Introduction

On July 31, 2023, the Council on Environmental Quality (“CEQ”) proposed the Bipartisan Permitting Reform Implementation Rule (“Proposed Rule”), 88 Fed. Reg. 49,924 (July 31, 2023), which is better known as Phase 2 of the Biden Administration’s revisions to the regulations that implement the National Environmental Policy Act (“NEPA”).

NEPA imposes a procedural requirement that does not mandate outcomes, only informed decision making. Despite its procedural nature, NEPA is one of the primary mechanisms for project opponents to challenge projects and is the most litigated federal statute. CEQ describes the changes in the Proposed Rule as promoting efficient and effective environmental review while increasing regulatory certainty. Given the history of NEPA litigation, and the significant changes in the Proposed Rule, it is likely that these changes will open new pathways for litigation and require courts to interpret the changes before providing regulatory certainty.

Background Leading to the Proposed Rule

Prior to 2020, the regulations implementing NEPA, 40 C.F.R. §§ 1500-1508, had not been meaningfully updated since 1978. In 2020, CEQ finalized significant changes to the regulations, which were designed to speed up project review and limit agency discretion in considering impacts beyond the immediately proposed project. In 2021 CEQ started a phased process to revise the NEPA regulations. In April 2022, CEQ issued its Phase I Rule, 87 Fed. Reg. 23,453 (April 20, 2022), which restored the 1978 regulations’ provisions on the purpose and need statement, defined “effects of the action,” and restored agency discretion to adopt procedures beyond those contained in the CEQ regulations.

Continue Reading Phase 2 NEPA Revisions: Significant Changes Proposed by CEQ in the Proposed Bipartisan Permitting Reform Rule

On May 24, 2023, Minnesota became the latest state to impose significant restrictions on perfluoroalkyl and polyfluoroalkyl substances (PFAS) when Governor Tim Walz signed HF 2310.  In this blog post, we examine some of the critical questions surrounding the new law.

What does the new law do?

Headlining the new law is a ban on the sale, offer for sale, or distribution for sale of certain products that contain intentionally added PFAS.  This ban will be rolled out in two stages.  Initially, beginning on January 1, 2025, a person may not sell, offer for sale, or distribute for sale any of the following products if the product contains intentionally added PFAS:

  • carpets or rugs;
  • cleaning products;
  • cookware;
  • cosmetics;
  • dental floss;
  • fabric treatments;
  • juvenile products;
  • menstruation products;
  • textile furnishings;
  • ski wax; and
  • upholstered furniture.

The commissioner of the Minnesota Pollution Control Agency (MPCA) may by rule identify additional products by category or use.

The second phase of the ban beginning on January 1, 2032 is a total prohibition on the sale, offer for sale, or distribution for sale of any product that contains intentionally added PFAS.  A product or category of product can be excepted from this ban if the commissioner determines that the use of PFAS is a currently unavoidable use, although the commissioner may not make such a determination for a product that is included in the initial ban discussed above.

Continue Reading Minnesota Enacts Sweeping PFAS Restrictions

This is a continuing series of posts on the latest environmental and legal developments affecting oil and gas operations and development and other industries in Los Angeles and adjacent counties, as well as the southern San Joaquin Valley. In this post, we provide an update on regulatory developments at the California Air Resources Board, the California Geologic Energy Management Division, the U.S. Environmental Protection Agency and the South Coast Air Quality Management District.

STATE AGENCIES  

California Air Resources Board (CARB)

CARB’s ongoing regulatory actions affect industry generally and are focused more heavily on the oil and gas industry.  Actions potentially affecting all industries include the AB 617 program, termed by CARB as the Community Air Protection Program, CRT, an evolving regulation requiring substantially increased reporting of both criteria and toxic air emissions and the Low Carbon Fuel Standard, calculating carbon intensity based on Stanford’s OPGEE model.

