Outlook 2023

OUTLOOK 2023

EPA readies suite of tough new rules amid GOP, Supreme Court scrutiny

Inside EPA's Outlook 2023 is our special report about the year ahead. EPA and other agencies have outlined an ambitious regulatory agenda for environmental and climate policy, including a suite of new rules governing greenhouse gases, water and air quality, PFAS and other industrial chemicals as well as measures to improve permitting. Officials are also grappling with a series of difficult decisions and debates as they implement the Inflation Reduction Act. The Biden administration is also ramping up efforts to address environmental justice concerns, such as increasing use of cumulative risk analysis, but it faces pushback from industry and continued turmoil with advocates. Officials are also facing new political tests as House Republicans prepare an aggressive oversight agenda of EPA and other agencies’ policies. And they are also bracing for rulings from the conservative Supreme Court regarding clean water and other regulatory issues.

Dueling Agendas For Climate-Related Investment Put Squeeze On Companies

Experts expect Republicans to intensify their attacks this year on environment-related finance approaches even as climate advocates continue calls for such steps as a prudent approach to limiting risks, with investment management firms and other companies caught between the competing agendas. “There will be a lot of efforts . . . to leverage the [environmental, social, governance (ESG)] backlash for political gain,” says Brian Israel, chairman of Arnold and Porter’s environmental practice group. That includes ESG-specific funds and investing practices,...

Consumer Fraud Suits, State PFAS Product Bans Expected To Rise In 2023

Consumer fraud litigation targeting PFAS in products is likely to increase in 2023 as part of a multi-faceted strategy by consumer and environmental advocates that also includes championing measures in state legislatures to ban the chemicals in a growing list of products, although one industry source cautions state action may prompt Congress to preempt states. There was “an incredible uptick” in consumer fraud litigation in 2022 related to per- and polyfluoroalkyl substances (PFAS), and that trend is likely to continue...

EPA Plans Milestone Steps For Advanced Chemical Test Methods In 2023

Officials at EPA’s chemicals and research offices are anticipating several advances in 2023 that will boost adoption of new alternate methods (NAMs) for toxicity testing, including release of a National Academy of Sciences (NAS) report that will aid assessments of their validity, and potential early steps to integrate NAMs into TSCA new-chemical reviews. Although the 2016 Toxic Substances Control Act (TSCA) reforms direct EPA to “reduce and replace to the extent practicable” live-animal chemical tests with NAMs, which cover advanced...

Agencies, States Dial Up Electrification, Putting Gas Sector On Defense

The Biden administration is doubling down on efforts to electrify buildings and phase out natural gas appliances – including tougher efficiency rules for furnaces, new federal building codes, and health-based regulations targeting gas stoves – as the gas industry dials up advocacy against such efforts by seeking technology-neutral climate policies. “I’m very concerned that long-standing objectives such as the federal government’s role in improving energy efficiency and reducing greenhouse gas emissions are now becoming subordinate to the goal of banning...

EPA Wrestling With Environmental Impact Of Future RFS ‘Set’ Program

As EPA moves to set biofuel blending volumes for the next three years under the renewable fuel standard (RFS), the agency is wrestling with how to characterize the environmental impacts of the program, as estimates of biofuels’ lifecycle greenhouse gas emissions diverge widely amid disagreements over whether the program drives land-use change. The Clean Air Act requires that different biofuels achieve GHG emissions at specific levels relative to gasoline, but environmentalists doubt the ability of certain fuels, especially conventional corn-based...

Biden Administration Faces Fraught Ties With EJ Advocates In 2023

The Biden administration’s already fraught relationship with environmental justice (EJ) advocates is expected to worsen in 2023 as the advocates push back more forcefully against the administration’s support for certain climate technologies while the White House moves to temper the advocates’ input by diversifying a key advisory body. Fueling the tension is billions of dollars in EJ-focused Inflation Reduction Act (IRA) funding that EPA and other agencies will begin dispersing in this year, with sources expecting officials to make clear...

California Suit Likely To Prompt Other States To Pursue Broad PFAS Litigation

Industry attorneys are warning companies to expect more state lawsuits against PFAS makers and sellers to be filed in the coming year based in part on California’s massive multi-claim action against manufacturers, distributors and downstream users, especially with more states and EPA adopting new rules and limits for the chemicals. Although the litigation filed last year by California’s attorney general (AG) relies heavily on the state’s unique Proposition 65 listing of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as chemicals...

PFAS Litigation Expected To Grow As EPA Increases Regulation

The number and scope of lawsuits tied to per- and polyfluoroalkyl substances (PFAS) will continue to increase over the coming year, according to legal analysts, with upcoming EPA Superfund and toxics reporting requirements expected to intensify that process and new military specifications also raising legal questions. Growing public awareness about the potential health effects from ubiquitous PFAS which are used in everything from consumer products to clothing to industrial operations have propelled tort and defective product claims over the past...

More States Embracing California’s Rules To Cut Industry, Vehicle GHGs

More states are copying California’s climate policies to reduce greenhouse gases from several sectors, including New York’s recent approval of a sweeping plan to cut emissions 85 percent by 2050 that envisions a cap-and-trade program, and others adopting zero-emission vehicle (ZEV) and low-carbon fuel rules. “Just yesterday, Oregon and Washington both adopted [California’s] Advanced Clean Cars II Rule, meaning all new car sales will be zero-emission by 2035,” states a Dec. 20 email alert by Climate Solutions, a clean energy...

