Mr Jim Wedeking

Jim Wedeking

Updates

Environment & Climate Change

CEQ requests comment on how to update National Environmental Policy Act implementing regulations
USA | 20 August 2018

The White House Council on Environmental Quality recently published an advance notice of proposed rulemaking in the Federal Register, seeking comment on how best to update its implementing regulations for the National Environmental Policy Act. The Trump administration has identified the National Environmental Policy Act process as a key contributor to slowing down infrastructure projects and has floated changes to it on several occasions.

ATSDR asserts that perfluoroalkyl compounds may endanger human health at low levels
USA | 20 August 2018

The Agency for Toxic Substances and Disease Registry recently released a draft toxicological profile for perfluoroalkyl compounds which asserted that they may be harmful to human health at low levels. Due to their non-stick properties, perfluoroalkyl compounds have been used as non-stick coatings for cookware, as paper and cardboard surface coatings and in firefighting foam.

EPA approves Oklahoma CCR disposal plan
USA | 13 August 2018

The Environmental Protection Agency recently approved Oklahoma's proposed permitting programme for the disposal of coal combustion residuals (CCR) in landfills and surface impoundments, making the state the first to have a federally approved CCR disposal programme under Subtitle D of the Resource Conservation and Recovery Act.

Federal district court in Georgia enjoins implementation of WOTUS rule in 11 states
USA | 13 August 2018

The US District Court for the Southern District of Georgia recently enjoined the Environmental Protection Agency's rule defining the term 'waters of the United States' under the Clean Water Act, which establishes the act's jurisdictional reach. The court determined that the plaintiffs were likely to succeed on the merits of their case and faced a substantial threat of irreparable injury without the preliminary injunction.

DC Circuit upholds EPA's regional consistency regulations
USA | 30 July 2018

The US Court of Appeals for the District of Columbia Circuit recently upheld the Environmental Protection Agency's (EPA's) 2016 amended Clean Air Act regional consistency regulations. These regulations state in relevant part that the EPA will apply decisions of the US Supreme Court or DC Circuit on Clean Air Act matters uniformly across its 10 regions.

EPA sued over alleged delays in implementing federal pesticide rules
USA | 30 July 2018

Farm worker groups recently sued the Environmental Protection Agency (EPA), claiming that the agency had failed to publish national training materials that provide guidance to agricultural field workers on how to best protect themselves against harmful exposure to pesticides. The suit alleges that the EPA's responsibility to develop and publish these materials was triggered by the federal Agricultural Worker Protection Standard.

EPA declares intention to propose listing fluorochemicals as hazardous substances
USA | 23 July 2018

Environmental Protection Agency (EPA) Administrator Scott Pruitt recently announced his intention to initiate the process to propose to list the fluorochemicals perfluorooctanoic acid and perfluorooctane sulfonate as hazardous substances for the purposes of some federal environmental statutes, including the Comprehensive Environmental Response, Compensation and Liability Act (or Superfund).

EPA proposes to reject Delaware and Maryland 126(b) petitions
USA | 23 July 2018

From July to November 2016, Delaware and Maryland respectively (and together) filed Clean Air Act 126(b) petitions to the Environmental Protection Agency (EPA) alleging that upwind states such as Pennsylvania, West Virginia, Indiana, Kentucky and Ohio were significantly contributing to their non-attainment of eight-hour ozone national ambient air quality standards. The EPA recently published its notice of proposed action denying each of these 126(b) petitions.

EPA issues six-month extension to respond to Clean Air Act petition
USA | 09 July 2018

The state of New York recently filed a petition with the Environmental Protection Agency (EPA) under Section 126 of the Clean Air Act, asserting that nine upwind states were interfering with New York's compliance with national ambient air quality standards for ground-level ozone. Although the Clean Air Act directs the EPA to respond to Section 126 petitions within 60 days, it allows the agency to extend its time to respond for six months.

States sue to vacate mid-term evaluation
USA | 09 July 2018

California is leading a challenge by 17 states and the District of Columbia claiming that the Environmental Protection Agency's (EPA's) revised position on tailpipe exhaust standards for light-duty vehicles for model years 2022 to 2025 was arbitrary and capricious. In its revised mid-term evaluation, the EPA found that new information on fuel prices and technology meant that assumptions underlying its January 2017 evaluation had been unrealistically optimistic.

