Winston’s Environmental Law Update

On January 29, 2025, Lee Zeldin, former New York Congressman and President Trump’s new Administrator of the Environmental Protection Agency (EPA), was confirmed.  Administrator Zeldin announced the EPA’s Powering the Great American Comeback Initiative, which is aiming to “achieve the agency’s mission while energizing the greatness of the American economy.” 

On January 20, 2025, President Trump issued Executive Order (“EO”) 14156 declaring a national energy emergency under the National Emergencies Act (50 U.S.C. § 1601 et seq.). Citing inadequate domestic energy production as a national security and economic threat, the EO directs federal agencies to invoke emergency powers to expedite regulatory approvals and accelerate energy infrastructure development and production. This reflects a significant shift in federal energy policy, elevating the role of domestic fossil fuel development in achieving U.S. energy independence.

On January 20, 2025, President Trump issued an Executive Order (EO) titled “Unleashing American Energy,” aimed at prioritizing the expansion of energy production on federal lands and waters. This includes American territory on the Outer Continental Shelf, which is intended to lead to an increase in offshore drilling. 

On January 20, 2025, President Trump signed an executive order (the EO), “Putting America First in International Environmental Agreements.

On January 20, 2025, President Trump signed an Executive Order for the purpose of “Unleashing Alaska’s Extraordinary Resource Potential.”

In November 2023, the State of New York filed a lawsuit alleging that PepsiCo endangered public health and polluted the Buffalo River in upstate New York related to single use plastic packaging from its products. New York sought to hold PepsiCo liable for the independent actions of third parties under a novel theory of liability. The City of Baltimore, MD, and the County of Los Angeles, CA, subsequently filed their own plastics pollution lawsuits against PepsiCo under the same theory of liability. In October 2024, the State of New York’s complaint was dismissed, with the court forcefully rejecting this theory of liability. It remains to be seen whether plaintiffs advancing similar arguments in other jurisdictions will fare any better.

On October 29, 2024, a panel of administrative law scholars convened to discuss the impact of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo. 

A recent decision by the Supreme Court of the United States—to deny requests from states and industry groups to stay enforcement of the EPA’s rulemaking on methane and volatile organic compound (VOC) emissions—was deemed a success by the EPA in its efforts to curb emissions from the oil and gas industry.

On September 27, 2024, California Governor Gavin Newsom signed into law amendments to California’s first-in-the-nation greenhouse gas emissions disclosure and climate-related financial risk reporting bills. The amendments did not delay the reporting deadlines applicable to reporting entities, and companies should take action now to ensure they will be ready to report on 2025 emissions and risks starting in 2026.

There are myriad examples of lawsuits ensuing after a regulatory body or other agency issues a statement or report on a particular substance. As things currently stand, however, statements by the U.S. Food and Drug Administration (FDA) may offer a defense to claims involving microplastics.  

On April 17, 2024, the Assistant Administrator for U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) issued a new Strategic Civil-Criminal Enforcement Policy (the Policy). The Policy requires enhanced civil and criminal enforcement coordination, both on a case-by-case basis and through regular institutional measures. EPA is now requiring civil and criminal coordination during the entire lifespan of a case. The Policy became effective immediately.

A district court in Louisiana has barred the EPA and the Department of Justice from imposing disparate-impact-based requirements against the State of Louisiana or its State agencies in civil rights cases under Title VI of the Civil Rights Act of 1964. This decision is likely to serve as a template for other states to oppose the EPA’s use of disparate impact analyses when advancing environmental justice policies and investigations.

On November 15, 2023, the Environmental Protection Agency (EPA) released a draft revision of the Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (Guidance). The draft Guidance updates EPA’s original environmental justice (EJ) technical guidance published in 2016. The Guidance is an internal EPA policy that outlines and refines how EPA should evaluate EJ concerns in regulatory actions. While it is an internal-facing document, the Guidance is the latest example of the Biden Administration’s continued focus on advancing EJ.

On October 7, 2023, California Governor Gavin Newsom signed SB 261, the Climate-Related Financial Risk Act, and SB 253, the Climate Corporate Data Accountability Act, into law. These first-in-the-nation greenhouse gas (GHG) emissions disclosure and climate-related financial risk reporting laws apply to large companies “doing business” in California.

The Environmental Protection Agency (EPA) announced that climate change and PFAS will be a focus of investigation and enforcement in coming years. The oil and gas, chemical, and waste-related industries should take note. EPA’s national enforcement and compliance initiatives (NECIs) for fiscal years 2024-2027,^[1]announced on August 17, 2023, include climate change, PFAS, and coal ash contamination among six priority areas for enforcement. EPA will also continue to prioritize reducing air toxics in overburdened communities, increasing compliance with drinking water standards, and chemical accident risk reduction.

Lead continues to be an area of heightened interest for EPA. On July 12, 2023, EPA released a proposal to strengthen requirements for the removal of lead-based paints in pre-1978 buildings and childcare facilities. EPA has expressed its commitment to addressing risks associated with childhood exposure to lead-based paint. Against this backdrop, other potential sources of lead contamination are receiving attention, including lead-clad cables.

The first amendments to the National Environmental Policy Act (NEPA) in decades might materially narrow NEPA reviews and streamline federal permitting of oil, gas, and renewable energy projects, leasing on federal lands, and reviews for roads, bridges, and other infrastructure projects, including the extent to which federal agencies must consider greenhouse gas emissions said to impact climate change.

The U.S. Environmental Protection Agency (EPA) recently proposed three key actions to further regulate ethylene oxide (EtO) under the Clean Air Act and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). EPA’s latest proposals include (1) stricter national emission standards for hazardous air pollutants (NESHAP) for commercial sterilization facilities, (2) new Clean Air Act rules for plants that make synthetic organic chemicals and plants that make a variety of polymers and resins, and (3) more stringent standards for workplaces handling EtO. We provide an overview of these proposed actions and what they may mean for your business.

As of February 13, 2023, ASTM 1527-21 will meet the AAI requirement, and thus will become the relevant standard for conducting Phase Is. Phase Is conducted using the 2013 Standard will no longer be compliant with the AAI requirement after December 15, 2023. Users of Phase Is should update internal guidance or scopes of work with environmental professionals to confirm (1) reports are completed to the new standard beginning in February 2023 and (2) whether emerging contaminations, including PFAS, should be included in the property evaluation as a “non-scope consideration.”