Insights

The new administration took over four months ago and has implemented significant changes throughout the federal government, including policies affecting prior federal environmental justice (EJ) initiatives. These changes will likely result in reduced regulatory burdens and faster permitting but will apply only at the federal level, leaving the existing EJ laws at the state level fully enforceable.  

On January 8, 2025, the Environmental Protection Agency (EPA) published a final rule in the Federal Register adjusting upward the maximum monetary civil penalties for violating its regulations. This rule raised the minimum and maximum fines for 2025 by 1.02% from their 2024 levels. New penalty amounts go into effect immediately and apply to violations occurring after January 8, 2025.

On January 20, 2025, President Trump issued an Executive Order directing the withdrawal of all areas on the Outer Continental Shelf —an expansive area of submerged land under federal control— from eligibility for offshore wind leasing. This Executive Order was one of several energy-related executive orders reportedly intended to increase oil and gas production and curtail the deployment of clean energy resources signed by Trump shortly following his inauguration. The Order is premised on stated concerns for meeting “the country’s growing demand for reliable energy,” maintaining a “robust fishing industry for future generations” and providing “low cost energy to [U.S.] citizens.”

On April 19, 2024, EPA signed the highly anticipated final rule designating two types of PFAS as hazardous substances under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  At the same time, David M. Uhlmann, Assistant Administrator for Enforcement and Compliance Assurance of the EPA, released an enforcement policy memorandum that provides “direction to all EPA enforcement and compliance staff about how EPA will exercise its enforcement discretion under CERCLA in matters involving PFAS, just as EPA exercises enforcement discretion regarding other hazardous substances.”  This alert summarizes key points from the enforcement policy and flags various uncertainties that lie ahead. 

The Environmental Protection Agency’s (EPA’s) Office of Enforcement and Compliance Assurance (OECA) just issued its new Strategic Civil-Criminal Enforcement Policy, setting the stage for the new manner in which the agency manages its pollution investigations. David M. Uhlmann, the head of OECA, signed the Policy memorandum on April 17, 2024, in order to ensure that EPA’s civil and criminal enforcement offices collaborate efficiently and consistently in cases across the nation. The Policy states, “EPA must exercise enforcement discretion reasonably when deciding whether a particular matter warrants criminal, civil, or administrative enforcement. Criminal enforcement should be reserved for the most egregious violations.” 

On January 8, 2024, New Jersey passed the Electric and Hybrid Vehicle Management Act making it illegal to dispose of electric vehicle (EV) batteries in landfills and instead mandating the reuse and recycling of EV batteries. Beginning in January 2027, the Act will explicitly prohibit unauthorized persons from disposing of EV batteries and their subcomponents as solid waste. On that same date, “no solid waste facility” in New Jersey “shall knowingly accept for disposal” an EV battery unless authorized by the state.

On January 31, 2024, EPA Administrator Michael Regan signed two proposed rules related to per- and polyfluoroalkyl substances (PFAS) and corrective action authority under the Resource Conservation and Recovery Act (RCRA). These rulemakings follow from a 2021 announcement covered in a prior Crowell client alert, adding to the growing number of pending PFAS-related proposals submitted by EPA.

On December 27, 2023, the Environmental Protection Agency (EPA) published a final rule in the Federal Register adjusting upward the maximum monetary civil penalties for violating its regulations. The final rule raised the minimum and maximum fines for 2024 by about 3.2 percent from their 2023 levels. The new penalty amounts became effective on December 27, 2023, and will only apply to violations that take place after that date.

On October 13, 2023, Todd S. Kim, the Assistant Attorney General of the Department of Justice’s Environment and Natural Resources Division (ENRD), delivered the keynote address at the American Bar Association’s 31st Fall conference in Washington, D.C., highlighting the Justice Department’s enforcement successes concerning environmental justice (EJ). Later that day, DOJ’s Office of Environmental Justice (OEJ) released its inaugural Comprehensive Environmental Justice Enforcement Strategy Annual Report (OEJ Report). The report highlights the Justice Department’s successes in pursuing cases involving EJ concerns and summarizes its efforts in “engaging with and delivering results to communities long overburdened by pollution.” (See DOJ Press Release). Kim’s remarks and the OEJ Report indicate that the Justice Department will continue to actively pursue environmental enforcement actions where there is an EJ aspect to the matter. Companies should be alert to the possibility, and be prepared to timely respond, to agency inquiries where there is arguably an EJ impact from their operations.

More than 750 days ago, President Biden nominated David M. Uhlmann to serve as the head of the U.S. Environmental Protection Agency’s Office of Enforcement and Compliance Assurance – basically, to serve as EPA’s top cop. But the nomination stalled with the Senate Environment and Public Works Committee deadlocking last year, until finally, on July 20, 2023, the U.S. Senate confirmed his nomination in a 53-46 bipartisan vote. Now, Uhlmann will head the EPA’s federal criminal, civil, and administrative enforcement of federal environmental laws, focusing on his publicly announced goal of prosecuting those entities believed to be the primary cause of pollution hazards, while also “ensuring that companies who act with ethics and integrity are not at a competitive disadvantage with those who flout the law” – a statement he made during his September 2021 congressional testimony.[1]

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.