Latest Regulatory News 2022

EPA Administrator Michael Regan has scrapped a Trump-era permitting policy whose development ensnared a top appointee in allegations of ethical overstepping. In a memorandum dated Friday but posted online this week, Regan revoked a December 2017 memo from then-EPA chief Scott Pruitt that effectively dropped enforcement of a key facet of the New Source Review program intended in part to limit air pollution from industrial plant expansions (Greenwire, Dec. 8, 2017). Regan offered no rationale for retracting the earlier policy almost two years into his tenure at EPA; it’s unclear how much effect the nonbinding Pruitt memo had on New Source Review permitting decisions, most of which are made by state and local regulators. But the circumstances that underlie the 2017 memo’s creation later became a point of attack for critics of Bill Wehrum, who headed EPA’s air office under Pruitt from late 2017 to mid-2019.

Sen. Joe Manchin’s attempt to overhaul environmental rules for energy projects failed in the Senate on Thursday, ending a monthslong effort from the West Virginia Democrat. After the 47-47 vote, Manchin blasted Senate Republicans — most of whom voted against the measure. The vote underscored disagreements between Democrats and Republicans about how the federal government should handle the major electric transmission projects that will be needed to add scores of new wind and solar projects to the grid. It could be a defining political issue for the energy transition over the next several years. The failed vote, however, sets up a potential permitting fight in a divided Congress next year that could shape the future of the nation’s power mix.

The Federal Energy Regulatory Commission voted Thursday to allow a controversial Midwest pipeline to continue operating after a court revoked its original permit, in a win for natural gas at the last meeting overseen by Chair Richard Glick. Glick will step down from his post in the coming weeks, leaving the independent commission with four members, the Democrat said in closing the meeting. President Joe Biden nominated Glick for a second term on the commission, but his future at FERC dimmed last month when Senate Energy and Natural Resources Committee Chair Joe Manchin (D-W.Va.) indicated he would not allow the nomination to move forward.

The COVID-19 pandemic has brought to attention the importance of governments shaping effective and efficient decisions according to the emerging needs of communities with flexible, adaptive, consistent, and proportional approaches. Indeed, the role of regulation in responding to the various phases of the COVID-19 crisis became a central topic at every level of public debate for the general public, media, and decision-makers. Risk-based approaches help regulators move from ex ante to ex post control of the regulated subjects. When scientific uncertainty is high, regulators follow a precautionary approach to regulatory delivery. As scientific knowledge improves, however, regulators can base their decisions on science and balance the risk tradeoffs that come from being either overly cautious or completely casual.

When ProPublica published stories this fall cataloging new evidence that American chemical workers are being exposed to asbestos, readers reacted with surprise over the most simple fact: Asbestos, the killer mineral whose dangers have been known for over a century, is still legal? Asbestos is only one of many toxic substances that are linked to problems like cancers, genetic mutations and fetal harm and that other countries have banned, but the United States has not. That includes substances like hexabromocyclododecane, a flame retardant used in some building materials that can damage fetal development and disrupt thyroid hormones, and trichloroethylene, a toxic industrial degreaser that has contaminated communities, including a whole neighborhood that suffered a string of tragic pediatric cancer cases. Michal Freedhoff, the head of chemical regulation at the Environmental Protection Agency, concedes to decades of regulatory inaction. She says a chronic lack of funding and staffing, plus roadblocks created by the Trump administration, have hamstrung the agency in recent years. But the flaws of the American chemical regulatory apparatus run deeper than funding or the decisions of the last presidential administration. ProPublica spoke with environmental experts around the world and delved into a half century of legislation, lawsuits, EPA documents, oral histories, chemical databases and global regulatory records to construct a blueprint of a failed system. This is how the U.S. became a global laggard in chemical regulation.

The U.S. agency in charge of making sure the country’s consumer products are safe will weigh regulations on new gas stoves, one of the board’s commissioners said on Wednesday. Richard Trumka Jr., a commissioner on the Consumer Product Safety Commission (CPSC), said during a virtual webinar on Wednesday that the commission will put out a formal request by March for information on hazards associated with gas stoves and possible solutions.

The Fish and Wildlife Service on Wednesday announced it will protect the Tiehm’s buckwheat plant as an endangered species, putting a wrinkle into plans for a big lithium mine in Nevada. In the decision, the federal agency declared the low-growing and once-overlooked perennial herb will be added to the Endangered Species Act list accompanied by a designated critical habitat of 910 acres.

The U.S. Fish and Wildlife Service (FWS) announced on Wednesday that it would be listing the whitebark pine as a threatened species under the Endangered Species Act (ESA). Whitebark pines are what the FWS describe as “a keystone species” that live in windy, cold, high-elevation environments across the Western U.S. and southern Canada. This five-needled pine species impacts the health and life cycles of other mountain inhabitants and plays a critical role in curbing runoff from snowmelt, according to the FWS. The trees also provide a high-energy food source to animals, the agency added.

The head of the Federal Energy Regulatory Commission had big plans at the start of the Biden administration for assessing planet-warming emissions from new gas pipelines. But with FERC Chair Richard Glick’s time at the agency likely coming to an end, the commission’s path forward on climate assessments is as murky as ever. Glick was known in the Trump era for frequent dissents on natural gas pipeline orders, which he often said were legally infirm by not assessing whether facilities would significantly contribute to climate change. When President Joe Biden shifted him from commissioner to chair in 2021 and FERC gained a Democratic majority, Glick vowed to adjust the agency’s approach to weighing pipelines’ greenhouse gas emissions.

The environmental justice movement has a long and storied history in the United States. During the height of the movement in the 1970s and 1980s, climate demonstrators and activists coined the term “environmental justice” to describe concerns over the unequal exposure of environmental harms on low-income and predominantly Black and brown communities. Today, environmental justice is central to many kinds of policy decisions in government, and at the federal level, the Biden Administration recently added a new institutional process for the consideration of environmental justice issues. The U.S. Environmental Protection Agency (EPA) announced in September that it has created a new national office for environmental justice, elevating equity concerns to higher levels within the agency. EPA Administrator Michael S. Regan delivered the announcement at the site of a historic toxic dump protest in Warren County, North Carolina alongside civil rights leaders and environmental justice advocates. Regan stated that the new office be called the Office of Environmental Justice and External Civil Rights and that it will “embed environmental justice and civil rights into the DNA of EPA.”

On the heels of another spill last week, the massive Keystone pipeline has now leaked more oil than any other pipeline since 2010, according to a new report from Bloomberg. With more than 26,000 barrels of crude oil spilled in the last 12 years, the hazardous liquid pipeline system has come under controversy after some two dozen accidents and takes the top spot for most spillage in the last 12 years, Bloomberg reported. Keystone leaked an estimated 14,000 barrels into a creek in northeastern Kansas last week, spurring TC Energy to shut down the massive vein while the company tries to contain the oil and recoup what was lost. The U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration has issued a corrective order to operator TC Energy, requiring the company address the current Keystone leak, develop and submit “restart plan” to resume operations for approval, and submit quarterly reports moving forward.

Senate Majority Leader Charles Schumer (D-N.Y.) is granting Sen. Joe Manchin (D-W.Va.) another stab at getting his effort to speed up approvals for the country’s energy projects into a defense spending bill. Schumer earlier this year promised Manchin that he’d support his energy approval efforts, known as permitting reform, in exchange for Manchin’s vote on the Democrats’ major climate, tax and health care bill.

The Supreme Court on Monday denied a request made by a group of major tobacco companies to block California’s recently passed ban on flavored tobacco products, allowing for a lower court’s decision permitting the ban to stand. Major tobacco companies such as R.J. Reynolds Tobacco Company, the Santa Fe Natural Tobacco Company and Modoral Brands Inc. submitted a request for an injunction to the court last month, asking that the justices consider whether California had the authority to instate the ban. Supreme Court Justice Elena Kagan, who handles emergency matters arising from the 9th Circuit, denied the request in a response on Monday, indicating that it had been referred to the full court. No dissents from any other justices were noted.

Following his arrest in the Bahamas on Monday night, disgraced cryptocurrency entrepreneur Sam Bankman-Fried was charged Tuesday by the Department of Justice with eight crimes including wire fraud, securities fraud and commodities fraud, as well as conspiracy to violate campaign finance laws following the collapse of his crypto platform FTX in November. The criminal charges come amid a whirlwind of legal and governmental activity directed at Bankman-Friedman this week that encompass a civil complaint filed by the Securities and Exchange Commission (SEC) as well as demands for Bankman-Fried to testify before both chambers of Congress.

The pace at which citizens and businesses interact internationally has been increasing for decades. People travel more often, digital technologies transcend national boundaries, and trade integration lies at the heart of many governmental priorities. International integration, however, is a double-edged sword. Diseases proliferate and digital and environmental risks spread more rapidly than ever before across domestic jurisdictions. Although technological, economic, and cultural values reach beyond the boundaries of legal jurisdictions, regulators face the challenge of increasing international cooperation practices. But can regulators expand regulatory practices beyond their borders in a sufficiently timely way that keeps pace with globalized issues?

In 2007 an Idaho couple, Mike and Chantell Sackett, bought a building lot across the road from a wetlands complex that drains into a creek and then into Priest Lake, with plans to build a new home. They began to fill in a spot on the property with gravel and sand until the U.S. Environmental Protection Agency stopped them under authority of the Clean Water Act, claiming it was a wetland adjacent to the lake. They were told to remove the fill and reclaim the site by fencing it off for three growing seasons. Failure to do so would cost them more than $30,000 in fines each day. The couple refused and sued the EPA in 2008, arguing that their property was not wet. It touched off a lengthy legal saga that continues and has now come before the U.S. Supreme Court for the second time. A decision is expected next year, and it may clearly define what a wetland is — for good or ill, depending on one’s perspective.

