Energy and Climate Change
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DC Circuit Rules White House CEQ Lacks Authority to Issue Binding NEPA Regulations11.14/Alert
On November 11, 2024, in Marin Audubon Society v. Federal Aviation Administration, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit held that the White House Council on Environmental Quality (CEQ) lacks statutory authority to issue regulations implementing the National Environmental Policy Act (NEPA) that are binding upon federal agencies. The Court held that the CEQ regulations, which purport to govern how all federal agencies must implement NEPA, are beyond the scope of legal authority granted to CEQ by Congress.
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FERC Rejects Interconnection Proposal for Nuclear-Powered Data Center Project11.13/Alert
On November 1, 2024, the Federal Energy Regulatory Commission (FERC) issued an order rejecting PJM Interconnection’s amended interconnection services agreement (“amended ISA”) with Talen Energy subsidiary Susquehanna Nuclear LLC and PPL Electric Utilities Corporation. The amended ISA would have increased the amount of load sent from the Susquehanna nuclear plant to a co-located Amazon Web Services (AWS) data center from 300MW to 480MW. Co-located loads are defined as customer loads that share a physical site with generating units and can be directly served by those units rather than through the broader transmission system.
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Trump 2.011.07/Alert
Former President Donald J. Trump won the U.S. presidential election on November 5, prevailing in the key “battleground states” necessary to win the Electoral College.
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Biden Administration Announces Research and Development Program to Accelerate Semiconductor Advanced Packaging11.04/Alert
On October 18, the Biden Administration released a $1.6 billion Notice of Funding Opportunity (NOFO) funded by the CHIPS and Science Act to accelerate U.S. Semiconductor Advanced Research and Development (R&D) across five key R&D areas. Aligning with the Administration’s goal of investing in domestic manufacturing industries, the program is projected to provide $1.6 billion in funding across the five R&D areas.
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Hurricanes Helene and Milton: Evaluating Business Interruption Claims Following a Large-Scale Disaster10.28/Alert
Hurricanes Helene and Milton physically damaged large areas of the South, particularly in Florida, North and South Carolina, Georgia and Virginia. Businesses in the region are also certainly suffering long-lasting economic damage as they remain closed—and they will rightly want to secure business interruption coverage for those losses.
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U.S. Department of Energy Announces $900 Million Funding Opportunity for Generation III+ Small Modular Reactors10.28/Alert
On October 16, 2024, the U.S. Department of Energy (DOE) issued a $900 million funding initiative to support the deployment of Generation III+ Small Modular Reactors (Gen III+ SMRs). The application deadline is January 17, 2025, and entities well-positioned to collaborate with utilities and nuclear technology providers to demonstrate a clear path to deployment should consider this opportunity.
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Bipartisan Legislation Presents Opportunity for Passing PFAS Laws10.04/Alert
With appropriations settled until December 20, Congress now has one other piece of “must-pass” legislation to address: the National Defense Authorization Act (NDAA). The NDAA authorizes the activities of the Department of Defense (DoD) for the following fiscal year and the legislation has passed on a bipartisan basis for over 60 consecutive years. Because of the nature of the bill and its legacy as a successful, bipartisan movement, the NDAA has become critical for Congress to pass each year. However, the NDAA, as with other must-pass pieces of legislation, has also become a vehicle for attaching policy items that would not otherwise pass on their own, either because they are too controversial or not popular enough. As a result, the passage of the NDAA has become more controversial in the past few years as social programs and partisan priorities have been added to the negotiation process. One area of attention in recent years addresses DoD handling of PFAS chemicals. As the House and Senate versions of the NDAA have differing provisions concerning PFAS, this will prove to be another topic that the NDAA conferees will need to negotiate in the coming weeks. Below is an overview of the PFAS provisions that may or may not be included in the final bill.
