Dear Section Members, Here is the news roundup from the first half of November. From Law360: Oil Group, Enviro Orgs Clash Over Offshore Drilling Plan<https://www.law360.com/environmental/articles/2255037/oil-group-enviro-orgs-clash-over-offshore-drilling-plan> Environmental groups and the American Petroleum Institute filed sparring briefs in an appeal before the D.C. Circuit over the U.S. Department of the Interior's 2024-2029 offshore oil and gas leasing program, each arguing that the agency wasn't legally obligated to satisfy the other's demands. Mich. AG Hits Paper Company With PFAS Discharge Suit<https://www.law360.com/environmental/articles/2255206/mich-ag-hits-paper-company-with-pfas-discharge-suit> Michigan's attorney general has hit Ox Paperboard WP LCC and one of its mills with a state court suit alleging that they have repeatedly discharged "forever chemical"-contaminated wastewater into the White Pigeon River. Supreme Court Won't Hear Apache's Mining Regs Dispute<https://www.law360.com/environmental/articles/2254813/supreme-court-won-t-hear-apache-s-mining-regs-dispute-> The U.S. Supreme Court will let stand a ruling that sides with a state environmental agency's decision to let a copper mining company discharge untreated wastewater into a creek that's considered sacred to an Arizona Indigenous community. EPA's Superfund 'Blank Check' Dooms PFAS Rule, Groups Say<https://www.law360.com/environmental/articles/2256986/epa-s-superfund-blank-check-dooms-pfas-rule-groups-say> The U.S. Environmental Protection Agency wrote itself a legal "blank check" to increase the number of chemicals subject to required cleanups under federal Superfund law, industry advocates told the D.C. Circuit. Water Utility Hits PVC Pipe Makers With Price-Fixing Suit<https://www.law360.com/environmental/articles/2258949/water-utility-hits-pvc-pipe-makers-with-price-fixing-suit> A public water utility on Friday hit some of the nation's largest PVC pipe manufacturers with a class action accusing them of using a commodity pricing service to exchange information and illegally fix prices, claiming the companies reaped "historic profits" at the expense of public utilities. Mich. High Court Snapshot: 3M's PFAS Fight, Detroit Fire Fees<https://www.law360.com/environmental/articles/2259758/mich-high-court-snapshot-3m-s-pfas-fight-detroit-fire-fees> The Michigan Supreme Court returns to the bench Wednesday in a packed oral argument sitting, including a major case on the viability of state PFAS regulations in a challenge brought by 3M Co. From Law.com: Trump's Selection of Zeldin to Head EPA Draws Surprise, Little Hope of Avoiding Deregulation<https://www.law.com/nationallawjournal/2024/11/12/trumps-selection-of-zeldin-to-head-epa-draws-surprise-little-hope-of-avoiding-deregulation/> Even if Lee Zeldin “were a mild supporter of climate change activity, Trump's opposition to climate change regulation is so strong and so well known that I doubt that Zeldin would get him to move off of his opposition,” said environmental law professor Robert Glicksman. Environmental Law in Trump’s Second Term<https://www.law.com/newyorklawjournal/2024/11/12/environmental-law-in-trumps-second-term/> This article discusses the likely reversal of various environmental laws/protections that were implemented during Joe Biden's presidency that will take place now that Donald Trump has been re-elected. A Trigger Warning? The Untapped World of Trigger Theories in PFAS Coverage Litigation<https://www.law.com/texaslawyer/2024/11/04/a-trigger-warning-the-untapped-world-of-trigger-theories-in-pfas-coverage-litigation/> "These theories ... are commonly characterized as the exposure, manifestation, injury-in-fact, and continuous trigger theories," writes Akerman's Xakema Henderson. Are Superfund Sites Ever Really Closed?<https://www.law.com/newyorklawjournal/2024/10/30/are-superfund-sites-ever-really-closed/> Superfund Sites are notorious for taking a long time to resolve. But are they ever really closed? Superfund settlements are intended to provide settling parties with finality. The incorporation of reopener clauses in Superfund settlement agreements, typically required by EPA, and changes in the regulation of contaminants can undermine this goal. EPA's recent decisions to list certain PFAS chemicals as hazardous substances, revise the risk evaluation for 1,4,-dioxane, and lower risk levels for lead have dramatically increased the likelihood that Superfund Sites across the country may be reopened. From The National Law Review: Key Environmental Law and Policy Issues to Watch in President Trump’s Second Administration<https://natlawreview.com/article/key-environmental-law-and-policy-issues-watch-president-trumps-second#google_vignette> On November 5, President Donald Trump was elected President-elect for a second time. We anticipate that President Trump’s upcoming term will usher significant shifts in U.S. environmental and natural resource law