EPA on March 31 provided a formal relaxation of certain FIFRA requirements for pesticides listed on EPA’s “List N” of products expected to be effective against the coronavirus. This temporary policy relaxes requirements to receive EPA approval of changes in sources of certain common active ingredients—such as ethanol, hydrogen peroxide, and citric acid—in response to “reports of supply chain disruptions by pesticide registrants who manufacture disinfectant products on EPA’s List N.” Continue Reading
DOJ Moves to Eliminate Supplemental Environmental Projects from Settlements
Amidst the disruption caused by the coronavirus pandemic (but not specifically relating to it), the Department of Justice has announced a major shift in policy towards settling environmental cases. DOJ, and EPA along with it, will no longer offer settling defendants the option of undertaking supplemental environmental projects in lieu of paying penalties to the United States. Continue Reading
EPA Is “Especially Concerned” About FIFRA Noncompliance in Light of COVID-19 Pandemic
EPA on March 26 released a guidance document explaining its approach to enforcement actions in light of the COVID-19 pandemic. While most aspects of that document explain areas in which EPA exercising enforcement discretion to provide flexibility to regulated parties in response to the pandemic, EPA is not taking that approach with respect to antimicrobial pesticide products, including disinfectants. To the contrary, EPA made clear that it is “especially concerned about pesticide products entering the United States, or produced, manufactured, distributed in the United States, that claim to address COVID-19 impacts. The agency expects to focus on ensuring compliance with requirements applicable to these products to ensure protection of public health.” Continue Reading
FERC Considering Changes to Transmission Incentives
The Federal Energy Regulatory Commission (FERC) has proposed substantial changes to its policies for awarding ratemaking incentives for new transmission investment. The most fundamental change is that FERC would no longer award incentives based on a proposed project’s risks and challenges but would instead award them based on its economic and reliability benefits. In addition, the incentive for a higher return on equity for project investment would be potentially more generous than under the current policy. FERC’s proposal should be of interest to utilities, transmission-only companies, market participants who pay transmission rates, customers and investors interested in developing transmission projects. Continue Reading
Proposal to Treat Electric Storage as Transmission Now Before FERC
The Midcontinent Independent System Operator (MISO), a Regional Transmission Organization (RTO), has proposed to the Federal Energy Regulatory Commission (FERC) tariff provisions that would treat electric storage facilities as transmission-only facilities if they provide the preferred solution to a transmission issue in MISO’s regional planning process. This is the first such proposal by a wholesale electric market operator. Up to now, storage facility requests to qualify as transmission facilities have been few and case-specific. Treatment as a transmission resource provides additional deployment opportunities for storage resources and allows them cost recovery through cost-based transmission rates instead of relying on energy market revenues. Standardized tariff-based terms and conditions for qualifying as a transmission resource should provide an easier path to such treatment. Continue Reading
Call Me By My Name: The Importance of the European Commission’s Proposed Climate Change Law
On March 4, 2020, the European Commission delivered the first major climate piece of its European Green Deal: it proposed a “European Climate Law,” which takes the form of a Regulation and establishes a framework for the irreversible and gradual reduction of greenhouse gas emissions and the enhancement of removals in the European Union. The proposal and the fact that it takes the form of a binding Regulation may have a significant impact on a wide variety of legislative and policy initiatives that the EU and its Member States may take within the next years. Continue Reading
New EPA and OSHA COVID-19 Guidance Underscore the Importance of Securing Pesticide Approval under EPA’s Emerging Viral Pathogens Policy
Under EPA’s 2016 Emerging Viral Pathogens policy, pesticide registrants can obtain EPA “pre-approval” for their product to make claims to kill emerging viral pathogens when the policy is “activated,” so long as the pesticides have been approved for use on similar viruses. These include common household and workplace disinfectant products, which are generally regulated as pesticides by EPA. The policy was activated for the first time in response to the COVID-19 outbreak, allowing certain claims to mitigate the coronavirus to be made for certain registered pesticides approved under the policy. Several recent OSHA and EPA developments underscore the importance of pesticide registrants securing approval under the policy, as well as its limitations. Continue Reading
Climate Change: The EU Moves Towards a Carbon Border Adjustment Mechanism
Last week, the European Commission took a major step to implement the climate aspects of its European Green Deal. It presented a proposal for a European Climate Law and two consultations on its announced Climate Pact and Carbon Border Adjustment Mechanism (“CBAM”). Continue Reading
DOE Proposes to Lengthen LNG Export Terms
The Department of Energy (“DOE”) is proposing to extend to December 31, 2050 the standard twenty-year term for authorizations to export natural gas and liquefied natural gas (LNG) from the U.S. lower-48 states. According to DOE, the longer term would better match the operational life of LNG export facilities, provide more security in their financing, and maximize the ability to contract for exports. This change in DOE policy will be of interest to gas and LNG export authorization holders and their counterparties in sales contracts, and to proposed export applicants that are now seeking or will seek such authorizations from DOE.
EPA Releases Comprehensive Guidance Database, With Significant Ramifications for Auer Deference
EPA on February 28 released a web portal containing links to “all of EPA’s active guidance documents,” as required by last year’s Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” In total, EPA’s portal contains over 9,100 guidance documents, from EPA’s various Headquarters offices and each of its 10 Regions. EPA also notes that it withdrew a number of guidance documents “that were determined to be no longer relevant,” but has not provided a listing of such documents.
