Energy and Climate Change
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NRC Seeking Input to Update NEPA Process for Categorical Exclusions05.21/Alert
In an important step furthering recent commitments to modernize its environmental review process, the NRC has requested input on its plan to update and expand the field of categorical exclusions in its regulations implementing the National Environmental Policy Act of 1969.
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Preparing Your Personal and Business Insurance Claims02.22/Alert
The world is witnessing yet another dramatic weather event, this time in the southern states, especially Texas. The severe winter conditions in Texas have caused unprecedented hardship for Texans and devasting damage for nearly every industry sector. The extended and episodic power outages, cell phone and internet service disruption, water crisis, frozen roads, disruption of transportation and supply chains, shuttered industrial facilities and damage to public and private infrastructure will have a lasting impact on the region. While the current focus rightfully is on restoring critical systems and services to ensure the safety and well-being of Texans, as the crisis subsides there will be wide ranging legal and commercial considerations that require immediate and informed decision making.
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COVID-19 Business Interruption Losses: Time is of the Essence to Pursue Coverage02.12/Alert
The United States declared a national emergency in response to COVID-19 on March 13, 2020, and states quickly followed with stay-at-home orders that impacted businesses and institutions nationwide. More than 10 months have passed since the COVID-19 pandemic emerged in the United States and the prevalence of the virus has had significant impacts, not only with respect to the number of people infected and lives lost, but also to the widespread physical damages and economic losses suffered by businesses.
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Federal Support for Defense Uses of Advanced Nuclear02.03/Alert
Summary of the EO
On January 12, 2021, former President Trump issued an EO on Promoting Small Modular Reactors for National Defense and Space Exploration. The EO directs the Department of Energy (DOE), Department of Defense (DOD), and NASA to take actions to coordinate their nuclear-related activities, move forward with certain ongoing nuclear projects and promote advanced reactor and small modular reactor (SMR) technologies. The purpose of the EO is to take steps to revitalize the U.S. nuclear sector, reinvigorate the U.S. space exploration program, develop diverse energy options for national defense needs and advance U.S. technological supremacy and leadership.
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Congressional and Government Investigations in 2021: What to Expect from the Biden-Harris Administration and How to Prepare01.27/Alert
Government investigations pose many risk management challenges. They are unpredictable, political and often public. If handled incorrectly, they can last for many years, spiral into multiple Congressional, criminal, and/or regulatory investigations at the state and federal levels, and generate serious reputational harm. Potential targets can take proactive steps to mitigate their risks.
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New Guidance from IRS Extends Safe Harbor for Offshore Wind and Federal Land Projects01.13/Alert
On December 31, 2020, the Internal Revenue Service issued Notice 2021-05 (Notice), which provides relief for renewable energy projects constructed offshore or on federal land with respect to the “beginning of construction” requirements for projects eligible for the production tax credit available pursuant to IRC Section 45 (PTC) or the investment tax credit available pursuant to IRC Section 48 (ITC). This relief should provide additional certainty for offshore wind projects and projects on federal land, given the significant construction delays often associated with such projects.
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Biden Clean Energy Plan—An Ambitious Climate Agenda Arrives12.18/Alert
The Biden Plan to Build a Modern, Sustainable Infrastructure and an Equitable Clean Energy Future,” is one of the Biden-Harris Transition Team’s top four policy priorities along with COVID-19, economic recovery and racial equity. It also represents the most ambitious clean energy vision by any U.S. president in history.
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Generational Reform of the National Environmental Policy Act Has Weighty Implications for the Nuclear Industry07.21/Alert
On July 15, 2020, the White House Council on Environmental Quality (CEQ) promulgated a final rule amending the implementing regulations (40 CFR § 1500, et seq.) of the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (NEPA). The final rule largely tracks proposed amendments, which the CEQ issued on January 10, 2020. The amendments aim to align NEPA’s implementing regulations with underutilized principles embedded in statutory provisions, agency guidance, and court decisions to streamline the environmental review process. These regulatory changes represent the culmination of Trump administration efforts to modernize NEPA dating back to August 2017, when the White House issued Executive Order 13087 to mitigate the delays that environmental reviews present to infrastructure development, including the licensing and development of nuclear facilities. The final rule will become effective on September 14, 2020.
