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The Year in Review

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

Highlights of The Year in Review 2022


  • Provides highlights of The Year in Review 2022.
  • Breaks down the most important findings of the YIR 2022.
Highlights of The Year in Review 2022
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Welcome fellow enthusiasts and practitioners of environmental, energy, and resource law to the 2022 Year in Review. The ABA SEER committees worked hard to capture and discuss numerous developments, events, and changes in the law that occurred during the last calendar year. We are excited to bring you these reports.

The ABA SEER’s Year in Review is organized by chapters that correspond with, and are written by, each of the substantive committees in the ABA SEER. Each committee organizes and writes its chapter as an annual report focused on significant developments, events, and other notable changes in the law that largely occurred in the previous calendar year. The chapters do not capture all that occurred. Further, this Highlights section offers only a brief snapshot of a few common topics discussed by several of the committees, as well as bringing attention to some unique developments that may be of interest to a broader audience. This is not a comprehensive summary and by no means captures all of the topics addressed by multiple committees. Instead, it serves as a starting point for a few hot topics and what chapters to explore for different discussions and perspectives on those topics. Without further ado, the 2022 Year in Review Highlights.

Developments in PFAS regulation and litigation

The U.S. Environmental Protection Agency (EPA) took important steps towards implementing regulatory requirements around per- and polyfluoroalkyl substances (PFAS) – in particular perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Throughout its chapter, the Pesticides, Chemical Regulation, and Right-to-Know committee provide updates on actions taken by the EPA under the Agency’s PFAS Strategic Roadmap, actions taken under FIFRA, and actions taken by state legislatures. The Environmental Litigation and Toxic Torts committee discusses several regulatory developments, including a Final Rule under the Safe Drinking Water Act and a proposed rule issued under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Superfund and Natural Resource Damages committee also provides a discussion of the proposed CERCLA rulemaking. The Waste and Resource Recovery and Environmental Litigation and Toxic Torts committees provide updates on some ongoing litigation concerning environmental contamination from PFAS substances. The Science and Technology committee provides a detailed look at the new EPA health advisories issued for additional PFAS substances (those beyond PFOA and PFOS). The Water Quality and Wetlands committee discusses an EPA memorandum concerning the incorporation of PFAS into Clean Water Act discharge permits (i.e., NPDES permits). The International Environmental and Resources Law committee highlights some legislative activities in the U.S. and the European Union. The Oil and Gas committee provides an update on PFAS legislation in Colorado impacting the oil and gas industry and the sale of consumer products.

Discussions on the Major Questions Doctrine and West Virginia v. EPA case

The U.S. Supreme Court issued its opinion in the West Virginia v. EPA case – a Clean Air Act case that resulted in an opinion that provided the articulation of the major questions judicial review doctrine that will impact the field of Administrative Law and judicial review of agency actions. The Constitutional Law and Energy and Natural Resources Litigation committees each provide a thorough discussion of the facts of the case and the decision arrived at by the Court. Other Committees that discuss the case include the Air Quality, Environmental Litigation and Toxic Torts, and International Environmental and Resources Law committees.

Developments related to corporate ESG reporting

Several committees provide updates on developments in the ESG (environment, social, governance) space. The In-House Counsel committee discusses ESG shareholder derivative claims and litigation, but also provides a discussion on food waste in the context of sustainability efforts. The Environmental Disclosure committee provides an update on enhanced disclosures driven by investment advisors and investment companies, while also providing an update on the SEC proposed climate-related disclosures, updates on ESG disclosure frameworks, and a ‘greenwashing’ rule concerning company names. The Agricultural Management committee provides a discussion about relevant shareholder lawsuits brought by consumers challenging sustainability claims and claims of humane operations. The Climate Change, Sustainable Development, and Ecosystems committee provides additional discussion on the Securities and Exchange Commission’s (SEC) disclosure rule and ESG responsibility in supply chain for critical minerals for the energy transition.

Developments related to environmental justice

Environmental justice is a central focus of the Biden Administration. The Administration’s “whole of government” approach is reflected in the 2022 Year in Review. Many committees touched on the impact the Inflation Reduction Act (IRA) will have on environmental justice efforts. The In-House Counsel committee recounts the executive actions taken by President Biden and highlights the developments at the U.S. Department of Justice concerning enforcement strategy and two investigations underway – one concerning wastewater treatment and the other for illegal dumping of waste. The Energy Infrastructure, Siting and Reliability committee discusses environmental justice in the context of grid reliability and efforts at the U.S. Department of Energy. The Science and Technology chapter highlights a report from the EPA Science Advisory Board on the need to develop a systematic evaluation of environmental justice impacts of air regulations. The Environmental Transactions and Brownfields committee offers a case study discussion of environmental justice and coal communities in Southwest Virginia.

