TBJ January 2022

2021: The Year in Review

Environmental Law

Written by Ty'Meka Reeves-Sobers

Following the 2020 U.S. presidential election, 2021 brought a number of policy shifts in environmental regulation (particularly on the federal level) with an enhanced focus on the energy industry, climate change, and infrastructure, as well as a few highly anticipated court decisions.

Regulatory and Policy Changes On November 19, 2021, the U.S. House of Representatives passed House Resolution 5376,1 known as the “Build Back Better Act,” which includes changes to federal regulations and policies governing oil and gas development and leasing on federal lands and targets methane emissions from oil and gas sources. Whether the U.S. Senate will pass the bill in its current form remains uncertain.

The U.S. Environmental Protection Agency, or EPA, also issued a proposed rule on November 15, 2021,2 intended to reduce methane emissions from oil and gas sources. The rule would impose stringent emissions reductions on new and existing sources and expand methane reduction requirements to include certain source types that have not previously been regulated under the Clean Air Act. The comment period ends in January 2022 and a supplemental proposal and final rule are expected in 2022.

On October 18, 2021, the EPA, in coordination with other federal agencies, announced plans to regulate per- and polyfluoroalkyl substances, or PFAS, and provided a timeline and outline of intended actions for federal regulation under the PFAS Strategic Roadmap for 2021-2024.3

The recently enacted Infrastructure Investment and Jobs Act4 includes billions in funding for water infrastructure, treatment of emerging contaminants (including PFAS), and clean energy and climate initiatives.

The White House Council on Environmental Quality once again issued a proposal5 to make changes to the National Environmental Policy Act regulations.

U.S. Supreme Court In HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association,6 the court rejected the U.S. Court of Appeals for the 10th Circuit’s holding that would have eliminated the small refineries exemption under the federal renewable fuels standard program, but the number of exemptions granted to small refineries may be limited in the future.

Overruling the U.S. Court of Appeals for the 9th Circuit, the court held in U.S. Fish and Wildlife Service, et al. v. Sierra Club, Inc.7 that U.S. Fish and Wildlife Service and National Marine Fisheries Service documents related to a biological opinion for a proposed EPA regulation were exempt from disclosure under the Freedom of Information Act because the documents were part of the agencies’ internal deliberations.

Watch for arguments after the court agreed to hear consolidated challenges8 brought by certain states (including Texas) and coal companies to the U.S. Court of Appeals for the District of Columbia Circuit’s ruling vacating the Affordable Clean Energy Rule—a rule that sought to roll back the Obama-era Clean Power Plan. Federal Courts

The U.S. District Court for the Eastern District of Texas compelled the disclosure of emissions information compiled as part of an environmental self-audit, raising concerns that privilege under the Texas Audit Act may not be applicable in federal courts.9

Notes 1. Build Back Better Act, H.R. 5376, 117th Cong. (2021-2022).
2. 86 Fed. Reg. 63110.
3. See PFAS Strategic Roadmap: EPA’s Commitments to Action, 2021-2024, U.S. Environmental Protection Agency, available at https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf.
4. Pub L. 117-58, 117th Cong. (2021).
5. 86 Fed. Reg. 55757.
6. No. 20-472 (U.S. Jun. 25, 2021).
7. No. 19-547 (U.S. Mar. 4, 2021).
8. W.Va. v. EPA, 985 F.3d 914, (D.C. Cir. 2021), cert. granted, (U.S. Oct. 29, 2021)(No. 20-1530).
9. See Order on Motion to Quash Subpoena, Sierra Club v. Woodville Pellets, LLC, No. 9:20-cv-178, 2021 WL 3522443 (E.D. Tex. Aug. 10, 2021).

TY’MEKA REEVES-SOBERS is a partner in the Global Environmental Practice Group at Kirkland & Ellis in Houston. Her practice focuses primarily on advising clients on environmental aspects of a variety of corporate transactions, including transactions involving energy and infrastructure companies and assets. Reeves-Sobers has a broad environmental regulatory and corporate and securities background and expertise in a range of environmental topics, including water quality and water rights, renewable energy, air, and contaminated property issues.

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