As usual, there are many energy and environmental regulatory developments across the federal government. This article focuses on just some of these developments, and in general, rules with open comment periods or proposed rules that are in the pipeline.

  • The Environmental Protection Agency (EPA) has proposed a rule that would designate two types of human-made chemicals—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). One concern is whether using CERCLA is the right approach to cleaning up these substances, especially given the potential liability that the rule could impose.

  The U.S. Chamber of Commerce found in a recent study:

Private sector cleanup costs at Superfund sites alone resulting from the proposed hazardous substance designation of PFOA and PFOS are estimated to cost between $700 million and $800 million in annualized costs ($11.1 billion and $22 billion present value costs).

  • Despite the U.S. Supreme Court having just heard Sackett v. EPA, a case dealing with the meaning of “waters of the United States” under the Clean Water Act, the EPA is still apparently moving forward with its new WOTUS rule. The final rule is currently under review at the Office of Information and Regulatory Affairs (OIRA). For practical reasons, the EPA probably won’t publish the final rule because an opinion in Sackett would likely render the final rule moot.

  • Even though in late 2020 the Trump administration finalized a rule retaining the existing particulate matter standards, the EPA has been moving forward with its reconsideration of the standards. This is despite the fact that criteria pollutants, such as particulate matter, are already reviewed on a five-year schedule. Currently, the EPA has a particulate matter proposed rule under review at OIRA, and it is likely going to make the standards more stringent.

  • The Department of Energy (DOE) has proposed new conservation standards for consumer clothes dryers, with comments due no later than October 24. This rule is the latest of many recent DOE proposed conservation standards covering everything from consumer furnaces to commercial water heaters. In addition, proposed conservation standards for general service lamps, circulator pumps and small vertical in-line pumps, and residential conventional cooking products are currently under OIRA review, and OIRA has just completed its review of proposed conservation standards for distribution transformers.

  • The Fish and Wildlife Service (FWS), which has primary responsibility for implementing the Bald and Golden Eagle Protection Act, has proposed changes to its permitting of incidental take of eagles and eagle nests. In addition, FWS has the following under OIRA review: reopening of the comment period for a proposal designating critical habitat for the rufa red knot (a bird) and a revision to the Endangered Species Act Section 4(d) rule for the African elephant.

  • As the Inflation Reduction Act gets implemented, there will likely be numerous agency actions connected to this law. The Treasury Department and the Internal Revenue Service have just announced that they are seeking comments on six different notices related to the climate and energy tax incentives within the Inflation Reduction Act. The notices cover issues ranging from credits for electric vehicles to prevailing wage requirements.

    However, President Biden’s Executive Order 13990 on climate change directed CEQ to “review, revise, and update” the 2016 final guidance (“as appropriate and consistent with applicable law”). Now, as explained on OIRA’s web site, “CEQ’s guidance will provide agencies with recommendations on how to properly assess the greenhouse gas emissions and climate change effects of their proposed actions pursuant to NEPA.”

The Biden administration has taken a “whole-of-government” approach to climate, energy, and environmental issues. This means affected parties need to continue to monitor developments at numerous agencies, even those agencies that wouldn’t normally be associated with energy and environmental policy.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].