Sidley Austin LLP updates

EPA and DOJ bring criminal charges for tampering with vehicles' OBD systems
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • 10 September 2018

The Department of Justice (DOJ) and the Environmental Protection Agency's (EPA's) criminal office recently announced criminal charges against employees of an oil and gas operation for tampering with and disabling pollution controls and on-board diagnostic (OBD) systems on the company's truck fleet. The EPA and DOJ are expected to continue to shift towards mobile source enforcement, particularly regarding OBD systems.

OCC to issue fintech charters
Sidley Austin LLP
  • Banking
  • USA
  • 24 August 2018

The Office of the Comptroller of the Currency (OCC) recently announced – to much anticipation – that it will begin accepting applications from fintech companies for special purpose national bank charters (commonly referred to as 'fintech charters'). However, state banking regulators are likely to once again challenge the OCC's authority to grant fintech charters, which could create some uncertainty for early applicants.

ATSDR asserts that perfluoroalkyl compounds may endanger human health at low levels
Sidley Austin LLP
  • Environment & Climate Change
  • 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.

CEQ requests comment on how to update National Environmental Policy Act implementing regulations
Sidley Austin LLP
  • Environment & Climate Change
  • 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.

Federal district court in Georgia enjoins implementation of WOTUS rule in 11 states
Sidley Austin LLP
  • Environment & Climate Change
  • 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.

EPA approves Oklahoma CCR disposal plan
Sidley Austin LLP
  • Environment & Climate Change
  • 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.

DC Circuit upholds EPA's regional consistency regulations
Sidley Austin LLP
  • Environment & Climate Change
  • 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
Sidley Austin LLP
  • Environment & Climate Change
  • 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 proposes to reject Delaware and Maryland 126(b) petitions
Sidley Austin LLP
  • Environment & Climate Change
  • 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 declares intention to propose listing fluorochemicals as hazardous substances
Sidley Austin LLP
  • Environment & Climate Change
  • 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 issues six-month extension to respond to Clean Air Act petition
Sidley Austin LLP
  • Environment & Climate Change
  • 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
Sidley Austin LLP
  • Environment & Climate Change
  • 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.

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

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

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

NGOs sue EPA for ending 'once in, always in' policy for maximum achievable control technology
Sidley Austin LLP
  • Environment & Climate Change
  • 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
Sidley Austin LLP
  • Environment & Climate Change
  • 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's OECA assistant administrator requests early notice of enforcement referrals to DOJ
Sidley Austin LLP
  • Environment & Climate Change
  • 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.

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