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California Climate Disclosures Remain on Schedule10.02/Alert
California is set to launch its first-in-the-nation mandatory climate disclosure framework next year as provided in the 2023 Climate Accountability Package, Senate Bills SB 253 and SB 261. (For more information on the Climate Accountability Package, see Pillsbury’s prior reporting here and here.) But the bills have not come without some lingering controversy over the ability of businesses to meet the aggressive January 1, 2026, deadline to report their carbon footprints and submit climate risk assessments to the California Air Resources Board (CARB), as well as CARB’s ability to adopt implementing regulations by this coming January 1. A proposal by California Governor Gavin Newsom to provide relief through two-year extensions for compliance arrived back in the form of a bill from the Legislature—SB 219—for his signature, but it was stripped of those extensions and only granted an additional six months for CARB to adopt regulations. On September 27, Newsom acquiesced and signed SB 219 into law. The development confirms the need for businesses to continue preparing for mandated climate disclosures by January 1, 2026, and to consider participating in the CARB rulemaking to emphasize the implementation concerns recognized by Newsom.
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Subsidence from Geothermal Operations: Navigating the Regulatory Landscape and Potential Claims07.26/Alert
Geothermal projects in the United States and abroad face scrutiny of their potential impacts on the surrounding environment and communities. Seismic activity, noise and water contamination are commonly cited concerns.
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The End of the Chevron Doctrine and the Reassertion of Judicial Primacy in Reviewing Federal Regulatory Actions07.24/Alert
In 1984, the U.S. Supreme Court (SCOTUS) decided Chevron USA, Inc. v. National Resource Defense Council. See 467 U.S. 839 (1984). The unanimous decision, written by Justice Stephens, reversed then-D.C. Circuit Judge Ruth Bader Ginsburg’s ruling that set aside EPA’s Clean Air Act “bubble policy,” which was intended to provide regulatory relief from certain EPA permitting requirements.
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Landslide Election Victory for UK Labour Party Marks Seismic Shift in UK’s Political Terrain07.15/Alert
Following 14 years of Conservative Party rule in the UK, Sir Keir Starmer’s Labour Party has formed His Majesty’s Government with a widely anticipated and substantial election victory at the ballot box on July 4, 2024, marking a seismic shift in the UK’s political terrain. There is now much speculation as to those areas on which Sir Keir Starmer will look to focus, and the earliest concrete signal we will see on his priorities will be the King's Speech, scheduled for the morning of July 17, 2024, which will set out the government's legislative agenda for the coming parliament.
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Biden Signs ADVANCE Act into Law07.11/Alert
On July 9, 2024, President Biden signed into law the Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act (ADVANCE Act)—a historic nuclear energy package, and the latest of many positive developments in the nuclear energy policy and regulation space.
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Treasury and IRS Issue Proposed Regulations Regarding the Clean Energy Production and Clean Electricity Investment Credits Under Sections 45Y and 48E of the IRC06.27/Alert
On June 3, 2024, the U.S. Department of Treasury (Treasury) and the Internal Revenue Service (IRS) published proposed regulations (Proposed Regulations) in the Federal Register [REG-119283-23] which provide initial guidance on the Clean Electricity Production Credit (CEPC) under section 45Y of the Internal Revenue Code (IRC) and the Clean Electricity Investment Credit (CEIC) under section 48E of the IRC (collectively, the Clean Electricity Tax Credits). The CEPC and CEIC were added to the IRC by the Inflation Reduction Act of 2022 (IRA) and apply to qualified facilities and energy property placed in service after December 31, 2024.
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Maine Modifies Its Sweeping PFAS Law06.21/Alert
On April 16, 2024, Maine enacted amendments revising the state perfluoroalkyl and polyfluoroalkyl substances (PFAS) law. This law generally prohibits the sale of products containing intentionally added PFAS and includes notification requirements for products with intentionally added PFAS that would continue to be sold. The recent amendments modified the effective dates of certain sales bans, revised the reporting requirements for PFAS product manufacturers, delayed the general ban on the sale of PFAS products from 2030 to 2032, and listed the categories of products exempt from the PFAS ban entirely. While this law remains one of the strictest PFAS laws nationally, the new amendments ease some of the burdens on manufacturers presented in the original bill.
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AI’s Power Play: Congress Calls for Smart Energy Solutions to Fuel AI Growth06.10/Alert
As artificial intelligence (AI) technologies continue to evolve and expand, their energy demands are growing significantly. This increase in energy consumption, driven by the proliferation of data centers and AI applications, presents both opportunities and challenges that intersect with national security interests.
