Trump Administration Initiates Major Changes for NEPA Reviews
The Trump Administration is initiating major changes to reduce NEPA burdens, including an interim final rule to repeal the longstanding White House Council for Environmental Quality (CEQ) NEPA regulations and CEQ guidance directing federal agencies to update their agency-specific NEPA regulations and procedures to prioritize efficiency and certainty. These actions implement directives from the President’s Executive Order (EO) 14154, Unleashing American Energy, to expedite and simplify the federal permitting process to unleash energy dominance through efficient federal permitting. These changes may lead to more focused reviews and help accelerate federal permitting, although there is likely to be uncertainty in the implementation of NEPA in the near term as agencies work to update their regulations and procedures.
Background
NEPA established CEQ and authorized CEQ to “make recommendations to the President” and “develop and recommend to the President national policies to foster and promote the improvement of environmental quality.” 42 U.S.C. § 4344(3)-(4). NEPA provides no express authority to CEQ to issue binding NEPA regulations or requirements, or to take other regulatory action. In 1977, President Carter issued EO 11991, directing CEQ to “issue regulations to the Federal agencies for the implementation of the procedural provisions” of NEPA. Relying on the Carter EO, since 1978, CEQ has had in place regulations that set forth a framework for implementing NEPA. The CEQ NEPA regulations have been amended several times, including in 2020 by the first Trump Administration, and in 2023 and 2024 by the Biden Administration. Many federal agencies have issued their own NEPA regulations and procedures, some of which supplement and build on CEQ’s regulations.
Two recent federal court decisions have called into question CEQ’s authority to issue NEPA regulations. In a recent D.C. Circuit decision, Marin Audubon v. FAA, a split panel held that CEQ’s NEPA regulations are ultra vires (beyond CEQ’s authority to issue). In Iowa v. CEQ, the U.S. District Court for the District of North Dakota set aside CEQ’s NEPA Phase II regulations that were promulgated by the Biden Administration in 2024, relying on the same rationale as Marin Audubon Society.
President Trump’s Unleashing American Energy EO revoked the 1977 Carter EO, directed CEQ to propose rescinding CEQ’s NEPA regulations, and directed CEQ to provide guidance on implementing NEPA.
Interim Final Rule Removing CEQ NEPA Regulations
On February 25, 2025, CEQ published an interim final rule removing all CEQ NEPA regulations from the Code of Federal Regulations. 90 Fed. Reg. 10610 (Feb. 25, 2025). The interim final rule implements President Trump’s directive to CEQ to remove its NEPA regulations from the CFR by April 11, 2025. The interim final rule provides that the basis for the repeal is that CEQ’s regulations were issued at the direction of the 1977 Carter EO that President Trump has now revoked, President Trump has directed in the Unleashing American Energy EO that CEQ propose rescinding its NEPA regulations, and no other authority exists for maintaining CEQ’s NEPA regulations. The interim final rule also cites to the recent decisions in Marin Audubon and Iowa v. CEQ.
The interim final rule invites public comment with a 30-day comment period ending on March 27, 2025, and takes effect on April 11, 2025.
CEQ Guidance to Federal Agencies on Implementing NEPA
On February 25, CEQ also issued guidance to federal agencies to assist with NEPA implementation. The guidance emphasizes the need to “expedite permitting approvals and meet deadlines,” and “prioritize efficiency and certainty over any other policy objectives that could add delays and ambiguity to the permitting process.” Federal agencies must revise their NEPA implementing procedures (or establish such procedures if they do not yet have any) to expedite permitting approvals and for consistency with NEPA. While these revisions are ongoing, agencies should continue to follow their existing practices and procedures for implementing NEPA consistent with the text of NEPA, EO 14154, and the new CEQ guidance.
The guidance makes clear that agencies should not delay pending or ongoing NEPA analyses while undertaking regulatory revisions, and should apply their current NEPA implementing procedures with any adjustments needed to be consistent with NEPA, as amended by the Fiscal Responsibility Act in 2023. It also recommends that agencies consider “voluntarily relying on” CEQ’s regulations, particularly the 2020 CEQ regulations, even though CEQ’s regulations are being repealed.
For purposes of revising their NEPA regulations and procedures, the guidance directs that federal agencies should:
Develop transparent, clear and predictable procedures for review of project sponsor-prepared EAs and EISs and prioritize project sponsor prepared documents for expeditious review;
Consider only a reasonable range of alternatives that are technically and economically feasible and that meet the purpose and need of the proposed action;
Analyze reasonably foreseeable effects of the proposed action, consistent with NEPA, which does not employ the term “cumulative effects;”
Exclude analysis of environmental justice;
Ensure consistency and predictability, by:
delineating the sequence of major decision points;
identifying actions and decisions not subject to NEPA at a threshold stage;
including specific criteria for and identification of the typical classes of action that qualify for categorical exclusions (CEs) or require EAs or EISs;
establishing how agencies will reevaluate and supplement EAs and EISs;
identifying lead, joint lead, cooperating and participating agencies;
establishing protocols for engaging with State, Tribal, and local governments;
establishing protocols for public involvement;
discussing when programmatic NEPA documents may be appropriate; and
including procedures for concluding the NEPA process.
While developing or revising the NEPA procedures, agencies must consult with CEQ, and all proposed and final procedures must be submitted to the Office of Management and Budget for a significance determination and possible interagency review.
The Road Ahead
There is likely to be uncertainty in the implementation of NEPA in the wake of these changes. The interim final rule is likely to be challenged by states and eNGOs, although the recent federal district court decisions in Marin Audubon Soc’y v. FAA and Iowa v. CEQ may provide a sound basis for the interim final rule. While federal agencies are in the process of updating their NEPA regulations and procedures, agencies are likely to continue implementing their existing NEPA procedures provided they are consistent with the NEPA statutory language.
EPA Announces ‘Greatest Deregulation in History’
The full scope of the Trump Administration’s deregulatory efforts in the environmental space was recently made clear with a series of announcements from US Environmental Protection Agency (EPA) Administrator Lee Zeldin.
On March 12, in what the Trump Administration touts as “the greatest deregulation action in US history,” Administrator Zeldin announced a slate of 31 different actions to scale back federal environmental regulations. The announcement continues the Administration’s efforts to downsize the role of the federal government in energy and environmental spaces. The Administration foreshadowed many of the newly announced policies in its first-day Executive Order, “Unleashing American Energy” (see our coverage here) and EPA’s “Powering the Great American Comeback Initiative” released last month. (See our discussion here.)
Many of the Trump Administration’s early actions primarily targeted Biden-era executive actions — and as a result could take immediate effect. This next wave of action puts the crosshairs on formally promulgated administrative rules and policies, meaning most changes will also need to pass through the full rulemaking process (including public comments) and inevitable litigation. As a result, most actions involve “reconsidering” existing rules rather than immediately imposing a new framework.
Below, we break down some of EPA’s most significant planned actions and provide context.
Reversing Federal GHG Policy
EPA’s announcement is a full-scale reversal of the federal government’s policy toward greenhouse gases. EPA announced that it will:
Reconsider EPA’s 2009 Greenhouse Gas (GHG) Endangerment Finding and Regulations Based on ItIn 2009, EPA found that GHGs “threaten the public health and welfare” and that motor vehicle emissions contribute to GHG pollution. This finding created EPA’s legal authority to regulate GHG emissions from motor vehicles. By reconsidering this finding, EPA questions whether GHG emissions endanger public welfare. Administrator Zeldin announced that he was “driving a dagger straight into the heart of the climate change religion.” This action is likely to reinvigorate debate about the US Supreme Court’s decision in Massachusetts v. EPA.
Reconsider GHG Regulations on Power PlantsIn 2024, the Biden Administration finalized a rule to reduce GHG emissions from the power sector by requiring many power plants to install 90 percent carbon capture equipment by 2032. EPA will reconsider this rule, which it calls “Clean Power Plan 2.0.” This is a reference to the Supreme Court’s 2017 decision in West Virginia v. EPA, which struck down the Obama-era Clean Power Plan.
Reconsider GHG Regulations on Fossil Fuel ExtractionEPA will reconsider regulations limiting methane from new and existing oil and gas drilling. The existing regulations were finalized in 2024.
Reconsider Emission Standards for VehiclesIn 2024, the Biden Administration announced new emission standards to reduce GHG, nitrogen oxide, and particulate matter emissions from passenger cars and trucks beginning in model year 2027.
Reconsider the Social Cost of CarbonThis action follows one of President Trump’s executive orders that instructed EPA to consider eliminating the social cost of GHG emissions from federal consideration. (Background on this issue is available here.)
Rolling Back Regulations on Coal, Oil, and Natural Gas
In addition to the broader focus on GHGs, EPA may scale back several other major Biden-era regulations impacting fossil-fuel powered energy generation:
Reconsider MATS for Coal-Fired Power PlantsEPA will again reconsider whether to ease or do away with its limitations on mercury and other metals emitted from coal-fired power plants. The rules withdrawn during the first Trump Administration and reinstated by the Biden Administration last year. While it prepares a new final rule, EPA may temporarily pause enforcement of the Mercury and Air Toxics Standards (MATS) rule for two years.
Changing Clean Air Act State Implementation Plan PolicyEPA is reconsidering the 2023 “Good Neighbor Plan,” which is currently stayed pending litigation, that required states to reduce smog forming emissions from power plants and other industries that could drift to downwind states. EPA states that it also plans to work to approve nearly two-dozen state air regulations that had been denied for failure to comply with the “Good Neighbor Plan.”
