We are pleased to present you with Taft’s Environmental newsletter, a collection of insights from our team to yours. For more information on our environmental practice, please visit www.taftlaw.com.

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ARTICLES
Nationwide Permit 12 Temporarily Revived, but Keystone XL Remains Stalled
By: Lauren Pockl and Kodi Verhalen

On July 6, 2020, the United States Supreme Court temporarily revived the use of the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit (NWP) 12 to construct new oil and gas pipelines across waterways, but explicitly excluded the Keystone XL pipeline from its ruling. The one-paragraph order, without explanation or noted dissent, stayed an earlier federal district court decision that vacated NWP 12 pending an appeal to the Ninth Circuit.

Environmental groups challenged NWP 12 as it related to the Keystone XL pipeline, arguing that the permit threatened endangered species. On April 15, 2020, the District of Montana concluded that the Corps’ reissuance of NWP 12 in 2017 for the Keystone XL pipeline was arbitrary and capricious and violated the Endangered Species Act. The district court vacated NWP 12 for all infrastructure projects and remanded it to the Corps to complete consultations with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

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Final Navigable Waters Protection Rule Goes Into Effect, Changing the Game for Property Developers, Farmers, and Industry Across the US
By: Will Gardner

On June 22, 2020, the U.S. Environmental Protection Agency’s (EPA) and U.S. Army Corps of Engineers' (Corps) new Navigable Waters Protection Rule, published April 21, 2020, (85 Fed. Reg. 22,250) went into effect in every state except for Colorado. The new Navigable Waters Protection Rule represents the second and final phase of the Trump administration’s rollback of the 2015 Obama-era rule, and it significantly limits the scope of waters subject to federal regulation under the Clean Water Act.

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EPA Continues Aggressive Pesticide Enforcement: Amazon and eBay Ordered to Stop Sale of Certain Pesticides Claiming Efficacy Against COVID-19
By: Frank Deveau, Chase Dressman, and Kristine Gordon

On June 10, 2020, the U.S. Environmental Protection Agency (EPA) ordered Amazon Services LLC (Amazon) and eBay Inc. (eBay) to immediately stop selling a wide variety of pesticide products and remove them from their websites. The products at issue violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and many illegally claimed to be effective against SARS-CoV-2, the virus causing COVID-19. EPA Orders Amazon and eBay to Stop Sale of Certain Pesticide Products (June 11, 2020).

FIFRA generally requires that all pesticides be registered with EPA prior to sale or distribution within the U.S. and prohibits the sale of misbranded pesticides (i.e., pesticides that make false or misleading claims, including online or in advertisements). EPA will not register a pesticide until it has been determined that the pesticide does not pose an unreasonable risk when used according to its directions. In addition, pesticides that claim to be effective against human pathogens are subject to heightened scrutiny and are tested to verify their safety and efficacy before they are registered. Given the current pandemic, unregistered or misbranded pesticides that claim to be effective against SARS-CoV-2 are of particular concern to EPA and have been the focus of significantly increased regulatory and enforcement scrutiny. As EPA noted in its news release, “[t]he proliferation of unregistered pesticides in the e-commerce marketplace, especially during this unprecedented time, poses a significant and immediate health risk to consumers, children, pets, and others exposed to the products.” Id.

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Proposed IRS Rule Allows Deduction of EPA Fines and Penalties
By: Rikaela Greane

On May 13, 2020, the Internal Revenue Service (IRS) proposed regulations offering guidance on section 162(f) of the Internal Revenue Code, which concerns the deduction of certain fines, penalties, and other amounts. These regulations also provide guidance on the information reporting requirements under new section 6050X of the Internal Revenue Code for those fines and penalties. These regulations establish that certain U.S. Environmental Protection Agency (EPA) fines and penalties can be deducted when those costs are paid or incurred as restitution, remediation, or to come into compliance with a law.

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EPA Releases Temporary Guidance on Respiratory Protection for Agricultural Pesticide Handlers During COVID-19
By: Chase Dressman and Amber Lucci

Lack of availability of respiratory personal protection equipment and fit testing during the COVID-19 pandemic has prompted the U.S. Environmental Protection Agency (EPA) to release temporary guidance on respiratory protection for agricultural pesticide handlers.

The increased demand for respirators from healthcare workers during the COVID-19 crisis, along with global and national supply chain disruptions, has limited the availability of respiratory protection options for those in the agricultural sector. Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), agricultural pesticide handlers must use respiratory protection if a pesticide’s label requires it. Similarly, respirator fit testing, required under FIFRA, has been disrupted by service closures and supply chain issues as well.

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