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Army Seeks Micro-Reactor Nuclear Power Plants to Reduce Reliance on Off-Site Electricity Providers06.06/Alert
The Defense Innovation Unit (DIU) has released a solicitation for Solution Briefs addressing the U.S. Army’s need for a full lifecycle prototype micro-reactor nuclear power plant(s). The solicitation contemplates that the chosen contractor will construct and retain ownership of the reactor, which must be licensed by the Nuclear Regulatory Commission (NRC). The micro-reactor will preferably supply between 3MW and 10MW of electrical power and must be in operation by the end of 2030.
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Treasury Department and IRS Issue Final Regulations on the Electric Vehicle Credits Under Section 30D of the Internal Revenue Code05.21/Alert
As modified by the Inflation Reduction Act of 2022, section 30D of the Internal Revenue Code of 1986, as amended (Code), provides for a tax credit of up to $7,500 for a new clean vehicle if certain requirements are met. The modified tax credit is divided between $3,750 in respect of battery components, and an additional $3,750 in respect of critical minerals. Eligibility for each part of the tax credit depends on the ability to satisfy domestic source requirements that have been met with some controversy due to difficulties in implementation and monitoring over time.
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Treasury Department Announces Process and Timetable to Allocate $6 Billion in Qualifying Advanced Energy Project Credits05.03/Alert
On April 29, 2024, the U.S. Department of Treasury (Treasury) and the Internal Revenue Service (IRS) issued Notice 2024-36, announcing and providing guidance on the second allocation round (Round 2) of Qualifying Advanced Energy Project Credits (Advanced Energy Project Credits or Credits) under section 48C of the Internal Revenue Code (IRC). Advanced Energy Project Credits and the Advanced Energy Project Program were established by the Inflation Reduction Act (IRA) to incentivize investment in clean energy manufacturing and recycling, greenhouse gas (GHG) emission reduction/industrial decarbonization and critical materials projects. Under the program, developers may be granted Credits via the allocation process, and then use these Credits to offset their tax liability and help fund their respective projects.
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EPA Issues New Rules Requiring the Development and Submission of Response and Risk Management Plans04.24/Alert
The Environmental Protection Agency (EPA) has completed its work on two significant rules that are likely to impose new burdens on the regulated community: the Accidental Chemical Release Prevention Requirements, authorized by Section 7412( r)(7) of the Clean Air Act, and the Clean Water Act Hazardous Substance Facility Response Plans, authorized by Section 1321G)(5)(D) of the Clean Water Act of 1972 as amended by the Oil Pollution Act of 1990. The Accidental Chemical Release Rules were published in the Federal Register on March 11, 2024, at 89 FR 17622. The effective date is May 10, 2024, but many facilities will face a compliance date of May 10, 2027. The new Clean Water Act facility response plan requirements were published in the Federal Register on March 28, 2024, at 89 FR 21924, and are effective on May 28, 2024. However, the deadline for submitting response plans to EPA will be June 1, 2017, for “initially-regulated facilities.”
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Revving Up: Eight States in Gear with Low-Carbon Fuel Standard Legislation04.17/Alert
State low-carbon fuels programs are powerful drivers for the adoption of various low-carbon fuels, particularly renewable natural gas (RNG), renewable diesel and sustainable aviation fuel (SAF). For well over a decade, California has implemented its Low-Carbon Fuel Standard (LCFS), which was wildly successful in incentivizing the use and production of RNG, renewable diesel and SAF. In recent years, Oregon and Washington followed suit, and while these programs have a much smaller net impact on the demand for low-carbon fuels due to the respective sizes of those states, they have provided additional outlets for low-carbon fuels.
