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The Year in Review

Environment, Energy, and Resources Law: The Year in Review 2022

Environmental Litigation and Toxic Torts Committee Report

Summary

  • The Environmental Litigation and Toxic Torts Committee Report for YIR 2022.
  • Summarizes significant legal developments in 2022 in the area of environmental litigation and toxic torts.
Environmental Litigation and Toxic Torts Committee Report
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Judicial Developments

A. West Virginia v. Environmental Protection Agency

In June 2022, the Supreme Court of the United States decided West Virginia v. Environmental Protection Agency (EPA)—a landmark case involving the complicated history of the Clean Air Act (CAA) and Clean Power Plan (CPP) rule. The question presented was whether Congress in the CAA provided unlimited authorization for EPA to issue rules regarding electricity grids and carbon dioxide emissions. EPA devised carbon emissions caps to shift energy generation at the power grid level from coal-fired power plants to “generation by natural gas, wind, or solar sources.” The Court held in a 6-3 decision that “Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan.”

In addition, the Court’s majority opinion expressly recognized the “major questions doctrine.” The major questions doctrine requires an agency to point to “‘clear congressional authorization’” for authority to determine issues of “‘vast economic and political significance.’” According to the Court, “in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary.” This was a major questions case because of EPA’s claim of extensive authority in CAA Section 111(d) to regulate carbon dioxide emissions from power plant electricity production.

This decision is particularly consequential for the Court’s administrative law jurisprudence, especially for environmental cases. Though lower courts appear to be reluctant to depart from analyzing deference under the Chevron doctrine, the Court’s now explicit support for the major questions doctrine may create a trend of lower courts relying more heavily on the major questions doctrine to determine questions of administrative or Presidential authority, even for questions of national importance outside the environmental context such as the federal vaccine mandate, authority under the HEROES Act to forgive student loans, and requests to discharge student loans.

Updates to National and International Microplastics Regulation

The issue of “microplastics” continued to gain interest in 2022. The term is generally understood to mean the entry of solid plastic particles below a certain size (typically the size of a lentil or smaller) entering into or in the environment as waste. It encompasses both plastics that are intentionally added to products and formulations as well as the breakdown of larger plastics into the environment. These are generally referred to as primary and secondary microplastics, respectively. Microplastics include both microbeads and microfibers. The European Commission also considers plastic production raw materials (typically pellets, flakes or powders) to be microplastics if they are spilled or enter the environment.

A. U.S. Developments

In the United States, early interest in microplastics emerged with respect to concerns about plastic microbeads added to certain personal care products. After a spate of state legislative vehicles targeted to this issue emerged, Congress took action with the Microbead-Free Waters Act of 2015. Congress then went further under the Save Our Seas 2.0 Act to require development of standardized definitions and key reports. Under this law, the Interagency Marine Debris Coordinating Committee was required to complete a report on microfiber pollution that includes:

1. a definition of microfiber;

2. an assessment of the sources, prevalence, and causes of microfiber pollution;

3. a recommendation for a standardized methodology to measure and estimate the prevalence of microfiber pollution;

4. recommendations for reducing microfiber pollution; and

5. a plan for how Federal agencies, in partnership with other stakeholders, can lead on opportunities to reduce microfiber pollution during the 5-year period beginning on the date of the Act’s enactment.

The draft report identified textiles as a significant contributor to microfiber pollution and also noted contributions from carpets, upholstery, fishing and boating gear, textiles used in agriculture, and cigarette butts. The report included an inter-agency developed federal plan to reduce microfiber pollution for 2023-2028.

California’s Ocean Protection Council approved a Statewide Microplastics Strategy in February. The Strategy is a blueprint for possible future regulatory action by one or more California agencies. Among other things, the Strategy recommends an expansion of California’s existing microbeads ban to a broader suite of products by the end of 2023.

Meanwhile, California’s legislatively mandated program to monitor microplastics in drinking water also moved forward. In 2022, the State Water Resources Control Board approved a handbook to test water supplies for microplastics, which will be used starting in 2023 by major water providers as part of California’s program.

B. International Developments

The United Nations Environment Assembly (UNEA) moved forward in the negotiations to develop a legally binding global treaty on plastics in March 2022. The negotiating mandate extends to microplastics, which are considered to be plastic pollution under applicable UN resolutions. The first meeting of the International Negotiating Committee concluded in December 2022 with additional meetings anticipated in 2023 and 2024. A progress report will be made at the sixth session of the UNEA scheduled for February 2024 (UNEA-6).

The European Commission took another step forward with a draft proposal to restrict intentionally added microplastics on August 30, 2022. The proposal restricts plastics in a range of products from cosmetics to cleaning products to pesticides. The draft notes that the Commission is excluding certain “natural,” degradable and soluble polymers from the applicable definition of microplastics. The restriction would cover synthetic polymer microplastics under 5 mm and microfibers under 15 mm.

