Category Archives: Regulatory

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The National Marine Fisheries Service is Angling to Regulate Aquaculture; the Fifth Circuit Won’t Bite

On Aug. 3, 2020, a split Fifth Circuit plunged federal aquaculture regulation into murky waters. The United States is a minor aquaculture producer, ranked 17th in 2017 on a global scale – but it is the leading importer of fish and fishery products. According to the National Oceanic and Atmospheric Administration (NOAA), by weight, approximately … Continue Reading

FERC Approves the Overhaul of PURPA Regulations

On July 16, 2020, the Federal Energy Regulatory Commission (FERC or the Commission) approved a Final Rule revising the Commission’s regulations implementing the Public Utility Regulatory Policies Act of 1978 (PURPA) (See a prior GT Alert for more details on PURPA and FERC’s overhaul). The Final Rule will take effect 120 days after its publication … Continue Reading

China’s New Regulation on New Chemicals Aims to Make Life Easier

On April 29, 2020, the Ministry of Ecology and Environment of China (MEE) promulgated the Measures on Environmental Management Registration of New Chemical Substances (MEE Order 12) (link in Chinese), which will come into effect Jan. 1, 2021, and replace the Measures for the Environmental Management of New Chemical Substances (promulgated by the Ministry of … Continue Reading

FERC Denies Anbaric Complaint, Announces Technical Conference to Examine Grid Access for Offshore Wind Projects

On Nov. 18, 2019, power line developer Anbaric Development Partners, LLC (Anbaric) filed a complaint before the Federal Energy Regulatory Commission (FERC) under sections 206 and 306 of the Federal Power Act against regional grid operator PJM Interconnection, L.L.C. (PJM), claiming that PJM’s transmission interconnection procedures in Sections 36.1.03 and 232 of the PJM Open … Continue Reading

UK Environment Agency Continues to Issue Coronavirus Disease 2019 Enforcement Suspensions

In addition to the recent temporary enforcement suspensions (see April 16 Alert and April 21 Alert) in response to the ongoing disruption caused by the Coronavirus Disease 2019 (COVID-19) pandemic, the UK’s Environment Agency (EA) has published further temporary regulatory position statements (RPS). Like the EA’s general pre-COVID-19 RPS, the new COVID-19-specific RPS are declarations by the EA (the primary … Continue Reading

Implementation of the Dutch Environment and Planning Act (Omgevingswet) Postponed Due to Pandemic

On 1 April 2020 the Dutch minister for Environment and Housing (Minister voor Milieu en Wonen) announced that implementation of the Environment and Planning Act is postponed. Implementation of the new legislation was planned for 1 January 2021, but according to the minister, postponement is inevitable due to the ongoing outbreak of Coronavirus Disease 2019 … Continue Reading

FERC Puts PJM’s Minimum Run-Time Proposal on Hold

On April 10, 2020, the Federal Energy Regulatory Commission (FERC) issued an order (April Order) on PJM Interconnection, LLC’s (PJM) proposal for minimum run-time requirements for capacity storage resources. The April Order relates to Order No. 841 from December 2018, which opened energy markets to energy storage, and a FERC order from October 2019, where … Continue Reading

EPA Inspector General Finds Declining Enforcement and Compliance Resources and Outcomes

An EPA Inspector General (IG) report issued on March 31 found that agency enforcement and compliance activity and resources have generally declined – substantially on certain measures – between Fiscal Year (FY) 2006 and FY 2018. (The EPA FY runs from Oct. 1 through Sept. 30.) The report, “EPA’s Compliance Monitoring Activities, Enforcement Actions, and … Continue Reading

Environmental Enforcement Discretion During the COVID-19 Pandemic

The Coronavirus Disease 2019 (COVID-19) outbreak has affected every sector of our national and global economy, with profound impacts on business operations that stretch resources thin and create challenges to comply with state and federal environmental regulations. For example, stay-at-home orders or illness may keep employees or contractors away from work, making it difficult to … Continue Reading

Before Making Pandemic Response Products, Consider Environmental Regulations

Yesterday, March 26, 2020, the U.S. Environmental Protection Agency (EPA) published a memorandum titled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program. This guidance comes at a time when the Coronavirus Disease 2019 (COVID-19) has upended ‘business as usual’ throughout the country and the world. Consumers empty shelves of hand sanitizer, health care workers … Continue Reading

U.S. Environmental Protection Agency Issues Enforcement Discretion Policy to Address Civil Noncompliance during the COVID-19 Pandemic

The U.S. Environmental Protection Agency (EPA) issued a memorandum (Susan Parker Bodine, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program,” U.S. EPA, March 26, 2020) (Discretion Memo) granting enforcement discretion for virtually all civil violations of federal environmental laws during the COVID-19 pandemic. Timing The policy will apply retroactively from March 13, 2020, the … Continue Reading

PFAS Update: EPA Begins Process of Developing Drinking Water Limits for PFOS and PFOA

