Sidley Austin LLP updates

Congress's omnibus spending bill addresses environmental issues
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • May 21 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.

DC Circuit upholds cross-state air pollution rule as part of EPA's regional haze rule
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • May 21 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.

Supreme Court denies certiorari for five environmental cases
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • May 14 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 dismisses civil rights claim against coal ash landfill
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • May 07 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.

EPA finalises changes to fugitive emission requirements for oil and natural gas sector
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • May 07 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.

New FAQs on customer due diligence requirement
Sidley Austin LLP
  • Banking
  • USA
  • May 04 2018

The Financial Crimes Enforcement Network recently issued new frequently asked questions regarding its customer due diligence (CDD) rule. The CDD rule applies to banks, among others, and includes four core elements of CDD, each of which should be included in anti-money laundering programmes.

Environmental groups challenge offshore general discharge permits
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 30 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
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 30 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.

EPA proposes to allow aerosol can recycling
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 23 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.

Mandamus denied in climate change litigation
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 23 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.

Climate change nuisance suit to remain in federal court
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 16 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
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 16 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
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 02 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
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • April 02 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.

Waters of the United States challenges proceed in district courts
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • March 26 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.

Court dismisses challenge to two-for-one executive order
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • March 26 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.

Department of Justice pursues private equity firm for portfolio company False Claims Act violations
Sidley Austin LLP
  • Healthcare & Life Sciences
  • USA
  • March 21 2018

The US Department of Justice (DOJ) recently filed a complaint in intervention against a compounding pharmacy, alleging that it had violated the False Claims Act by paying illegal kickbacks to induce prescriptions for drugs reimbursed by TRICARE, the federal healthcare programme for active duty military personnel, retirees and their families. Notably, the DOJ was also pursuing claims against a private equity firm that had a substantial ownership stake in the pharmacy.

New DOJ policy on guidance documents may affect environment enforcement cases
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • February 26 2018

The Department of Justice (DOJ) recently issued a new policy in order to prohibit the department from using its civil enforcement authority to compel compliance with agency guidance documents. The policy has major implications for civil environmental enforcement actions, such as new source review cases and Clean Water Act matters in which the DOJ relies heavily on Environmental Protection Agency guidance documents to establish violations of law.

EPA reverses 'once in, always in' policy for maximum achievable control technology standards
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • February 26 2018

The Environmental Protection Agency has issued a guidance memo that reverses its interpretation of the 'once in, always in' policy, which locked a source into meeting the maximum achievable control technology standards for major sources of hazardous air pollutants under the Clean Air Act. The revised guidance may provide sources that no longer exceed the major source threshold with the opportunity to reduce burdensome monitoring, record-keeping and reporting requirements.

Federal Reserve revises FR Y-7 and responds to questions on enhanced prudential standards for FBOs
Sidley Austin LLP
  • Banking
  • USA
  • February 16 2018

The Board of Governors of the Federal Reserve System has announced revisions to the Annual Report of Foreign Banking Organisations (FR Y-7) which will enable foreign banking organisations (FBOs) to certify their compliance with US risk committee and home country capital stress testing requirements under Regulation YY. The FR Y-7 is an annual report submitted by qualifying FBOs to provide financial, organisational, shareholder and managerial information to the board.

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