Also, on August 30, 2022, the World Health Organization released its long-awaited report on human health risk and microplastics. The report extensively addresses the current state of the science on microplastics and makes a series of research recommendations to address uncertainties and help develop high enough quality data to support risk assessment.

Updates to Environmental Justice Regulation and Litigation

In 2022, the Biden Administration transformed environmental justice (EJ) from an issue at the periphery of environmental regulation to a singular force driving policy changes at the federal and state levels. Over the course of 2022, EPA’s EJ initiatives advanced from concepts toward a theme used by the Biden Administration to tie together significant regulatory changes, generational spending, and large-scale changes into how environmental decision-making is allocated between federal, state, and local governments.

A. Regulatory Updates

Shortly after taking office, President Biden issued executive order (E.O.) 13985, focused on “Advancing Racial Equity and Support for Underserved Communities through the Federal Government.” This executive order focused on affirmatively advancing equity through embedding fairness in decision making processes throughout the government. E.O. 13985 is the foundational document upon which the Biden Administration has constructed its EJ initiatives.

EPA’s Equity Action Plan, released in April 2022, committed the agency to (among other things) increased community engagement, focus on equity in procurement and contracting, and use federal civil rights laws and a “whole of government” approach to advance environmental compliance. The Equity Action Plan builds out the FY 2022–2026 EPA Strategic Plan in which EJ issues play a leading role. Among other goals, the Equity Action Plan commits to developing a comprehensive framework for considering cumulative impacts in EPA decisions, to building the capacity of underserved communities to participate in EPA decision making, and to strengthening EPA’s civil rights compliance program.

EPA’s Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions (FAQs), released in August 2022, provides guidance to local, state, and federal permitting agencies on incorporation of environmental justice and civil rights considerations into permitting programs. The FAQs highlight agency responsibilities to comply with federal civil rights laws, including the Civil Rights Act of 1964, when making permitting decisions. The document lays out EPA’s authority and responsibilities to advance civil rights, and it further provides permitting agencies with the tools to engage in the EJ analysis EPA proposes.

B. Key Decisions

EJ is a new driving force in the regulatory space, and throughout 2022, the executive branch drove EJ issues most frequently through the policy pronouncements. In addition, recent key court decisions fell into three spaces.

1. One late-in-2021 federal court decision illustrating how EJ principles could drive decision making in the future.

In Center for Community Action and Environmental Justice v. FAA, the Ninth Circuit denied a community group’s petition to review the Federal Aviation Administration's (FAA) consideration of the environmental impact of construction and operation of an air cargo facility. In dissent, Judge Rawlinson proffered that the FAA should have developed a broader environmental study incorporating direct and indirect effects of development projects that would occur in an environmentally overburdened area. Judge Rawlinson’s dissent could signal that such judges may push for deeper EJ analysis from agencies as the concepts are more fully realized.

2. One state decision addressed EJ implementation in more fully realized circumstances.

In Rise St. James, et al. v. Louisiana Department of Environmental Quality, a Louisiana state court vacated fourteen permits issued by the Louisiana Department of Environmental Quality (DEQ) for the construction and operation of a plastics manufacturing complex comprising fourteen separate facilities. The court’s ruling was based, in part, on a rejection of the Louisiana DEQ’s finding that a nearby community would not be disproportionately impacted by pollution from the facility.

3. Federal civil rights laws become part of administrative findings

A handful of pre-litigation administrative findings issued by agencies exhibited positions as to what effect federal civil rights laws could have in the environmental space. For example, in February 2022, the Chicago Department of Public Health denied an operating permit to a scrap metal facility that had already been constructed, citing concern about the impact the operation would have on a vulnerable community.

Updates to PFAS Regulation and Litigation

A. Regulatory Updates

Effective January 26, 2022, the EPA enacted a Final Rule under section 1445(a)(2) of the Safe Water Drinking Act to monitor and collect data on twenty-nine PFAS substances. The rule requires that certain Public Water Services monitor and collect data on PFAS substances. The reporting period started in January 2022 and is expected to be finalized in 2026.

On September 6, 2022, the EPA published a Notice of Proposed Rulemaking designating two PFAS chemicals as hazardous substances under section 102(a) of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), requiring reporting under section 103(a) of CERCLA and section 304 of Emergency Planning and Community Right-to-Know Act (EPCRA) to Federal, Tribal, State and Local Authorities as soon as anyone in charge of a vessel or facility has knowledge of a release of at least 1 pound of the chemicals within twenty-four hours. The two PFAS substances are perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS).

