New WOTUS rule restores protections for many waters, but uncertainty persists due to continuing litigation

Read the full story in Environment + Energy Leader. See also coverage at Agri-Pulse.

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. The rule was published in the Federal Register on January 18, 2023, and will take effect 60 days thereafter.

As previously discussed, during the Trump administration, the Agencies promulgated a rule that defined WOTUS more narrowly than previous iterations of the rule, substantially reducing the waters subject to CWA protections and EPA authority under that statute. The new rule establishes a broader definition of WOTUS, although seeking to reflect certain Supreme Court decisions, the new rule is not as broad as the earlier (pre-2015) WOTUS rules. However, with the Supreme Court’s decision still pending in Sackett v. Environmental Protection Agency, a case in which the Court will decide the types of wetlands that are within the statute’s scope, and the litigation already filed in the Southern District of Texas challenging the new rule, uncertainty remains regarding the new rule’s applicability.

How the product passport is set to change the supply chain industry

Read the full story at Supply & Demand Chain Executive.

Sustainability seems to be the current “name of the game” in the manufacturing industry, but several sustainability initiatives have faltered due to a lack of resources required to back them up. A new initiative led by the European Union proposes the idea of “digital product passports” (DPPs) that will revolutionize how consumers and businesses understand their supply chains and significantly aid in implementing sustainability initiatives.

PFAS in consumer products: Developing a proactive and strategic game plan

Read the full post from Jenner & Block.

Per- and polyfluoroalkyl substances (PFAS) in consumer products continue to be in the regulatory and litigation spotlight in 2023. Manufacturers and downstream businesses should be actively preparing to comply with the continually evolving patchwork of federal and state PFAS laws, as well as taking steps to minimize litigation risks. Below, our team of attorneys offers strategic advice for manufacturers and downstream businesses with respect to how regulatory and litigation PFAS developments may apply to them and best practices for minimizing regulatory and litigation risk with respect to same.

ESG Boycott Legislation in States: Municipal Bond Market Impact

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In more than a dozen states across the country, state legislatures have either passed or have pending bills based on a piece of model legislation developed by the American Legislative Exchange Council known as the “Energy Discrimination Elimination Act.” These bills would essentially pull state funds from investment managers if they are deemed by government officials to be adverse to the oil and gas and coal industries in their investment strategies. Some of the same states – in addition to many others – are considering bills that would similarly punish or blacklist financial firms for including having strong Environmental, Social, and Governance (ESG) standards in their investment strategies.

The legislation has been accompanied by actions at other levels of government, including state executive actions by treasurers and governors, legal action by state attorneys general, and even the threat of federal action in the next Congress. At the tip of the spear of the state efforts to pressure financial institutions away from assessing and acting upon the financial risks of such issues as climate change, gun violence, and workers’ rights is the threat of pulling state funds from their asset managers.

Among many key unknowns associated with these legislative and executive actions are impacts to the residents and taxpayers of the states where they become law. Setting aside the implications of politics interfering in financial decisions, there is the question of how removing major, proven financial companies from the marketplace will affect competition. Restrictions on financial market participants, (and in this analysis we look at large investment banks), alter the outcomes of municipal bond market transactions and modify contractual engagements with state governments. It is therefore of tremendous importance that policymakers, business leaders, and the public have the tools to estimate and anticipate these impacts.

EPA seeks input on decarbonizing construction materials and products

On January 19, the U.S. Environmental Protection Agency (EPA) announced the first opportunities for public input on new programs focused on lower carbon construction materials made possible by a $350 million investment from President Biden’s Inflation Reduction Act. The Agency will hold three public webinars and will accept written feedback on establishing new grant and technical assistance programs, and a carbon labeling program for construction materials with substantially lower levels of embodied greenhouse gas emissions.

EPA’s new programs will provide grants, technical assistance, and tools to help states and Tribal Nations, manufacturers, institutional buyers, real estate developers, builders, and others measure, report, and substantially lower the levels of embodied carbon and other greenhouse gas emissions associated with the production, use, and disposal of construction materials and products. These new programs, funded by the Inflation Reduction Act, will build upon EPA’s work in the ENERGY STAR Industrial Program and the Environmentally Preferable Purchasing Program, among others, to protect human health and the planet.

EPA will hold three public engagement webinars to solicit feedback from experts and stakeholders, including institutional buyers, developers, builders, manufacturers, and representatives from states, Tribal Nations, non-profit organizations, trade associations, and others.