Other committees that highlight developments include: Environmental Litigation and Toxic Torts discuss EPA’s equity plan and litigation trends; the Air Quality committee highlights a Louisiana case where a court found the state environmental agency should have denied an air permit for an industrial facility following an environmental justice analysis; and the Superfund and Natural Resource Damages Litigation committee highlights EPA’s EJ Action Plan.

Developments around key environmental U.S. Legislation

In 2022, the U.S. Congress passed a noteworthy law that will have an impact in the fields of environmental, energy, and resources law – the Inflation Reduction Act (IRA). The following committees provide a discussion on the IRA, highlighting specific portions of the law that are of interest to their committee members:

  • Climate Change, Sustainable Development, and Ecosystems (grants for environmental justice, clean vehicles, pollution at ports, electric transmission, tax incentives)
  • Energy Infrastructure, Siting and Reliability (environmental justice, weatherization and energy efficiency in homes, electric vehicle infrastructure)
  • Forest Resources (ecosystem and wildfire management)
  • Marine Resources (offshore wind)
  • Native American Resources (funding for energy development and climate resilience initiatives for tribal communities
  • Nuclear Law (tax credits)
  • Renewable, Alternative, and Distributed Energy Resources (tax incentives, renewable energy projects)
  • Waste and Resource Recovery (recycling)
  • Additionally, several committees provided reports on efforts to implement the 2021 Infrastructure Investment and Jobs Act (IIJA).
  • Climate Change, Sustainable Development, and Ecosystems (Department of Energy regulatory guidance on financial programs, weatherization assistance program, and initial rulemaking steps; Federal Highway Administration programs; )
  • Energy Infrastructure, Siting and Reliability (Building a Better Grid initiative)
  • Mining Resources (rare earth mineral extraction)
  • Renewable, Alternative, and Distributed Energy Resources (mining of rare earth minerals, siting for renewable infrastructure)

Water rights and changes to Waters of the United States

Many committees provide updates on developments concerning the use of or protection of the quality of our water resources. The Water Quality and Wetlands committee touches on numerous issues ranging from litigation around pollutant discharges and a discussion on the new Waters of the United States (WOTUS) rulemaking. The Water Resources committee provides updates on litigation, regulatory, and administrative actions in numerous states concerning water rights. The Forest Resources committee reports on litigation filed against the U.S. Forest Service regarding the discharge of fire retardant pollutants without an appropriate Clean Water Act discharge permit. The International Environmental and Resources Law committee shares about the impact of the war in Ukraine on drinking water contamination. The Native American Resources committee provides an update on litigation concerning water needs for the Navajo Nation and several cases on water and fishing rights.

The “Grab Bag” of other interesting developments

A few topics caught my attention as I read through the chapters for the 2022 Year in Review. Consider these items food for curious minds.

  • The Ethics and Profession reports on a Formal Opinion issued in 2022 that addresses Rule 4.2 prohibitions against direct contact with other litigants when a lawyer is a pro se litigation (i.e., self-representation).
  • The Environmental Disclosure, Air Quality, and Climate Change, Sustainable Development, and Ecosystems committees provide updates on the ongoing litigation in the U.S. on the jurisdiction of climate change related claims brought by states and municipalities.
  • The Endangered Species committee discusses a couple of interesting cases – one that highlights the need for an agency to explain its reliance on one scientific study over another and a separate case that found the EPA’s failure to consult based on lack of resources was a violation of the Endangered Species Act.
  • The Environmental Enforcement and Crimes and International Environmental and Resources Law committees touch on the Sackett v. EPA case argued at the U.S. Supreme Court in the fall of 2022. This case is likely to have more discussion in the 2023 Year in Review.
  • The Public Lands and Resources committee discusses a few cases around the statute of limitations under the Quiet Title Act.

We hope you enjoy and find the 2022 Year in Review to be a valuable resource to your practice.

The Highlights for the Year in Review is written by Erin Potter Sullenger, Senior Attorney, Environmental, Health and Safety, at The Williams Companies in Tulsa, Oklahoma. She is the Chair of the Special Committee for the Year in Review. The Chair would like to acknowledge the superb editing job by the students at the University of Tulsa College of Law on this year’s publication.