Revise CCR RuleEPA announced plans to work with states to quickly approve state-level regulations governing the disposal of coal-ash generated by coal-fired power plants, including a promise to propose a determination on North Dakota’s Coal Combustion Residual (CCR) permit program within 60 days. EPA is also “evaluating whether to grant short- and long-term relief such as extending compliance deadlines” for the Legacy CCR Rule. (Ways CCR issues play out can be seen here.)
Revise Wastewater Regulations for Oil and Gas Extraction and for Steam-Powered Electric GenerationEPA announced it will reconsider wastewater pollution standards impacting coal-fired power plants and oil and gas extraction. In 2024, EPA updated its rules for four types of coal plant wastewater: flue gas desulfurization wastewater, bottom ash transport water, combustion residual leachate, and legacy wastewater. EPA’s reconsideration may attempt to ease costs for coal-fired power plants.
Redefining the Scope of Clean Water Act
The Clean Water Act has been in the news lately because the Supreme Court recently decided San Francisco v. EPA. (For more, see here.)
In a separate announcement, EPA said it would revise its definition of “waters of the United States,” (WOTUS) the key jurisdictional term that defines which waters and wetlands the Clean Water Act applies to. The federal government and courts have generally accepted that WOTUS includes interstate or traditionally navigable waters and their tributaries, as well as wetlands “adjacent” to those waters. Where the Supreme Court and past Administrations have disagreed is what counts as an “adjacent” wetland.
As we have explained, past Administrations have alternated between two tests for adjacent wetlands: a permanent surface connection test and an ecologically “significant nexus” test. In 2023, the Biden Administration adopted its version of the significant nexus test. Then, the Supreme Court’s decision in Sackett v. EPA held that WOTUS includes only oceans, rivers, streams, lakes, and waters with a continuous surface connection to those waters.
EPA recently announced it will revise the 2023 rule and align its definition with Sackett. EPA stated its new rule will prioritize “empowering American farmers [and] landowners.”
Terminating EPA’s Environmental Justice Staff
EPA announced that it would “terminate” EPA’s environmental justice (EJ) arm. This is no surprise, given the Trump Administration’s reversal of the Biden Administration’s EJ policies. As we explained, Trump’s first-week executive orders revoked several Biden-era policies and announced an effort to terminate all EJ and diversity, equity, and inclusion (DEI) offices and positions. While this rollback will remove EPA from EJ issues, the focus on EJ by many states is expected to continue.
European Commission Publishes Draft Clean Industrial Deal State Aid Framework and Calls for Feedback
The European Commission (the Commission) is proposing to adapt the rules governing Member State economic support to industry, changing the focus of the permitted subsidies that guide the EU economy to a great degree. The proposal forms part of a wave of initiatives aimed at improving the competitiveness of the EU.
On 11 March 2025, the Commission published a draft Commission Communication on a Framework for State Aid measures to support the Clean Industrial Deal (the draft State Aid Framework), setting out the latest evolution in the EU’s State aid policy. The draft State Aid Framework complements the existing EU State Aid guidelines, including the guidelines on State aid for climate, environmental protection and energy (CEEAG) by enabling and accelerating specific investments and activities. Competitiveness and sustainability constitute two pillars of the Commission’s overarching political objectives for the 2024-2029 legislature.
Until 25 April 2025, a window is open for stakeholders to share their views on the draft State Aid Framework as part of the public consultation being run by the Commission. Businesses that could benefit from aid measures, and businesses that compete with subsidized rivals, may have in an interest in submitting comments on the aspects that are most likely to affect them.
The Clean Industrial Deal and the State Aid Framework
The EC published on 26 February 2025 a Communication on a Clean Industrial Deal (the Clean Industrial Deal), which introduced a suite of sustainability and competitiveness measures to address challenges such as slow economic growth in the EU and technological competition, covered in our client alert.
The adoption of a modified State Aid Framework by Q2 2025 is one of the flagship actions laid out in the Clean Industrial Deal to improve EU investment levels and make energy more affordable in the EU. The new State Aid Framework is intended to replace the Temporary Crisis and Transition Framework, as amended, which has been in place in different forms since November 2022.
Under the Treaty on the Functioning of the EU (TFEU), State aid by EU Member States is generally prohibited, unless it is justified in order to support objectives such as economic development. EU State aid policy, which is managed by the Commission, aims to determine where the limits of the economic development justification lie. This is a key EU economic policy question, with serious consequences for the structure of the EU economy and the ability of non-EU companies to compete fairly on the EU market, for example.
The draft State Aid Framework proposes the following changes to EU State aid policy:
Compatibility Assessment under Article 107(3)(c) TFEU:
Subject to conditions, measures that are in line with the Clean Industrial Deal would tend to be more easily found to satisfy the positive and negative conditions of Article 107(3)(c) TFEU.
Aid under the draft State Aid Framework would generally be cumulable with other State aid, de minimis aid or centrally managed EU funds, subject to conditions.
Subject to detailed and extensive conditions, the Commission would generally deem compatible with the EU internal market (and thus greenlight) State aid to support the following activities:
Investments for the production of energy from renewable sources, including the production of renewable fuels of non-biological origin (RFNBOs), as well as investment in storage for RFNBOs, biofuels, bioliquids, biogas and biomass fuels obtaining at least 75% of its content from a directly connected production facility.
Electricity and thermal storage.
The promotion of non-fossil electricity flexibility.
Capacity mechanisms following a target model.
Investments contributing significantly to reductions of greenhouse gas emissions from industrial activities or leading to a substantial reduction in the energy consumption of industrial activities through the improvement of energy efficiency.
Investment projects creating additional manufacturing capacity to produce equipment relevant for the transition to a net-zero economy, its key components, and new or recovered related critical raw materials necessary for its production.
The acquisition of clean technology equipment through accelerated depreciation schemes.
The reduction of risks of private investments into portfolios of eligible projects in the renewable energy, industrial decarbonization and clean tech manufacturing areas.
The Public Consultation
The draft State Aid Framework has not been adopted yet. Rather, the Commission intends to adopt its definitive version by June 2025. As such, the content of the draft State Aid Framework is still subject to change.
From 11 March 2025 until 25 April 2025, the Commission’s Directorate-General for Competition, which is responsible for State aid enforcement and policy, is seeking feedback from citizens, organizations and public authorities concerning the draft State Aid Framework. To that effect, it is running a public consultation, to which contributions may be submitted here.
To the extent that the Commission seeks to simplify State aid rules, accelerate the rollout of renewable energy, deploy industrial decarbonization and ensure clean tech manufacturing capacity, the public consultation constitutes a good opportunity to share any views and suggestions in relation to those goals.
Global Regulatory Update for March 2025
ABA And B&C Announce Release Of “Chemical Product Law and Supply Chain Stewardship” Book: The Acta Group (Acta®) and Bergeson & Campbell, P.C. (B&C®) are pleased to announce the release by American Bar Association (ABA) Publishing of Chemical Product Law and Supply Chain Stewardship: A Guide to New TSCA, edited by Acta President Lynn L. Bergeson and authored by Ms. Bergeson and members of Acta and B&C’s highly experienced Toxic Substances Control Act (TSCA) practice group. This invaluable guide provides a road map to navigate efficiently the transformational changes in chemical product law, identifies the practical business and product stewardship implications of the new normal in product regulation, and explains the urgent need for supply chain awareness so that the business community and others can make informed and compliant business decisions. Please note: A 20% off discount code will be provided to Acta clients and friends via e-mail later this month — so keep watch for that.
Recording Available For “What’s New with New Approach Methodologies: A Webinar,” Featuring EPA CCTE’s Katie Paul Friedman, Ph.D., And PETA Toxicology Specialist Adam Bettmann, MS, DABT®: A recording is available for B&C and Acta’s webinar featuring experts in the toxicology field discussing the state of play as stakeholders take advantage of new approach methodologies (NAM). Adam Bettmann, MS, DABT®, a Toxicology Specialist representing PETA Science Consortium International e.V., navigates the current state of NAMs and their use for submissions to the U.S. Environmental Protection Agency (EPA) Office of Pollution Prevention and Toxics (OPPT) by providing an overview of some of the relevant guideline and non-guideline testing approaches, the process of vetting NAMs for readiness, and available training and educational opportunities. Katie Paul Friedman, Ph.D., Acting Director for the Biomolecular and Computational Toxicology Division in the Center for Computational Toxicology and Exposure (CCTE) in EPA’s Office of Research and Development (ORD), provides an overview of the TSCA New Chemicals Collaborative Research Program (NCCRP) as the lead within the ORD. An overview of the proposed research plan and its components (as presented to the U.S. EPA ORD Board of Scientific Councilors in late 2022) is followed by descriptions of early works in progress and publications related to this effort. Richard E. Engler, Ph.D. wraps up these issues with an overview of TSCA Section 4 authority and chemical testing issues. Watch now.
AUSTRALIA
Australia Seeks Comment On Information Requirements For “Designated Fluorinated Chemical” Assessments: The Australian Industrial Chemicals Introduction Scheme (AICIS) has begun a public consultation to obtain comments on the clarity of the information requirements that will be added to the form for an AICIS assessment certificate application for a chemical that is a “designated fluorinated.” Designated fluorinated chemicals are a subset of per- and polyfluoroalkyl substances (PFAS) that capture the PFAS chemicals of highest concern to human health and the environment, including longer chain PFAS chemicals that are similar to perfluorooctane sulfonic acid (PFOS), perfluorooctanoic acid (PFOA), and perfluorohexanesulfonic acid (PFHxS). AICIS assesses the health and environmental risks of designated fluorinated chemicals that are not on the Australian Inventory of Industrial Chemicals (the Inventory) after an application for an assessment certificate is submitted through the form in AICIS Business Services. The chemical can be manufactured or imported into Australia only if AICIS issues an assessment certificate. At this time, to obtain the full set of information requirements for assessment certificate applications for designated fluorinated chemicals, potential applicants must contact AICIS for guidance about the information needed for their application. According to AICIS, this has led to requirements being communicated to an applicant as an information request after a certificate application has been submitted. Before improving transparency by adding the requirements to the application form and publishing them, AICIS seeks comment on whether an applicant will be able to understand them clearly. AICIS states that it expects the updated application form to affect a very small number of applicants. There have only been two applicants for assessment certificates for designated fluorinated chemicals since AICIS began in July 2020. Comments on the information requirements are due April 8, 2025.
