Last year, Covington predicted an increased focus on environmental enforcement under the Biden Administration.  Recent statements by key environmental leadership have confirmed this, further sharpened Administration priorities, and track renewed focus by DOJ more broadly on combating corporate malfeasance.  In the coming year, regulated entities should prepare for increased criminal enforcement, including consideration of conduct within their supply chains.  They should also expect increased scrutiny of their environmental compliance programs, including the potential for corporate monitorship if DOJ deems a company’s compliance program to be inadequate.

Continue Reading Environmental Enforcement in 2022: Renewed Focus on Criminal Conduct, Compliance

The Supreme Court recently heard oral argument in Cedar Point Nursery v. Hassid (No. 20-107), a case that has generated considerable amicus participation and press coverage.  In that case, union organizers, relying on a California law, entered the property of a fruit nursery with bullhorns in hand in order to urge unionization directly to the employees.  Cedar Point argued that the California access regulation is a taking of property under the Fifth Amendment because it interferes with its fundamental right to exclude persons it does not wish to have on its property.  The Ninth Circuit rejected the takings claim, and the Supreme Court granted certiorari.  During oral argument on March 22, the Court appeared to be seeking a way to draw a line between per se takings and the government’s right to access property for traditional police and enforcement purposes.  How the Court’s opinion deals with this issue remains to be seen.
Continue Reading A Property Right To Exclude Others: Cedar Point Nursery’s Implications For Regulatory Enforcement

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 DOJ Moves to Eliminate Supplemental Environmental Projects from Settlements

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.
Continue Reading EPA Publishes Final Hazardous Waste Pharmaceuticals Rule, With Significant Implications for Pharmaceuticals and Product Recalls

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. 
Continue Reading Trump EPA Expands Rigorous Enforcement of Pesticide Law as Part of “Return to Core Mission”

Covington hosted the 14th Annual Environmental Transactional Roundtable on May 18, 2018. More than 70 attorneys attended, including from multiple countries outside the U.S., representing 31 law firms and organizations. The event was a great success, and featured panel discussions that sparked lively discussion among participants. The three panels covered product stewardship issues, environmental issues in bankruptcy, and risk management in transactions.
Continue Reading Covington Hosts 14th Annual Environmental Transactional Roundtable

California’s Office of Environmental Health Hazard Assessment (OEHHA) recently took a further step toward expanding the scope of state Proposition 65 regulations to out-of-state online retailers that sell into California when it issued an emergency regulation under Proposition 65 for canned and bottled foods and beverages containing bisphenol A (BPA).[1] The emergency regulation provides recommended “safe harbor” warning language for products containing BPA, a substance commonly used to line food containers, including metal cans, bottle caps, and jar lids, and requires retailers—including online retailers if the products are offered for sale in California—to place warnings at checkout areas explaining that exposure to BPA is known to cause reproductive harm to women.
Continue Reading OEHHA Requires Proposition 65 Warnings for BPA, Including for Items Sold Over the Internet

At a recent speech at an energy industry conference CFTC Commissioner Scott D. O’Malia highlighted energy market participant concerns with the CFTC’s Dodd-Frank Rulemakings.  These concerns indicate potential regulatory changes at the CFTC that could impact energy market participants.

Commissioner O’Malia noted that the CFTC must re-visit the swap dealer definition rule to “establish a

Norman Bay, Director of FERC’s Office of Enforcement, testified yesterday before the Senate Subcommittee on Financial Institutions and Consumer Protection regarding regulations for financial holding companies and physical commodities.

In prepared remarks, Mr. Bay stated that FERC has the “tools necessary to effectively police FERC-regulated markets” but identified two regulatory limitations to its