  • March 2, 2023, 2:00 – 3:30 p.m. EST: Reducing Embodied Greenhouse Gas Emissions: Construction Materials Prioritization and Environmental Data Improvement – This webinar will ask for feedback on how to prioritize construction materials and products and how to improve data on embodied greenhouse gas emissions through measurement, standardization, transparency and reporting criteria. Register here.
  • March 22, 2023, 2:00 – 3:30 p.m. EST: Reducing Embodied Greenhouse Gas Emissions: Grants and Technical Assistance for Environmental Product Declarations – This webinar will ask for feedback on new grant and technical assistance programs to help businesses calculate and report the greenhouse gas emissions data for construction materials and products through Environmental Product Declarations (EPDs). Register here.
  • April 19, 2023, 2:00 – 3:30 p.m. EST: Reducing Embodied Greenhouse Gas Emissions: Carbon Labeling – This webinar will ask for feedback on how EPA could develop a carbon labeling program for construction materials and products with substantially lower embodied greenhouse gas emissions. Register here.

In addition, EPA will issue a Request for Information to solicit written comments on the design of these new programs. Upon publication of the Federal Register notice, comments on any of the questions outlined should be submitted to docket EPA-HQ-OPPT-2022-0924 on Regulations.gov by May 1, 2023. The Agency also published an interim determination under Inflation Reduction Act Sections 60503 and 60506 that was provided in December 2022 to the Department of Transportation and the General Services Administration on their Inflation Reduction Act funded procurement of construction materials and products with substantially lower embodied greenhouse gas emissions.

EPA will use the public input received during the webinars and in writing to guide the development and implementation of its programs.

These actions support President Biden’s Buy Clean Initiative, which leverages the Federal Government’s power as the largest purchaser in the world to advance low-carbon construction materials across its procurement and funded infrastructure projects.

Learn more about these new programs funded by the Inflation Reduction Act.

Background

In August 2022, Congress passed, and President Biden signed, the Inflation Reduction Act into law, creating the largest investment to combat the climate crisis in U.S. history. The Inflation Reduction Act will bolster U.S. energy security, help families save money on energy costs and prescription drugs, reduce the deficit, and create good-paying jobs. EPA received $41.5 billion in appropriations to develop and support 24 new and existing programs that monitor and reduce greenhouse gas emissions and air pollution, protect health and advance environmental justice.

New federal food donation law seen as welcome and overdue

Read the full story at Waste360.

Food manufacturers, retailers, restaurants, farmers, and schools now have reason to let go of a fear many of them have long harbored: a fear of litigation if they donate their surplus food. The Food Donation Improvement Act (FDIA), signed into law December 2022, amends the Bill Emerson Good Samaritan Food Donation Act, which was intended to encourage food donation, but had some glitches. A big one was ambiguous language explaining the rules around donation.

The FDIA clarifies and expands liability protections outlined in Emerson; perhaps the most monumental reform is that it lays a more direct path for qualified entities to give away good food they would otherwise throw out. Now they can donate directly to people in need in their communities when prior they had to arrange to get it to nonprofits that distribute it.

FDIA had full bipartisan support, passing unanimously and as a standalone bill, a little over a year after its introduction.

FDA issues guidance to reduce lead exposure in baby food

Read the full story at The Hill.

The Food and Drug Administration (FDA) has released new guidelines for the amount of lead that can be in processed food for babies and small children under the age of 2, a move the agency says would result in significant reductions in the exposure to the toxic metal.

The new guidance includes a limit of 10 parts per billion of lead in fruits, some vegetables and yogurts and 20 parts per billion in root vegetables and dry cereals. FDA Commissioner Robert Califf said the new standards could result in a 24 percent to 27 percent reduction in exposure to lead from the foods.

Single-use plastic cutlery and plates to be banned in England

Read the full story from The Guardian.

Single-use items such as plastic cutlery, plates and trays are to be banned in England in a bid to reduce pollution, the government has confirmed.

EU Council and Parliament strike provisional deal to regulate batteries throughout their life cycle

Read the full story at Waste Management World.

Back in December 2020 the European Commission presented a proposal for the regulation on batteries. It was in March of this year that the Council adopted a general approach and the European Parliament adopted its negotiating position. Now those two have reached a provisional agreement that aims to create a circular economy for the batteries sector by targeting all stages of the life cycle of batteries, from design to waste treatment.

The new regulation will apply to all batteries including all waste portable batteries, electric vehicle batteries, industrial batteries, starting, lightning and ignition (SLI) batteries (used mostly for vehicles and machinery) and batteries for light means of transport (e.g. electric bikes, e-mopeds, e-scooters). The regulation will replace the current batteries directive of 2006 and complete the existing legislation, particularly in terms of waste management.

Environmental advocates express frustration over Biden regulation delays

Read the full story at The Hill.

Environmental advocates, generally strong supporters of the Biden administration, are expressing frustration at what they describe as too-lengthy delays for important regulations.  

Their frustration follows the administration’s recent release of its semiannual regulatory agenda, which pushed back timelines for a range of rules governing planet-warming emissions and other pollution coming from power plants, drinking water limits for toxic chemicals and stipulations for fossil fuel leasing on public lands.