CANADA
Canada Releases Final State Of PFAS Report And Proposed Risk Management Approach, Proposes To Add PFAS To CEPA Schedule 1, Part 2: On March 5, 2025, Environment and Climate Change Canada (ECCC) announced the availability of its final State of Per- and Polyfluoroalkyl Substances (PFAS) Report (State of PFAS Report) and proposed risk management approach for PFAS, excluding fluoropolymers. The State of PFAS Report concludes that the class of PFAS, excluding fluoropolymers, is harmful to human health and the environment. To address these risks, Canada proposed on March 8, 2025, to add the class of PFAS, excluding fluoropolymers, to Part 2 of Schedule 1 to the Canadian Environmental Protection Act, 1999 (CEPA). ECCC states that it will prioritize the protection of health and the environment while considering factors such as the availability of alternatives. Phase 1, starting in 2025, will address PFAS in firefighting foams to protect better firefighters and the environment. Phase 2 will focus on limiting exposure to PFAS in products that are not needed for the protection of human health, safety, or the environment. ECCC notes that this will include products like cosmetics, food packaging materials, and textiles. ECCC states that it will publish a final decision on the proposed addition of 131 individual PFAS to the National Pollutant Release Inventory (NPRI) with reporting to take place by June 2026 for PFAS releases that occurred during the 2025 calendar year. ECCC states that these data will improve its understanding of how PFAS are used in Canada, help it evaluate possible industrial PFAS contamination, and support efforts to reduce environmental and human exposure to harmful substances. Comments on the proposed risk management approach and the proposed order to add the class of PFAS, excluding fluoropolymers, to CEPA Schedule 1 Part 2 are due May 7, 2025. More information will be available in a forthcoming memorandum.
Canada Posts Guidance Materials For Reporting To The Federal Plastics Registry: On April 20, 2024, Canada published a Canada Gazette notice that will require companies (including resin manufacturers, service providers, and producers of plastic products) to report annually on the quantity and types of plastic they manufacture, import, and place on the market. Reporting will begin in September 2025 for Phase 1, requiring reporting on plastic placed on the market in three categories for the 2024 calendar year. ECCC has posted the following guidance materials and resources on its web page on the Federal Plastics Registry (FPR):
Guide for Reporting to the FPR — Phase 1: ECCC has prepared a guidance document to provide assistance in responding to the notice. ECCC notes that this version of the document is focused on Phase 1 reporting requirements (reports due in 2025 on 2024 data). It provides a general overview of the reporting requirements, as well as additional guidance materials that include tools such as calculation methods and other aids.
Foreign Supplier Letter: When responding to the notice, reporters are required to provide information that their organization possesses or to which they may be reasonably expected to have access. ECCC notes that more detailed information on the plastic composition in products and packaging may be available from the supply chain. According to ECCC, suppliers may have information of which reporters are unaware. Any person requiring more detailed information on the plastic composition of their products is required to contact their suppliers. To that end, a Government of Canada letter for communicating with foreign suppliers is available. The letter may help reporters obtain information from foreign suppliers to respond to the notice. The letter is available in English, French, Chinese (simplified), and Spanish. To receive a copy of the letter, e-mail [email protected] with the subject line “Foreign Supplier Letter” and include the languages of the letters requested.
User guides for using the online reporting platform: ECCC states that several user guides have been prepared to help users use the FPR’s new reporting platform. These user guides are available on the new reporting platform or upon request. To obtain copies, submit a request by e-mail to [email protected].
ECCC has also posted frequently asked questions (FAQ) regarding the FPR.
CHILE
Chile Releases List Of Hazardous Substances For Industrial Use, Begins Notification For Hazardous Substances For Non-Industrial Use: Chile has released a list of hazardous substances for industrial use that were notified by the September 30, 2024, extended deadline. The list is the first of a four-part national inventory of chemicals under Decree 57/2021, which approves the regulations on the classification, labeling, and notification of chemical substances and mixtures, established a national chemicals framework, and implemented the seventh revision of the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The regulations apply to manufacturers and importers of chemical substances and mixtures that are not already regulated by other regulations, exempting pharmaceutical products, food products for human or animal consumption, cosmetic products, pesticide residues in food, and hazardous waste. Hazardous substances for industrial use that are not listed on the national inventory are considered new substances and must be notified. The list is available on the Ministry of Environment’s (MMA) chemical substances notification platform website. Access is available upon request to MMA. On February 9, 2025, Chile began accepting notifications for hazardous substances for non-industrial use. Notifications are due August 30, 2025.
CHINA
China Holds Public Consultation On Draft Law On Safety Of Hazardous Chemicals: China’s National People’s Congress began a public consultation on December 26, 2024, on the draft Law on the Safety of Hazardous Chemicals. The draft law would apply to the production, transport, storage, use, operation, and disposal of hazardous chemicals. It would define hazardous chemicals as substances with highly toxic, explosive, flammable, or combustion-supporting properties that pose risks to humans, facilities, or the environment. If enacted, it will replace Decree 591, which establishes a hazardous chemicals information management system, implements electronic identification, and initiates whole lifecycle information management of hazardous chemicals. Comments on the draft law were due January 23, 2025.
EUROPEAN UNION (EU)
CLP Amendments Entered Into Force In December 2024: Amendments to the EU’s Classification, Labelling and Packaging Regulation (CLP) entered into force on December 10, 2024. According to the European Commission’s (EC) website, the revisions are intended to enhance chemical safety and information transparency:
Online stores will have to display hazardous properties clearly on their websites;
Labeling will be made simpler by allowing more flexible use of fold-out labels, introducing digital labeling, and improving the legibility of labels;
Advertisements and online offers will have to contain information on chemical hazards, facilitating informed choices by consumers and the development of a market for sustainable consumer chemical products;
For the first time, there will be clarity on the safe sale of household chemicals via the refill stations, contributing to reducing packaging and packaging waste;
There will be a more user-friendly inventory of substances notified by industry, benefiting small and medium-sized enterprises (SME);
Explicit rules for classifying complex substances (those containing more than one constituent) will be introduced, while taking account of the specificities of natural complex substances, such as essential oils; and
Poison centers will receive more comprehensive information for medical emergencies, especially from cross-border distribution.
ECHA Adds Five Chemicals To The Candidate List And Updates One Entry: The European Chemicals Agency (ECHA) announced on January 21, 2025, that it added five chemicals to the Candidate List of substances of very high concern (SVHC) and updated one entry:
Substance Name
Reason for Inclusion
Examples of Uses
6-[(C10-C13)-alkyl-(branched, unsaturated)-2,5-dioxopyrrolidin-1-yl]hexanoic acid
Toxic for reproduction (Article 57(c))
Lubricants, greases, release products, and metal working fluids
O,O,O-triphenyl phosphorothioate
Persistent, bioaccumulative, and toxic (PBT) (Article 57(d))
Lubricants and greases
Octamethyltrisiloxane
Very persistent, very bioaccumulative (vPvB) (Article 57(e))
Manufacture and/or formulation of: cosmetics, personal/health care products, pharmaceuticals, washing and cleaning products, coating and non-metal surface treatment, and in sealants and adhesives
Perfluamine
vPvB (Article 57(e))
Manufacture of electrical, electronic, and optical equipment and machinery and vehicles
Reaction mass of: triphenylthiophosphate and tertiary butylated phenyl derivatives
PBT (Article 57(d))
No active registrations
Updated entry
Tris(4-nonylphenyl, branched and linear) phosphite
Endocrine disrupting properties (Article 57(f) — environment)
Polymers, adhesives, sealants, and coatings
ECHA states that its Member State Committee confirmed the addition of these chemicals to the Candidate List, which now has 247 entries. ECHA notes that some entries are groups of chemicals, so the overall number of impacted chemicals is higher. Candidate List chemicals may be placed on the Authorization List in the future. If a substance is on that list, its use will be prohibited unless companies apply for authorization and the EC authorizes them to continue its use.
Under the Registration, Evaluation, Authorisation and Restriction of Chemicals Regulation (REACH), companies have legal obligations when their substance is included — either on its own, in mixtures, or in articles — on the Candidate List. Suppliers of articles containing a Candidate List substance above a concentration of 0.1 percent (weight by weight) must provide their customers and consumers information on how to use the article safely. ECHA notes that consumers have the right to ask suppliers whether the products they buy contain SVHCs. Importers and producers of articles must notify ECHA if their article contains a Candidate List substance within six months from the date it has been included on the list (January 21, 2025). EU and European Economic Area (EEA) suppliers of substances on the Candidate List, supplied either on their own or in mixtures, must update the safety data sheet (SDS) provided to customers.
Under the Waste Framework Directive, companies also have to notify ECHA if the articles they produce contain SVHCs in a concentration above 0.1 percent (weight by weight). ECHA will publish this notification in its database of substances of concern in products (SCIP). Under the EU Ecolabel Regulation, products containing SVHCs cannot have the ecolabel award.