Attorney Generals of eighteen states supported the rule. Other states expressed moderate opposition. Many of the opposing parties pointed out to the unfairness of imposing costs on parties who did not contribute to the problem, advocating for the “polluter pays principle.” or requesting an additional 60-day extension. Businesses and industry groups voiced the strongest opposition to the proposed rule citing lack of clear EPA authority, questioning scientific findings and conclusions of the EPA, and calling the rule “arbitrary and capricious” under the Administrative Procedure Act. The Small Business Administration’s Office of the Advocacy expressed its opposition disputing EPA’s factual findings under the Regulatory Flexibility Act. Farms, farmer’s associations, and the U.S. Department of Agriculture questioned the soundness of the EPA’s conclusions concerning that industry and pointed to unfairness of shifting liability. Environmental nonprofits and many citizens groups expressed full support for the proposed rule.

Effective September 13, 2022, the EPA published a notice proposing removal of twelve PFAS chemicals currently deemed as inert chemicals. Use of these chemicals in industrial processes is not subject to stringent EPA review. The notice was published pursuant to Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), with a 30-day comment period. The notice would require that EPA more stringently review proposed uses of the chemicals.

On July 20, 2022, the Food and Drug Administration (FDA) published a Request for Information Notice about food contact uses of fluorinated polyethylene containers. The EPA previously concluded that certain fluorinated polyethylene containers used to store pesticides have the potential to produce several PFAS chemicals while mixing with the contents. Because of the toxic and carcinogenic nature of PFAS chemicals, the FDA issued the information request to find out in what type of food contact situations these containers are used.

Effective August 17, 2022, the EPA published a Final Rule including five PFAS substances as toxic chemicals subject to reporting pursuant to EPCRA and Pollution Prevention Act. The National Defense Authorization Act for Fiscal Year 2020 required that these chemicals must be reported as toxic chemicals.

B. Case Law Developments

A Federal District Court issued several unreported opinions in connection with In re: Aqueous Film-Forming Foam Litigation, finding personal jurisdiction by states over several defendants that supplied fluorosurfactants to aqueous foam manufacturers: the Plaintiffs’ claims are based on strict liability, nuisance, product liability, design defect, breach of warranty, trespass, and failure to warn. In Lonsk v. Middlesex Water Company, the putative Plaintiff class asserted a negligence claim against the water company and negligence, trespass, nuisance claims against 3M for PFAS contamination. The Court denied the Rule 12(b)(6) Motions by Defendants and held that the putative class had adequately pled their claims. In Safe Skies Clean Water Wisconsin, Inc. v. National Guard Bureau one of the narrow issues was whether the agency had to prepare an environmental impact statement (EIS) for the particular projects in question. Holding that the environmental assessment adequately addressed the presence of PFAS, there was no further need for an EIS.

V. Wireless Radiation

Scientists are continuing to investigate possible links of wireless radiation exposure to various disease endpoints in humans, which may lead to an increase in toxic tort litigation and personal injury litigation triggered by wireless radiation health claims. While individuals cannot challenge wireless infrastructure and wireless devices based on health concerns (per the Telecommunications Act of 1996), the Federal Communication Commission’s (FCC) decades-old wireless radiation exposure limits may be due for an update to ensure they are scientifically adequate to protect public health.

All wireless devices, from Bluetooth-enabled headphones to cell phones, emit wireless radiation, which are microwave frequencies. Scientists have been intensely studying the health effects associated with microwaves since the invention of radar in an effort to set safety standards for military personnel. In 2011, the World Health Organization classified wireless radiation as a 2B carcinogen, putting it in the same category as lead and diesel exhaust. In 2018, the U.S. National Toxicology Program completed a $30 million-dollar study linking exposure to wireless radiation to “clear evidence” of carcinogenesis. Lloyd’s of London, the largest insurance company in the world, will not insure wireless companies for health risks associated with exposure to electromagnetic fields emitted by wireless devices. And to top it off, in 2021, the D.C. Circuit Court of Appeals ruled that the Federal Communications Commission (FCC) decision not to update 26-year-old U.S. wireless radiation exposure limits was arbitrary and capricious under the federal Administrative Procedure Act. The agency failed to provide a “reasoned explanation,”—relying instead on conclusory statements without adequately responding to evidence in the administrative record to determine whether the FCC’s guidelines “adequately protect against the harmful effects of exposure to radiofrequency radiation.”

The court remanded the case to the FCC to provide the missing justification, yet the agency has not acted on the remand. The monumental ruling by the D.C. Circuit against the FCC calls into question the agency’s willingness to consider human health as it facilitates the dizzying deployment of wireless telecommunications infrastructure and wireless devices across the nation.

This chapter was prepared by Zoe Berg, Tulane University Law School J.D. Candidate 2024; Leland P. Frost, of Alston & Bird; Robert A.H. Middleton, of ArentFox Schiff; Karyn M. Schmidt, of the American Chemistry Council; J. Michael Showalter, of ArentFox Schiff; and Theodore White-Meridian, of the FDIC. The views expressed by Theodore White-Meridian do not represent the views of the FDIC. The authors would also like to acknowledge Heather Lee Miller, Ph.D., of Historical Research Associates, Inc., and Inga C. Caldwell, of Cole Schotz, P.C., who reviewed the manuscript.