EPA proposes 'secret science' rulemaking
USA | 02 July 2018

The Environmental Protection Agency (EPA) has proposed a rule which would prohibit the use of scientific studies to support new regulations unless the studies' underlying data is publicly available for independent validation. The EPA asserts that the rule is necessary for more transparent rulemaking and to restore public confidence in how the agency regulates.

Supreme Court rejects pipeline and other environmental petitions
USA | 02 July 2018

The Supreme Court will not review the Second Circuit's decision that the New York State Department of Environmental Conservation was justified in denying a Clean Water Act Section 401 certification for a proposed natural gas pipeline. Constitution Pipeline, LLC argued that states had abused their Clean Water Act certification authority to block federally approved interstate pipelines, raising national security concerns.

Coalition of states and cities sues EPA over methane emissions from oil and natural gas operations
USA | 25 June 2018

A coalition of 14 states and two cities has sued the Environmental Protection Agency and Administrator Scott Pruitt, alleging that the agency had violated a non-discretionary duty under the Clean Air Act to promulgate regulations governing methane emissions from existing sources that produce, process and distribute oil and natural gas.

BLM appeals order blocking Waste Prevention Rule rescission
USA | 25 June 2018

The US Bureau of Land Management has filed an appeal with the US Court of Appeals for the Ninth Circuit to reverse a Northern District of California judge's preliminary injunction staying a final rule to delay compliance dates for the 2016 Waste Prevention Rule. The Waste Prevention Rule imposed methane emission reductions on oil and gas operations on federal and Indian lands.

NGOs sue EPA for ending 'once in, always in' policy for maximum achievable control technology
USA | 18 June 2018

Environmental non-governmental organisations recently filed a petition for review with the District of Columbia Circuit challenging the Environmental Protection Agency's decision to end its 'once in, always in' interpretation of Section 112 of the Clean Air Act. One of the plaintiffs also issued a report alleging that the policy's reversal could lead to a large increase in hazardous air pollutant emissions from major sources.

EPA will revise greenhouse gas emission standards for light-duty vehicles
USA | 18 June 2018

The Environmental Protection Agency (EPA) recently re-evaluated its January 2017 mid-term evaluation final determination of greenhouse gas emission standards for model year 2022-2025 light-duty vehicles, initially set in 2012. This re-evaluation culminated in an agency decision that it would revise those greenhouse gas emission standards. The EPA's reversal could lead to a legal battle with California over its Clean Air Act waiver.

EPA headquarters retain authority to make certain jurisdictional determinations under Clean Water Act
USA | 11 June 2018

The Environmental Protection Agency (EPA) administrator recently issued a memorandum and accompanying revised Delegation of Authority 2-43 retaining the EPA headquarters' authority to make certain jurisdictional determinations under the Clean Water Act Section 404 discharge of dredged or fill material permitting programme. Jurisdictional determinations are important because they delineate whether, and to what extent, a water body is subject to Section 404 permitting.

EPA's OECA assistant administrator requests early notice of enforcement referrals to DOJ
USA | 11 June 2018

The assistant administrator of the Environmental Protection Agency's (EPA's) Office of Enforcement and Compliance Assurance recently issued to staff a memorandum establishing an interim process for providing her with early notice of referral of matters to the Department of Justice (DOJ) for civil judicial enforcement. The memorandum requests that EPA case teams contemplating a DOJ referral brief the relevant regional administrator or the assistant administrator before making the referral.

DC Circuit upholds cross-state air pollution rule as part of EPA's regional haze rule
USA | 21 May 2018

The US District Court for the District of Columbia recently upheld a portion of the Environmental Protection Agency's (EPA's) regional haze rule that allows states to treat compliance with the Cross-State Air Pollution Rule as better-than-best available retrofit technology for states participating in the Cross-State Air Pollution Rule. Challenges to the EPA's interpretation of the rule came from two sides: environmental non-governmental organisations and power companies joined by trade groups.

Congress's omnibus spending bill addresses environmental issues
USA | 21 May 2018

Congress recently passed an omnibus spending bill – later signed by President Trump – which largely preserved the Environmental Protection Agency's (EPA's) 2017 budget. This is in marked contrast to the budget proposed by Trump earlier in 2018, which would have cut EPA funding by $2.5 billion in 2019. The spending bill also extended the applicability of the Pesticide Registration Improvement Act to September 30 2018.