EU Advocate General Recommends Overturning Decision Annulling Harmonized Classification And Labeling Of Titanium Dioxide: On February 6, 2025, the EU Advocate General (EU AG) recommended that the European Court of Justice (ECJ) overturn the 2022 decision of the General Court annulling the 2019 harmonized classification and labeling of titanium dioxide as a carcinogenic substance by inhalation in certain powder forms. As reported in our December 6, 2022, memorandum, the court annulled the EC’s decision to classify titanium dioxide as a suspected human carcinogen. The French government and the EC appealed the decision, arguing that the court exceeded the limits of permissible judicial review of an EC decision and that the court incorrectly interpreted the concept of “intrinsic properties” as it appears in the CLP. The EU AG proposes that the ECJ:
Set aside the November 2022 judgment in CWS Powder Coatings and Others v Commission (T‑279/20, T‑283/20 and T‑288/20, EU:T:2022:725);
Refer the case back to the General Court for the resolution of the remaining pleas in law; and
Order that the costs be reserved.
The ECJ is expected to issue its decision later this year. More information is available in our March 11, 2025, blog item.
Packaging And Packaging Waste Regulation Enters Into Force: On February 11, 2025, the Packaging and Packaging Waste Regulation entered into force. According to the Council of the EU’s December 16, 2024, press release, the regulation sets 2030 and 2040 targets for a minimum percentage of recycled content (up to 65 percent for single use plastic bottles by 2040); minimizes the weight and volume of packaging and avoids unnecessary packaging; and minimizes substances of concern, including restricting placing on the market food contact packaging containing PFAS if they exceed certain thresholds. The Council notes that labeling, marking, and information requirements (e.g., on material composition or recycled content) should facilitate consumer sorting and consumer choices.
ECHA announced on February 11, 2025, that it will prepare a study identifying chemicals of concern in packaging and related components assessing how these chemicals affect their safety, reuse, and recycling. The EC’s request to ECHA states that it expects the study to support it in:
Identifying chemicals of concern present in packaging and packaging components that negatively affect the reuse and recycling of materials and impact chemical safety. In addition, the study will investigate the need for future restrictions under REACH for the identified chemicals of concern that can impact chemical safety;
Establishing labeling on packaging that marks the chemicals of concern to be adopted by January 1, 2030, in the form of an Implementing Act;
Assessing the packaging recyclability on chemicals of concern that affect negatively the reuse and recycling of packaging and packaging components; and
Assessing the need to modify the provisions related to PFAS content four years from the date of application of the Regulation.
Under the regulation, ECHA is to provide its input to the EC by the end of September 2026. Based on ECHA’s report, the EC will consider appropriate follow-up measures, including possible restrictions on the use of substances in packaging materials that pose health or environmental risks. According to ECHA, these restrictions “will follow the existing REACH restriction process.”
EC Calls For Evidence For Evaluation Of Cosmetic Products Regulation: The EC issued a call for evidence on February 21, 2025, for an evaluation/fitness check of the Cosmetics Products Regulation (CPR). According to the EC, the evaluation is expected to provide evidence of how the CPR has been applied, whether it has delivered on its objectives, and whether it remains fit for purpose. The EC states that the evaluation will investigate the current scope of the CPR, the definitions used, the application of the generic risk approach to ingredients with potentially higher risk for human health, and labeling provisions, as well as the main trends in international trade and the external competitiveness of the EU industry. It will also examine whether the CPR is fit to support and enable international convergence with other jurisdictions. The EC notes that the evaluation will include areas for improvement, including any potential for simplification and burden reduction, and will help the EC determine whether revision of the CPR is needed. Comments are due March 21, 2025.
EC Legislative Package Would Simplify Corporate Sustainability Reporting: The EC announced on February 25, 2025, that it has adopted a new package of proposals to simplify EU rules, boost competitiveness, and unlock additional investment capacity. The package brings together proposals in a number of related legislative fields, including sustainable finance reporting, sustainability due diligence, EU Taxonomy, carbon border adjustment mechanism, and European investment programs. Specifically, proposed revisions concerning sustainability reporting (Corporate Sustainability Reporting Directive (CSRD) and EU Taxonomy) include:
Removing around 80 percent of companies from the scope of CSRD, focusing the sustainability reporting obligations on the largest companies that are more likely to have the biggest impacts on people and the environment;
Ensuring that sustainability reporting requirements on large companies do not burden smaller companies in their value chains;
Postponing by two years (until 2028) the reporting requirements for companies currently in the scope of CSRD and that are required to report as of 2026 or 2027;
Reducing the burden of the EU Taxonomy reporting obligations and limiting it to the largest companies (corresponding to the scope of the Corporate Sustainability Due Diligence Directive (CSDDD)), while keeping the possibility to report voluntarily for the other large companies within the future scope of the CSRD;
Introducing the option of reporting on activities that are partially aligned with the EU Taxonomy, fostering a gradual environmental transition of activities over time, in line with the aim to scale up transition finance to help companies on their path towards sustainability;
Introducing a financial materiality threshold for the Taxonomy reporting and reducing the reporting templates by around 70 percent; and
Introducing simplifications to the most complex “Do no Significant harm” (DNSH) criteria for pollution prevention and control related to the use and presence of chemicals that apply horizontally to all economic sectors under the EU Taxonomy — “as a first step in revising and simplifying all such DNSH criteria.”
Proposed changes in the area of sustainability due diligence include:
Simplifying sustainability due diligence requirements so that companies in scope avoid unnecessary complexities and costs, e.g., by focusing systematic due diligence requirements on direct business partners and by reducing the frequency of periodic assessments and monitoring of their partners from annual to five years, with ad hoc assessments where necessary;
Reducing burdens and trickle-down effects for SME and small mid-caps by limiting the amount of information that may be requested as part of the value chain mapping by large companies;
Further increasing the harmonization of due diligence requirements to ensure a level playing field across the EU;
Removing the EU civil liability conditions while preserving victims’ rights to full compensation for damage caused by non-compliance, and protecting companies against over-compensation, under the civil liability regimes of EU member states; and
Giving companies more time to prepare to comply with the new requirements by postponing the application of the sustainability due diligence requirements for the largest companies by one year (to July 26, 2028), while advancing the adoption of the guidelines by one year (to July 2026).
The EC posted questions and answers (Q&A) on the legislative package.
ECHA Updates Annual Evaluation Statistics And Recommendations To Registrants On Improving Dossiers: ECHA announced on February 26, 2025, that it has updated its annual statistics on evaluation progress. According to ECHA, between 2009 and 2024, it checked the compliance of 15,500 REACH registrations, representing 23 percent of all submitted registration dossiers and covering 3,200 substances. For high-volume chemicals registered at quantities of 100 metric tons or more per year, ECHA has checked 34 percent of the registrations. ECHA notes that based on the evaluations, it updated its recommendations to registrants on how to improve their dossiers.
In 2024, ECHA carried out 313 compliance checks, covering almost 2,000 registrations and addressing 272 individual substances. ECHA notes that these checks focused on those registration dossiers that may have data gaps. As a result, ECHA sent 208 decisions to companies, requesting additional data to clarify long-term effects of chemicals on human health or the environment. ECHA states that it also examined 161 testing proposals and sent out 92 decisions, addressing the tests proposed by industry to ensure the safe use of the substance.
To follow up information requests sent to companies, ECHA states that it checks whether the provided information complies with the REACH requirements. In 2024, ECHA concluded this evaluation for 241 substances. According to ECHA, in about 70 percent of the cases, companies provided the requested information. ECHA notified the remaining 30 percent to EU member states for enforcement and will follow up. ECHA also adopted three substance evaluation decisions prepared by EU member states, requesting further information to assess the safety of substances of potential concern.
FRANCE
Parliament Passes Bill That Would Prohibit Intentionally Added PFAS In Certain Consumer Products: On February 20, 2025, the National Assembly passed legislation that would prohibit the following items containing PFAS as of January 1, 2026:
Cosmetic products;
Wax; and
Textile clothing products, footwear, and waterproofing agents for textile clothing products and footwear intended for consumer use.
The bill would ban in 2030 any textile products containing PFAS, excluding textile products necessary for essential uses.
EPA Will Review 2024 Rule Amending the TSCA Risk Evaluation Framework Rule
On March 10, 2025, the U.S. Environmental Protection Agency (EPA) announced its intent to reconsider the May 3, 2024, rule amending the procedural framework rule for conducting risk evaluations under the Toxic Substances Control Act (TSCA) (2024 Risk Evaluation Framework Rule). According to EPA, it will initiate a rulemaking “that will ensure the agency can efficiently and effectively protect human health and the environment and follow the law.”
As reported in our February 7, 2025, blog item, earlier this year, EPA Administrator Lee Zeldin announced the “Powering the Great American Comeback” initiative to advance EPA’s core mission while energizing the American economy. EPA notes in its March 10, 2025, press release that under TSCA, EPA is charged with reviewing “the thousands of chemicals already in commerce to make sure they don’t harm people or the environment, supporting Pillar One of the Administrator’s initiative, clean air, land and water for every American, as well as Pillar Three to advance permitting reform, cooperative federalism and cross-agency partnership by better integrating best workplace standards from across the Federal government and industry and aiming to adhere to Congress’s tight timelines for risk evaluations.”
Consistent with President Trump’s Executive Order 14219 requiring the review of regulations to ensure consistency with Administration policy and agencies’ statutory authority, EPA reviewed the 2024 Risk Evaluation Framework Rule, which outlines the process EPA must follow when conducting chemical risk evaluations. EPA states that after completing its review and considering public comments and concerns, including those from other federal agencies, it “intends to initiate further rulemaking in the near future that will reexamine multiple aspects of this rule for consistency with the law and Administration policy.” In its rulemaking, EPA will review whether the approach taken by the Biden Administration to make a single risk determination for a chemical is consistent with TSCA. EPA will also include, among additional considerations, whether the Agency must evaluate all conditions of use of a chemical at the same time in the three years generally allotted by Congress to conduct this review. Additionally, EPA will reconsider whether and how the use of personal protective equipment (PPE) and industrial controls in an occupational work environment should be incorporated into risk evaluations. According to EPA, it will reconsider regulatory definitions expanded by the Biden Administration and evaluate whether the regulation should define terms more broadly than the definitions in the statute. More information on the 2024 Risk Evaluation Framework Rule is available in our May 14, 2024, memorandum.
