The Department of Justice has released a new policy that establishes a “presumption” in favor of recording post-arrest interviews of individuals in the custody of the FBI, DEA, ATF, or U.S. Marshals Service. The policy, outlined in a May 12 memorandum from Deputy Attorney General James Cole, applies to custodial interviews that take place before the arrestee’s initial appearance in court.
The new policy will end the FBI’s heavily criticized prohibition on the recording of interviews without the authorization of a senior supervisor. However, the policy recognizes exceptions to the presumption if the interviewee refuses to be recorded, for public safety or national security-related intelligence gathering, and where recording the interview is not “reasonably practicable.” The policy also contains a “residual exception,” to be “used sparingly” that permits supervisors to set aside the recording requirement for “a significant and articulable law enforcement purpose.”
The policy change is strongly backed by the defense bar. In a statement, National Association of Criminal Defense Lawyers President Jerry J. Cox said that recording interrogations "protects the accused against police misconduct, protects law enforcement against false allegations, and protects public safety by ensuring a verbatim record of the interrogation process and any statements."
The new policy takes effect on July 11.
-- Davina Pujari and Chris Jensen
For more information, contact Davina Pujari at dxp@bcltlaw.com, (415) 228-5459, or Chris Jensen at cdj@bcltlaw.com, (415) 228-5411.
Thursday, May 22, 2014
Thursday, May 15, 2014
Wildlife Agencies Propose New Endangered Species Regulations and Policy on Critical Habitat
On May 12, 2014, Federal wildlife agencies proposed two new rules concerning critical habitat under the Endangered Species Act and a draft policy regarding exclusions from critical habitat designations. The proposals, issued by the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), have been published in Federal Register, and comments will be accepted through July 11.
The proposed rules would create a new definition of “destruction or adverse modification” of critical habitat, as well as clarify the process and criteria for designating critical habitat. The new policy would clarify the agencies’ approach to exclusions from critical habitat. Taken together, the new rules and policy, if finalized as proposed, will impact a broad cross-section of government and business activity.
Comprehensive information on the new rules and policy is available on the USFWS webpage.
-- Josh Bloom and Dave Metres
For more information, contact Josh Bloom at jab@bcltlaw.com, (415) 228-5406, or Dave Metres at dmm@bcltlaw.com, (415) 228-5488.
The proposed rules would create a new definition of “destruction or adverse modification” of critical habitat, as well as clarify the process and criteria for designating critical habitat. The new policy would clarify the agencies’ approach to exclusions from critical habitat. Taken together, the new rules and policy, if finalized as proposed, will impact a broad cross-section of government and business activity.
Comprehensive information on the new rules and policy is available on the USFWS webpage.
-- Josh Bloom and Dave Metres
For more information, contact Josh Bloom at jab@bcltlaw.com, (415) 228-5406, or Dave Metres at dmm@bcltlaw.com, (415) 228-5488.
Environmental Groups Petition EPA to Regulate Air Emissions from Oil and Gas Production and Fracking in Urban Areas
On Tuesday, May 13, 2014, a coalition of environmental organizations led by EarthJustice submitted a Petition to the United States Environmental Protection Agency calling for the regulation of air emissions associated with oil and gas wells, particularly fracking, under the federal Clean Air Act. The environmental groups allege that toxic pollutants emitted by these operations present health risks and that such health risks are increasing as fracking operations move closer to urbanized communities.
Due to the alleged risk to public health, the environmental groups:
The Petition requests that EPA take two specific actions pursuant to the Clean Air Act:
There will almost certainly be future litigation over the issues raised in the Petition. The environmental groups that filed the Petition may sue EPA if the petition is denied, or if the Agency fails to act in response to the Petition. Alternatively, if EPA moves forward with some type of regulation of oil and gas production and fracking under the Clean Air Act, litigation would likely be brought by either environmental groups (claiming that the regulations are inadequate to protect human health), industry groups (challenging the basis and scope of any regulation of these activities), or both.
A copy of the petition is available here.
-- Tom Boer
For more information, contact Tom Boer at jtb@bcltlaw.com, or (415) 228-5413.