Supreme Court denies certiorari for five environmental cases
USA | 14 May 2018

The Supreme Court recently declined to hear several cases raising environmental law questions. One case sought a review of the Environmental Protection Agency's (EPA's) application of a Clean Water Act policy to prohibit blending storm water and sewage for discharge during heavy storms and the use of mixing zones. The Supreme Court also declined to review a Second Circuit ruling upholding the EPA's 2008 inter-basin water transfer rule.

EPA finalises changes to fugitive emission requirements for oil and natural gas sector
USA | 07 May 2018

The Environmental Protection Agency has announced amendments to provisions of the 2016 New Source Performance Standards for the oil and natural gas production and distribution sectors. The amendments revise the programme by removing a requirement that oil and gas operators conduct repairs during unscheduled or emergency shutdowns. Owners and operators must still complete repairs during the next scheduled shutdown opportunity or within two years, whichever comes first.

EPA dismisses civil rights claim against coal ash landfill
USA | 07 May 2018

The Environmental Protection Agency (EPA) has closed its investigation into a complaint alleging that the Alabama Department of Environmental Management violated the Civil Rights Act by allowing a coal ash landfill to operate near a majority African-American town. The EPA found that there was insufficient evidence to conclude that any violation had occurred, but did suggest measures that the state agency could use to ensure that issues affecting the community are understood.

Environmental groups challenge offshore general discharge permits
USA | 30 April 2018

A coalition of environmental groups recently petitioned the Fifth Circuit for review of the Environmental Protection Agency's (EPA's) renewal of the general permit for wastewater discharges from offshore oil platforms in the western Gulf of Mexico. The group contended that the EPA had failed to consider the potential harm to marine wildlife from chemicals in oil and gas wastewater and that it should have undertaken formal consultation.

EPA seeks comment on Clean Water Act discharges via groundwater
USA | 30 April 2018

The Environmental Protection Agency recently announced that it was seeking comment on whether discharges to groundwater which then migrate to jurisdictional waters should be regulated under the Clean Water Act. The notice came shortly after the Ninth Circuit held that pollutant discharges from wastewater wells that had seeped into groundwater and migrated to the Pacific Ocean required a Clean Water Act permit.

Mandamus denied in climate change litigation
USA | 23 April 2018

The Court of Appeals for the Ninth Circuit has denied without prejudice a Department of Justice request to issue a writ of mandamus and halt the district court proceedings in a case involving a group of child plaintiffs. The plaintiffs have alleged that the US government violated their constitutional rights by refusing to prevent the use of fossil fuels despite the alleged effects of the fuels on global climate change. In the absence of reconsideration or a further appeal, the matter will return to the district court.

EPA proposes to allow aerosol can recycling
USA | 23 April 2018

The Environmental Protection Agency (EPA) recently announced a proposed rule that would add hazardous waste aerosol cans to the category of universal wastes regulated under the Resource Conservation and Recovery Act. The EPA stated that adding aerosol cans to the universal waste rule will simplify the handling and disposal of the waste for generators and ensure that aerosol cans are sent to the appropriate facilities.

Climate change nuisance suit to remain in federal court
USA | 16 April 2018

The US District Court for the Northern District of California recently denied a motion by Oakland and San Francisco to remand their climate change nuisance suit back to state court. The two municipalities had filed a suit against a group of multinational oil and gas producers, claiming that the defendants' products would allegedly contribute to climate change. According to the court "the scope of the worldwide predicament demands the most comprehensive view available".

Court of Appeals sides with industry on definition of solid waste rule
USA | 16 April 2018

The DC Circuit recently modified a previous ruling which had upheld in part and vacated in part the Environmental Protection Agency's 2015 definition of solid waste rule, which outlines when certain hazardous materials should be deemed discarded as opposed to recycled. On reconsideration, the court reversed its holding that spent petroleum catalysts qualify for the transfer-based exclusion from hazardous waste requirements and vacated Factor 4 in its entirety.

Court preliminarily enjoins Bureau of Land Management methane suspension rule
USA | 02 April 2018

​A US district court recently granted environmental groups a preliminary injunction against a Bureau of Land Management (BLM) rule that suspended the compliance dates for its Waste Prevention Rule 2016. Among other things, the court agreed with state attorney generals and environmental groups which argued that the BLM had never provided a detailed, record-based justification as to why it now found the Waste Prevention Rule's requirements legally questionable and too costly for the purported benefits.