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SEC’s Climate Disclosure Rules Likely to Collide with California’s Climate Disclosure Laws03.26/Alert
On March 6, 2024, the U.S. Securities and Exchange Commission (SEC) finalized and adopted its controversial greenhouse gas (GHG) reporting and climate disclosure regulations after a review of over 24,000 public comments and two years of hot debate. These new SEC climate-related regulations will soon require publicly traded companies to disclose, among other things, financially “material” Scope 1 emissions (direct emissions from operations) and Scope 2 emissions (indirect emissions from energy use) in their annual reports and registration statements, and will also require registrants to provide information regarding a registrant’s climate-related risks that have materially impacted, or are reasonably likely to have a material impact on, its business strategy, operations or financial condition. Pillsbury recently published an alert on the content and details of new SEC climate-related regulations, which can be found here.
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DoD Contractor Requirement to Disclose Greenhouse Gas Emissions Has Been Halted03.22/Alert
On December 6, 2022, and January 4, 2023, we published two client alerts outlining the proposed greenhouse gas (GHG) emissions disclosure requirements and explaining the differences between the Scope 1, 2 and 3 GHG emission categories. As we previously described, FAR 23.001 defines GHG as carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, nitrogen trifluoride and sulfur hexafluoride. Under the proposed Federal Acquisition Regulation (FAR) regulation, virtually all federal contractors will be required to identify and report an inventory of their Scope 1 and Scope 2 GHG emissions, starting one year after a final FAR rule is issued. With limited exceptions, this requirement will apply to all government contractors who received $7.5 million or more in federal contract obligations in the prior fiscal year. Government contractors who do not qualify as small business concerns and who received more than $50 million in federal contract obligations in the prior fiscal year will also be required to report an annual inventory of their Scope 3 GHG emissions. To date, the final FAR rule has not been issued.
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SEC Adopts Long-Anticipated Final Rules on Climate-Related Disclosure Requirements03.14/Alert
On March 6, 2024, the Securities and Exchange Commission (SEC) adopted final rules imposing new climate-related disclosure requirements on domestic and foreign registrants with respect to their annual reports and registration statements ( “Final Rules”). The Final Rules scaled back many of the proposals from 2022, including the elimination of certain aspects of the greenhouse gas (GHG) emission disclosure mandates, modification of the financial statement disclosure requirements, removal of some of the more granular disclosure requirements, extension of certain phase-in periods, and elimination of Scope 3 GHG emissions disclosure requirements.
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Unplugging the Green Light on California’s New Climate Disclosure Laws02.09/Alert
On January 30, 2024, a coalition of business organizations—including the U.S. Chamber of Commerce, American Farm Bureau Federation, Los Angeles County Business Federation, Central Valley Business Federation and the Western Growers Association—sued the State of California to prevent the California Air Resources Board (CARB) from enforcing California’s recently enacted climate disclosure laws—Senate Bills 253 and 261. The lawsuit, filed in the Central District of California, mounts the first legal challenge to these new, controversial laws and argues, among other things, that the laws’ requirements unconstitutionally compel speech by business entities in violation of the First Amendment and are otherwise precluded by federal law.
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FAA Issues Licensing Guidance for Launch and Reentry of Space Nuclear Systems01.25/Alert
On October 20, 2023, the U.S. Federal Aviation Administration (FAA) issued advisory circular (AC), AC 450.45-1: “Launch and Reentry of Space Nuclear Systems.” AC 450.45-1 provides guidance on the licensing process for the launch into space and reentry of nuclear technologies and radionuclides (referred to in the guidance and this alert as “space nuclear systems” or SNS). The AC addresses the safety review requirements and payload determinations of the FAA regulations and offers guidance and regulatory compliance methods to those seeking to launch or reenter SNS.
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And Then There Were Three: Louisiana Granted Primacy over Class VI Wells01.09/Alert
In the waning days of 2023, Louisiana became the third state granted authority by the U.S. Environmental Protection Agency (EPA) under the Safe Drinking Water Act (SDWA) to permit and regulate Class VI underground injection control (UIC) wells—i.e., wells permitted specifically for long-term, deep geological storage of carbon dioxide (CO2) and which are critical to the full-scale development of commercial geological carbon sequestration. Until now, only North Dakota (2018) and Wyoming (2020) had been granted primacy, and Louisiana becomes the first state to receive this “primacy” status under the Biden Administration.