Due to the alleged risk to public health, the environmental groups:
urgently request[] EPA to exercise its authority under the Clean Air Act to list oil and gas wells (and associated equipment) located in the appropriate geographical areas as area sources, and set limits on hazardous air pollutant emissions from oil and gas wells and associated equipment in accordance with 42 U.S.C. §§ 7412(c), (d), (k), and (n)(4)(B).The Petition also argues that EPA “has a responsibility under the Clean Air Act to protect people from the toxic air emissions [from oil and gas operations] nationwide, and under section 112(n)(4)B) it must do so.”
The Petition requests that EPA take two specific actions pursuant to the Clean Air Act:
- Exercise its authority provided by the area source program of the Clean Air Act by listing oil and gas production wells (including fracking activities) as an area source. The Petition argues that the Clean Air allows regulation of “hazardous air pollutants from area sources [that] may individually, or in the aggregate, present significant risks to public health in urban areas,” that oil and gas activities can be properly classified as area sources, and that the Act provides authority to designate such area sources in metropolitan statistical areas (and/or consolidated metropolitan statistical areas) with a population in excess of one million; and
- Set emissions standards for oil and gas production wells (and associated equipment) within the newly listed area source category in accordance with 42 U.S.C. §§ 7412(c)(2), 7412(d)(2)-(3), and 7412(k), that would require implementation of the “maximum achievable” degree of emission reduction.
There will almost certainly be future litigation over the issues raised in the Petition. The environmental groups that filed the Petition may sue EPA if the petition is denied, or if the Agency fails to act in response to the Petition. Alternatively, if EPA moves forward with some type of regulation of oil and gas production and fracking under the Clean Air Act, litigation would likely be brought by either environmental groups (claiming that the regulations are inadequate to protect human health), industry groups (challenging the basis and scope of any regulation of these activities), or both.
A copy of the petition is available here.
-- Tom Boer
For more information, contact Tom Boer at jtb@bcltlaw.com, or (415) 228-5413.
Monday, May 12, 2014
D.C. Circuit Rejects Another Clean Air Act Challenge, Upholds Fine Particulate Standard
The D.C. Circuit added to federal air quality regulators’ winning streak on Friday, upholding a 2013 rule that revises air quality standards for fine particulate matter.
The rule lowers the National Ambient Air Quality Standard (NAAQS) for fine particulate matter from 15.0 µg/m3 to 12.0 µg/m3, and also tightens monitoring requirements for particulate air pollution. Writing for a unanimous court, Judge Kavanaugh cited the “great deference” given to EPA’s evaluation of “competing bodies of scientific research” in rejecting the National Association of Manufacturer’s challenge to the revised standard. The court also upheld revisions to the NAAQS that eliminate the use of “spatial averaging” of monitoring data to demonstrate compliance with the standard and require additional monitoring locations near heavily traveled roads in large metropolitan areas, as well as rejecting several procedural challenges to the sufficiency of EPA’s notice of the proposed rule and its response to industry comments.
The court’s decision is the latest in a string of cases in the D.C. Circuit (previously discussed here and here) and Supreme Court (discussed here) upholding EPA Clean Air Act rules. The common theme running through the majority decisions in each of these cases is the court’s willingness to defer to EPA’s technical expertise in setting air quality and emissions standard under the Clean Air Act. EPA has achieved these positive judicial outcomes notwithstanding criticism that EPA at times requests technical deference to mask imperfections in the rule making process and that EPA staff lacks adequate industry-specific experience to be entitled to such deference.
The biggest test of judicial deference to EPA expertise in the field of air quality regulation is still to come, when the Supreme Court issues its ruling on a challenge to EPA’s “tailoring rule” for the regulation of greenhouse gas emissions from power plants and large industrial facilities. As Morgan Gilhuly and I have previously discussed in our commentary on the Supreme Court’s EPA v. EME Homer City Generation decision, proponents of the federal regulation of greenhouse gases hope that that these recent decisions foreshadow the outcome of the tailoring rule case. A decision in that case, Utility Air Regulatory Group v. EPA, No. 12-1146, is anticipated before the end of the current term in June.
The challenge to the fine particulate NAAQS was brought in National Manufactures Association v. EPA, No. 13-1069. The court’s opinion is available here.
