By Land, Air or Sea

Local professionals share their thoughts on major recent changes in environmental law

This past May, the U.S. Supreme Court ruled on Sackett v. EPA with a decision described as “earth-shattering” by some environmental lawyers. The ruling narrowed the jurisdiction of the federal Clean Water Act (CWA) such that potentially hundreds of thousands of acres of streams and wetlands across the country are no longer protected.

“Obviously, the prevalence of wetland ecosystems in South Louisiana means this decision will have significant consequences for our part of the country,” said Devin A. Lowell, clinical assistant professor of law and supervising attorney at the Tulane Environmental Law Clinic. “Removing areas previously defined as wetlands from federal jurisdiction may accelerate already rapid residential and commercial development in some parts of the state and remove crucial flood storage and ecosystem services.”

Lowell said that while permits for destroying wetlands or discharging into those waters were often granted, the public was also given information about what was going on and what effects it might have.

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“When there’s no permit required, we may not have any idea of what’s being done to those ecosystems in terms of backfilling or pollution discharges.”

According to Lowell, industrial developments in South Louisiana, like the petrochemical facilities along the Mississippi River between Baton Rouge and New Orleans, are often built in areas that may have been wetlands under the previous definition and thus required permits from the U.S. Army Corps of Engineers. This decision may complicate federal jurisdiction over those projects.

Environmental laws don’t just protect wetlands, either. The EPA added PFAS (per- and polyfluoroalkyl substances) as a hazardous and toxic waste and is expected to promulgate a rule for drinking water standards that will require public water suppliers to test drinking water for PFAS contamination and will set minimum contaminant levels for drinking water.

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Ashley M. Liuzza, partner and chief operating officer at Stag Liuzza, said PFAS chemical contamination in our surface and groundwater presents a threat to public health and safety — and the problem is widespread.

“These ‘forever chemicals’ will persist in drinking water because they resist breakdown in the natural environment,” Liuzza said. “This is one of the greatest threats ever posed to public health due to a chemical product because nearly every person in the United States has been impacted.”

Liuzza also said there has been headway in efforts to hold companies accountable for environmental damage. She pointed to the ongoing Aqueous Film Forming Foam (AFFF) litigation, which seeks to hold firefighting foam manufacturers and distributors accountable for the costs of cleaning our public drinking water supply and to pay damages to people who developed cancer and other diseases from PFAS exposure.

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Other important updates include the Biden Administration and the EPA’s efforts to make several of the regulations of the Clean Air Act more protective of human health. The agency has proposed to lower the annual limit of fine particulate matter that can be ambiently present in the air (what’s called a National Ambient Air Quality Standard, or NAAQS), from the current standard of 12.0 micrograms per cubic meter to 9.0 micrograms per cubic meter.

“Fine particulate matter, or PM2.5, is hazardous to human health and can cause serious respiratory and cardiac issues,” said Lowell. “A lower annual limit means less PM2.5 can be in the air at any given time and would lessen those harmful impacts.”

Lowell said another important proposed regulation is the revising of the air emissions standards that apply to certain chemical manufacturing facilities across the country, approximately 50 of which are located in Louisiana. The new proposed regulations would, among other things, require fenceline monitoring for a group of six hazardous air pollutants — including ethylene oxide, chloroprene and vinyl chloride — and impose new rules regarding processes and maintenance that will reduce the emissions of hazardous air pollutants from the facilities the regulation applies to.

“I know it can be easy to be cynical about the federal government’s role in protecting human health and the environment, but the Clean Air Act and the NAAQS are examples of laws that really have made a huge difference in the quality of our air across the country,” Lowell said. “That being said, we still have a long way to go, particularly in protecting vulnerable communities, and I think strengthening these regulations is a way to further that.”

Did you know? Formed on December 2, 1970, the EPA has an annual budget of $83.52 billion. Nearly half the budet is allocated to state environmental programs, non-profits and educational institutions.


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