Bureau of Land Management proposes significant revisions to gas venting and flaring rule
USA | 02 April 2018

The Bureau of Land Management recently proposed to rescind significant portions of the Waste Prevention Rule 2016, imposing limits on the venting and flaring of gas from oil and gas wells on federal and American Indian lands. A key aspect of the proposed rule is a revised cost-benefit analysis that uses an interim social cost of methane calculation with much lower numbers than that used for the 2016 rule.

Court dismisses challenge to two-for-one executive order
USA | 26 March 2018

The US District Court for the District of Columbia recently dismissed challenges to Executive Order 13,771, which requires federal agencies to rescind two regulations for every new regulation issued. The court held that the environmental group and union plaintiffs lacked standing and that the groups could not show how their members would be harmed by the order.

Waters of the United States challenges proceed in district courts
USA | 26 March 2018

The Supreme Court recently held that challenges to the Waters of the United States Clean Water Act 2015 jurisdictional rule issued by the Environmental Protection Agency and the Army Corps of Engineers could be raised only in the US district courts. A number of legal challenges to the rule are pending in the district courts.

District court partly dismisses claims for future climate change injuries
USA | 09 October 2017

In a recent opinion the US District Court of the District of Massachusetts partly dismissed an environmental group's challenge to a Boston Harbour terminal's stormwater permit, which claimed that the permit fails to protect the group's members from future harm caused by climate change. The court held that alleged injuries which would not occur until 2050 or 2100, as alleged in the complaint, could not be considered imminent and therefore dismissed the claim based on future effects.

Shale and hydraulic fracturing update
USA | 12 June 2017

Recent environmental law developments include the US Court of Appeals for the District of Columbia Circuit's granting of the Environmental Protection Agency's request to indefinitely hold litigation in abeyance concerning the June 2016 new source performance standards for the oil and natural gas sector while the agency re-evaluates the rule. In addition, New York state recently released its Methane Reduction Plan, a collaborative effort by five state agencies.

EPA announces review of final rule governing methane emissions
USA | 15 May 2017

The Environmental Protection Agency (EPA) recently granted industry requests to reconsider certain aspects of its new source performance standards for the oil and natural gas sector, which were issued as a Clean Air Act final rule in June 2016.​ In response to concerns raised in administrative petitions in August 2016, the EPA has stated that it will reconsider the final rule's fugitive emissions monitoring requirements, alternative emissions limitations and coverage of low-production wells.

Challenge to two-for-one executive order may affect environmental regulations
USA | 13 March 2017

President Donald Trump recently issued an executive order requiring executive branch agencies to repeal two rules for every one issued. The order also directs that all new agency regulations promulgated during fiscal year 2017 should not impose a net increase in costs. Two environmental groups and a union have challenged the order, contending that, among other things, it directs agencies to violate numerous health, safety and environmental statutes.

Fracking: latest environmental regulation developments
USA | 23 May 2016

Environmental groups recently filed suit seeking an order compelling the Environmental Protection Agency to issue new rules regulating oil and gas wastes under the Resource Conservation and Recovery Act. Meanwhile, the Pennsylvania House Environmental Resources and Energy Committee has approved a resolution to block new rules for hydraulically fractured and conventionally developed oil and gas wells.

Government, NGOs file opening briefs in hydraulic fracturing appeal
USA | 11 April 2016

Appellants, the United States and several non-governmental organisations recently filed opening briefs in their interlocutory appeal to the 10th Circuit of a preliminary injunction blocking the US Bureau of Land Management (BLM) rule governing hydraulic fracturing on federal and tribal lands. Appellants argued that the lower court based the injunction on an incorrect reading of federal law, asserting that the BLM is authorised to regulate the development of publicly held resources using hydraulic fracturing.

BLM announces plan to cancel oil and gas leases in Thompson Divide
USA | 07 March 2016

The Bureau of Land Management (BLM) recently announced that it intends to cancel 25 oil and gas leases in the White River National Forest. Although the BLM's draft environmental impact statement had recommended cancelling only 18 leases, the BLM stated that its preliminary preferred alternative was now to cancel all of the leases. The US Forest Service's recent oil and gas leasing plan would likewise ban oil and gas drilling in the White River National Forest.