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Treasury Department and IRS Issue Proposed Regulations on the Clean Hydrogen Production Tax Credit under Section 45V of the Internal Revenue Code12.29/Alert
As enacted by the Inflation Reduction Act of 2022 (IRA), section 45V of the Internal Revenue Code (IRC) grants a clean hydrogen production credit (CHPC) for each kilogram of clean hydrogen produced by a taxpayer at a qualified clean hydrogen production facility. The available credit amount under IRC section 45V varies based on the lifecycle greenhouse gas (GHG) emissions generated from the qualified hydrogen production facility (as well as the taxpayer’s compliance with the IRA’s new prevailing wage and apprenticeship requirements). The maximum credit amount is $3.00 per kilogram of clean hydrogen, which requires a lifecycle GHG emissions rate of less than 0.45 kilograms of CO2e per kilogram of hydrogen.
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Treasury Department and IRS Issue Proposed Regulations on the Advanced Manufacturing Production Credit under Section 45X of the Internal Revenue Code12.21/Alert
As amended by the Inflation Reduction Act of 2022, section 45X of the Internal Revenue Code (IRC) grants an advanced manufacturing production credit (AMPC) to manufacturers who produce certain clean energy components in the United States. On December 14, 2023, the Internal Revenue Service (IRS) published proposed regulations [REG-107423-23] in the Federal Register providing further guidance on the AMPC. The proposed regulations supplement Notices 2022-27, 2023-18 and 2023-44 that were published on October 14, 2023, March 6, 2023, and June 20, 2023, respectively.
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California Combats Greenwashing with New Voluntary Carbon Offset and Carbon-Neutral and Low-Carbon Product Disclosure Law12.19/Alert
On October 7, 2023, California Governor Gavin Newsom signed AB 1305 into law, requiring businesses marketing or selling voluntary carbon offsets (VCOs) or marketing products as having significantly reduced emissions within California to disclose on their website certain information concerning the projects that generated the VCOs and emission reductions. Additionally, AB 1305 requires the disclosure of certain information supporting any business activity or product purported to achieve net-zero emissions, carbon neutrality or a reduction in greenhouse gas (GHG) emissions. This law represents California’s latest attempt to reduce “greenwashing,” hold businesses accountable for claims concerning GHG emission reductions and intensify transparency within the VCO market. AB 1305 is effective January 1, 2024, and businesses are required to update their disclosures at least annually.
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Treasury Department and IRS Issue Proposed Regulations and Revenue Procedure on the Clean Vehicle Tax Credits under Section 30D of the Internal Revenue Code12.11/Alert
As amended by the Inflation Reduction Act of 2022, IRC 30D provides for a tax credit of up to $7,500 for a new clean vehicle, consisting of $3,750 if certain critical mineral requirements are met and $3,750 if certain battery components requirements are met. Under the relevant rules, vehicles placed in service beginning in 2024 are not eligible if the battery includes battery components manufactured or assembled by a foreign entity of concern (FEOC), while vehicles placed in service beginning in 2025 are not eligible if the battery contains certain critical minerals extracted, processed or recycled by an FEOC.
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NRC Issues Draft Guidance to Facilitate Reactor Siting11.28/Alert
On October 18, 2023, the U.S. Nuclear Regulatory Commission (NRC) issued draft regulatory guide (DG), DG – 4034, for public comment. DG – 4034 includes a proposed Revision 4 for Regulatory Guide (RG) 4.7, “General Site Suitability Criteria for Nuclear Power Stations.” RG 4.7 provides guidance on the major health, safety and environmental site characteristics the NRC staff considers in determining the suitability of proposed sites for nuclear power plants. Essentially, it lays out the methods for determining whether a reactor may be located at a particular potential location.
