President Trump issued an Executive Order on Regulatory Relief to Support Economic Recovery on May 19.1 Generally, the Order directs federal agencies to respond to the COVID-19 crisis by “rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.”
Over the past several months, softening demand and declining prices have wreaked havoc on domestic crude oil producers. Members of Congress and industry participants have pleaded with the Trump administration for relief, including from import competition.
Recent reports indicate that the Trump administration may decide to utilize Section 232 of the Trade Expansion Act of 1962 to investigate whether crude oil imports threaten to impair the national security. Although it has invoked Section 232 far more than its predecessors, a decision by the Trump administration to investigate crude oil imports under Section 232 would align with steps taken by previous administrations.
I. Section 232
Section 232 authorizes the President to take action to address imports of articles that threaten to impair the national security. Prior to any presidential action, the U.S. Department of Commerce will investigate the effects of such imports on the national security. In so doing, Commerce will consult with the U.S. Department of Defense (DOD) and appropriate officers of the United States, as well as hold a hearing. The DOD will also provide Commerce with an assessment of the defense requirements of the article subject to investigation. Within 270 days of initiating the investigation, Commerce must submit a report to the President disclosing whether such imports threaten to impair the national security and recommending action.
Within 90 days of receiving the report, the President must decide whether he concurs with Commerce’s finding and “determine the nature and duration” of any action to eliminate any threat to the national security. Upon making a decision, the President has “no later than” 15 days to implement the action. The President may take a broad range of actions to address the imports, including the negotiation of a trade agreement that limits or restricts imports of the article at issue.
II. Previous Investigations
Since its enactment in 1962, the current administration and its predecessors have initiated a total of 33 investigations pursuant to Section 232, two of which remain ongoing. These investigations have addressed a broad range of products, from watches to antifriction bearings, from automobiles to mobile cranes. Previous administrations have investigated petroleum and crude oil imports on eight separate occasions, most recently in 1999. Each of these investigations resulted in a finding that such imports threaten to impair the national security, though not every affirmative finding has resulted in the imposition of a trade restriction. For example, in the 1970s and 1980s, Presidents Nixon, Carter and Reagan imposed various embargos and fees on the imports. But in the late 1980s and 1990s, Presidents Reagan and Clinton declined to impose any remedy.
III. What’s Next?
Since assuming office in 2017, the Trump administration has initiated seven investigations pursuant to Section 232, more than 20 percent of all such investigations initiated to date. Moreover, each of these investigations has concluded that imports of the articles at issue threaten to impair the national security. Bolstered by past practice, it stands to reason that an investigation of crude oil imports pursuant to Section 232 may pique the Trump administration’s interest, particularly as the COVID-19 outbreak and industry woes have resulted in double economic blows to domestic crude oil producers, their employees, and the communities across the United States that rely on them.
The U.S. Supreme Court clarified that the scope of federal protection under the Clean Water Act includes any “functional equivalent” of a direct discharge to navigable waters from a point source.1 The Court’s decision is the culmination of years of litigation, resolving a circuit split2 and rejecting the U.S. Environmental Protection Agency’s (EPA) most recent position, articulated in a 2019 Interpretive Statement, that all releases to groundwater were excluded from the scope of protection under the Act.3
On April 10, 2020, the U.S. Environmental Protection Agency’s (EPA or the Agency) Office of Land and Emergency Management and Office of Enforcement and Compliance Assurance issued Interim Guidance to EPA’s Regional Offices slowing certain ongoing site remediation activities as a result of the coronavirus pandemic.1 The Guidance filled a “cleanup” gap left in the Agency’s March 26, 2020, guidance backing off enforcement activities more generally (discussed in our previous post here), and applies to “response actions related to cleanup and emergency response sites,” including under the following statutes or EPA programs: Superfund actions; corrective actions under the Resource Conservation and Recovery Act; polychlorinated biphenyls (PCB) cleanup sites under the Toxic Substances Control Act; the Oil Pollution Act; and the Agency’s Underground Storage Tank program; as well as emergency response sites.2
COVID-19’s impacts on residential and commercial real estate markets are plentiful. We have seen low interest rates, new opportunities for lenders and investors and uncharted foreclosure territory. But lenders, servicers, purchasers and investors are struggling with another, less noticeable impact: the challenge of completing environmental assessments of assets in a world mired by stay-at-home orders. In this post, we provide answers to frequently asked questions about how to conduct and use phase I environmental site assessments (ESAs) in the midst of this global pandemic.
On April 7, 2020, the Federal Energy Regulatory Commission (FERC) announced a technical conference “to discuss technical and market issues prompted by growing interest in projects that are comprised of more than one resource type at the same plant location (hybrid resources) . . . , focusing on a generation resource and an electric storage resource paired together as a hybrid resource.” FERC scheduled the technical conference for Thursday, July 23, 2020, and indicated that an agenda and announcement regarding whether in-person participation would be available would follow later. The panelist self-nomination form is here, and the general registration form is here.
Last month, the Environment and Natural Resource Division (ENRD) of the U.S. Department of Justice (DOJ) announced a new policy to abandon the use of supplemental environmental projects (SEPs) in settling civil cases. Beginning March 12, 2020, ENRD attorneys may no longer rely on what had been a prevalent tool to help negotiate consent decrees or compromise settlements of civil enforcement actions brought by the U.S. Environmental Protection Agency (EPA).
In response to requests for leniency as companies grapple with reduced workforces during the COVID-19 crisis, the U.S. Environmental Protection Agency (EPA) issued a temporary policy announcing that it will exercise enforcement discretion with respect to most routine operational and maintenance obligations established by federal environmental permits, settlement agreements, regulations and statutes it enforces.1 Issued March 26, 2020, the policy applies retroactively through March 13, 2020, and until EPA issues notice at least seven days prior to terminating the policy. Recognizing that the pandemic impacts facility operations, the availability of key staff and contractors, and laboratory analysis throughout the nation, the policy offers some peace of mind to companies struggling to maintain compliance during this time.