2023 Deadlines Loom Over EPA’s Pending TSCA Chemical Evaluations

EPA faces statutory deadlines for 20 TSCA evaluations of existing chemicals this year that so far have seen little public movement since EPA began them in 2019, adding to officials’ warnings that they lack resources to meet those targets and raising questions over whether the agency can finalize them before the end of President Joe Biden’s current term. The toxics office prioritized its current batch of 20 Toxic Substances Control Act (TSCA) chemical evaluations in December 2019, triggering the law’s...

As EPA Focuses On Service Lines, Some Urge More Priority On Lead Paint

Backed by billions of dollars in infrastructure money, EPA is stepping up its efforts to ensure local governments replace lead-based drinking water lines, though some public health officials say the agency should also prioritize measures to address lead paint, which poses greater risk than water contamination and is also the exposure source for most children. Ruth Ann Norton, a member of EPA’s Children’s Health Protection Advisory Committee (CHPAC), told agency officials recently that lead-based paint in housing is “as important...

EPA Readies Raft Of Rules To Cut Ozone As Officials Weigh Stricter NAAQS

EPA is ramping up efforts to sharply reduce ozone emissions across much of the country, with a series of planned or just-finalized rules, although whether this is sufficient to meet existing federal air quality limits, much less potentially tougher federal standards now under consideration, is open to question. Possibly as soon as March 2023, EPA plans to finalize its revised version of the Cross-State Air Pollution Rule (CSAPR), which as proposed will expand the emissions trading program to cover new...

EPA Faces Crunch On Next Round Of GHG Standards For Cars, Trucks

EPA is facing a crunch this year to release multiple proposals targeting greenhouse gases and other emissions from cars and trucks after a year of significant external developments that have helped set the baseline for future regulatory action, including congressional enactment of new or revised tax credits for electric vehicles (EVs). The rulemakings loom even as litigation is ongoing over EPA’s current GHG standards for light-duty vehicles, as well as the agency’s decision last March to reinstate preemption waivers for...

Pending Legal Fights Preview Battles Over EPA’s Upcoming Coal Ash Rules

Environmental and power sector groups are pursuing a series of citizen suit and other legal challenges that are already providing a venue for the groups’ expected advocacy on a suite of coal combustion residuals (CCR) policies that EPA is slated to issue in 2023 as officials work to update the agency’s 2015 rule. For example, environmentalists are suing Alabama Power over the adequacy of one of its facility’s plans to cap coal ash in place, though the company is seeking...

Facing Resistance, EPA Treads Carefully In Addressing Cumulative Impacts

Facing stiff resistance from states and industry groups, EPA is expected to proceed cautiously as it works to advance its high-profile effort to account for cumulative impacts in permitting for facilities located in overburdened communities, a key part of the Biden administration’s environmental justice (EJ) agenda. A case in point is a high-profile guidance being developed by EPA’s new Office of Environmental Justice & External Civil Rights (OEJECR), likely in consultation with the White House Council on Environmental Quality (CEQ),...

Amid Signs Of Gridlock, GOP House To Boost Scrutiny Of Biden Efforts

Republicans’ takeover of the House is expected to pose new oversight challenges for Biden administration officials as they push to implement last year’s climate legislation and issue several high-profile EPA climate rules, while it is also dampening prospects for new environmental initiatives. But the GOP’s narrow House majority, as well as Democrats’ continued control of the Senate, has observers expecting that Republicans would fail in wholesale attacks on last year’s climate law known as the Inflation Reduction Act (IRA), and...

EPA Readies Landmark TSCA Rules Governing Asbestos, Methylene Chloride

EPA is entering a landmark year for TSCA regulation as it prepares to finalize a proposed ban on uses of chrysotile asbestos, the first rule based on a risk evaluation under the reformed law, and readies a proposal for the solvent methylene chloride that could set a long-term precedent on how the agency will approach risk management for other existing chemicals. Although EPA has crafted a handful of rules for existing chemicals since Congress overhauled the Toxic Substances Control Act...

Agencies’ Continued IRA Implementation Sparks Clean Energy Disputes

EPA, the Treasury Department, the Energy Department (DOE) and others are continuing to disperse the Inflation Reduction Act’s (IRA) mammoth clean energy funding, reigniting various fights over the best approach to transitioning to a clean energy economy. The agencies’ IRA implementation includes releasing dozens of guidance documents and taking other steps to deploy a collection of clean energy tax incentives and grant programs, even as they continue to implement the 2021 bipartisan infrastructure law’s (BIL) energy- and climate-related provisions. The...

EPA Readies Suite Of New PFAS Rules In 2023 Amid Heated Advocacy

EPA is gearing up to issue a suite of new final and proposed rules, including under its Superfund, water, waste and toxics programs, in 2023 -- measures that are already driving heated advocacy as environmentalists and industry groups battle over the reach and stringency of the upcoming regulations. Many, if not all, of the pending per- and polyfluoroalkyl substances (PFAS) regulations will be quickly challenged once finalized while the proposals will spark strong debates. Legal challenges to EPA’s PFAS rules...

Certainty On WOTUS Remains Elusive As Supreme Court Ruling Awaits

The Supreme Court’s closely watched ruling later this year in Sackett v. EPA could fail to provide long-sought certainty over the scope of the Clean Water Act (CWA), especially if the court’s decision is narrowly focused on when adjacent wetlands are subject to the law and does not address other jurisdictional issues, such as small streams. EPA and the Army Corps of Engineers recently finalized a new definition of “waters of the United States” (WOTUS) that covers a wide...

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