Winston’s Environmental Law Update

On December 5, 2025, the U.S. Environmental Protection Agency (EPA) Office of Enforcement and Compliance Assurance (OECA) issued an internal policy memorandum^[1]that sets a “compliance first” directive for EPA’s enforcement programs.

On January 29, 2025, Lee Zeldin, former New York Congressman and President Trump’s new Administrator of the Environmental Protection Agency (EPA), was confirmed.  Administrator Zeldin announced the EPA’s Powering the Great American Comeback Initiative, which is aiming to “achieve the agency’s mission while energizing the greatness of the American economy.” 

On January 20, 2025, President Trump signed an executive order (the EO), “Putting America First in International Environmental Agreements.

On October 29, 2024, a panel of administrative law scholars convened to discuss the impact of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo. 

On September 27, 2024, California Governor Gavin Newsom signed into law amendments to California’s first-in-the-nation greenhouse gas emissions disclosure and climate-related financial risk reporting bills. The amendments did not delay the reporting deadlines applicable to reporting entities, and companies should take action now to ensure they will be ready to report on 2025 emissions and risks starting in 2026.

There are myriad examples of lawsuits ensuing after a regulatory body or other agency issues a statement or report on a particular substance. As things currently stand, however, statements by the U.S. Food and Drug Administration (FDA) may offer a defense to claims involving microplastics.  

On April 17, 2024, the Assistant Administrator for U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) issued a new Strategic Civil-Criminal Enforcement Policy (the Policy). The Policy requires enhanced civil and criminal enforcement coordination, both on a case-by-case basis and through regular institutional measures. EPA is now requiring civil and criminal coordination during the entire lifespan of a case. The Policy became effective immediately.

A district court in Louisiana has barred the EPA and the Department of Justice from imposing disparate-impact-based requirements against the State of Louisiana or its State agencies in civil rights cases under Title VI of the Civil Rights Act of 1964. This decision is likely to serve as a template for other states to oppose the EPA’s use of disparate impact analyses when advancing environmental justice policies and investigations.

On November 15, 2023, the Environmental Protection Agency (EPA) released a draft revision of the Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (Guidance). The draft Guidance updates EPA’s original environmental justice (EJ) technical guidance published in 2016. The Guidance is an internal EPA policy that outlines and refines how EPA should evaluate EJ concerns in regulatory actions. While it is an internal-facing document, the Guidance is the latest example of the Biden Administration’s continued focus on advancing EJ.

The U.S. Environmental Protection Agency (EPA) recently proposed three key actions to further regulate ethylene oxide (EtO) under the Clean Air Act and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). EPA’s latest proposals include (1) stricter national emission standards for hazardous air pollutants (NESHAP) for commercial sterilization facilities, (2) new Clean Air Act rules for plants that make synthetic organic chemicals and plants that make a variety of polymers and resins, and (3) more stringent standards for workplaces handling EtO. We provide an overview of these proposed actions and what they may mean for your business.

As of February 13, 2023, ASTM 1527-21 will meet the AAI requirement, and thus will become the relevant standard for conducting Phase Is. Phase Is conducted using the 2013 Standard will no longer be compliant with the AAI requirement after December 15, 2023. Users of Phase Is should update internal guidance or scopes of work with environmental professionals to confirm (1) reports are completed to the new standard beginning in February 2023 and (2) whether emerging contaminations, including PFAS, should be included in the property evaluation as a “non-scope consideration.”

The Environmental Protection Agency (EPA) has announced its proposed National Enforcement and Compliance Initiatives (NECIs) for fiscal years 2024–2027. EPA is proposing to add two new areas of enforcement focus: mitigating climate change and addressing per- and polyfluoroalkyl substances (PFAS) contamination. Those operating in the oil and gas industry, and those involved with refrigerants, should take note. Interested parties have until March 13, 2023 to submit comments to EPA on the proposed changes.

The Biden Administration has started 2023 with a jammed pipeline of major regulatory actions relating to climate and other major environmental matters. For those interested in participating in the public comment processes, the clock is ticking. Here is a rundown of impending deadlines for public comment for some of the most significant rulemakings from the EPA and other federal agencies.

The United States Environmental Protection Agency and Army Corps of Engineers (the Agencies) closed out 2022 by announcing a final rule that establishes a new definition of “waters of the United States” (WOTUS) for implementation of the Clean Water Act.[1]  The Agencies, which previously indicated there would be a two-step regulatory process to defining WOTUS, appear to be proclaiming this to be its “durable” revision for the long term.  But will this definition of WOTUS get washed away like its predecessors?  

On June 15, 2022, the U.S. Environmental Protection Agency (EPA) announced new drinking water Health Advisories Levels (HALs) for certain per- and polyfluoroalkyl substances (PFAS) as part of its PFAS Strategic Roadmap.

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]

On August 16, 2022, President Biden signed the Inflation Reduction Act of 2022 (IRA). The IRA reconciliation package includes $369 billion in funding and subsidies to support the transition to renewable energy and reduce greenhouse gas emissions from the energy sector.

The Supreme Court held the Environmental Protection Agency cannot establish a standard of performance for existing electric generating sources under Section 111(d) of the Clean Air Act based on a system of generation shifting like that developed for the Clean Power Plan. As a result, EPA’s Affordable Clean Energy Rule of 2019 could come back in effect…for now.

On May 2, 2022, the U.S. Environmental Protection Agency withdrew its direct final rule that would have amended 40 C.F.R. Part 312 to recognize ASTM’s updated E1527-21 standard as satisfactory to fulfill the “all appropriate inquiries” requirement of certain defenses to liability under the Comprehensive Environmental Response, Compensation, and Liability Act.

EPA is proposing to impose stringent new “Good Neighbor” regulations under the Clean Air Act. These changes are proposed to help downwind states meet the 2015 Ozone National Ambient Air Quality Standards (“NAAQS”). These strengthened controls on nitrogen oxide (“NO_x”) emissions will apply to power plants as well as other large industrial facilities located in 26 states. Beyond fossil fuel-fired power plants, EPA is proposing NO_x emissions limitations for facilities in the following industries: pipeline transportation of natural gas; cement and cement product manufacturing; iron and steel mills; ferroalloy manufacturing; glass and glass product manufacturing; chemical manufacturing; petroleum and coal products manufacturing; and pulp, paper, and paperboard mills.