Winston’s Environmental Law Update

The Environmental Protection Agency (EPA) announced that climate change and PFAS will be a focus of investigation and enforcement in coming years. The oil and gas, chemical, and waste-related industries should take note. EPA’s national enforcement and compliance initiatives (NECIs) for fiscal years 2024-2027,^[1]announced on August 17, 2023, include climate change, PFAS, and coal ash contamination among six priority areas for enforcement. EPA will also continue to prioritize reducing air toxics in overburdened communities, increasing compliance with drinking water standards, and chemical accident risk reduction.

Winston & Strawn partners Jonathan Brightbill and Eleni Kouimelis, along with Ross Nova, L.L. Bean’s Head of Global Compliance, presented at the 2022 Retail Law Conference for the Retail Industry Leaders Association in October. Their presentation, “Developing Environmental Regulatory and Litigation Risks for Finished Products,” discussed the risks retailers face from increasing regulatory scrutiny of chemicals of concern contained in finished products. What follows is a summary of the presentation.

On August 26, 2022, the Environmental Protection Agency (EPA) announced its proposal to designate two of the most widely known per- and polyfluoroalkyl substances (PFAS)—PFOA and PFOS[i]—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as the Superfund law). Listing PFOA and PFOS (along with their salts and structural isomers) as hazardous substances under CERCLA is one of the most significant actions identified in EPA’s October 2021 PFAS Strategic Roadmap.[ii]

State attorneys general are pursuing lawsuits and investigations of alleged inadequate disclosures of climate-related risks.