-- Chris Jensen
For more information, please contact Chris Jensen at cdj@bcltlaw.com or (415) 228-5411.
The rule lowers the National Ambient Air Quality Standard (NAAQS) for fine particulate matter from 15.0 µg/m3 to 12.0 µg/m3, and also tightens monitoring requirements for particulate air pollution. Writing for a unanimous court, Judge Kavanaugh cited the “great deference” given to EPA’s evaluation of “competing bodies of scientific research” in rejecting the National Association of Manufacturer’s challenge to the revised standard. The court also upheld revisions to the NAAQS that eliminate the use of “spatial averaging” of monitoring data to demonstrate compliance with the standard and require additional monitoring locations near heavily traveled roads in large metropolitan areas, as well as rejecting several procedural challenges to the sufficiency of EPA’s notice of the proposed rule and its response to industry comments.
The court’s decision is the latest in a string of cases in the D.C. Circuit (previously discussed here and here) and Supreme Court (discussed here) upholding EPA Clean Air Act rules. The common theme running through the majority decisions in each of these cases is the court’s willingness to defer to EPA’s technical expertise in setting air quality and emissions standard under the Clean Air Act. EPA has achieved these positive judicial outcomes notwithstanding criticism that EPA at times requests technical deference to mask imperfections in the rule making process and that EPA staff lacks adequate industry-specific experience to be entitled to such deference.
The biggest test of judicial deference to EPA expertise in the field of air quality regulation is still to come, when the Supreme Court issues its ruling on a challenge to EPA’s “tailoring rule” for the regulation of greenhouse gas emissions from power plants and large industrial facilities. As Morgan Gilhuly and I have previously discussed in our commentary on the Supreme Court’s EPA v. EME Homer City Generation decision, proponents of the federal regulation of greenhouse gases hope that that these recent decisions foreshadow the outcome of the tailoring rule case. A decision in that case, Utility Air Regulatory Group v. EPA, No. 12-1146, is anticipated before the end of the current term in June.
The challenge to the fine particulate NAAQS was brought in National Manufactures Association v. EPA, No. 13-1069. The court’s opinion is available here.
-- Chris Jensen
For more information, please contact Chris Jensen at cdj@bcltlaw.com or (415) 228-5411.
EPA Seeks Public Comment on the Potential Nationwide Regulation of Fracking Chemicals and Mixtures
On May 9, the Administrator of the United States Environmental Protection Agency (“EPA”) signed an advanced notice of proposed rulemaking (“ANPR”) seeking public input on whether the Agency should collect and publicly disclose information on hydraulic fracturing chemical substances and mixtures. The ANPR, titled Hydraulic Fracturing Chemicals and Mixtures; Advance Notice of Proposed Rulemaking [RIN 2070-AJ93; FRL-9909-13], will be published in the Federal Register shortly, and will provide 90 days for submission of public comments.
The ANPR seeks input on a wide range of issues related to fracking chemicals and mixtures. Broadly summarized, EPA requests comment from the public and stakeholders on the following issues:
The ANPR is particularly relevant to companies that manufacture, import, process, or distribute any chemical substances or mixtures used in any type of hydraulic fracturing. EPA indicates in the ANPR that future regulation could extend to chemical manufacturers, chemical suppliers who engage in processing, service providers mixing chemicals on site to create the hydraulic fracturing fluids, and service providers responsible for injecting the hydraulic fracturing fluid into the well to fracture a formation. This would likely include, at a minimum, businesses falling under the North American Industry Classification System codes 2111 (oil and gas extraction) or 2131 (support activities for mining).
The draft of the ANPR submitted to the Federal Register for publication is available on EPA’s website by clicking here.
EPA published the ANPR in response to an August 2011 citizen petition submitted under section 21 of the Toxic Substances Control Act (TSCA) by Earthjustice and a coalition of other environmental entities.
