Winston’s Environmental Law Update

Government regulators around the world are increasing scrutiny of climate-related and other environmental, social, and governance (ESG) claims. Many companies are issuing “sustainability” reports, and voluntarily making ESG claims about social issues such as environmental justice in response to investor demands. But regulators are raising questions about their accuracy and support. We look at recent actions by United States and international regulators.  

The federal government may soon have many more DOJ lawyers doing civil and criminal environmental enforcement.

On May 13, 2020, a coalition of nine attorneys general, led by New York Attorney General Letitia James, filed a lawsuit challenging the U.S. Environmental Protection Agency’s policy for exercising civil enforcement discretion during the COVID-19 pandemic.

On February 14, 2019, EPA announced a new action plan to address a group of emerging contaminants known as per- and polyfluoroalkyl substances (PFAS), also known as perfluorinated chemicals (PFCs). The action plan calls for regulatory action, research programs, risk communication tools, and enforcement measures.

Fixer Upper, the popular show that follows husband and wife duo Chip and Joanna Gaines as they renovate homes in Waco, Texas, recently attracted the attention of the United States Environmental Protection Agency (EPA). While watching Fixer Upper, EPA officials determined that the Gaines’ company, Magnolia Waco Properties, LLC (Magnolia), was violating the Toxic Substances Control Act’s (TSCA) Lead Renovation, Repair and Painting Rule (RRP Rule). The violations of the RRP Rule were related to home renovations conducted without adequate protections from lead paint.

EPA’s audit policy has been in place since the mid-1990s and provides a process for regulated industry to disclose certain violations of environmental law discovered during an audit in exchange for various incentives, including penalty mitigation. On May 15, 2018, EPA announced a renewed emphasis on its audit policy as part of its 2018-2022 strategic plan.

In a memorandum dated December 22, 2017, U.S. Department of the Interior (DOI) Principal Deputy Solicitor Daniel Jorjani set forth the Trump administration’s position that the Migratory Bird Treaty Act (MBTA) does not prohibit so-called “incidental” takes and kills, a significant departure from the Department’s previous position.

On June 7, 2017, United States Attorney General Sessions issued a memorandum to the Department of Justice (DOJ) and U.S. Attorneys prohibiting them from entering into on behalf of the United States any settlement of federal claims or charges that directs or provides payment to a non-governmental third party that was not directly harmed by the conduct that is the subject of the settlement.

On December 19, 2016, U.S. EPA announced its enforcement and compliance results for fiscal year 2016 (FY 2016). Although enforcement totals in the areas of administrative and judicial penalties, hazardous waste treatment, and injunctive relief are up from FY 2015 totals, these increases are largely attributable to a limited number of significant enforcement actions. 

On October 27, 2016, EPA released its Environmental Justice 2020 Action Agenda (EJ 2020). EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EJ 2020 is EPA’s strategic plan for advancing environmental justice for the years 2016-2020.

On September 21, 2015, federal officials announced that the government and Bayer CropScience have reached a $5.7 million settlement of alleged Clean Air Act risk management program and general duty clause violations related to a 2008 explosion at the company’s Institute, West Virginia, pesticide plant in which two people were killed.