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NRC Takes Important Step Toward Following White Paper Recommendations for Streamlining NEPA Reviews for Advanced Nuclear Reactors04.03/Alert
Background
The National Environmental Policy Act (NEPA) requires federal agencies proposing to undertake, approve or fund “major Federal actions” to evaluate the action’s environmental impacts, including both direct and reasonably foreseeable indirect effects. NEPA also requires agencies to consider alternatives to the proposed action and to discuss cumulative impacts resulting from the incremental effects of the project when added to those of other past, present, and reasonably foreseeable future projects. -
COVID-19 Pandemic Will Soon be Impacting Compliance with and Enforcement of Environmental Laws03.23/Alert
Remote work and other impacts to company workforces from the novel coronavirus pandemic are likely to result in practical limitations on usual environmental, health and safety compliance programs and activities across a wide variety of industries. We are already seeing see some regulatory agencies issuing new guidance and orders with implications for compliance and enforcement, and it is worth noting that regulatory agencies will also likely be impacted by their own workforce capacity issues in this environment.
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IRS Issues Anticipated Guidance on Section 45Q Carbon Capture Credits02/26/Alert
On February 19, 2020, the Internal Revenue Service issued long anticipated guidance to help businesses understand how legislation passed in 2018 impacts those claiming carbon capture credits pursuant to Section 45Q. The guidance addresses the definition of “beginning of construction” and provides a safe harbor for partnership allocations of the credit. This guidance takes a first step toward accelerating slow-moving projects, with more detailed rules to come.
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Highlights of the CLEAN Future Act Proposal from the House Energy and Commerce Committee01.30/Blog
The Chairman of the House Energy and Commerce Committee has released a “discussion draft” of the committee’s climate bill. The legislation is over 600 pages long, but the Committee has also released a summary of this legislation, which is entitled the Climate Leadership and Environmental Action for our Nation’s Future Act or the CLEAN Future Act. Here are some highlights.
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Deployment of SMRs: Key Market Trends for Consideration01.22/Blog
Any strategy for the successful deployment of small modular reactors (SMRs) must thoroughly consider the current trends affecting the burgeoning market for SMRs. In 2019, the three major trends shaping this market were the large number of SMR designs, interest in SMRs in both mature and emerging markets, and factors impacting SMR financing.
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Spending Deal Provides Long-Term Extension for Biodiesel Tax Credit01.14/Alert
On Dec. 20, 2019, President Trump signed into law a new spending deal that includes an historic five-year extension of the biodiesel blenders tax credit. The deal reinstates the blenders tax credit for biodiesel and renewable diesel retroactively from its expiration on Jan. 1, 2018, through Dec. 31, 2022. The legislation also includes a “special rule” that directs the Treasury Department to develop a one-time claims process to speed payment of the credit for years 2018 and 2019, when it lapsed.
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Environmental and Regulatory Highlights of the Fall 2019 Unified Agenda of Regulatory Actions01.06/Blog
In late December, the Office of Management and Budget (OMB) released the “Fall 2019 Unified Agenda of Regulatory Actions” just a few days before the Calendar turned to the year 2020. (It should be noted that the Spring Agenda was not released until June 24, 2019.) Individual agency agendas were published in the Federal Register by several agencies and executive departments on December 26, 2019. The entire agenda, which is a survey of all current and projected rule-making actions that federal agencies and departments are planning over the next 12 months, is available at such government websites as regulations.gov. The Agenda provides valuable insights into the actions these agencies believe to be most important. This survey will largely concentrate on environmental regulatory developments, although other matters are worth noting.