The ANPR seeks input on a wide range of issues related to fracking chemicals and mixtures. Broadly summarized, EPA requests comment from the public and stakeholders on the following issues:
- Whether EPA should collect information on fracking chemicals and mixtures;
- If so, which legal mechanism(s) EPA should use to obtain such information from the regulated community and whether submission of the information would be mandatory or voluntary;
- What companies or practices would be subject to reporting requirements or other regulation of fracking chemicals;
- Information on best management practices for the generation, collection, reporting and/or disclosure of public health and environmental information, potentially including health and safety studies, from or by companies that manufacture, process, or use chemical substances or mixtures in hydraulic fracturing;
- What practices or operations can be implemented and verified to achieve protection of public health and the environment associated with fracking chemicals and mixtures;
- Whether voluntary third-party certification, and incentives for disclosure, could be valuable tools for improving chemical safety related to fracking;
- Whether incentives and recognition programs could be used to support the development and use of safer chemicals in hydraulic fracturing; and
- Identification of options to minimize reporting burdens and costs, avoid duplication of efforts, and maximize transparency and public understanding associated with fracking chemicals.
The ANPR is particularly relevant to companies that manufacture, import, process, or distribute any chemical substances or mixtures used in any type of hydraulic fracturing. EPA indicates in the ANPR that future regulation could extend to chemical manufacturers, chemical suppliers who engage in processing, service providers mixing chemicals on site to create the hydraulic fracturing fluids, and service providers responsible for injecting the hydraulic fracturing fluid into the well to fracture a formation. This would likely include, at a minimum, businesses falling under the North American Industry Classification System codes 2111 (oil and gas extraction) or 2131 (support activities for mining).
As part of its regulatory process, EPA is specifically considering the legal authority under which it would regulate fracking chemicals. EPA is evaluating whether regulation would be mandatory, pursuant to the Agency’s authorities under TSCA section 8(a) and/or section 8(d), or voluntary pursuant to the Pollution Prevention Act, 42 U.S.C. 13101, or a combination of both. If EPA proceeds to issue a rule under its TSCA authorities, the regulated community may be legally obligated to publicly report the “identity, quantities, types and circumstances of uses of chemical substances and mixtures used in hydraulic fracturing” and/or to conduct and disclose health and safety studies on the use of such chemicals.
The draft of the ANPR submitted to the Federal Register for publication is available on EPA’s website by clicking here.
-- Tom Boer
For more information, please contact Tom Boer at jtb@bcltlaw.com or (415) 228-5413.
Tuesday, April 29, 2014
Supreme Court Upholds EPA Interstate Air Pollution Regulations
The Supreme Court has upheld EPA regulations requiring reductions in SO2, NOx, and fine particle emissions in 28 states stretching from Texas to New York.
The regulations, known as the “Cross-State Air Pollution Rule” or “Transport Rule,” are intended to reduce interstate transport of air pollutants, and were enacted under the “Good Neighbor Provision” of the Clean Air Act, which requires states implementing federal Clean Air Act requirements to enact measures to avoid contributing “significantly” to nonattainment of air quality standards in other states. EPA adopted Federal Implementation Plans (FIPs) to meet the Good Neighbor Provision’s requirements after it concluded that the measures adopted in the 28 State Implementation Plans (SIPs) at issue were inadequate.
The majority opinion, authored by Justice Ginsburg, concludes that EPA acted within its discretion in adopting a federal rule for cross-border pollution, and reverses a D.C. Circuit decision vacating the rule. Citing the plain meaning of the Clean Air Act, the Court rejects the argument that EPA was required to provide the states with an opportunity to revise their SIPs before adopting federal regulations. The Court also upholds EPA’s decision to take cost into account in allocating emissions reductions among upwind states. The majority opinion was authored by Justice Ginsburg and joined by Justices Roberts, Kennedy, Breyer, Sotomayor and Kagan. Justice Alito took no part in the consideration of the case.
In his dissent, Justice Scalia (joined by Justice Thomas) argues that EPA abused its discretion by failing to give states an opportunity to modify their SIPs to meet the requirements of the Good Neighbor Provision before issuing federal implementation plans, and also took issue with EPA’s consideration of cost in setting emissions limits for upwind states, which he argues is prohibited by the plain language of the statute.
The lead case is EPA v. EME Homer City Generation, L.P., No. 12-1182.
-- Chris Jensen and Morgan Gilhuly
For more information, please contact Chris Jensen at cdj@bcltlaw.com, (415) 228-5411, or Morgan Gilhuly at rmg@bcltlaw.com, (415) 228-5460.
