In the closing weeks of 2022, the California Air Resources Board (“CARB” or “Board”) approved its final 2022 Scoping Plan, which sets forth a detailed roadmap to accelerate the reduction of greenhouse gas (“GHG”) emissions in order for the state to achieve carbon neutrality by 2045, with an interim goal of achieving a reduction in GHG emissions of 40% below the 1990 level by 2030 (the goal adopted by the State in 2017’s SB 32).
Nicholas W. (“Nico”) van Aelstyn is a partner in the Real Estate, Energy, Land Use & Environmental Practice Group in the firm’s San Francisco office.
After unexpected controversy earlier in the year, on December 15, 2022 the U.S. Environmental Protection Agency (EPA) issued a Final Rule unambiguously recognizing the ASTM International Standard E1527-21 for Phase I Environmental Site Assessments (ESAs), with an effective date of February 13, 2023. EPA’s express endorsement of the standard as meeting the requirements of the All Appropriate Inquiry (AAI) Rule is essential to ensuring that the Phase I ESA fulfills its fundamental purpose: protection for prospective purchasers (and lessees) of property from liability for pre-existing contamination by petroleum products or hazardous substances regulated under the Comprehensive Environmental Response and Cleanup Liability Act (CERCLA).…
The U.S. Environmental Protection Agency (EPA) took an important step toward regulating PFAS (per- and poly-fluoroalkyl substances) on September 6, 2022 when it published a Notice of Federal Rulemaking to begin the process of listing two PFAS as hazardous substances under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as the “Superfund” law). Specifically, perfluorooctanesulfonate (PFOS) and perfluorooctanoic acid (PFOA), both of which have been identified as health hazards since 2016, are being reviewed. Comments on the proposal are due by October 6, 2022. …
On April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued Interim Guidance regarding EPA decision-making with respect to the potential impacts of the current novel coronavirus (COVID-19) pandemic on field work at certain cleanup sites. The Interim Guidance, which “supplements” a March 19 EPA guidance, applies to all contaminated sites where EPA is the lead agency or has direct oversight or responsibility, affecting various regulatory programs that were excluded from EPA’s March 26 COVID-19 Enforcement Discretion Memo, including hazardous waste cleanups under CERCLA and RCRA, among others. This is an interim guidance, and EPA has made it clear that it will “update this guidance as the current situation evolves.”…
Continue Reading US EPA’s COVID-19 Interim Guidance on Site Field Work Decisions
On Thursday, March 26, the United States Environmental Protection Agency (“EPA”) announced and issued a Memo establishing an agency-wide temporary enforcement policy suspending or staying a broad array of enforcement efforts for certain environmental regulations and requirements in response to the COVID-19 pandemic. The Memo states that EPA recognizes that “the pandemic may affect facility operations and the availability of key staff and contractors and the ability of laboratories to timely analyze samples and provide results.” In light of this, the Memo states that EPA will “focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment.” The Memo establishes certain limits on the policy as well as procedures that must be followed – which are different in different circumstances – in order for an impacted regulated entity to qualify for relief under the Policy.
Continue Reading U.S. EPA’s Temporary COVID-19 Enforcement Discretion Policy
Today President Trump announced on Twitter that the U.S. was revoking California’s waiver under the Clean Air Act (CAA) which allowed it to impose stricter tailpipe emission standards than the federal ones. California’s Governor Newsom and Attorney General Becerra immediately announced that the state would file suit to challenge the revocation.
While the revocation has been characterized as an immediate rollback, the federal corporate average fuel economy (CAFE) standards established under the previous administration, which are consistent with California’s, remain in place. Last year the Trump administration proposed to rollback those standards, freezing the efficiency and emission rules in 2021 and canceling further increases in stringency set through 2028. The final rule has not yet been issued. It is rumored that it will not be, as the administrative record supporting it has many problems and most acknowledge that it faces significant legal hurdles.
Continue Reading Politics Trumps Economics? Trump’s Revocation of California’s Waiver Under the Clean Air Act
The Ninth Circuit Court of Appeals recently upheld – for the second time – California’s Low Carbon Fuel Standard (“LCFS”) against constitutional challenges brought by industry groups. The case, Rocky Mountain Farmers Union v. Corey (9th Cir. 2019) (No. 17-16881) (“Rocky Mountain II”), considered the groups’ claims that all 3 historical versions of the LCFS violate the Commerce Clause and the “federal structure of the Constitution” by regulating extraterritorially. The court held that while the plaintiff’s claims had changed form since the first time the court upheld the LCFS, “both the regulations and the claims have the same core structure now as they did then.” The court used this similarity to guide its analysis and uphold the district court’s dismissal.
Continue Reading On Repeat: Courts Again Uphold Low Carbon Fuel Standard Programs
On April 6, the California Court of Appeal for the Third District issued its long-awaited decision in the consolidated lawsuits challenging the greenhouse gas (“GHG”) emission allowance auctions, which are a key component of the California Air Resources Board’s (“CARB”) Cap-and-Trade Program. The court held that CARB has the authority to establish the auctions and that they do not constitute an illegal tax. The second holding is key and breaks new legal ground; it also was made over a strong dissent. As the court put it, “the hallmarks of a tax are: 1) that it is compulsory; and 2) that the payor receives nothing of particular value for payment of the tax.” (Op. at 5.) The auction system is not a tax because 1) “the purchase of allowances is a voluntary decision driven by business judgments as to whether it is more beneficial to the company to make the purchase than to reduce emissions,” and 2) “the allowances are valuable, tradable commodities, conferring on the holder the privilege to pollute.” (Id.) This is a major victory for the Program and the State’s efforts to address climate change by reducing GHG emissions. However, there is a question whether the decision will stand. There was a strong dissent, and the decision is sure to be appealed to the California Supreme Court. Meanwhile, the Legislature is currently at work on crafting legislation aimed at determining how the existing ambitious emission reduction mandates will be met. The court’s decision will factor into those critical legislative deliberations, which will resume later this month after the spring recess.
Continue Reading GHG Allowance Auctions are Not a Tax; Key Element of State’s Cap-and-Trade Program Upheld