Commentary
Bergeson & Campbell, P.C. (B&C®) is pleased that EPA is reconsidering the rule. As we discussed in our May 14, 2024, memorandum, we identified several significant flaws in the final rule.
This announcement is consistent with EPA’s request that the courts remand, without vacatur, the ongoing legal challenge to the rule (United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO v. EPA, Case No. 24-1151 (D.C. Cir. 2024), USW v. EPA). Whether the courts will grant EPA’s motion is unclear. The labor unions and environmental non-governmental organizations (NGO) that intervened oppose the motion.
In a post-Loper Bright world, a court decision in USW v EPA on one of the key provisions being challenged, such as the single determination approach, could be a much more durable result than if the court finds that EPA does not have discretion to interpret the statute in that way.
Regardless of whether the case is remanded without vacatur, the 2024 Risk Evaluation Framework Rule will remain in effect, so EPA’s ongoing TSCA Section 6 work will have to conform with the current rule.
Will Bipartisan Legislation Be Possible After Reconciliation?
After President Trump’s address to Congress on Tuesday, March 4, 2025, it is unclear if there will be much desire or willingness on behalf of the Democrats and Republicans to collaborate on legislation during the 119th Congress. President Trump and Congressional Republicans are moving toward “one big, beautiful” reconciliation bill (that is possible to enact without Democratic support) that will reflect most of President Trump’s priorities. The question is: what happens after reconciliation? The answer to that question has implications for issues such as reauthorizing user fees and reforming the Toxic Substances Control Act (TSCA), enacting a Farm Bill that has been extended twice already, and online security — all of which will require bipartisan support to be enacted.
Legislating is difficult. Our system of government is designed in a way that makes legislating quickly challenging, even if one party controls both Houses of Congress and the Executive Branch. (See Obama, Barack). Presidents have increasingly turned to Executive Orders or passing legislation with only the majority party. These routes have limitations. True, durable, legislation takes agreement, negotiation, and ultimately bipartisan support for meaningful legislation to be enacted. Anything that can be developed and deployed quickly can be overturned quickly. Each new administration believes it has a mandate to govern and desires to leave its mark on America. One of the first actions of any new President is to freeze regulatory actions of his predecessor and, in some instances, issue an order repealing a previous Executive Order.
Some of the problems and issues facing the United States require both parties to work together. Unfortunately, the electorate does not reward getting things done (especially if it requires working with the other party to do so) as much as it rewards “standing up” to the other side. Failing to fight or support the party line is punished these days by being primaried. This is one of several unfortunate changes that have come to Washington, D.C. during the past several decades. Partisanship has always existed. There were times when elected officials were able to work together, despite party, and craft policy that was good for the country. When both parties have “skin in the game” they are more likely to protect what they created. When one party “goes it alone,” it sets up a dynamic that encourages the other party to seek to undo that policy at all costs, as happened with the Affordable Care Act.
Republicans control the Executive Branch and both Houses of Congress and are seeking to implement large parts of President Trump’s agenda through a legislative maneuver called budget reconciliation. This process enables legislation to pass with majority only votes, which helps in the Senate where a procedure called cloture requires 60 votes, usually meaning that bipartisan support is required. Under reconciliation, the majority party, in this case Republicans, can pass legislation without a single vote from the minority party. There are some downsides to using the reconciliation process. For one thing, reconciliation legislation has an expiration date. It is not durable. Reconciliation can only affect revenues or expenditures. Republicans will spend much of 2025 attempting to pass reconciliation legislation. This is going to require time, effort, and lots of negotiating among Republicans. At the end of the day, Republicans will pass something, but the scope and cost of it will be limited by the rules of reconciliation.
What all this means for legislation that Congress needs to address post-reconciliation remains to be seen. After what is likely to be a year-long partisan exercise, how much will Democrats be willing to work with Republicans to enact any policies that will be perceived as Republican victories? During the Biden Administration, the dynamic was the same. Another complicating factor is history — the party in power almost always loses seats in the House of Representatives in the mid-year elections. With such a narrow majority in the House, history indicates that Democrats are likely to take control of the House after the 2026 elections. If the past is a predictor of the future, you should rewind your DVR to watch 2023-2024 (the 118th Congress) play out in reverse, with Democrats in the House seeking to stymie any legislation desired by Republicans in the Senate or President Trump.
Buckle up and stay tuned. It is going to be a bumpy ride.
EPA Announces Expansive Deregulatory Plan
On March 12, 2025, U.S. Environmental Protection Agency Administrator Lee Zeldin announced a sweeping plan to “undertake 31 historic actions in the most consequential day of deregulation in U.S. history.” The announcement states that the deregulatory plan is intended to “advance President Trump’s Day One executive orders and Power the Great American Comeback.” EPA states that these actions “will roll back trillions in regulatory costs and hidden ‘taxes’ on U.S. families,” making it “more affordable to purchase a car, heat homes, and operate a business.”
The ambitious plan identifies numerous past EPA regulations or actions that will be reconsidered or reviewed. The regulations identified in the deregulatory plan, which were promulgated under the Clean Air Act, Clean Water Act, and the Resource Conservation and Recovery Act, apply to a wide range of industrial sectors and regulated parties. Although described as “31 actions,” the EPA’s primary announcement lists 22 different items, with some mentioning more than one regulation or past action set to be reconsidered or otherwise addressed as part of the plan. EPA’s list is also separated by headings that appear to correspond to separate Day One executive actions by President Trump. For each of the planned deregulatory actions, EPA issued an accompanying press release providing additional information, including, in a few cases, anticipated timelines for completing the deregulatory actions and planned interim actions.
The Babst Calland team has summarized the identified deregulatory actions and information provided by EPA in the table below:
EPA’s Description
Key Points from EPA Press Release
EPA’s Target Timeline
Unleashing American Energy
EPA Announces Reconsideration of Clean Power Plan 2.0
Reconsidering the “Clean Power Plan 2.0” based on the Biden administration’s rule requiring “unlawful fuel-shifting” and “overreaching”
Citing U.S. Supreme Court’s stay of the Clean Power Plan and subsequent decision overturning it in West Virginia v. EPA
No stated timeline
EPA Announces Reconsideration of OOOO b/c
Reconsidering regulations for the oil and gas industry under Clean Air Act (CAA) § 111 (40 CFR Part 60, Subparts OOOOb/c) and revisions to 40 CFR Part 98, Subpart W of the Greenhouse Gas Reporting Program as “ideologically driven regulations” that prevent U.S. “energy dominance”
Referring to “major recent Supreme Court precedent” related to federal agencies’ interpretation and implementation of governing statutes
No stated timeline
EPA Announces Reconsideration of Mercury and Air Toxics Standards (MATS)
Reconsidering the MATS rule based on noted costs for compliance, past mercury emissions reductions, and significant regulatory uncertainty for coal plants in several states, including Pennsylvania and West Viriginia
Considering 2-year compliance exemption via CAA § 112(i)(4) for affected power plants during EPA’s rulemaking process
No stated timeline for completing reconsideration
EPA is considering 2-year compliance exemption
EPA Announces Reconsideration of Greenhouse Gas Reporting Program
Reconsidering the mandatory Greenhouse Gas Reporting Program based on noted costs of calculating and submitting annual emissions reports
Noting that mandatory GHGRP is “not directly related to” developing regulations and could be better used to drive improvements at reporting facilities
No stated timeline
EPA Announces it Will Reconsider 2024 Water Pollution Limits for Coal Power Plants (ELG: Steam Electric)
Revising 2024 wastewater regulations for coal burning power plants on flue gas desulfurization wastewater, bottom ash transport water, combustion residual leachate and legacy wastewater
Reconsidering technology-based ELGs and evaluating immediate relief from leachate requirements
Stating that EPA will consider how it might provide “immediate relief from some of the existing leachate requirements,” and “in a series of related actions,” EPA will provide clarifying updates on leachate requirements and reevaluate availability and cost of membrane technology
No stated timeline
EPA Will Revise Wastewater Regulations for Oil and Gas Extraction
Modernizing regulations on wastewater discharges for oil and gas extraction facilities to “provide regulatory flexibility” and support environmentally sustainable water reuse with “modern technologies and management strategies”
Reviewing and evaluating technologies and strategies for produced water to be treated for beneficial reuse, including for AI and data center cooling, rangeland irrigation, fire control, power generation, and ecological needs
Considering expanding the geographic scope of where treated wastewater can be used and discharged in the U.S.