AB 617, CARB’s Community Air Protection Program (CAPP): CARB’s CAPP action under AB 617, implements Assembly Member Cristina Garcia’s 2017 bill, requiring CARB to identify annually communities that they find impacted by disproportionate air emissions.  These communities then assemble Community Steering Committees, and the local air districts must work with these Committees to develop Community Emission Reduction Plans (CERPs).  For more background on AB 617 implementation by CARB and the local air district, see Stoel’s California Environmental blogs for October 4, 2019 and May 11, 2018.
Continue Reading SOUTHERN CALIFORNIA ENVIRONMENTAL UPDATE – NEW AIR QUALITY AND OIL & GAS REGULATORY DEVELOPMENTS

Last week, the California Department of Fish and Wildlife (“CDFW”) Office of Spill Prevention and Response (“OSPR”) issued notice that it proposes to add ten new regulations (sections 830.1 through 830.11 to Title 14 of the California Code of Regulations) to implement statutory changes resulting from Assembly Bill (“AB”) 1197.  AB 1197 establishes criteria and a process for the certification of oil spill management teams.
Continue Reading CDFW Proposes New Regulations for Oil Spill Management Team Certification with a September 14 Comment Deadline

Last month, the California Department of Fish and Wildlife (“CDFW”) issued notice that it will begin accepting electronic notifications for all Lake and Streambed Alteration Standard Agreements (Cal. Fish & Game Code § 1600 et seq.) effective August 1, 2020.  This move to online applications is part of a broader effort by CDFW to go

This post was co-authored by Beth Ginsberg & Krista McIntyre.

The U.S. Department of Justice (U.S. DOJ) recently issued a memorandum stating that settlements, including consent decrees, entered by the Environmental Protection Agency (EPA) and other federal agencies can no longer include a Supplemental Environmental Project (SEP), unless the SEP is expressly authorized by Congress. Companies and individuals accused of violating environmental laws and permits, like Clean Air Act and Clean Water Act permits, commonly agree to perform SEPs to fund projects that go beyond compliance instead of paying a higher cash penalty to the U.S. Treasury. Going forward, companies, individuals, and local governments will no longer have SEPs as a settlement option.

To support this policy reversal after more than 30 years, U.S. DOJ cites to the Miscellaneous Receipts Act, which grants only Congress the authority to decide how to appropriate federal funds. The U.S. DOJ views SEPs as federal funds, and, in U.S. DOJ’s opinion, the EPA and other federal agencies lack the authority to divert those funds to third party recipients and to select the projects that should receive the funds. The power of the purse rests squarely with Congress. “[W]ith SEPs, money otherwise destined for the Treasury finds its way to another destination, not at the insistence of Congress, where the Constitution puts that authority, but instead at the insistence of an administrative agency, or a non-federal entity, or some combination thereof.”
Continue Reading Reversing 30-Year Policy, U.S. DOJ Says Settlements Can No Longer Include Supplemental Environmental Projects (SEPs)

Stoel Rives’ Oil & Gas Team has been monitoring bills introduced by California legislators since the beginning of the 2019-2020 Legislative Session.  Below is the latest update on a list of bills, summarized pursuant to the Legislative Counsel’s Digest, that our team has been following and will continue to monitor as the 2019-2020 Legislative Session proceeds.

Please also see our Renewable + Law post summarizing bills related to other energy topics here.

AB 345 (Muratsuchi, D): Natural Resources: Oil and Gas: Regulation of Operations.

STATUS: Last amended March 18, 2019; currently in Senate Appropriations suspense file.

Would require the Secretary of the Natural Resources Agency to create an environmental justice program within the agency to identify and address any gaps in existing programs, policies, or activities that may impede the achievement of environmental justice. The bill, contingent upon funding for this purpose, would require the secretary to establish a grant-based reimbursement program to enable environmental justice and community groups to meaningfully participate in rulemaking and other regulatory processes at departments and entities within the agency.

