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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…

Earlier this year, the CFTC and FERC announced an information sharing Memorandum of Understanding (MOU) between the two agencies. The agencies have now announced that they have begun sharing market data pursuant to this MOU.  In addition, they have created an Interagency Surveillance and Data Analytics Working Group “to coordinate information sharing between the…

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…

Here at Inside Energy & Environment we are honored to share that Law360 has named Covington’s energy practice as a 2013 “Energy Practice Group of the Year.”  In giving this award, Law360 recognized the breadth of Covington’s practice capabilities (including litigation, transactions, regulatory and government policy) in both the traditional energy and clean…

On January 2, 2014, the Federal Energy Regulatory Commission (FERC) and the Commodity Futures Trading Commission (CFTC) entered into two Memoranda of Understanding (the MOUs) to set forth procedures to address circumstances of overlapping jurisdiction (the Jurisdiction MOU) and to share information in connection with market surveillance and investigations into potential market manipulation, fraud or abuse (the Information MOU).

The MOUs were entered into in response to a provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act) that directed the FERC and CFTC to develop the MOUs.  The directive in the Dodd-Frank Act was the result, in part, of jurisdictional disputes in recent years related to investigations that implicated the jurisdictions of both the FERC and the CFTC, particularly in cases dealing with the potential manipulation of the natural gas markets.  Specifically, in Hunter v. FERC, No. 11-1477 (D.C. Cir. Mar. 15, 2013), the D.C. Circuit Court rejected FERC’s assertion of jurisdiction over the trading of natural gas futures contracts when the Court held that the CFTC has exclusive jurisdiction over all transactions involving futures (the underlying FERC case was filed prior to the passage of the Dodd-Frank Act).  In addition to directing the FERC and CFTC to enter into the MOUs, the Dodd-Frank Act also clarified the jurisdiction of the respective agencies.  The MOUs supersede a 2005 Memorandum of Understanding the agencies had been employing for the exchange of information related to oversight or investigations.…
Continue Reading FERC and CFTC Enter into Long-Awaited MOUs in Response to Dodd-Frank Act