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Name-and-Shame Proposal of Electric Regulators Highlights Need for Cyber Insurance11.05/Alert
On August 27, 2019, FERC and NERC staffs issued a Joint Staff White Paper on Notices of Penalty Pertaining to Violations of Critical Infrastructure Protection Reliability Standards. In that White Paper, FERC/NERC staffs propose departing from FERC’s historical practice of withholding most material details regarding CIP Reliability Standard violations. FERC has recently signaled an appetite to depart from that practice by disclosing the names of a handful of allegedly violating electric utilities in response to Freedom of Information Act (FOIA) requests.
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DOE Proposes Procedures for the Imposition of Civil Penalties for Violations of Part 81010.07/Alert
On October 3, 2019, the U.S. Department of Energy (DOE) issued a Notice of Proposed Rulemaking (NOPR) proposing procedures for imposing civil penalties for violations of DOE’s 10 CFR Part 810 regulations (Part 810). Part 810 implements section 57b.(2) of the Atomic Energy Act (AEA) (42 U.S.C. 2077) and controls the export of unclassified nonpublic nuclear technology.
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The Brexit Blindspot: Nuclear Retransfers01.15/Alert
The UK is scheduled to leave the European Union on March 29, 2019. While the United States and UK governments have taken significant steps to ensure that contracts related to nuclear power stations and the nuclear fuel cycle are not interrupted, little public attention has been paid to the potential delay in commerce caused by the UK no longer being a member of the European Atomic Energy Community (EURATOM). This is particularly important because the U.S. Government will now need to provide its consent for retransfers of certain nuclear materials and components from the EURATOM countries to the UK, after the UK withdraws from EURATOM. While the U.S.- EURATOM Agreement for Cooperation provides a mechanism for the United States to provide its advance consent for these retransfers to the UK, the process itself could likely take at least several months and perhaps a year or more, as explained below. This article provides what we believe will be the potential impediments to commerce. However, the precise manner in which U.S. retransfer consent rights affect nuclear commerce with the UK will vary depending upon the specific circumstances of each proposed retransfer.
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Natural Resources Agency Finalizes Updates to the CEQA Guidelines12.10/Alert
At the end of November 2018, the California Natural Resources Agency (CNRA) posted final adopted text for amendments to the regulations implementing the California Environmental Quality Act (CEQA), known as the CEQA Guidelines. The final text is the result of over five years of development efforts by the Governor’s Office of Planning & Research (OPR) and CNRA. The amendments combine changes to transportation impact analysis as directed by Senate Bill 743 (2013) with the most comprehensive update to the CEQA Guidelines since 1998, incorporating statutory changes, court decisions, and comments from public agencies, business and environmental groups, and other stakeholders through multiple rounds of public review. The wide range of issues covered in the amendments includes use of regulatory standards as significance thresholds; environmental baselines; a new metric for analyzing transportation impacts; climate, water supply and energy impacts; and numerous procedural and technical improvements.
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Pillsbury's Post-Election Outlook11.07/Alert
The 2018 Midterm Election played out as most poll forecasters speculated. Although several races have yet to be decided, Republicans have retained control of the Senate, but lost at least 29 seats, allowing the Democrats to wrest back control of the House for the first time since 2010.
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2018 Election Night Guide11.02/Article
Pillsbury’s Political Law and Public Policy groups break down the need-to-know numbers for this year’s election. Pillsbury’s biennial Election Night Guide examines the potential outcomes for the 2018 Congressional and Governor’s races. Our Public Policy team is also preparing a post-election guide that will be useful in navigating potential changes in Congress.
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Gas Regulation 2018: United States3.30/Article
Need an update on the state of the natural gas sector in the United States? This recently published article has you covered.
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New CERCLA Brownfields Amendments03.29/Blog
Spurred by the realization there may be as many as 450,000 Brownfields sites around the country that require some financial assistance, the recently enacted bi-partisan BUILD Act reauthorizes the EPA's Brownfields program at current funding levels through 2023.
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Administration Issues “Legislative Outline for Rebuilding Infrastructure in America”02.22/Blog
The Trump Administration's legislative proposal to rebuild American infrastructure identifies a number of specific laws that will require amendments. Here is a brief review of some of the plans many provisions.
