Written by Jeffrey Karp and Jennifer Schultz

On December 30, 2022, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (collectively Agencies) announced the issuance of a final rule defining “waters of the United States” (WOTUS), a key term in the Clean Water Act (CWA). That phrase, which serves as the definition for “navigable waters” in the statute, effectively establishes the boundaries of the Agencies’ regulatory authority under the CWA.^[1] The rule was published in the Federal Register on January 18, 2023, and will take effect 60 days thereafter.^[2]

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

We discuss the status of two pending federal regulations that would require the disclosure of information concerning greenhouse gas (GHG) emissions and climate-related risks: one proposed by several agencies that would apply to federal contractors, and the other by the Securities and Exchange Commission (SEC) that would apply to public companies.

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

The Supreme Court held oral arguments in the case of Sackett v. Environmental Protection Agency on October 3, 2022. The case, which we discussed prior to the oral arguments,[1] concerns the scope of “waters of the United States” (WOTUS), a key term in the Clean Water Act, and its application to wetlands. The Sacketts seek to build on a wetland on their property near a lake and its tributary, and thus are challenging the Environmental Protection Agency’s determination that the wetland is WOTUS. As discussed below, there appear to be several swing votes, and the Justices’ statements and questions did not provide clarity on the case’s likely outcome.

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

U.S. EPA Announces Proposed Rule to Designate Certain Compounds as CERCLA Hazardous Substances, New Scientific Developments, and Consequences of U.S. EPA’s Drinking Water Health Advisories

Significant new developments regarding per- and polyfluoroalkyl substances (PFAS) contamination have been announced in recent weeks. The headline federal development occurred on August 26, 2022, with the US Environmental Protection Agency’s (EPA) proposal to designate the PFAS compounds perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Also, following the release of new drinking water health advisories by EPA in June 2022, new scientific studies have found that the problem of PFAS contamination is worse than previously believed. But, these studies also have pointed to potential remedial solutions. Although regulation of PFAS has gradually increased at the federal and state levels, the absence of comprehensive federal regulation has continued to engender disputes concerning the cleanup of PFAS contamination.

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

The Biden administration has been announcing a new series of actions to address climate change, relying on executive power due to insufficient support in Congress. On July 27, 2022, however, Senators Charles Schumer (D-NY) and Joe Manchin (D-WV) unexpectedly agreed on a bill, the Inflation Reduction Act (“Act”), which would include many provisions intended to reduce greenhouse gas emissions, alongside other policies such as deficit reduction and prescription drug price negotiation. The Senate passed the bill on August 7, 2022, followed by the House on August 12.

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

The Environmental Protection Agency’s new drinking water health advisories for PFAS, released on June 15, 2022, included an advisory level of 10 parts per trillion (ppt) for hexafluoropropylene oxide dimer acid and its ammonium salt, collectively known as GenX. On July 14, 2022, Chemours, which manufactures GenX, petitioned the United States Court of Appeals for the Third Circuit for review of the GenX health advisory. In its filing, Chemours argued that the health advisory was “arbitrary and capricious” by challenging EPA’s scientific assumptions, but Chemours also made a more radical argument: “The manner in which EPA has used its Safe Drinking Water Act authority to issue health advisories violates constitutional requirements, including the nondelegation doctrine, because EPA has utilized unfettered discretion to publish health advisories,” and had thus affected “the legal rights and obligations of companies, water utilities, and others across the country without sufficient legislative direction or regulatory safeguards.”[1]

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

While the federal government still has not comprehensively addressed per- and polyfluoroalkyl substances (PFAS) contamination, important PFAS-related developments have occurred on three fronts recently. As litigation against PFAS manufacturers continues, its targets and legal theories have broadened. The Commonwealth of Massachusetts filed a new case in May 2022. Also, in March 2022, a federal district court judge ruled in a putative class action lawsuit that a chemical supplier had a duty to third parties under Georgia law. Some state governments have adopted new PFAS regulations, increasingly targeting contamination of biosolids and wastewater. And, although the Environmental Protection Agency (EPA) has not yet issued a binding regulation limiting PFAS in drinking water, its new drinking water health advisories indicate that the agency considers two types of PFAS to be a health risk at much lower concentrations than it previously believed.

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

On June 30, 2022, the United States Supreme Court struck down the Environmental Protection Agency's (EPA's) Clean Power Plan ("CPP"), limiting the agency's authority to address climate change, in the case West Virginia v. EPA. The decision will inhibit the EPA's ability to significantly limit Greenhouse Gas ("GHG") emissions from the power sector, and is likely to impede the United States' goal of decarbonizing the electricity markets by 2035.