No stated timeline
EPA Announces Reconsideration of the Risk Management Plan
Reconsidering 2024 Risk Management Plan (RMP) rule due to “significant concerns relating to national security and the value of the prescriptive requirements within the rule”
Stating that the 2024 RMP rule makes oil and natural gas refineries and chemical facilities less safe and less competitive
No stated timeline
Lowering The Cost of Living for American Families
EPA Announces Action to Implement POTUS’s Termination of Biden-Harris Electric Vehicle Mandate
Reconsidering Model Year 2027, Later Light-Duty, Medium-Duty, and Heavy-Duty Vehicle regulations based on noted regulatory and compliance costs and effort to bring back American auto jobs
Reevaluating Biden administration’s “Clean Trucks Plan” and “2022 Heavy-Duty Nitrous Oxide (NOx) rule”
No stated timeline
EPA Kicks Off Formal Reconsideration of 2009 Greenhouse Gas Endangerment Finding with Agency Partners
Reconsidering the 2009 Greenhouse Gas Endangerment Finding in collaboration with Office of Management and Budget and other agencies based on costs of regulations that flow from the finding
Reconsidering all of EPA’s prior regulations and actions that rely on the 2009 Endangerment Finding
Stating that “EPA will follow the Administrative Procedure Act and Clean Air Act, as applicable, in a transparent way for the betterment of the American people and fulfillment of the rule of law”
Stating in a separate one-page document that “EPA does not prejudge the outcome” of the reconsideration
No stated timeline
EPA Announces Reconsideration of the Technology Transition Rule
Reconsidering the technology transition rule based on noted costs of refrigerant systems required under rule
Stating that the rule harms semiconductor manufacturing and raises the cost of food at grocery stores
No stated timeline
EPA Announces Path Forward on NAAQS for PM2.5 to Aid Manufacturing, Small Business
Reconsidering the PM2.5 National Ambient Air Quality Standards (NAAQS) based on “serious concerns” from states and the standards serving “as a major obstacle to permitting”
Releasing guidance “soon” to increase flexibility on NAAQS implementation, reforms to New Source Review, and direction on permitting obligations
No stated timeline for completing reconsideration
Guidance to be released “soon”
EPA Announces Reconsideration of Air Rules Regulating American Energy, Manufacturing, Chemical Sectors (NESHAPS)
Reconsidering initially the National Emission Standards for Hazardous Air Pollutants (NESHAPS) for integrated iron and steel manufacturing, rubber tire manufacturing, synthetic organic chemical manufacturing industry, commercial sterilizers for medical devise and spices, lime manufacturing, coke ovens, copper smelting, and taconite ore processing
Considering a 2-year compliance exemption via CAA § 112(i)(4) for affected facilities during EPA’s rulemaking process
Evaluating other NESHAPs and New Source Performance Standards to determine whether they should be reconsidered
No stated timeline
Administrator Zeldin Begins Restructuring Regional Haze Program
Reconsidering implementation of program based on noted significant costs to power plants in the past
Reviewing Regional Haze Program regulations “to ensure that it fulfills Congressional intent, is based on current scientific information, and reflects recent improvements in air quality”
No stated timeline
EPA Announces Action to Address Costly Obama, Biden “Climate” Measurements (Social Cost of Carbon)
Revisiting Biden administration’s “social cost of carbon” based on “significant regulatory costs”
Executive Order requires guidance issued within 60 days of order
Administrator Zeldin Directs Enforcement Resources to Align with Executive Orders and EPA’s Core Mission
Immediately revising National Enforcement and Compliance Initiatives “to ensure that enforcement does not discriminate based on race or socioeconomic status” or “shut down energy production”
Stating that enforcement discretion will provide predictability “as EPA considers changes to regulations” and “cost savings”
EPA states it “will immediately revise” initiatives
EPA Terminates Biden’s Environmental Justice, DEI Arms of Agency
Terminating DEI and Environmental Justice arms of EPA
No stated timeline
Advancing Cooperative Federalism
EPA Announces Plan to Work with States on SIPs and Reconsider “Good Neighbor Plan”
Tackling “troubled” “Good Neighbor Plan” to advance cooperative federalism and work with states on Statement Implementation Plans to improve air quality
No stated timeline
Administrator Zeldin Takes Action to Prioritize Cooperative Federalism, Improve Air Quality Faster
Announcing commitment to address backlog of State/Tribal Implementation Plans
Noting EPA will assist states to ensure air quality is protected while growing economy
Referencing states’ concerns “related to being punished for emissions” outside of their control and “air quality monitors not being located in most logical locations”
Specifically mentioning development of semiconductor manufacturing and artificial intelligence
EPA’s goal to clear backlog “as soon as possible”
Administrator Zeldin Takes Action to Decrease Risk of Future Catastrophic Wildfires
Prioritizing allowance of prescribed fires within State/Tribal Implementation Plans to decrease risk of future wildfires
No stated timeline
EPA to Accept Nominations for Science Boards
Reconstituting Science Advisory Board and Clean Air Scientific Advisory Committee
Stating changes are critical to EPA receiving scientific advice “consistent with its legal obligations to advance core mission of protecting human health and the environment”
Accepting nominations for 30 days following publication in Federal Register
EPA Announces Action on Coal Ash Program
Prioritizing a number of “timely” actions on coal ash, “including state permit program reviews and update to coal ash regulations”
Reviewing Legacy-Coal Combustion Residuals Management Units Rule (CCRMU Rule) and “evaluating whether to grant short- and long-term relief such as extending compliance deadlines”
EPA will propose determination on North Dakota program within 60 days
EPA aims to complete CCRMU Rule changes within “a year”
EPA Announces Use of Enforcement Discretion to Further North Carolina’s Recovery from Hurricane Helene
Granting an extension of the no action assurance that North Carolina requested to “use large air curtain incinerators to clear debris without Title V permits to allow more efficient burning of debris with lower emissions”
Immediate
Administrator Zeldin Announces EPA Will Revise Waters of the United States Rule[1]
Revising Clean Water Act (CWA) Waters of the United States definition to reduce red tape, cut permitting costs and lower costs of doing business
Undertaking rulemaking process guided by Sackett and providing guidance to states while rulemaking proceeds
EPA will “move quickly” on review and “expeditiously” obtain input from stakeholders
With limited exceptions, EPA provides few details on the timing and steps it will take for each of the identified actions. In multiple announcements, EPA states or implies that it will undertake notice and comment rulemaking under the Administrative Procedure Act. Notably, EPA does not address steps it may take in pending litigation regarding several of the identified regulations. Nor does EPA mention whether the planned deregulatory actions satisfy directives under President Trump’s other Executive Orders, such as the “Ensuring Lawful Government and Implementing the President’s ‘Department of Government Efficiency Regulatory Initiative’” and “Unleashing Prosperity Through Deregulation” orders.
The deregulatory plan will require significant resources and time to implement at a time when EPA’s new political leadership is seeking to drastically cut costs and staff. Although several of the identified deregulatory actions may take years to complete, stakeholders subject to the identified deregulatory actions must evaluate and consider developing strategies for productively engaging with EPA during the expected rulemakings and related actions. Major environmental groups have denounced EPA’s deregulatory plan and are vowing to challenge the EPA.
Two New Procedural Wrinkles That May Disincentivize Challenges to Federal Policies
The first weeks of the Trump Administration have been defined by executive orders and new policies that were immediately challenged on constitutional or statutory grounds.
Recently, the US Environmental Protection Agency indicated its intent to “launch” the “biggest deregulatory action in U.S. History” under which it will undertake 33 separate actions impacting regulations ranging from emissions limits for power plants to internal calculations for the “social cost of carbon.” Even preceding this effort, more than 100 legal challenges to other Trump Administration actions have been filed.
As these disputes move through the litigation process (including appeals and, for at least some cases, likely US Supreme Court review), district courts have issued numerous preliminary injunctions to pause or delay the effects of executive orders until litigation is complete. While some of the new efforts will be challenged in appellate courts due to venue provisions in statutes including the Clean Air Act or Clean Water Act, other challenges will proceed in district courts.
Litigating these challenges can be expensive for both sides, but two recent developments could make litigation costs — particularly in challenges lodged in district courts — higher for challengers. First, the Trump Administration issued a Memorandum titled “Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c),” and subsequently a related Executive Order on the same subject, seeking to require challengers to post bond before seeking preliminary injunctions. Second, the Supreme Court recently decided Lackey v. Stinnie, which — separate and apart from the Memorandum — makes it harder for some challengers to recover attorneys’ fees after a preliminary injunction is granted.
Below, we discuss these developments and how they might apply in the litigation context.
How to Challenge Executive Branch Actions
We have outlined some of the Trump Administration’s initial actions: initial Executive Orders; initial environmental policies; initial efforts to pause government grants; and policies in the energy space. We have also addressed the new Administration’s trade policies here and here.
Individuals and entities generally initiate a challenge to the legal basis for an executive order or other action by filing a complaint in a federal district court. Depending on what is at stake and whether the facts of the case require rapid resolution, the court may use briefings, hearings, or a trial to evaluate whether the order or action should be upheld, struck down, or modified. Parties that lose in district courts may appeal, and some disputes make their way to the Supreme Court, which has the final say on most constitutional issues.
Often, challengers ask for injunctive relief, which is a legal remedy in the form of a court order compelling a party to do, or not do, a particular thing. Injunctive relief is warranted when an award of a money judgment would be insufficient to resolve the harm. Injunctive relief can be temporary — a “preliminary injunction” — or permanent, requiring a party in perpetuity not to do a particular thing.
Courts will often use preliminary injunctions to temporarily preserve the “status quo” while litigation is ongoing. This means that a challenger may win a preliminary injunction, but ultimately lose the case (or have the case mooted if the government changes course on its own before a final judgment).
The White House Memorandum on Fed. R. Civ. P. 65(c)
On March 6, after district courts had issued numerous restraining orders and preliminary injunctions temporarily delaying or reversing executive orders, the Trump Administration issued a new memorandum titled “Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c),” seeking to require plaintiffs to post a bond before requesting preliminary relief. (The White House fact sheet on the Memorandum is here.)
The memo asserts that the slate of lawsuits and preliminary injunctions constitutes an “anti-democratic takeover … orchestrated by forum shopping organizations that repeatedly bring meritless suits … without any repercussions when they fail.” The memo argues that taxpayers are harmed when program cuts are enjoined and substantial government resources are spent “fighting frivolous suits instead of defending public safety.”