Continue Reading Oil & Gas Related Bills Update for the 2019-2020 Legislative Session

On February 14, 2020, the State Water Resources Control Board (SWRCB) published Draft Guidance for the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Draft Guidance). The Draft Guidance pertains to the SWRCB’s adoption of a State Wetland Definition and Procedures for Discharges of

The California Geologic Energy Management Division (“CalGEM”), formerly known as the Division of Oil, Gas, and Geothermal Resources (“DOGGR”), is actively working on revising its regulations to better align its regulatory mandates with the new goals of Assembly Bill 1057, which requires CalGEM to focus on protecting public health and the environment, and less on efficient and effective oil and gas production. The scope and extent of these regulatory changes may have far-reaching consequences for the oil and gas industry in California. As part of its pre-rulemaking process, CalGEM is hosting community workshops and accepting public comments regarding its proposed regulatory changes.

I.      WHY IS CALGEM HOSTING WORKSHOPS?

While CalGEM’s materials on its pre-rulemaking process do not explain the exact nature or effect of these workshops, CalGEM’s workshops align with its new focus and November 2019 announcement of new oil and gas initiatives.  Effective January 1, 2020, Assembly Bill 1057 changed DOGGR’s name to CalGEM and updated CalGEM’s focus from development and production of petroleum resources to transitioning to a low-carbon future and protecting public health, safety and the environment.  In addition, last November CalGEM released a series of initiatives targeting certain oil and gas extraction methods, intended to safeguard public health and the environment.  The November initiatives include:

  1. Imposing a moratorium on new oil extraction wells that use high-pressure steam to break oil formations below the ground;
  2. Announcing new rules for public health and safety protections near oil and gas extraction facilities would be updated and strengthened; and
  3. Completing an independent audit of CalGEM’s permitting processes for well stimulation and underground injection control and a scientific review of pending well stimulation permits to ensure public health, safety and environmental protections are met prior to approving each permit.

These initiatives are in line with the State of California’s overall climate goal of achieving carbon neutrality by 2045.  California intends to meet this goal, in part, by decreasing fossil fuel dependence and consumption.
Continue Reading CalGEM’s Public Health Rulemaking Workshops

Oil rig at sunsetNearly two months ago, on November 19, 2019, the Department of Conservation’s Division of Oil, Gas and Geothermal Resources[1] (“DOGGR”) announced a moratorium on approvals of new oil extraction wells that use a high-pressure cyclic steaming process to break apart a geological formation to extract oil.

The announcement did not contain much, if any,

This is the first in a series of posts to provide the latest on environmental and legal developments affecting oil and gas operations and development and other industries in Los Angeles and adjacent counties, as well as the southern San Joaquin Valley. In this post, we’ll provide an update on legislation proposed in 2019 that affects industry in southern California, implementation of significant legislation previously adopted, and initiatives in Los Angeles to limit oil and gas operations.

AB 617 Implementation

The stated goal of AB 617 (Garcia, 2017) is to protect communities with disproportionate levels of air emissions and provide stricter penalties for certain infractions by regulated entities. In line with AB 617, the California Air Resources Board (CARB) is implementing the Community Air Protection Program and finalized its first annual selection of communities for participation in the Program in September 2018. Air districts are now identifying candidate communities to be considered for the second year of the Community Air Protection Program. CARB isn’t likely to vote on the selections until later in 2019.

In the first round of community selection, South Coast Air Quality Management District (South Coast Air District) chose (1) Wilmington/West Long Beach/Carson; (2) San Bernardino/Muscoy; and (3) Boyle Heights/East Los Angeles/West Commerce. On September 6, 2019, South Coast Air District’s Governing Board approved Community Emission Reduction Programs for these areas. Most of the plans set goals for action, and enhanced enforcement, rulemaking and incentive grants will follow. The plan for San Bernardino/Muscoy focuses on truck, rail bus traffic, warehouses (as an indirect source), concrete and asphalt batch plants, and rock and aggregate plants. The plan for Boyle Heights/East Los Angeles/West Commerce focuses on neighborhood and freeway truck and bus traffic, railyards, metal processing facilities, rendering facilities, auto body shops, and general industrial facilities, along with reducing exposure at schools, childcare facilities, community centers, libraries, and public housing projects.
Continue Reading Southern California Environmental Law Update