On Feb. 20, 2020, roughly one year after announcing its comprehensive per- and polyfluoroalkyl substances (PFAS) action plan, the Environmental Protection Agency (EPA) issued a preliminary regulatory determination under the Safe Drinking Water Act (SDWA) for the two most-studied of the chemicals, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). This is the initial step in the process of … Continue Reading

Fourth Circuit Rejects Statute of Limitations Challenge to FERC Electricity Market Manipulation Suit

On Feb. 11, 2020, the United States Court of Appeals for the Fourth Circuit decided that the Federal Energy Regulatory Commission (FERC) did not overstep the statute of limitations in its effort to impose more than $29 million in civil penalties over alleged wholesale electricity market manipulation carried out by Dr. Houlian Chen and other associated financial … Continue Reading

Are You Ready? Revisions to Management of Fill Policy Take Effect Jan. 1

As the economy strengthens, development and infrastructure projects continue on an upward trend. Whether the project involves remediating a brownfield site or performing utility work in a public right-of-way, the management of fill material such as soil, rock or stone is often a primary consideration impacting the project’s budget. In the Commonwealth of Pennsylvania, the … Continue Reading

LNG Export: DOE Authorizes a New Business Model Under Its Small-Scale Export Rule

On Nov. 8, 2019, the Office of Fossil Energy (FE) of the Department of Energy (DOE) issued DOE/FE Order Nos. 4461 and 4462 (the Orders) authorizing GT client SpotX Energy, LLC (SpotX) to export domestically produced liquefied natural gas (LNG) under its recently enacted “small-scale natural gas export” rule (the Rule). The Rule amended DOE’s … Continue Reading

Thumbs Up for Energy Storage: FERC Approves PJM and SPP Proposals Implementing Order No. 841

On Oct. 17, 2019, the Federal Energy Regulatory Commission (FERC) gave PJM Interconnection, L.L.C. and Southwest Power Pool the green light to implement their energy storage proposals to comply with FERC’s Order No. 841. FERC found that these proposals reduce barriers to market participation by storage resources by allowing them to be compensated fairly when delivering … Continue Reading

Recent Executive Orders May Affect Regulatory Guidance

In early October, President Donald J. Trump issued two executive orders aimed to further his administration’s stated goal of reducing both executive agencies’ power and burdens on regulated entities. Both executive orders will affect how federal agencies issue informal guidance documents, through which agencies provide interpretation or clarification of regulations they have promulgated. The first, … Continue Reading

FERC Launches Comprehensive PURPA Overhaul

On Sept. 19, 2019, the Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) to modernize the Public Utility Regulatory Policies Act of 1978 (PURPA), to address market changes in the energy landscape over recent decades. Comments are due 60 days from publication in the Federal Register. PURPA was enacted in 1978 … Continue Reading

EPA Seeks Public Comment on Pesticide Applications for Hemp

The legalization of industrial hemp production in the 2018 Farm Bill is a likely boon for farmers grappling with the changing agricultural landscape. Given the strong economic forecasts for hemp production, pesticide registrants are intensifying their interest in gaining approvals for use of their products on hemp. Hemp farmers are also pressing for expanded crop … Continue Reading

What Environmental Lawyers Should Know About the Limits of ‘Auer’ Deference

The U.S. Supreme Court recently had the opportunity to overturn Auer deference, Kisor v. Wilkie, No. 18-15, (U.S. June 26, 2019). A 5-4 majority declined to do so, but not without emphasizing the limits of the doctrine. Auer deference refers to the doctrine that a court should generally defer to an agency’s interpretation of agency regulations … Continue Reading

PFAS Solution Moving Through Congress on Must-Pass Defense Bill

PFAS (perfluoroalkyl and polyfluoroalkyl substances) have been under scrutiny on both sides of the Capitol in recent months, and the Senate made significant headway in late June in reaching consensus on PFAS legislation. Following two hearings in the Senate Environment and Public Works (EPW) Committee this spring, a package was unveiled and quickly considered in … Continue Reading

Today is World Oceans Day – Here Are Five Things Business Owners Need to Know About Sea Level Rise

With today being World Oceans Day, the future of our oceans and the effects of sea level rise are on our mind. Greenberg Traurig’s Kerri L. Barsh, co-chair of the Environmental Practice, recently published an article in South Florida Legal Guide Monthly titled “Five Things That Business Owners Need to Know About Sea Level Rise.” … Continue Reading

Shifting Costs and Incentives: Changes to State, Federal Air Pollution Regulations

Last January, the U.S. Environmental Protection Agency (EPA) issued a memorandum withdrawing the “once in always in” (OIAI) policy that had provided interpretation of the Clean Air Act since 1995. Under the Clean Air Act, the regulations air pollution sources must comply with, depend on whether the source counts as “major” or “nonmajor”; the OIAI … Continue Reading

EPA’s New WOTUS Rule

On Dec. 11, 2018, EPA and the U.S. Army Corps of Engineers (the Agencies) released a proposal to revise the regulatory definition of “waters of the United States” (WOTUS), as found in the federal Clean Water Act (CWA). The proposal represents another chapter in the long-running debate over the scope of federal authority. The CWA … Continue Reading
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