Environmental Litigation

The agency’s two recent actions introduce enhanced restrictions on hydrofluorocarbons and provide a series of compliance dates for industry stakeholders.

By Stacey VanBelleghem and Jennifer Garlock

On October 5, 2023, the US Environmental Protection Agency (EPA) issued two rules, one final and one proposed, to phase down hydrofluorocarbons (HFCs) under the bipartisan American Innovation and Manufacturing Act of 2020 (AIM Act). The agency’s recent actions represent major steps in the Biden administration’s goal to significantly reduce HFCs over the next decade.

HFCs are a group of chemical refrigerants and potent greenhouse gasses (GHGs), commonly used in foam products, cooling systems, aerosols, and fire suppressants. International focus on managing these compounds sharpened in the 1980s, when countries agreed in the Montreal Protocol to shift global markets away from the ozone-depleting chlorofluorocarbons (CFCs) — the then dominant strain of refrigerant and aerosol chemicals — toward HFCs. Although HFCs are less damaging to the ozone layer than CFCs, they have global warming potential (GWP) values (a figure that allows comparison of relative climate impact of a GHG) hundreds or thousands times higher than carbon dioxide (CO2), which has a GWP equal to 1. In 2016, nearly 200 countries adopted the Kigali Amendment to the Montreal Protocol agreeing to a global phasedown of production and use of HFCs. The US ratified that amendment on October 31, 2022.

Regulators are pursuing steep fines in response to widespread alleged noncompliance with an emissions rule still subject to potential reversal by the courts.

By Joshua T. Bledsoe, James Friedland, and Jennifer Garlock

Key Points:

  • The enforcement action alleges 1,400 warehouses are noncompliant.
  • Noncompliance can result in fines of up to $11,710 per day.
  • Litigation challenging this program remains pending, with no quick end in sight.

On September 20, 2023, the South Coast Air Quality Management District (SCAQMD or the District) announced an enforcement initiative for Rule 2305, also known as the Warehouse Indirect Source Rule (ISR), which is part of the Warehouse Actions and Investments to Reduce Emissions (WAIRE) Program. As described in this June 2021 blog post, the WAIRE Program applies to warehouses in the South Coast Air Basin over 100,000 square feet, with a phased implementation based on warehouse size. The ISR imposes a compliance obligation based on the number of truck visits to that warehouse per year, which warehouse operators can meet through emissions-reducing actions, either from the “WAIRE Menu” or through a custom plan approved by the District.

The Court’s decision has prompted the US Army Corps of Engineers to freeze jurisdictional determinations for permitted activities pending additional guidance.

By Michael G. Romey, Lucas Quass, and Peter R. Viola

On May 25, 2023, by a narrow 5-4 majority, the US Supreme Court ruled in Sackett v. EPA that the Clean Water Act (CWA) only extends to wetlands that have a “continuous surface connection” with “waters of the United States” (WOTUS) — the term in the CWA’s definition of “navigable waters” that determines the jurisdiction of the US Army Corps of Engineers (the Corps) and the Environmental Protection Agency (EPA) (together, the Agencies) over projects and other activities requiring permits to dredge, fill, or discharge into federally protected waters.[1]

Public agencies prevailed in 71% of decisions involving the California Environmental Quality Act in 2022.

By Marc Campopiano, Lucas Quass, Natalie Rogers, and Kevin Homrighausen

Latham lawyers tracked key developments in California Environmental Quality Act (CEQA) case law throughout 2022. On April 20, 2023, Latham lawyers held a webcast highlighting important cases from the past year, summarizing practical takeaways, and covering trends in CEQA. (See the webcast and the corresponding 2022 CEQA Year in Review presentation.) Below is a compilation of the information from that annual review and patterns that emerged.

LIDW23 member-hosted event provided insights into current and future trends in the greenwashing space.

By Sophie J. Lamb KC and Aleksandra Dulska

Latham & Watkins recently hosted a panel discussion during London International Disputes Week on the topic of greenwashing and how English law continues to evolve and adapt in order to meet the needs of international businesses and other stakeholders engaging with this issue. The event provided a platform to explore:

(1) The key drivers of greenwashing complaints

(2) The challenges organisations face when trying to define and explain their sustainability plans (including against the backdrop of rapidly evolving reporting guidelines)

(3) The associated litigation trends as observed globally

The panel included the Honourable Mrs Justice Cockerill DBE (Commercial Court Judge, High Court), Sophie J. Lamb KC (Partner, Latham & Watkins), Adam Heppinstall KC (Barrister, Henderson Chambers), and Meghan Sheehan (Director and Head of ESG and Sustainability, Kekst CNC).

This blog post summarises the key themes of discussion that took place and provides interesting insights as to what may lie ahead.

A federal court heard motions for summary judgment in challenge to first-in-nation rule requiring warehouses to adopt clean technologies.

By Joshua Bledsoe, Nick Cox, and Jennifer Garlock

On April 17, 2023, a US federal judge heard arguments in a lawsuit challenging the South Coast Air Quality Management District (SCAQMD or the District) adoption of Rule 2305 and will now decide whether to grant summary judgment to the plaintiffs and vacate the rule.

Rule 2305 is the Warehouse Indirect Source Rule (ISR) — Warehouse Actions and Investments to Reduce Emissions (WAIRE) Program. As described in this June 2021 blog post, the WAIRE Program applies to certain warehouses in the South Coast Air Basin and imposes a compliance obligation based on the number of truck visits to that warehouse per year. Warehouse operators can meet that obligation by taking any number of emissions-reducing actions, either from the “WAIRE Menu” or through a custom plan approved by the District.