and policy, as well as personnel at the U.S. Environmental Protection Agency (EPA), the Council on Environmental Quality (CEQ), the U.S. Department of the Interior (DOI), the U.S. Department of Justice (DOJ), and other federal agencies that establish and implement environmental regulation. The next six months will be especially impactful, as the Biden administration races to secure its legacy while the Trump administration assembles a ground team to dramatically de-regulate most, if not all, of the Biden administration’s primary policy initiatives. This Alert provides a high-level review of key environmental and natural resources issues to watch for in a second Trump administration. Energy & Sustainability Litigation Updates — November 2024<https://natlawreview.com/article/energy-sustainability-litigation-updates-november-2024> Despite the recent disbandment of the SEC’s Climate & ESG Task Force, the SEC is continuing to pursue enforcement actions concerning environmental issues, including greenwashing. Notably, over the past several weeks, the SEC has fined an investment adviser $4 million for the improper labeling of ESG funds and imposed a civil penalty of $1.5 million on a manufacturer for inaccurate statements regarding the recyclability of its products. Significantly, with respect to the enforcement action against the investment adviser, the SEC noted that the reliance of the investment adviser on two third-party vendors to screen its investments was insufficient — greater diligence was required. From JD Supra: PFAS Update: California Enacts New PFAS Enforcement and Registration Law<https://www.jdsupra.com/legalnews/pfas-update-california-enacts-new-pfas-4413930/> On September 29, 2024, Governor Newsom approved AB 347 which, among other things, finally answers the question of which California agency will be tasked with enforcing and interpreting at least some of California’s PFAS in consumer products laws. The California Department of Toxic Substances Control (“DTSC”) has been identified as the responsible agency for enforcing California laws regulating the use of PFAS substances in certain covered products such as children’s or juvenile products, textile articles, and food packaging. Waters of the United States/Clean Water Act: Federal Court Addresses Jurisdictional Issue<https://www.jdsupra.com/legalnews/waters-of-the-united-states-clean-water-9207045/> The United States District Court for the Eastern District of Virginia (“Court”) addressed in an August 15th Opinion a Clean Water Act jurisdictional question. See United States v. Chameleon, LLC, No. 3:23-CV-763–HEH, 2024 WL 3835077 (E.D. Va. Aug. 15, 2024). The question addressed was whether a parcel of real property in Ashland, Virginia wetlands constituted a Clean Water Act (“CWA”) Water(s) of the United States (“WOTUS”). EPA Finalizes New Aquatic Life Water Quality Standards Guidelines for Ten PFAS<https://www.jdsupra.com/legalnews/epa-finalizes-new-aquatic-life-water-3310923/> The U.S. Environmental Protection Agency (EPA) published its final recommended aquatic life water quality criteria and benchmarks for two per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)—under the Clean Water Act. EPA also published freshwater aquatic life benchmarks for eight additional PFAS. While non-binding, these recommendations serve as guidance for States and Tribes to set their own water quality standards to regulate their water bodies. Such actions could, in turn, result in new effluent and/or benchmark limitations for discharge permits. An Updated Primer on PFAS/Forever Chemical Claims: Regulation, Litigation, Large Losses, and Insurance Coverage Issues<https://www.jdsupra.com/legalnews/commentary-an-updated-primer-on-pfas-3830973/> Per- and poly-fluoroalkyl substances ("PFAS") represent major exposures to insurers and their policyholders. Thousands of lawsuits are pending nationwide, and numerous large settlements have already been reached. Insurers are facing claims, tenders, and coverage actions from policyholders seeking defense and indemnity for PFAS-related claims. The plaintiffs' bar is focused on PFAS and views these so-called "forever chemicals" as a fertile source of lawsuits and large recoveries. EPA Under a Second Trump Presidency: The Good, Bad, and Ugly<https://www.jdsupra.com/legalnews/epa-under-a-second-trump-presidency-the-2788257/> A return to the presidency by Donald Trump has raised questions about the future of the U.S. Environmental Protection Agency (EPA) and the broader landscape of environmental policy in the United States. Given Trump’s past policies and statements, his administration may pursue significant changes to the EPA’s mission, budget, and regulatory approach. This article reviews Trump’s historical approach to environmental policy, the EPA’s role in U.S. environmental protection, and what Trump’s second term may look like. Wendy Wang Partner wendy.wang@bbklaw.com T: (213) 787-2554 bbklaw.com|