U.S. EPA Removes Regulatory Affirmative Defense Provision Against Alleged Violations of Oil and Gas Facility NESHAPs

On October 22, 2024, the U.S. Environmental Protection Agency (EPA) published a final rule removing an affirmative defense from Clean Air Act (CAA) National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations for the Oil and Natural Gas Production Facility and Natural Gas Transmission and Storage Facility Source Categories (Final Rule).[1] Prior to the Final Rule, owners or operators could assert an affirmative defense that alleged NESHAP standard violations were caused by an equipment malfunction.[2] A “malfunction” is defined as any sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner.[3]

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U.S. EPA Power Plant Effluent Rule Allowed to Go Into Effect

On October 9, 2024, the Eighth Circuit refused to block new U.S. Environmental Protection Agency (EPA) wastewater limits for coal-fired power plants. In Southwestern Electric Power Co., et al v. EPA, et al, multiple states, trade groups, and utility companies challenged EPA’s May 2024 Supplemental Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (ELG Rule).

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District of North Dakota Halts Bureau of Land Management’s Venting and Flaring Rule

On Thursday, September 12, 2024, Judge Daniel Traynor of the U.S. District Court for the District of North Dakota granted a preliminary injunction sought by North Dakota, Montana, Texas, Wyoming, and Utah (the States) to halt the April 2024 “Waste Prevention, Production Subject to Royalties, and Resource Conservation” rule from the Bureau of Land Management (BLM), which mandates that oil and gas well operators on federal land flare rather than vent excess methane gas. The April 2024 rule revised a 2016 BLM rule that the District of Wyoming vacated in 2020. The States raised a number of challenges to the April 2024 rule, arguing that it exceeded BLM’s statutory authority under, or violated, the Mineral Leasing Act, Federal Oil and Gas Royalty Management Act, Clean Air Act, and Federal Land Policy and Management Act and was otherwise arbitrary and capricious under the Administrative Procedure Act.

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Congress Passes ADVANCE Act to Facilitate U.S. Development of Advanced Nuclear Reactors

On June 18, 2024, the U.S. Senate passed the Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy (ADVANCE) Act to accelerate the deployment of nuclear energy capacity, including by accelerating the licensing and creating new incentives for advanced nuclear reactor technologies, among them small modular reactors. The Senate introduced the ADVANCE Act in March 2023, and the House of Representatives passed the Fire Grants and Safety Act, which contains the ADVANCE Act, on May 8, 2024. Now that both houses have passed the Act, it will go to President Joe Biden for signature. Full text of the ADVANCE Act as passed by the Senate can be found here on page 4.

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Vermont and New York Climate Acts are First in a Wave of Likely Climate Change Cost Recovery Laws

On May 30, 2024, Vermont’s Republican governor, Phil Scott, allowed Vermont’s S 259 — also referred to as the “Climate Superfund Act” — to become law without his signature. The stated goal of this law is to mitigate the impacts of climate change.

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White House Releases Plan to Advance Nuclear Reactor Technologies

On May 29, 2024, the Biden administration announced the creation of a Nuclear Power Project Management and Delivery working group (Working Group), which is intended to accelerate the deployment of cost-effective nuclear reactor technology. The Working Group will include members of the White House and the U.S. Department of Energy (DOE) as well as other stakeholders, including project developers, engineering, procurement, and construction firms, utilities, investors, labor organizations, academics, and nongovernmental organizations.

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17 States File Complaint Challenging Constitutionality of California’s Advanced Clean Fleets Regulation

On May 13, 2024, 17 states filed a complaint in the U.S. District Court for the Eastern District of California challenging California’s Advanced Clean Fleets (ACF) regulation.

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NHTSA Adopts Rule Requiring Automatic Emergency Braking on Light Vehicles

On May 9, 2024, the National Highway Traffic Safety Administration (NHTSA) published a final rule adopting a Federal Motor Vehicle Safety Standard (FMVSS) that requires automatic emergency braking (AEB) systems in U.S. light vehicles and trucks by September 2029. The rule is required under the Bipartisan Infrastructure Law of 2021 (BIL), in which Congress directed NHTSA to establish FMVSS requirements for AEB systems as well as three other Level 2 advanced driver assistance systems (ADAS): lane departure warnings, lane-keeping assist, and forward collision warnings (FCW).

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Resources

 

Meet the Team

<a target=‘_blank’ href="https://www.sidley.com/en/people/v/vrielink-cliff-w">Cliff W. Vrielink</a>

Cliff W. Vrielink

Houston
<a target=‘_blank’ href="https://www.sidley.com/en/people/i/irvin-kenneth-w">Kenneth W. Irvin</a>

Kenneth W. Irvin

Washington, D.C.
<a target=‘_blank’ href="https://www.sidley.com/en/people/h/higgins-tara">Tara Higgins</a>

Tara Higgins

New York
<a target=‘_blank’ href="https://www.sidley.com/en/people/h/hamner-iii-herschel-t">Herschel T. Hamner III</a>

Herschel T. Hamner III

Houston
<a target=‘_blank’ href="https://www.sidley.com/en/people/m/macarthur-james">James MacArthur</a>

James MacArthur

London
<a target=‘_blank’ href="https://www.sidley.com/en/people/a/atkins-raymond-a">Raymond A. Atkins Ph.D.</a>

Raymond A. Atkins Ph.D.

Washington, D.C.
<a target=‘_blank’ href="https://www.sidley.com/en/people/l/lewis-kevin-p">Kevin P. Lewis</a>

Kevin P. Lewis

Houston

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