The regulations, known as the “Cross-State Air Pollution Rule” or “Transport Rule,” are intended to reduce interstate transport of air pollutants, and were enacted under the “Good Neighbor Provision” of the Clean Air Act, which requires states implementing federal Clean Air Act requirements to enact measures to avoid contributing “significantly” to nonattainment of air quality standards in other states. EPA adopted Federal Implementation Plans (FIPs) to meet the Good Neighbor Provision’s requirements after it concluded that the measures adopted in the 28 State Implementation Plans (SIPs) at issue were inadequate.
The majority opinion, authored by Justice Ginsburg, concludes that EPA acted within its discretion in adopting a federal rule for cross-border pollution, and reverses a D.C. Circuit decision vacating the rule. Citing the plain meaning of the Clean Air Act, the Court rejects the argument that EPA was required to provide the states with an opportunity to revise their SIPs before adopting federal regulations. The Court also upholds EPA’s decision to take cost into account in allocating emissions reductions among upwind states. The majority opinion was authored by Justice Ginsburg and joined by Justices Roberts, Kennedy, Breyer, Sotomayor and Kagan. Justice Alito took no part in the consideration of the case.
In his dissent, Justice Scalia (joined by Justice Thomas) argues that EPA abused its discretion by failing to give states an opportunity to modify their SIPs to meet the requirements of the Good Neighbor Provision before issuing federal implementation plans, and also took issue with EPA’s consideration of cost in setting emissions limits for upwind states, which he argues is prohibited by the plain language of the statute.
The lead case is EPA v. EME Homer City Generation, L.P., No. 12-1182.
-- Chris Jensen and Morgan Gilhuly
For more information, please contact Chris Jensen at cdj@bcltlaw.com, (415) 228-5411, or Morgan Gilhuly at rmg@bcltlaw.com, (415) 228-5460.
Friday, April 18, 2014
D.C. Circuit Upholds Most of Portland Cement MACT, Vacates “Unavoidable Malfunction” Defense
In a unanimous ruling issued earlier today, the D.C. Circuit largely upheld EPA regulations governing emissions of toxic air pollutants from Portland cement plants, while vacating a provision that created an affirmative defense for “unavoidable” equipment malfunctions.
The regulations, issued in February 2013, set limits for emissions of particulate matter, mercury, hydrochloric acid, and hydrocarbons from Portland cement manufacturing facilities.
In rejecting several arguments advanced by environmental organizations challenging the regulations, the court held that EPA reasonably interpreted the Clean Air Act to allow the Agency to consider compliance costs in setting “beyond-the-floor” MACT limits for toxic air pollutants. The court also rejected the argument that Section 112(d)(7) of the Clean Air Act should be interpreted as an anti-backsliding provision and held that EPA acted reasonably in extending the compliance date for all pollutants covered by the regulations when it revised the standard for particulate matter in the 2013 rule.
However, the court concluded that the creation of an affirmative defense for “unavoidable” equipment malfunctions exceeded EPA’s statutory authority.
The lead case is Natural Resources Defense Counsel v. EPA, Case No. 10-1371.
--Chris Jensen
For more information, contact Chris Jensen at cdj@bcltlaw.com, or (415) 228-5411.
The regulations, issued in February 2013, set limits for emissions of particulate matter, mercury, hydrochloric acid, and hydrocarbons from Portland cement manufacturing facilities.
In rejecting several arguments advanced by environmental organizations challenging the regulations, the court held that EPA reasonably interpreted the Clean Air Act to allow the Agency to consider compliance costs in setting “beyond-the-floor” MACT limits for toxic air pollutants. The court also rejected the argument that Section 112(d)(7) of the Clean Air Act should be interpreted as an anti-backsliding provision and held that EPA acted reasonably in extending the compliance date for all pollutants covered by the regulations when it revised the standard for particulate matter in the 2013 rule.
However, the court concluded that the creation of an affirmative defense for “unavoidable” equipment malfunctions exceeded EPA’s statutory authority.
The lead case is Natural Resources Defense Counsel v. EPA, Case No. 10-1371.
--Chris Jensen
For more information, contact Chris Jensen at cdj@bcltlaw.com, or (415) 228-5411.
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