Principal John Cruden (Washington, DC) and Of Counsel Allyn Stern (Seattle) were quoted in a pair of Law360 articles reflecting on the biggest environmental developments of 2019 and looking forward to 2020.

Looking ahead, the article titled "Environmental Regulation And Legislation To Watch In 2020" highlights potentially notable developments to look out for, including EPA's plan to roll back Obama-era greenhouse gas limits, possible changes in how the Department of the Interior implements the Endangered Species Act, the anticipated final version of the Trump Administration's definition of "waters of the U.S." under the Clean Water Act, a bipartisan transportation infrastructure bill expected in Congress, updates to the National Environmental Policy Act regulations, and the Environmental Protection Agency (EPA)'s extended deadline for implementing the 2016 amendments to the Toxic Substances Control Act.

Allyn spoke about developments regarding emerging chemicals per- and poly-fluoroalkyl substances (PFAS) following Congress's recent passage of the National Defense Authorization Act, which bars the Department of Defense from using firefighting foams containing PFAS beginning in fiscal year 2025. A requirement for EPA to finalize national drinking water standards failed to make it into the final bill, but there are still about 17 other bills in both chambers relating to setting drinking water standards and designating PFAS substances as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), among other things.

As part of EPA's PFAS action plan, the Agency has sent the proposed regulatory determination for perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) under the Safe Drinking Water Act to the Office of Management and Budget for review. Allyn, former EPA Region 10 Counsel, also noted that PFAS has even captured Hollywood's imagination, featuring prominently in the movie Dark Waters, a dramatization of the story of attorney Robert Bilott, who represented plaintiffs in a class action lawsuit against DuPont and its use of PFOA. "These 'emerging chemicals' have fully emerged," she said.

Looking back on 2019, the article titled "The Biggest Environmental Decisions Of 2019" reviews the Supreme Court's overturning of a precedent that made it difficult for plaintiffs to pursue takings claims against the government, a Ninth Circuit decision finding that EPA was too lax in its implication of a chemical safety law, an Eighth Circuit CERCLA liability decision, a Colorado federal court decision blocking a planned coal mine expansion, and the implications of an Ohio federal judge allowing a potentially sprawling PFAS class action suit to proceed.

John focuses on the Supreme Court decision in Kisor v. Wilkie that limited how much judges may defer to an agency's interpretation of its regulations and that imposed a five-part test to determine when such Auer deference is warranted. "The ruling could give judges leeway to begin to explore more deeply controversial and science-heavy issues like climate change and water quality disputes, but the extent of the ruling's impact is still unclear," said John who served as Assistant Attorney General for the Department of Justice's Environment and Natural Resources Division prior to joining B&D. "Other cases will need to develop the contours of the additional requirements for deference in regulatory interpretation cases."

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