passed the Kigali Amendment to the 1987 Montreal Protocol (which had been signed by former President Obama in 2016) by a vote of 69 to 27, reaffirming U.S. commitment to the reduction of hydrofluorocarbons (“HFCs”) through multiple processes (some of which are already causing shifts in import and export markets, as well as in the consumer market).
On August 25, 2022, Husch Blackwell’s Energy team kicked off the first of a series of webinars focusing on the Inflation Reduction Act of 2022. Attendees were able to submit their most-pressing questions related to changes in investment and production tax credits. We have summarized the Q/A on this timely topic.
The American Society for Testing and Materials (“ASTM”) is expected to release a revised international standard for Phase I Environmental Site Assessments (“ESAs”) in December of 2021 that will clarify a number of key components of the standard and elevate the importance of per/poly-fluoroalkyl substances (“PFAS”).
Phase I ESAs are conducted by many parties when they become involved in the sale, acquisition, development, or financing of a piece of land, including developers, owners, and parties who provide loans for or serve as tax equity investors on renewable energy projects. The Phase I ESAs allow those parties to get a glimpse into the environmental condition of the land and identify any potential contamination on-site. Some of those parties – by acquiring an ownership or leasehold interest in the land, or by becoming an operator of the site – take on potential environmental liability if there have been releases on-site, including liability under the strict liability scheme of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). A defense to CERCLA liability is available if the party conducted certain diligence that complies with the United States Environmental Protection Agency’s All Appropriate Inquiries (“AAI”) standard, and if the party exercises appropriate care with respect to issues identified. Environmental consultants prepare those Phase I ESAs and use the current ASTM standard as a guideline to prepare a thorough report and comply with AAI.
Senior Associate Megan McLean has published “Biden Administration Promises to Double Down on Environmental Justice” in Rock Products Magazine.
In the article, Megan outlines President Biden’s stance on environmental justice, the actions the EPA is taking to address environmental justice, and what companies need to do to mitigate foreseeable risks.
Read the article here.
Senior Counsel Coty Hopinks-Baul has published an article in Coal Age titled “CWA’s Permit Shield Spans SMRCA”.
In the article, Coty details a recent decision in the case of Southern Appalachian Mountain Stewards v. Red River Coal Co. Inc., where the Fourth Circuit upheld a district court’s dismissal of a citizen suit to enforce
Recently, the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend the Proposition 65 regulations related to short form warnings. Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to provide “clear and reasonable” warnings before knowingly and intentionally exposing Californians to listed chemicals. These warnings are required to appear on a wide range of products, including foods.
Coty Hopinks-Baul recently published “Implementation of Navigable Waters Protection Rule” in Rock Products Magazine, discussing the new rule and how the agencies charged with implementing it will encounter new policy considerations and may struggle with consistency in decision-making.