SAB ad hoc review panel raises concerns over hydraulic fracturing study
USA | 08 February 2016

An ad hoc panel of the Environmental Protection Agency's (EPA) Science Advisory Board recently issued a draft report raising concerns over some of the conclusions in the EPA's multi-year study that reviewed the potential impacts of hydraulic fracturing on drinking water supplies. In particular, the panel expressed concern with the EPA's conclusion that there is no evidence of "widespread, systematic impacts on drinking water".

Fracking: SAB panel considers EPA draft report on effects on drinking water
USA | 11 January 2016

Members of the Hydraulic Fracturing Research Advisory Panel of the Environmental Protection Agency's (EPA) Science Advisory Board recently continued their review of the EPA's June 2015 draft report assessing the potential affects of hydraulic fracturing for oil and gas on drinking water resources. The panel is scheduled to send its draft review to the EPA early next year.

EPA proposes to expand regulation of oil and gas industry
USA | 21 September 2015

The Environmental Protection Agency recently proposed three significant regulatory actions extending its controls over the energy sector by expanding regulations over the oil and gas industry. This is key to achieving the Obama administration's goal of reducing methane emissions from the oil and gas sector and its overall efforts to reduce greenhouse gas emissions by regulating the development and use of fossil fuels.

Activists petition for federal takeover of Oklahoma disposal programme
USA | 03 August 2015

Several activists have petitioned the Environmental Protection Agency (EPA) Administrator to rescind its delegation of authority to Oklahoma to manage its wastewater disposal programme. According to the petition, the Oklahoma Corporation Commission is failing adequately to restrict the underground injection of oil and gas wastewater and to fine companies that inject wastewater, leading to continued low-level seismic activity.

New York officially bans hydraulic fracturing
USA | 27 July 2015

New York's Department of Environmental Conservation has officially banned high-volume hydraulic fracturing after concluding that it poses risks to public health and the environment. The ban came after a more than six-year evaluation process during which time high-volume hydraulic fracturing was subject to a temporary moratorium.

Environmental group challenges federal wastewater permits
USA | 08 June 2015

Environmental group Public Employees for Environmental Responsibility has filed a petition with the Environmental Protection Agency (EPA) Environmental Appeals Board, challenging five federal national pollutant discharge elimination system permits allowing three oil and gas companies to dispose of wastewater in surface streams. The permits were issued by the EPA for hydraulically fractured drilling operations in Wyoming.

Plan to reduce methane emissions from oil and gas sector
USA | 16 February 2015

The White House has announced broad plans to reduce methane emissions over the next decade by 40% to 45% from 2012 levels. The plan will involve new regulations by a number of federal agencies – for example, the Environmental Protection Agency will issue new source performance standards under Section 111 of the Clean Air Act for new and modified wells.

Recent fracking litigation developments
USA | 22 December 2014

A Madison County judge denied an injunction in the first lawsuit to challenge Illinois fracking rules, finding that the plaintiffs failed to demonstrate that they were in immediate danger. Two environmental groups filed suit in Franklin County Court, challenging approvals by the Ohio Department of Natural Resources for approximately 20 waste-disposal facilities handling wastewater from hydraulic fracturing operations.

NGOs seek rulemaking to reduce fracking emissions
USA | 24 November 2014

Over 100 environmental groups have signed a petition to the Environmental Protection Agency and the Department of the Interior seeking rulemaking that would address emissions of air pollutants from hydraulic fracturing operations. The petition alleges that hydraulic fracturing emits hazardous air pollutants which are threatening the health of those living near drilling operations.

EPA administrator outlines plan for hydraulic fracturing study
USA | 22 September 2014

The Environmental Protection Agency has provided details on its ongoing study of the potential impacts of hydraulic fracturing on drinking water resources. The study will be consistent with the administration's support for unconventional oil and gas extraction within the context of its climate programme and will focus on best management practices.

Proposed rulemaking on TSCA reporting for hydraulic fracturing chemicals
USA | 28 April 2014

On March 11, Environmental Protection Agency sent a draft advanced notice of proposed rulemaking to the Office of Management and Budget for regulatory review. The notice relates to reporting on the health and safety of chemicals used in hydraulic fracturing fluid under Sections 8(a) and 8(d) of the Toxic Substances Control Act.