Earth Day 2023: Three Top Environmental Law Issues to Watch

In honor of Earth Day, here are three top environmental law issues to watch in 2023.

1. Emerging Contaminants

What are emerging contaminants?

The term “emerging contaminants” generally refers to unregulated substances that may present a risk to human health or the environment. Emerging contaminants include the so-called “forever chemicals,” per- and polyfluoroalkyl substances (“PFAS”), 1,4-dioxane, and microplastics.

What to watch for:

The U.S. Environmental Protection Agency (“EPA”) is continuing to study and regulate emerging contaminants. For example, in March 2023, EPA proposed to regulate six types of PFAS chemicals – PFOA, PFOS, PFNA, PFHxS, PFBS, and GenX – under the federal Safe Drinking Water Act. There are currently no enforceable federal remediation standards for the emerging contaminants, but we expect that will change in the near future. States are continuing to fill in the gaps. Due to health concerns with emerging contaminants, we are also seeing an increase in toxic tort litigation.

To minimize potential liability, prospective purchasers of commercial real estate and their professionals should ensure that the scope of their Phase I Environmental Site Assessment includes an evaluation of emerging contaminants. Owners and operators of properties undergoing remediation should also speak with their professionals about evaluating for emerging contaminants.  

2. Environmental Justice

What is environmental justice?

Environmental justice refers to the fair treatment and meaningful involvement of all people with respect to the development and enforcement of environmental laws and regulations.

What to watch for:

Federal executive orders require agencies to consider environmental justice in their programming. As recently as April 21, 2023, President Biden signed an executive order to create an Office of Environmental Justice in the White House. The Inflation Reduction Act of 2022 also provided funding for environmental justice and climate-related spending. In addition, states have begun to codify screening tools and create environmental justice regulations for state agencies to incorporate into decision-making. For example, New Jersey published its final Environmental Justice rules on April 17, 2023, which will impact eight types of facilities seeking a major source permit in areas designated by the New Jersey Department of Environmental Protection as overburdened communities.

3. West Virginia v. EPA – U.S. Supreme Court backtracks on Agency Deference

What is West Virginia v. EPA?

In June 2022, the U.S. Supreme Court announced its decision in West Virginia v. EPA – cutting back an ambitious plan the agency had proposed to address pollution from coal-fired power plants. In its decision, the Court formally recognized a new “Major Questions Doctrine,” which has the potential to upend the discretion that courts historically granted to agency decision-making. Under the “Major Questions Doctrine,” courts will look for clear, Congressional authorization for the power that the agency claims.

What to watch for:

We expect to see potential challenges to agency decision-making under the “Major Questions Doctrine,” which could impact everything from permit issuance to consent agreements with the government.

The next case in front of the U.S. Supreme Court directly on the issue of the “Major Questions Doctrine” is Loper Bright Enterprises v. Raimondo.

We have identified and discussed only three of the many environmental issues that we are tracking, along with the legal implications that touch on a variety of industries and business sectors.