Greenberg Traurig

On Sept. 25, Minnesota Gov. Tim Walz asked the Minnesota Pollution Control Agency (MPCA) to initiate the process to establish a Clean Cars Minnesota Rule, which would set both a low-emission vehicle (LEV) standard and a zero-emission vehicle (ZEV) standard. Next month, the MPCA will begin its rulemaking process, with a goal of adopting a final rule by December 2020. If implemented, Minnesota would join 14 states with an LEV standard, 11 of which also have a ZEV standard.

The Minnesota plan is modeled after California LEV and ZEV standards. California has a nearly 50-year-old waiver under the Clean Air Act permitting the state to set stricter emission standards. After indications that the federal government would publish a rule revoking the waiver, California, joined by 22 other states, including Minnesota, and the District of Columbia filed a lawsuit seeking to enforce states’ rights to set emission standards more stringent than those imposed by the federal government. The lawsuit presents novel questions under the Clean Air Act including whether a waiver can be revoked, and if so, under what circumstances. Any final rule in Minnesota will be contingent on states retaining the right to adopt more restrictive measures, including through the operative waiver under Sections 209(b) and 177 of the Clean Air Act.   
Continue Reading In Minnesota, More Little Red Corvettes May Soon be Electric

The U.S. Environmental Protection Agency (EPA) continues to increase its enforcement role in industrial accidents, at times overshadowing the role traditionally played by the Occupational Safety and Health Administration (OSHA).
Continue Reading United States Indicts Facility Owner Under Clean Air Act General Duty Clause

On Sept. 12, 2019, the U.S. Environmental Protection Agency and the Department of the Army followed through on an early Trump administration promise to repeal a 2015 jurisdictional rule defining the scope of the government’s authority under the Clean Water Act. See Definition of “Waters of the United States”—Recodification of Pre-Existing Rules (pre-publication version).

Dubbed the “Waters of the United States” (WOTUS) rule, the Obama-era regulation spawned a tide of litigation, in federal trial and appellate courts, challenging the WOTUS rule as an unlawful attempt by the EPA and the Corps of Engineers to increase the numbers and kinds of waters subject to permitting requirements. The U.S. Supreme Court ultimately weighed in, saying that challenges to the WOTUS rule belong in the federal districts courts, not the U.S. courts of appeals. National Association of Manufacturers v. Department of Defense, __ U.S. __, 138 S.Ct. 617 (2018).
Continue Reading Government Repeals Obama-Era Waters of the U.S. Rule: Major Supreme Court Decision to Come, but ‘Regulatory Patchwork’ Remains

A recent state appellate court decision sharply limited the bases on which Clean Water Act permittees may challenge permitting requirements imposed to comply with a federal Chesapeake Bay “Total Maximum Daily Load” (“TMDL”), often described as a watershed-wide “pollution diet.” The decision directly impacts municipalities with separate stormwater sewer (“MS4”) permits, as well as certain agricultural and other industrial concerns with stormwater requirements.

The Maryland Court of Appeals opinion affirmed water pollution (“NPDES”) permits issued to authorize discharges from two municipal separate storm sewer systems (“MS4s”) to the Chesapeake Bay watershed. Md. Dep’t of the Envt. v. County Comm’rs of Carroll County, Nos. 5 & 7, Sept. Term 2018 (Md. Aug. 6, 2019). The court held that state permits issued by the Maryland Department of the Environment (MDE) are required to conform to the Chesapeake Bay Total Maximum Daily Load (TMDL) issued by the federal Environmental Protection Agency and the Maryland Watershed Implementation Plan (WIP) promulgated by MDE and approved by EPA. The permittee may not challenge permit conditions necessary to meet the requirements of the TMDL or the WIP through judicial review of the permit, but instead must have already sought review in federal court of the TMDL. Moreover, EPA’s interpretation of the TMDL is entitled to Chevron deference.
Continue Reading Maryland Court of Appeals Limits Bases for Challenging CWA Permits under the Chesapeake Bay TMDL

With the recent passage of New York’s Climate Leadership and Community Protection Act, which calls for a carbon free electricity market by 2040, New York became the sixth state…
Continue Reading An uncertain path to a cleaner future: Zero carbon electricity legislation in New York and California

New York City recently enacted the most ambitious large-scale greenhouse gas emissions reduction plan in the country, requiring a 40 percent drop in GHG emissions by 2030 and an 80…
Continue Reading A Building-Emissions Overhaul: How NYC’s LL97 Impacts Owners and Prospective Buyers Moving Forward

If you are currently disposing of pharmaceuticals, including dietary supplements, into the dumpster or down the drain, you may want to reconsider that practice. New regulations promulgated by the…
Continue Reading EPA Expands RCRA Hazardous Waste Restrictions to a Broader Range of ‘Pharmaceuticals’ Including Dietary Supplements

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…
Continue Reading PFAS Solution Moving Through Congress on Must-Pass Defense Bill