In response to the issues it identifies, the memo invokes Federal Rule of Civil Procedure 65(c), which requires parties seeking a preliminary injunction to post security in an amount the court determines is sufficient to cover the costs and damages of the enjoined party if the enjoined party ultimately wins the case on the merits. The memo directs all federal department and agency heads to formally request security under Rule 65(c) in every case where plaintiffs seek a preliminary injunction against the government. It requires that the requests remind the court that Rule 65(c) is mandatory, reiterate that the government’s requested bond amount is “based on a reasoned assessment,” and demand that any party failing to comply with Rule 65(c) should lead to the “denial or dissolution of the requested injunctive relief.”
But despite its strong language, the memo is largely just a reminder of an already existing procedural rule. Judges have discretion to determine the appropriate amount for any Rule 65(c) bond, and, in the context of challenges to executive actions, many courts have determined that amount is zero. Federal judges are presumably aware of Rule 65(c), and many of the judges enjoining the Trump Administration already determined that Rule 65(c) did not require a bond in those cases. Two weeks before the memo, a federal district judge in Maryland granted a college diversity officer’s request for a preliminary injunction against executive orders cancelling diversity, equity, and inclusion (DEI) grants and contracts, but set the Rule 65(c) bond at $0 because the plaintiff’s constitutional rights were at issue and “a bond of the size Defendants appear to seek would essentially forestall Plaintiffs’ access to judicial review.”
Going forward, Rule 65(c) bonds will likely become a more actively contested issue and challengers to any executive action will need to provide arguments why they should not be required to pay.
Lackey v. Stinnie and Plaintiffs’ Attorney Fees
Separately but relatedly, the challengers who have successfully obtained preliminary injunctions blocking Trump Administration executive actions may have a harder time recovering their attorneys’ fees — after the recent Supreme Court decision in Lackey v. Stinnie, plaintiffs will need to see their cases through to final judgment before recovering legal fees.
42 U.S.C. § 1988 provides that civil rights plaintiffs may win reimbursement of their attorneys’ fees if they are the “prevailing party.” Historically, this fee-shifting mechanism has helped advocacy groups and law firms shoulder the substantial cost of civil rights lawsuits. For example the Lackey plaintiffs estimated that the federal appellate litigation in the case cost $800,000. In a procedurally similar case, the New York Civil Liberties Union was seeking $200,000 in attorneys’ fees against two upstate New York counties.
The Supreme Court has addressed when exactly a plaintiff becomes a “prevailing party” (and thus eligible for reimbursement) on several occasions. In Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, the Court ruled that a party prevails only when it achieves a “judicially sanctioned changed in the legal relationship of the parties.” 532 U.S. 598, 601 (2001). If a plaintiff files a lawsuit and the defendant voluntarily does what the plaintiff asked for, the plaintiff does not “prevail” for purposes of attorneys’ fees. To prevail, the plaintiff must win a merits judgment from a court.
What if a plaintiff wins a preliminary injunction but loses a final merits judgment? That plaintiff also does not prevail, the Supreme Court has held, because the victory was only temporary, not enduring. Sole v. Wyner, 551 U.S. 74, 86 (2007). The Sole decision left open what happens when a plaintiff wins a preliminary injunction and then the defendant voluntarily provides the relief plaintiff was seeking.
That issue has now been resolved. Until last month, 11 federal appeals courts held that a plaintiff that wins a preliminary injunction can be a “prevailing party” under some circumstances. Not so, said the Supreme Court in Lackey. The Court held that a plaintiff “prevails” when it wins permanent, on-the-merits judicial relief that materially alters the legal relationship of the parties. A plaintiff that wins only a preliminary injunction, which would include several plaintiffs suing the Trump Administration at this juncture, is not yet entitled to reimbursement of its attorneys’ fees. As a result, it’s not yet clear whether plaintiffs challenging the Trump Administration’s policies will receive attorneys’ fees. It will depend on how they are ultimately resolved.
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EPA and the Army Make More Waves on WOTUS
On March 12, the Environmental Protection Agency and the Office of the Assistant Secretary of the Army took steps to address lingering questions about the meaning and implementation of “waters of the United States” (WOTUS) following the US Supreme Court’s 2023 decision in Sackett v. United States. Although the Sackett decision narrowed the types of features that could be WOTUS, there are several implementation questions that remain on particular issues related to identifying WOTUS. Further, subsequent litigation over the prior administration’s WOTUS rule has resulted in the 2023 WOTUS rules (as amended after Sackett) applying in 24 states, while the pre-2015 rules, as consistent with Sackett, are applied in 26 states.
As the agencies begin a new effort to promote clarity and uniformity for Clean Water Act implementation across the country, EPA Administrator Lee Zeldin announced the availability of new guidance for implementing the “continuous surface connection” requirement outlined in Sackett. Administrator Zeldin also announced that the agencies will conduct listening sessions in March and April to solicit feedback and hear public comment on implementation issues that remain post-Sackett. The agencies hope that the guidance and the listening sessions will assist their efforts to arrive at both (a) legally comprehensible and durable provisions for identifying jurisdictional features governed by the Clean Water Act, and (b) effective, transparent, and predictable field implementation of the principles for identifying WOTUS.
The Guidance
Whether a wetland is jurisdictional under the Clean Water Act depends on the connection that the wetland has to another jurisdictional water — a traditional navigable water or a relatively permanent body of water connected to a navigable water. When the Supreme Court confirmed in Sackett that a wetland needed to have a continuous surface connection with other covered waters, it seemed to provide additional clarity with respect to wetland jurisdiction. But guidance documents issued by the prior administration continued to generate controversy by concluding that “continuous surface connection” did not only mean that a wetland had to abut a covered water, but that it could be connected by a “discrete feature,” like a non-jurisdictional ditch, to a jurisdictional waterway.
The new guidance clarifies that wetlands must be “adjacent” to, or “directly abut” a jurisdictional water like a river or tributary and prohibits non-jurisdictional intermediate features from qualifying as a continuous surface connection. The guidance emphasizes that, after Sackett, the test for the jurisdictional status of adjacent wetlands is twofold. First, the wetland must be adjacent to a body of water that is itself a traditionally navigable water or a “relatively permanent” body of water that is connected to a traditionally navigable water. Second, the wetland (which must meet the existing regulatory definitions of wetlands) must have a continuous surface connection to a jurisdictional water such that it is difficult to determine where the jurisdictional water ends and the wetland begins. This eliminates the “discrete feature” test.
This continuous surface connection guidance supersedes all other guidance documents on the issue. The agencies recognize that the second prong of the test, the “line-drawing problem” that exists between waters and wetlands, may present case-by-case challenges in identifying a continuous surface connection in the field. The agencies commit to working with stakeholders to resolving these line-drawing problems on a case-by-case basis and may provide additional guidance on the line-drawing problem in the future.
Listening Sessions
The agencies have announced a series of six listening sessions to take place in late March and April to receive public input on several WOTUS topics:
Relatively Permanent Waters. To determine whether a tributary is a WOTUS, the agencies look to whether the tributary is a “relatively permanent water.” The agencies are soliciting feedback on what kinds of characteristics, like flow regime, flow duration, seasonality, or others should inform a definition of “relatively permanent.”
Continuous Surface Connection. Although the new guidance is clear that discrete features connecting a wetland to a traditionally navigable water is not a basis for treating a wetland as jurisdictional, there are lingering questions on what it means for a wetland to “abut” a jurisdictional water. The agencies are seeking input on whether wetlands behind natural (not artificial) berms or other landforms would be considered “abutting,” and whether artificial flood control structures, pumps, and other features would remove a wetland behind the feature from Clean Water Act jurisdiction.
Jurisdictional Ditches. The agencies are also seeking public response on whether flow regime, physical features, excavation location, biological indicators like the presence of fish, or other characteristics would make a ditch jurisdictional.
Listening sessions will be public and conducted in-person, as well as streamed. Individuals or organizations seeking to present comments will be selected on a first-come, first-served basis and will be required to limit their remarks to three minutes.
Two New Procedural Wrinkles That May Disincentivize Challenges to New Federal Policies
The first weeks of the Trump Administration have been defined by executive orders and new policies that were immediately challenged on constitutional or statutory grounds.
Recently, the US Environmental Protection Agency indicated its intent to “launch” the “biggest deregulatory action in U.S. History” under which it will undertake 33 separate actions impacting regulations ranging from emissions limits for power plants to internal calculations for the “social cost of carbon.” Even preceding this effort, more than 100 legal challenges to other Trump Administration actions have been filed.
As these disputes move through the litigation process (including appeals and, for at least some cases, likely US Supreme Court review), district courts have issued numerous preliminary injunctions to pause or delay the effects of executive orders until litigation is complete. While some of the new efforts will be challenged in appellate courts due to venue provisions in statutes including the Clean Air Act or Clean Water Act, other challenges will proceed in district courts.
Litigating these challenges can be expensive for both sides, but two recent developments could make litigation costs — particularly in challenges lodged in district courts — higher for challengers. First, the Trump Administration issued a Memorandum titled “Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c),” and subsequently a related Executive Order on the same subject, seeking to require challengers to post bond before seeking preliminary injunctions. Second, the Supreme Court recently decided Lackey v. Stinnie, which — separate and apart from the Memorandum — makes it harder for some challengers to recover attorneys’ fees after a preliminary injunction is granted.
Below, we discuss these developments and how they might apply in the litigation context.
How to Challenge Executive Branch Actions
We have outlined some of the Trump Administration’s initial actions: initial Executive Orders; initial environmental policies; initial efforts to pause government grants; and policies in the energy space. We have also addressed the new Administration’s trade policies here and here.
Individuals and entities generally initiate a challenge to the legal basis for an executive order or other action by filing a complaint in a federal district court. Depending on what is at stake and whether the facts of the case require rapid resolution, the court may use briefings, hearings, or a trial to evaluate whether the order or action should be upheld, struck down, or modified. Parties that lose in district courts may appeal, and some disputes make their way to the Supreme Court, which has the final say on most constitutional issues.
