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Gathering Storm: SEC v. Jarkesy and Implications for Environmental Enforcement

The U.S. Environmental Protection Agency’s (EPA’s) enforcement program has long been the backbone of environmental enforcement in the United States. That program may now be bound for dramatic change. This Article analyzes the threats posed to the Agency’s program by the U.S. Supreme Court’s forthcoming decision in Securities and Exchange Commission v. Jarkesy, in which three constitutional questions presented cut to the core of administrative enforcement.

Clearing the Air on Supplemental Environmental Projects

Supplemental environmental projects (SEPs) have received a growing amount of attention in recent years, from the Donald Trump Administration banning their use in settlements, to regulation and guidance from the Joseph Biden Administration reversing the ban, to legislative proposals prohibiting them altogether. This Article examines SEPs’ legality under existing law, focusing on claims that they violate the Miscellaneous Receipts Act and the Antideficiency Act. It begins with a brief history of SEPs’ policy evolution and the limitations on the U.S. Environmental Protection Agency’s and U.S.

89 FR 32460

United States v. San Diego, City of, No. 3:23-cv-00541-LL-BGS (S.D. Cal. Apr. 22, 2024). Under a proposed consent decree, settling CERCLA defendants must collectively pay $2,412,029.89 for reimbursement of response costs incurred in connection with the release of hazardous substances at the former Naval Training Center in San Diego, California. 

89 FR 32532

EPA finalized national primary drinking water regulations for six per- and polyfluoroalkyl substances (PFAS): perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorohexane sulfonic acid (PFHxS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA), and perfluorobutane sulfonic acid (PFBS); the Agency also finalized a Hazard Index of 1 as the maximum contaminant level goal and maximum contaminant level for any mixture containing two or more of PFHxS, PFNA, HFPO-DA, and PFBS.

89 FR 31733

NOAA announced the availability of final evaluation findings for seven state and territory coastal management programs and four national estuarine research reserves under the CZMA. 

89 FR 31771

United States v. General Dynamics Corp., No. 6:24-cv-00722 (M.D. Fla. Apr. 18, 2024). Under a proposed consent decree, settling CERCLA defendants that released and/or threatened releases of hazardous substances into the environment at the General Dynamics Longwood Superfund Site located in Longwood, Florida, must perform a remedial design and remedial action for the site, reimburse EPA for its past response costs for the site, and pay future costs related to the work. 

89 FR 29365

United States v. PPG Industries, Inc., No. 2:24-04771 (D.N.J. Apr. 11, 2024). Under a proposed consent decree concerning the Riverside Industrial Park Superfund Site in Newark, New Jersey, a settling CERCLA defendant must design and implement the components of the remedy selected for the site in EPA's September 28, 2021, record of decision that relate to waste material, sewer water, soil gas, and soil/fill material; perform groundwater monitoring and implement institutional controls; reimburse the United States $2,883,120 and New Jersey $116,880 for past response costs relating to the site; and pay for future response costs to be incurred.

89 FR 28218

The Mine Safety and Health Administration amended its existing standards to better protect miners against occupational exposure to respirable crystalline silica, a significant health hazard, and to improve respiratory protection for miners from exposure to airborne contaminants.

89 FR 27502

The National Highway Traffic Safety Administration proposed to establish two new federal motor vehicle safety standards specifying performance requirements for all motor vehicles that use hydrogen as a fuel source. 

89 FR 27288

EPA finalized changes to its test procedures required to be used by industries and municipalities when analyzing the chemical, physical, and biological properties of wastewater and other samples for reporting under the NPDES permit program.