The Supreme Court’s much-awaited decision in Kisor v. Wilkie will have significant ramifications for the Environmental Protection Agency (“EPA”) and environmental law. While the decision upheld the concept of Auer deference, which instructs courts to defer to agencies’ interpretations of their own regulations, it also imposed a number of limitations and restrictions on when Auer deference applies. The decision leaves open many questions about what EPA guidance will qualify for Auer deference, and whether any statements that do qualify for deference are subject to immediate challenge as final agency action. The decision thus presents opportunities for regulated parties to challenge EPA interpretations, but also challenges in that regulated parties may not necessarily rely on EPA’s interpretations as controlling.
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Thomas Brugato
Thomas Brugato is a partner in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean Water Act, RCRA, CERCLA, EPCRA, TSCA, FIFRA, the Endangered Species Act, the Occupational Safety and Health Act, and EPA’s Renewable Fuel Standard program.
Thomas has extensive experience in representing companies on FIFRA matters relating to a wide range of products—such as antimicrobials, devices, treated articles, and traditional pesticides—including in EPA enforcement actions. He also has particular expertise in advising companies on a wide range of Administrative Procedure Act (APA) issues, including in litigation involving agencies in federal court. Finally, Thomas has significant experience advising clients on Indian law related issues, particularly relating to the Indian Gaming Regulatory Act and tribal sovereign immunity.
Supreme Court Decision Expands Scope of FOIA’s Exemption for Confidential Information, with Significant Implications for EPA
The Supreme Court’s June 24 decision in Food Marketing Institute v. Argus Leader Media has significantly expanded the confidential commercial information protected from disclosure under the Freedom of Information Act (“FOIA”)—an issue that recurs repeatedly with respect to information submitted to EPA and other environmental regulatory agencies.
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President Trump Issues Executive Order Directing Significant Changes to the Regulation of Genetically-Engineered Organisms
On June 11, 2019, President Trump issued an Executive Order that would require the Department of Agriculture, the Environmental Protection Agency, and the Food and Drug Administration—the three main agencies with regulatory authority over genetically-engineered (“GE”) plants and animals in the United States—to revise their regulations governing GE organisms. These changes follow closely on the heels of the Animal and Plant Health Inspection Service’s (“APHIS”) recent proposed regulations that would increase the number of genetically-engineered organisms that may be produced without undergoing APHIS review, and are likely of interest to biotechnology companies, agricultural organizations, and other entities interested in GE organisms.
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APHIS Proposes Sweeping Revisions to the Regulation of Genetically-Engineered Organisms
On June 6, 2019, the Animal and Plant Health Inspection Service (APHIS) proposed a significant restructuring of the agency’s regulations governing genetically-engineered organisms. Public comments on the proposal are due by August 6, 2019. APHIS’s proposed changes, which will increase the number of genetically-engineered organisms that may be produced without undergoing APHIS review, are likely to be of interest to biotechnology companies, agricultural organizations, and other entities interested in genetically-engineered organisms.
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EPA Publishes Final Hazardous Waste Pharmaceuticals Rule, With Significant Implications for Pharmaceuticals and Product Recalls
EPA published today in the Federal Register its final rule governing hazardous waste pharmaceuticals. This rule adopts a novel scheme under the Resource Conservation and Recovery Act (“RCRA”) for the management of hazardous waste pharmaceuticals that are discarded by healthcare facilities or managed by “reverse” distributors. It also applies to other types of products such as e-cigarettes, liquid nicotine, and dietary supplements.
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Trump EPA Expands Rigorous Enforcement of Pesticide Law as Part of “Return to Core Mission”
Despite its deregulatory efforts in other areas, the Trump administration continues to enforce pesticide laws rigorously as part of its stated goal of returning EPA to its “core mission.” EPA regulates pesticides pursuant to its authority under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq. “Pesticides” are broadly defined to include any substance intended for destroying, mitigating, or repelling any pest, which include not only insects and rodents but also bacteria and other microorganisms. 7 U.S.C. § 136(t)-(u). Thus, pesticides that must be registered under FIFRA can include a wide range of products not colloquially thought of as pesticides, such as alcohol wipes used for sanitizing surfaces.
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EPA to Hold Public Meeting on Nanoscale Materials Proposed Rule
EPA has scheduled a stakeholder meeting in Washington, D.C. on June 11 to discuss its proposed nanoscale materials rule under the Toxic Substances Control Act (TSCA). The proposed rule would require manufacturers of nanoscale materials to provide EPA certain information, including health and safety-related information, regarding their nanoscale materials. Public…
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EPA’s Environmental Appeals Board Rejects Attempt to Require Additional Greenhouse Gas Limits in a Natural Gas Power Plant Permit
EPA’s Environmental Appeals Board has rejected the Sierra Club’s attempt to require certain greenhouse gas (GHG) limits in a preconstruction permit for a new natural gas power plant, in one of the first EAB decisions to address this issue. In re: La Paloma Energy Center, LLC, PSD Appeal No. …
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EPA Proposes New Power Plant Carbon Dioxide Emissions Rules
EPA has formally proposed restrictions on carbon dioxide emissions from new power plants, which include a requirement that new fossil fuel-fired plants implement partial carbon capture and sequestration. EPA published the proposal in the Federal Register on January 8, 2014. 79 Fed. Reg. 1,430 (Jan. 8, 2014). Comments on…
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EPA’s Science Advisory Board May Review EPA’s Proposed Rule Requiring Carbon Capture & Sequestration at New Coal-Fired Power Plants
On December 4 and 5, EPA’s Science Advisory Board (SAB) discussed whether to review the scientific basis for EPA’s requirement that new coal-fired power plants implement partial carbon capture and sequestration (CCS), which is included in EPA’s recently-proposed rule for such power plants. See Standards of Performance for Greenhouse Gas …
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