Compliance with EPA’s Rule for Reporting and Recordkeeping Requirements for per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act (TSCA) Section 8(a)(7) will demand the attention and resources of companies that have manufactured or imported PFAS, or articles containing PFAS, since 2011. Continue Reading EPA’s PFAS Dragnet: What Companies Need to Know About PFAS Reporting Under TSCA Section 8(a)(7)
Last week’s unexpected opinion of the U.S. Court of Appeals for the D.C. Circuit (“DC Circuit”) holding that the Council for Environmental Quality (“CEQ”) lacks authority to promulgate regulations implementing the National Environmental Policy Act (“NEPA”) leaves federal agencies and private projects facing tremendous uncertainty and likely delays in completing environmental reviews. In Marin Audubon Society v. Federal Aviation Administration, No. 23-1067 (D.C. Cir. Nov. 12, 2024), a divided panel ruled, nearly five decades after CEQ first adopted regulations directing federal agencies’ compliance with NEPA, that the CEQ’s rules are ultra vires because Congress has never given CEQ such rulemaking authority. With many agencies explicitly incorporating the CEQ rules into their own NEPA regulations, the opinion not only calls into question the proper methods for NEPA analysis, but also casts doubt on hundreds of completed and pending environmental reviews that have relied on the CEQ regulations.Continue Reading DC Circuit Rejection of CEQ Authority Leaves NEPA Review in Limbo
Long-term changes to Toxics Release Inventory (“TRI”) reporting requirements under the Emergency Planning and Community Right-to-Know Act (“EPCRA”) will require thousands of facilities to submit reports on per- and poly-fluoroalkyl substances (“PFAS”) for the first time in 2025. More than 196 PFAS chemicals are listed on the TRI list for the 2024 reporting year, and exemptions for PFAS contained at low concentrations in mixtures and articles no longer apply.Continue Reading EPA Designation of PFAS as Chemicals of Special Concern Expands TRI Reporting Requirements for Nearly 200 PFAS
Plastic packaging and food ware are some of the first targets of California’s ambitious and far-reaching program to achieve a “Circular Economy” that reduces waste and pollution. The California Department of Resources, Recycling and Recovery (CalRecycle) is constructing a complex structure of procedures and requirements to reduce the total amount of plastic used in the state by at least 25 percent, to increase recycling of packaging and food service ware to 65%, and to ensure the use of recyclable or compostable materials in single-use packaging and containers for most products by 2032.Continue Reading California Aims to Revolutionize Packaging and Food Ware: Answers to Key Questions about Recycling, Composting and Source Reduction Requirements
2025 will be a landmark year in the regulation of per- and polyfluoroalkyl substances (“PFAS”), which have been nicknamed “forever chemicals” because of their persistence in the environment. For decades, PFAS have been used in all kinds of products (see table below). Addressing problems related to PFAS has been a federal priority since 2021, when the U.S. Environmental Protection Agency (“EPA”) published its “PFAS Roadmap” outlining a program of research, control, and cleanup. Most recently, the EPA adopted new reporting requirements covering all PFAS used in products since 2011, which are expected to affect 130,000 businesses. In 2025, EPA data-gathering programs will go into effect to determine where, when, and how PFAS have been and are currently being used. Thousands of facilities will also be required to submit reports on PFAS for the first time. Continue Reading PFAS Questions Every Company Needs to Ask Now: Have any of our products contained PFAS? Do we use PFAS at any of our facilities?
The Corporate Sustainability Reporting Directive, Directive (EU) 2022/2464 (CSRD) is part of the European Union’s efforts to enhance the scope and quality of sustainability reporting among companies. It imposes sustainability reporting obligations on an increased number of EU and non-EU companies. While some companies will have to file their reports as early 2025, most companies will have until 2026 to report on the financial year of 2025.Continue Reading Sustainability Reporting Obligations for EU and Non-EU Companies: The Corporate Sustainability Reporting Directive
Louise Dyble’s article “Realizing the Potential of Brownfields” was recently featured in the in the Fall 2024 issue of NAIOP Commercial Real Estate Development magazine. The article explores the emergence of brownfields in the mid-20th century and government legislation since enacted to address their contamination. The article also examines two current federal programs that support redevelopment of brownfield sites: Environmental Protection Agency-administered competitive brownfields grants and tax incentives and credits. The article also discusses challenges that lie ahead for these properties.Continue Reading Realizing the Potential of Brownfields
Has the final bell rung for PFAS in food packaging? On February 28, 2024, the Food and Drug Administration (FDA) announced that all grease-proofing agents containing per- and polyfluoroalkyl substances (PFAS)[1] “are no longer being sold for use in food packaging in the U.S.”[2] A complete elimination of chemical substances is an uncommon FDA measure, and academics studying PFAS have heralded this FDA announcement as a victory for the public.[3] However, because it is a voluntary phase-out, food companies should not rely on this statement or assume that the packaging they use going forward is PFAS-free. Although California has instituted a ban on PFAS in food packaging, the FDA has not.Continue Reading PFAS in Food Packaging: The Beginning of the End?
As we enter 2024, we once again review the most significant legislation, policy changes and regulatory actions with respect to climate change taken by California in the past year. In contrast to 2022, which brought a revamp of California’s timeline to complete its transition to zero-emission energy sources and the finalization of a $54 billion climate funding package, the headline grabber in 2023 was the passage of three bills related to corporate emissions and accountability.Continue Reading California Climate Change Legislation, Policy and Regulation – 2023 in Review
2023 was a busy year for Prop 65 with the highest number of Notices of Violation since its inception. The California law requires consumers receive warnings regarding the presence of chemicals that cause cancer or reproductive toxicity. Prop 65 applies to an ever growing list of chemicals and thus impacts a wide variety of businesses in California. Below are a few trends and developments seen over 2023.Continue Reading Proposition 65: 2023 in Review
Under California’s Proposition 65 (“Prop 65”), businesses are required to give “clear and reasonable warnings” to consumers regarding potential chemical exposure if their product contains a chemical “known to the state to cause cancer.” In the recent decision Nat’l Association of Wheat Growers, et al. v. Bonta, et al., the Ninth Circuit Court of Appeal explored businesses’ First Amendment rights and the government’s ability to compel commercial speech. The Ninth Circuit found that the State of California cannot compel businesses to provide a Prop 65 warning for glyphosate, the most commonly used herbicide in the world. Continue Reading The Intersection of Prop 65 and Free Speech: A Recent Win for Businesses