Often, challengers ask for injunctive relief, which is a legal remedy in the form of a court order compelling a party to do, or not do, a particular thing. Injunctive relief is warranted when an award of a money judgment would be insufficient to resolve the harm. Injunctive relief can be temporary — a “preliminary injunction” — or permanent, requiring a party in perpetuity not to do a particular thing.
Courts will often use preliminary injunctions to temporarily preserve the “status quo” while litigation is ongoing. This means that a challenger may win a preliminary injunction, but ultimately lose the case (or have the case mooted if the government changes course on its own before a final judgment).
The White House Memorandum on Fed. R. Civ. P. 65(c)
On March 6, after district courts had issued numerous restraining orders and preliminary injunctions temporarily delaying or reversing executive orders, the Trump Administration issued a new memorandum titled “Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c),” seeking to require plaintiffs to post a bond before requesting preliminary relief. (The White House fact sheet on the Memorandum is here.)
The memo asserts that the slate of lawsuits and preliminary injunctions constitutes an “anti-democratic takeover … orchestrated by forum shopping organizations that repeatedly bring meritless suits … without any repercussions when they fail.” The memo argues that taxpayers are harmed when program cuts are enjoined and substantial government resources are spent “fighting frivolous suits instead of defending public safety.”
In response to the issues it identifies, the memo invokes Federal Rule of Civil Procedure 65(c), which requires parties seeking a preliminary injunction to post security in an amount the court determines is sufficient to cover the costs and damages of the enjoined party if the enjoined party ultimately wins the case on the merits. The memo directs all federal department and agency heads to formally request security under Rule 65(c) in every case where plaintiffs seek a preliminary injunction against the government. It requires that the requests remind the court that Rule 65(c) is mandatory, reiterate that the government’s requested bond amount is “based on a reasoned assessment,” and demand that any party failing to comply with Rule 65(c) should lead to the “denial or dissolution of the requested injunctive relief.”
But despite its strong language, the memo is largely just a reminder of an already existing procedural rule. Judges have discretion to determine the appropriate amount for any Rule 65(c) bond, and, in the context of challenges to executive actions, many courts have determined that amount is zero. Federal judges are presumably aware of Rule 65(c), and many of the judges enjoining the Trump Administration already determined that Rule 65(c) did not require a bond in those cases. Two weeks before the memo, a federal district judge in Maryland granted a college diversity officer’s request for a preliminary injunction against executive orders cancelling diversity, equity, and inclusion (DEI) grants and contracts, but set the Rule 65(c) bond at $0 because the plaintiff’s constitutional rights were at issue and “a bond of the size Defendants appear to seek would essentially forestall Plaintiffs’ access to judicial review.”
Going forward, Rule 65(c) bonds will likely become a more actively contested issue and challengers to any executive action will need to provide arguments why they should not be required to pay.
Lackey v. Stinnie and Plaintiffs’ Attorney Fees
Separately but relatedly, the challengers who have successfully obtained preliminary injunctions blocking Trump Administration executive actions may have a harder time recovering their attorneys’ fees — after the recent Supreme Court decision in Lackey v. Stinnie, plaintiffs will need to see their cases through to final judgment before recovering legal fees.
42 U.S.C. § 1988 provides that civil rights plaintiffs may win reimbursement of their attorneys’ fees if they are the “prevailing party.” Historically, this fee-shifting mechanism has helped advocacy groups and law firms shoulder the substantial cost of civil rights lawsuits. For example the Lackey plaintiffs estimated that the federal appellate litigation in the case cost $800,000. In a procedurally similar case, the New York Civil Liberties Union was seeking $200,000 in attorneys’ fees against two upstate New York counties.
The Supreme Court has addressed when exactly a plaintiff becomes a “prevailing party” (and thus eligible for reimbursement) on several occasions. In Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, the Court ruled that a party prevails only when it achieves a “judicially sanctioned changed in the legal relationship of the parties.” 532 U.S. 598, 601 (2001). If a plaintiff files a lawsuit and the defendant voluntarily does what the plaintiff asked for, the plaintiff does not “prevail” for purposes of attorneys’ fees. To prevail, the plaintiff must win a merits judgment from a court.
What if a plaintiff wins a preliminary injunction but loses a final merits judgment? That plaintiff also does not prevail, the Supreme Court has held, because the victory was only temporary, not enduring. Sole v. Wyner, 551 U.S. 74, 86 (2007). The Sole decision left open what happens when a plaintiff wins a preliminary injunction and then the defendant voluntarily provides the relief plaintiff was seeking.
That issue has now been resolved. Until last month, 11 federal appeals courts held that a plaintiff that wins a preliminary injunction can be a “prevailing party” under some circumstances. Not so, said the Supreme Court in Lackey. The Court held that a plaintiff “prevails” when it wins permanent, on-the-merits judicial relief that materially alters the legal relationship of the parties. A plaintiff that wins only a preliminary injunction, which would include several plaintiffs suing the Trump Administration at this juncture, is not yet entitled to reimbursement of its attorneys’ fees. As a result, it’s not yet clear whether plaintiffs challenging the Trump Administration’s policies will receive attorneys’ fees. It will depend on how they are ultimately resolved.
Utilities Petition FCC for Updates to TCPA Guidelines to Allow “Demand Response” Calls and Texts
Edison Electric Institute (EEI), an association that represents all U.S. investor-owned electric companies, petitioned the Federal Communications Commission (FCC) to permit calls and texts under the Telephone Consumer Protection Act (TCPA) without prior express consent for “demand response” communications. A prior FCC ruling clarified the FCC’s policies towards the types of calls and texts from utilities that require prior express consent; EEI now urges the FCC to provide additional guidance on allowable “demand response” calls and texts. “Demand response” refers to non-marketing communications related to “temporary, strategic adjustments to electricity usage during peak demand periods.” EEI has asked the FCC to “recognize how essential demand response programs are to ensuring customer safety and to managing increasing demand for electricity more effectively.” EEI seeks FCC clarification on whether such calls and texts are permissible without prior express consent from customers so that utilities can save customers money and prevent outages.
Violations of the TCPA could result in fines and lawsuits against utilities. Thus, in 2016, the FCC clarified that when a customer provides a telephone number to a utility, such provision constitutes prior express consent for certain communications “closely related” to the utility service. EEI is asking that the FCC’s ruling be expanded to include non-telemarketing, information demand response calls, and texts. EEI’s petition states, “Demand response programs target short-term, intentional modification of electricity usage by end-user customers during peak times or in response to market prices. They help keep the electricity grid stable and efficient and can save customers money.” EEI further states that customer survey data “indicates widespread satisfaction among participants in demand response programs utilizing calls or texts, demonstrating positive impacts on customer experience with low opt-out rates.” EEI hopes that the FCC can clarify the language regarding the applicability of the utility customer presumption of consent and allow utilities to engage customers in these essential demand and response programs.
Cuts, Closures, and Confusion: A Quick Update on U.S. EPA
It has been 50 days since the Trump administration took office, and there remains a tsunami of activity surrounding executive actions and announcements across the federal government. The Environmental Protection Agency (EPA) has not been spared from deep cuts, office and grant program closures, and a fair amount of confusion.
On March 11, 2025, EPA Administrator Lee Zeldin directed the agency to eliminate all offices focusing on environmental justice. The move comes in the wake of executive orders signed on inauguration day declaring the end to the “whole of government” approach and the “Justice40” initiative and directed all federal agencies to terminate all environmental justice offices and positions. The recent action ends over 30 years of environmental justice work at the EPA by closing the national environmental justice office, along with each of the ten regional environmental justice offices. For the foreseeable future, the environmental justice considerations in environmental permitting and regulations will be starkly absent at the federal level.
Meanwhile, as a result of the February 19, 2025, executive order, the EPA has until April 20, 2025, to review all of their regulations and identify regulations that, among other criteria, are unconstitutional, impose significant costs that outweigh public benefit, or harm the national interest. This comprehensive regulatory review will likely have broad implications for nearly all environmental regulatory programs. For example, just yesterday, Administrator Zeldin announced the EPA’s plan to eliminate 31 separate major environmental regulations. Among the regulations on the chopping block are the greenhouse gas emissions endangerment finding, the “Good Neighbor Plan,” and several other climate-related standards. As for enforcement priorities, the same executive order instructed all federal agencies to “preserve their limited enforcement resources by generally deprioritizing” enforcement where such enforcement is not based on the “best reading of a statute,” or it goes “beyond the powers vested in the Federal Government by the Constitution.”
As for staffing, in February, the EPA had to correct a comment from the President that the EPA would be cutting 65% of its workforce; instead, it clarified that the figure was referencing spending cuts. Undoubtedly, much of those cuts will come from reductions to, or wholesale terminations, of many of the EPA’s traditionally successful and highly lauded grant programs. Just earlier this week the EPA announced its fourth round of cuts, including the cancellation of over 400 grants across nine programs. Then, the next day, the EPA announced it was canceling $20 billion in grants for climate and clean energy programs that had already been frozen. These broad cuts, which came with little or no notice, have left loan and grant applicants and recipients confused and concerned. While not tallied yet, there are sure to be thousands of potential brownfield, resiliency, and energy projects put on hold or terminated. It is anticipated that these cuts will also significantly impact on state and local government funding. It is too early to know whether and how much those gaps will be filled on a state or local level.
There is no sign that the pace of change will be slowing down anytime soon. With these changes, regulatory uncertainty will continue. More so than ever, keeping abreast of these developments and how they may impact operations, projects, or transactions is vitally important to businesses.