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Congress Expands the Oil Pollution Act to Reach Spills Originating Outside of the U.S.01.22/Alert
The Foreign Spill Protection Act of 2017 establishes oil spill liability in the U.S. for foreign-based offshore exploration and production facilities.
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The Fall 2017 Unified Federal Regulatory Agenda12.20/Blog
The Office of Information and Regulatory Affairs and the Office of Management and Budget have posted the Fall 2017 Agency Statements of Regulatory Priorities. Here's a look at what's ahead.
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The Trump Administration’s First Steps Toward Streamlining Environmental Reviews12.05/Article
An August Executive Order aims to fast-track federal review of infrastructure projects, including a streamlined environmental review process of projects deemed “high-priority.” Recent actions taken by the Council on Environmental Quality and the U.S. Department of the Interior indicate what that might look like.
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U.S. DOT Releases Draft Strategic Plan Beginning Implementation of Trump Administration’s Executive Order on Project Streamlining10.27/Blog
The U.S. Department of Transportation (DOT) has released a draft Strategic Plan that establishes goals for increasing investment and streamlining environmental review and approval of transportation infrastructure projects over the next five years. The draft Plan is DOT’s first formal action in response to the Administration’s Executive Order on streamlining. Although it identifies needs and objectives it provides few specifics.
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Council on Environmental Quality Takes First Step to Implement Trump Executive Order on Streamlining Federal Environmental Reviews09.25/Blog
The Council on Environmental Quality (CEQ), which oversees federal agency compliance with the National Environmental Policy Act, has announced a list of planned actions to implement President Trump’s Executive Order on streamlining federal environmental reviews. While the Order and CEQ notice have launched a process that could transform federal environmental reviews and approvals, they provide few specifics, and their impact remains to be seen.
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DOE Opens the Door to Major Energy Market Reforms08.25/Alert
In August, the Department of Energy published a much-anticipated study analyzing the market hurdles facing conventional baseload generation, such as coal, nuclear and hydropower. The study sets the stage for a high-stakes debate before the Federal Energy Regulatory Commission.
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Time Will Tell If Trump Infrastructure Executive Order Shortens Federal Reviews08.22/Alert
On August 15, President Trump issued an Executive Order that seeks to streamline federal environmental review and approvals of major infrastructure projects by imposing new timelines and procedures. Key provisions create a two-year deadline for completing review and issuing authorizations.
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Chemicals, Compliance and the Toxic Substances Control Act08.16/Alert
The Toxic Substances Control Act (TSCA) required the compiling of a national register of chemicals that were manufactured in or imported into the United States for a non-exempt commercial purpose, and the first TSCA Inventory in 1979 included approximately 62,000 chemicals. Since then, the Inventory has been expanded to include approximately 90,000 chemicals—a rate of over 700 new chemicals per year.
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Up in the Air06.22/Alert
Trump Administration officials followed up on the President’s June 1 announcement of U.S. withdrawal from the Paris climate accord by announcing that the Administration was reviewing U.S. participation in ICAO’s global aviation emissions offset and trading regime.
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How Companies Can Take Advantage of President Trump’s Plan to Roll Back Federal Energy Regulation05.10/Audio
President Trump’s March 28 Executive Order requires every federal agency and Department to identify and potentially suspend, rescind, or relax federal regulations, policies, prior agency orders and guidelines that impede U.S. energy development or use. In this roundtable discussion, Sheila Harvey, Jeffrey Merrifield, Matthew Morrison and Andrew Weissman examine the implications of the Executive Order and how it could affect businesses in 2017 and beyond.
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DC Lawyer: Trump Executive Order ‘Literally Applies to Everything’ the Federal Government Does with Energy Development04.07/Video
Washington, DC Energy senior counsel Andrew Weissman told The Washington Post that legal professionals and industry experts, among others, are just beginning to grasp the scope of the March 28 order. According to Weissman, the order has far-reaching effects on “almost every environmental regulation that affects energy in any way,” in addition to non-environmental regulations.