Insights

As microplastics begin making headlines and sparking scientific inquiry into the impacts of these pervasive particles, state legislators, regulators, and law enforcers—as well as private plaintiffs’ counsel—are taking action. In California, a bipartisan coalition of legislators passed AB 823, expanding the scope of an existing state ban on products containing plastic microbeads. Governor Newsom vetoed the bill, citing concerns that the ban would inadvertently slow the adoption of non-plastic alternatives.

Microplastics pollution has emerged as a significant issue as the public learns more about the presence of microplastics in the environment and how they may enter the human body.

Hardly a day passes without the newspapers reporting on an EPA action, lawsuit, or governmental proposal regarding PFAS, a diverse group of chemicals used in the manufacture of many consumer, industrial, and commercial products. In some circumstances, PFAS usage can result in soil and groundwater contamination. Addressing PFAS contamination is a clear priority for EPA and enforcement agencies right now and aligns with the Biden Administration’s focus on drinking water issues.[1] Companies need to be aware of what EPA has already done on PFAS—and what EPA has recently signaled is coming.

The EPA has issued new guidance on environmental justice that urges regulators to incorporate EJ concerns and communities into the permitting process earlier on, make changes to the process that enable EJ communities to participate more fully, and use existing legal authorities to require would-be permittees to fully address EJ issues.

It has been just over a year since the Biden administration announced its commitment to environmental justice (EJ), and the regulated community can now examine whether the administration has been effective in achieving some of its EJ policy goals. Some are also comparing the administration’s actions with various states’ actions concerning EJ.

The U.S. Environmental Protection Agency (EPA) plans to release by the end of this year guidelines for analyzing cumulative risks that result from an aggregation of environmental hazards. EPA says the revisited and further developed cumulative risk assessment guidance will serve as an additional tool to guide EPA’s regulatory decision-making and enforcement efforts, especially as it pertains to its environmental justice (EJ) goals.

Companies who make ambitious marketing claims about purported clean energy efforts may find that they are exposed to litigation under the District of Columbia Consumer Protection Procedures Act (DCCPPA). The DCCPPA is an expansive consumer protection law that confers standing on any person, or nonprofit organization, to sue either on behalf of herself or “in the public interest” for false advertising. A recent DCCPPA lawsuit against energy giant, Exxon Mobil Corporation, serves as the latest example of a swelling risk to corporate defendants who may be subject to suit in the Superior Court of the District of Columbia. Companies should thus carefully advertise their clean energy efforts, or other forward-leaning activities, in a manner that closely and accurately reflects the steps it is taking to achieve those goals.

On Monday, March 15, 2021, the U.S. Senate confirmed Representative Debra Haaland (D-New Mexico) as Secretary of the Interior, making her the first Native American to be appointed to any presidential cabinet. Haaland’s confirmation serves as another example of Biden’s all-of-government approach to addressing climate change and environmental justice. Haaland, who previously chaired the House Natural Resources subcommittee, and her supporters have touted her history of championing climate and environmental justice issues, particularly in connection with indigenous populations. For example, throughout her most recent congressional campaign, Haaland advocated for, in her view, the interconnected nature of indigenous rights and “climate justice,” and pledged to fight to “keep fossil fuels in the ground.” Likewise, while in Congress, Haaland introduced environmental-justice legislation that sought to increase access to public lands for communities of color.

On March 2, 2021, Democratic leaders of the House Committee on Energy & Commerce released the Climate Leadership and Environmental Action for our Nation’s Future Act (“CLEAN Future Act” or “Act”), a bill reflecting many of the top climate and clean energy priorities of the Biden Administration and Congressional Democrats. While focusing largely on a range of measures intended to achieve net-zero greenhouse gas (GHG) emission by 2050, notably Title VI of the bill would, if ultimately enacted, also further advance the administration’s environmental justice objectives, as first articulated earlier this year Executive Order 14008. In particular, the bill would, among other measures:

Predictably, the pandemic has taken a toll on the U.S. Food and Drug Administration’s (FDA’s) inspection program, which typically conducts more than 1,600 inspections of foreign and domestic drug manufacturing establishments each year. In a Report to Congressional Committees published on January 28, 2021, the U.S. Government Accountability Office (GAO) charged the FDA to review its approach to inspections in light of an increasing backlog to (1) ensure that inspection plans address issues presented by the backlog of inspections and (2) fully assess the agency’s alternative inspection tools to determine whether those tools could be used to meet drug oversight objectives while inspections are not possible.

On January 27, President Biden issued an executive order detailing the first steps to achieve his U.S. foreign and domestic policy on climate change, environmental justice (EJ), and clean energy. In particular, the executive order directs all federal agencies to make achieving EJ part of their missions and, most immediately, for the U.S. Environmental Protection Agency (EPA)to “[s]trengthen enforcement of environmental violations with disproportionate impact on underserved communities. . .” To facilitate such a shift, the order further requires the deployment of new tools designed to identify and protect “fenceline” communities carrying a disproportionate burden of pollution and harmful environmental effects. These tools include: