■ Member Notes
Continued From Page 30 faced by the energy grids due to heightened clean-energy mandates .
Federal Policies and Regulations Emerging Contaminants
The EPA recently announced the proposed National Primary Drinking Water Regulation for six PFAS chemicals . The proposed regulation sets the proposed MCL at 4 ppt for PFOA and PFOS . The proposed MCL for PFNA , PFHxS , PFBS , and GenX is 1.0 ( unitless ). The proposed regulation does not require any action by industries or water utilities until it is finalized . The EPA anticipates finalizing the regulation by the end of 2023 , and requests public comment once the proposed rule is published in the Federal Register .
In August of 2022 , the EPA proposed to designate two of the most widely used PFAS , namely PFOA and PFOS , as hazardous substances under the Comprehensive Environmental Response , Compensation , and Liability Act ( CERCLA ). Should this rule be adopted , parties can be required to investigate , remediate , and / or fund the clean-up of these PFAS chemicals on current or future CERCLA sites . The EPA has said it will soon consider similar designations for other PFAS chemicals . This has the potential to re-open sites and significantly impact and expand the CERCLA footprint in New Jersey .
Climate Initiatives In addition to implementing the Inflation Reduction Act in August of 2022 , which provided $ 369 billion in federal funding for climate spending , the EPA has recently proposed potentially controversial ozone control measures to combat climate concerns . The proposed rule would create a federal implementation plan that sets nitrogen oxide , or NOx , emissions budgets for fossil fuel power plants in 25 upwind states that require them to participate in an emissions-trading program under the EPA ’ s Cross-State Air Pollution Rule starting in 2023 . The proposed rule would also set NOx limits for a slew of other industrial sources in 23 states , including New Jersey , as early as 2026 .
Moreover , given the billions of dollars in grants , loans and tax credits allocated to hydrogen development by the Inflation Reduction Act and Infrastructure Investment and Jobs Act last year , federal rules for producing , transporting , and using hydrogen are highly anticipated and expected .
As to other greenhouse gases , the EPA has said it would propose a new rule to reduce greenhouse gas emissions from existing power plants in 2023 . It is unclear how the agency will respond to the Supreme Court ’ s June ruling in West Virginia v . EPA that the Obama-era Clean Power Plan giving states the option to promulgate regulations that would encourage “ generation shifting ” to clean energy isn ’ t allowed by the Clean Air Act .
The EPA is additionally set to finalize a proposed update to methane emissions regulations for existing oil and gas infrastructure . The proposal , which was released in November of last year , envisions a more comprehensive scheme to reduce methane and volatile organic compounds pollution , including adding new sources that would be subject to regulation , increasing monitoring to identify “ super-emitters ” for prompt mitigation , and strengthening requirements for flares to ensure they are properly operated to reduce emissions . The EPA has also expanded the options for technology that can be used for monitoring methane emissions .
ESG – Greenwashing Regulations
The U . S . Securities and Exchange Commission has also taken aim at “ greenwashing ” and other types of environmental marketing deception with two new proposed rules . In March of last year , the SEC proposed bolstering and standardizing climate risk-related disclosures from public companies . The SEC also floated two proposals that would increase the disclosure requirements for funds and advisers who make environmental , social , and governance-related investments , an effort to crack down on “ greenwashing ” or other types of deception . The final versions of these proposed rules are expected in 2023 .
Environmental Justice
The Biden administration is also expected to continue moving forward in broadening its considerations of environmental justice in its decision-making . In September of 2022 , the EPA consolidated its Office of Environmental Justice , External Civil Rights Compliance Office , and Conflict Prevention and Resolution Center into one new branch that is aimed at helping communities overburdened by pollution : The Office of Environmental Justice and External Civil Rights . The DOJ has also created its own Office of Environmental Justice .
Energy Initiatives
There are a number of updates and changes expected from the Federal Energy Regulatory Commission ( FERC ) later this year . First , in February of 2022 , FERC voted to approve a highly anticipated revision of its 1999 pipeline certificate policy statement , which would impact climate change reviews of gas infrastructure projects . However , the implementation of the revision was later suspended , with no further developments since last Spring . FERC is also expected to finalize revisions of its transmission planning policies , including requiring utilities and regional grid operators to take a longer-term approach to transmission project planning and giving more authority to the states regarding how costs for new projects are charged to consumers . FERC is also proposing changes to the process for connecting new power projects to the grid , and is considering changing financial incentives for transmission companies .
Energy attorneys are hoping that legislation accelerating the federal permitting process for transmission lines , pipelines and other energy infrastructure can advance in a divided Congress this year , despite the floundering of multiple attempts to pass legislation in a Democratic-controlled Congress in 2021 .
Key Judicial Opinions Climate Impacts
There are a number of pending judicial actions addressing significant climate issues , regulations , and standards , including greenhouse gas emissions and fuel efficiency issues . Republican-leaning states and several industry organizations have asked the D . C . Circuit to strike down the EPA ’ s regulations strengthening greenhouse gas standards for auto emissions , arguing that the agency overstepped its authority . The Biden administration ’ s fuel economy standards have also been challenged by environmentalists who told the D . C . Circuit they need to be strengthened ; the standards are separately being challenged by a fuel industry group and red states that allege they are too strict . The D . C . Circuit is additionally being asked to repeal an EPA waiver allowing California to set emission standards for vehicles and mandate zero-emission vehicles , fuel , trucking and business groups argued , saying the agency does not have authority to make such a broad decision . Finally , the Third Circuit heard oral arguments on January 10 of this year over a commissioner stalemate that allowed the nation ’ s largest grid operator to no longer require state-backed renewable energy sources to meet a price floor in electricity capacity auctions .
Clean Water Act
The U . S . Supreme Court heard oral arguments in October of last year in Michael Sackett et al . v . U . S . Environmental Protection Agency et al ., a case concerning whether the Ninth Circuit used the right test to determine whether wetlands are subject to federal jurisdiction under the Clean Water Act . Specifically , the question raised to the Court is whether wetlands fall within federal jurisdiction when they are connected to the waters of the U . S . through only subsurface connections . This ruling is expected to significantly impact the ability to develop properties , even those that are not directly connected to U . S . regulated waters .
In sum , 2023 will see a lot of environmental legislation , regulations , and new judicial precedent . Overly restrictive regulations will likely face new judicial challenges while consumers and industry leaders attempt to navigate new environmental rules and policies . Nevertheless , what is clear is the above anticipated regulations and policies as well as pending judicial challenges , are posed to significantly impact almost every industry in New Jersey and throughout the United States .
April 2023 COMMERCE 31