EPA released a proposal today that would phase down the use of climate superpollutants in products like refrigeration and foams for which more climate-friendly substitutes exist. The draft rule will be open for public comment for 45 days and marks the next step in EPA’s overall strategy for cutting the production and use of hydrofluorocarbons, or HFCs, by 85 percent by 2036. That’s the goal laid out in the Kigali Amendment to the Montreal Protocol, which the U.S. ratified on Halloween, and it’s the goal of a law that passed by Congress with bipartisan support in December 2020.

Like Big Oil, pesticide companies spend hundreds of millions every year on deceitful PR strategies to keep their hazardous products on the market, even as evidence mounts that many pesticides still used today are tied to certain cancers, damage to children’s developing brains, biodiversity collapse, and more. In a new report, Merchants of Poison, we document a case study of just such pesticide industry disinformation, revealing a PR playbook similar in strategy, institutions — and at times the very same individual players — as that of the fossil fuel industry. As nearly all agricultural chemicals are derived from fossil fuels, this interconnection should come as no surprise. Merchants of Poison shows how pesticide giant Monsanto (purchased by Bayer in 2019) spent millions on deceptive communications strategies over decades to promote the narrative that its bestselling herbicide glyphosate, better known as Roundup, is safe – as safe as table salt, as Monsanto once claimed. This messaging encouraged lax regulations that led to widespread use, especially as genetically modified corn and soy engineered to withstand being sprayed with the herbicide came to dominate farm acreage beginning in the mid-1990s.

The Department of Justice (DOJ) announced this week that tobacco companies in the U.S. will now be required to set up signs in retail locations stating the health risks and effects of cigarettes, following through on a corrective measure issued as part of a lawsuit filed more than 20 years ago. In 1999, the DOJ filed a lawsuit against several major tobacco companies, accusing them of violating the Racketeer Influenced and Corrupt Organizations Act (RICO). The suit alleged that the tobacco companies had purposely misled the public on the risks of smoking for decades. A federal judge in 2006 found the companies liable for the alleged RICO violations and ordered the defendants to issue corrective measures, stating that the companies were likely to continue violating RICO going forward without such orders. However, the tobacco companies challenged this finding in court, delaying the implementation of the ordered measures. The initial decision was ultimately upheld and an agreement between the two parties was reached, with the corrective measures going into effect in 2017.

The Biden administration on Wednesday said it plans to appeal a court ruling striking down the Title 42 policy limiting asylum, forecasting that public health authorities plan to write a new regulation to replace it. The coming appeal puts the Department of Homeland Security at the center of conflicting court cases on Title 42, which allows border officials to rapidly expel migrants on public health grounds without allowing them to seek asylum.

Holiday travelers packed tightly inside airliners this month might easily ignore flight crew instructions on how to safely exit the aircraft in the case of an emergency. What they may not know is that should such an event take place, federal standards require evacuating the plane within 90 seconds of it coming to a rest. Some lawmakers are questioning whether that metric is realistic.

The Federal Communications Commission (FCC) has issued an order for telecommunications companies to block robocalls connected to known student loan scams. The FCC said in a release on Thursday that providers must take “all necessary steps” to avoid carrying this robocall traffic, which is the target of an ongoing investigation from the agency’s Enforcement Bureau. The FCC is specifically ordering companies to stop accepting robocall traffic from Urth Access, LLC, which investigators believe generated more than 40 percent of student loan debt robocalls in October. The agency sent a cease-and-desist letter to the company last month for transmitting apparently illegal robocall traffic.

The Department of Justice (DOJ) is warning the Supreme Court against using an “overly broad” interpretation of a provision that provides tech companies a legal liability shield over content posted by third parties. The DOJ issued the warning in a brief about a case relating to Google that could change how digital content is hosted online, with the department effectively undermining the tech giant’s argument in the case. The dispute centers on whether the liability shield — Section 230 of the Common Decency Act — protects Google in a case alleging the company recommended ISIS recruitment videos to users on its YouTube subsidiary. A lower appeals court said the liability shield protects Google, a ruling the DOJ is urging the Supreme Court to vacate.

The Federal Trade Commission (FTC) voted Thursday to sue to block Microsoft’s $69 billion acquisition of gaming company Activision Blizzard, adding to the aggressive antitrust action taken under Democratic Chairwoman Lina Khan. The FTC argued that if Microsoft closes the deal, it would have the power to harm competition by being able to change terms to withhold access to Activision’s content, such as the popular “Call of Duty” game, as well as to manipulate pricing and degrade game quality. The agency alleged Microsoft suppressed competition from rival consoles by acquiring companies in the past, including by deciding to make games like “Starfield” and “Redfall” exclusive to Microsoft devices after acquiring game developer ZeniMax.

As more workers speak up about being exposed to asbestos in chlorine plants, public health leaders are questioning whether these facilities should be allowed to be in a special program that shields them from scrutiny by the Occupational Safety and Health Administration. OSHA’s Star Program, one of its so-called Voluntary Protection Programs, exempts plants with model safety systems from random, unannounced inspections. At least four of the eight chlorine factories that currently use asbestos are in the program, according to OSHA’s website.