Sidley Austin LLP updates

EPA issues six-month extension to respond to Clean Air Act petition
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • July 09 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
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • July 09 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.

Sixth Circuit's split decision highlights questions about pleading standard for materiality after Escobar
Sidley Austin LLP
  • Healthcare & Life Sciences
  • USA
  • July 04 2018

The Sixth Circuit recently resurrected the relator's case in United States ex rel Prather v Brookdale Senior Living Communities, Inc. In a two-to-one decision, the majority held that the relator's materiality and scienter allegations sufficed under Universal Health Services, Inc v United States ex rel Escobar. The gulf between the majority and the vigorous dissent by the judge reflects persistent questions about how Escobar applies at the pleading stage.

EPA proposes 'secret science' rulemaking
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • July 02 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
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • July 02 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.

BLM appeals order blocking Waste Prevention Rule rescission
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • June 25 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.

Coalition of states and cities sues EPA over methane emissions from oil and natural gas operations
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • June 25 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.

NGOs sue EPA for ending 'once in, always in' policy for maximum achievable control technology
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • June 18 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
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • June 18 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
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • June 11 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
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • June 11 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.

DOJ defends use of statistical sampling to prove False Claims Act liability
Sidley Austin LLP
  • Healthcare & Life Sciences
  • USA
  • May 30 2018

The Department of Justice has stepped in to defend a relator's attempt to use statistical sampling to prove False Claims Act liability, contending that if the government cannot utilise sampling in False Claims Act cases, "then defendants would be incentivized to commit fraud on a large scale". The resolution of this issue will have significant implications on the scope of False Claims Act claims going forward, particularly those based on lack of medical necessity.

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 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.

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.

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.

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