Last week, we wrote that concerns about excessive, unchecked executive branch power resulting from the Supreme Court’s decision in Trump v. CASA—which declared universal/nationwide injunctions likely exceeded district courts’ equitable authority under FRCP 65—felt premature, because there were a number of other levers district courts could pull to deliver the equivalent of nationwide injunctive relief. We discussed how Section 705 of the Administrative Procedure Act (APA) is one such lever. That section authorizes courts to “postpone the effective date” of a challenged agency action pending judicial review utilizing the same four-factor test applicable to requests for injunctive relief.Continue Reading Meet the New Nationwide Injunction. Same as the Old Nationwide Injunction.
Emily Werkmann
EPA’s Busy April for CERCLA and PFAS:New CERCLA Authority, an Enforcement Escape Hatch, and the Continued Search for Viable Cleanup Technologies
By Kirsten Nathanson, Monty Cooper, Shennie Patel & Emily Werkmann on
Posted in Government Contracts
On April 19, 2024, EPA signed the highly anticipated final rule designating two types of PFAS as hazardous substances under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). At the same time, David M. Uhlmann, Assistant Administrator for Enforcement and Compliance Assurance of the EPA, released an enforcement policy memorandum that provides “direction to all EPA enforcement and compliance staff about how EPA will exercise its enforcement discretion under CERCLA in matters involving PFAS, just as EPA exercises enforcement discretion regarding other hazardous substances.” This alert summarizes key points from the enforcement policy and flags various uncertainties that lie ahead. Continue Reading EPA’s Busy April for CERCLA and PFAS:New CERCLA Authority, an Enforcement Escape Hatch, and the Continued Search for Viable Cleanup Technologies