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New Opportunities to Transfer Renewable Energy Tax Credits under the IRA: What is Possible for Individuals and Pass-Through Entities09.07/Alert
On June 14, 2023, the Department of the Treasury and the Internal Revenue Service (IRS) released guidance on Internal Revenue Code (IRC) Section 6418, added as part of the Inflation Reduction Act of 2022 (P.L. 117-169)(IRA), granting taxpayers a new way to monetize certain tax credits. The guidance included proposed regulations relating to the transferability of tax credits under IRC Section 6418 (Transferability Guidance), temporary regulations regarding information and registration requirements (Pre-Filing Registration Guidance) and a series of frequently asked questions. (For a more general summary of this guidance, refer to our prior alert.) Notably, despite the hopes of tax practitioners and industry groups to the contrary, the new proposed regulations apply the passive activity rules of IRC Section 469 to transferees of tax credits under IRC Section 6418, which impacts the ability of individuals (and estates, trusts and certain corporations) to benefit from the credits. Additionally, the proposed regulations provide that transferees will bear the risk of certain events that result in a recapture of previously claimed tax credits.
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Exploring R&D Opportunities under the CHIPS Act08.09/Alert
The CHIPS and Science Act (CHIPS Act), enacted in August of 2022, appropriated $52 billion to grow the semiconductor market—of which $11 billion will accelerate the next generation of semiconductor design and secure the domestic supply chain through the CHIPS Research and Development Office.
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Understanding the EPA’s Final Renewable Fuel Standard Set Rule for 2023, 2024 and 202507.13/Alert
On July 12, 2023, the U.S. Environmental Protection Agency (EPA) published the final rule, Renewable Fuel Standard (RFS) Program: Standards for 2023-2025 and Other Changes, which sets the final volume requirements and percentage standards for the use of cellulosic biofuel, biomass-based diesel, advanced biofuel and total renewable fuel used as transportation fuel, heating oil and jet fuel. In addition, the rule finalizes a supplemental standard to compensate for 500 million gallons of renewable fuel that the EPA wrongfully waived from the 2016 volume requirement. The volume requirements also reflect the EPA’s position that it will not be granting small refinery exemptions in the foreseeable future because empirical data has consistently shown that all refineries pass through their Renewable Fuel Standard (RFS) compliance costs to customers by increasing prices for gasoline and diesel fuel. Lastly, although the proposed rule included a mechanism for the creation of credits from qualifying renewable electricity, this credit scheme was not finalized.
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Proposed Regulations for Transfer of Energy Credits under IRA07.11/Alert
On June 14, 2023, the U.S. Department of the Treasury (Treasury) and the Internal Revenue Service (IRS) released a Notice of Proposed Rulemaking setting forth Proposed Regulations §§ 1.6418-1 through 1.6418-5 (Proposed Regulations) governing the implementation of the new tax law allowing electing taxpayers to sell a variety of eligible clean energy tax credits to unrelated parties pursuant to section 6418 of the Internal Revenue Code (Code). It is anticipated that these new transferability provisions will enhance and simplify the ability of taxpayers to monetize clean energy tax credits, thereby providing such taxpayers with additional funding for their clean energy projects. The Proposed Regulations include a temporary but mandatory pre-filing information and registration process designed to prevent fraud, duplication and excessive or improper payments that may result from such transfers.
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EPA Clarifies Requirements for Management of End-of-Life Lithium-Ion Batteries under RCRA07.10/Alert
As the demand for lithium-ion batteries in industrial equipment, electric vehicles (EVs), household appliances and other battery-powered products continues to grow, battery recycling and reuse programs are becoming increasingly critical. Businesses ranging from industrial operations to auto dealers to reverse-logistics providers are increasingly grappling with how to properly manage, dispose of, store and recycle lithium-ion batteries and battery-containing products.
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Treasury Department Announces Additional Guidance and Timetable to Allocate $4 Billion in Qualifying Advanced Energy Project Credits06.20/Alert
On May 31, 2023, the U.S. Department of Treasury (Treasury) and the Internal Revenue Service (IRS) issued Notice 2023-44 (May 31 Notice) providing additional details for applicants seeking Qualifying Advanced Energy Project Credits (Advanced Energy Project Credits or Credits) under section 48C of the Internal Revenue Code (Code). In 2022, the Inflation Reduction Act (IRA) amended section 48C of the Code to establish the Qualifying Advanced Energy Project Program (Program) and provided $10 billion in Credits for qualifying advanced energy projects. The Program is meant to incentivize investment in clean-energy manufacturing and recycling projects, greenhouse gas (GHG) emission reduction projects and critical materials projects.
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California Rolls Out Offshore Wind Permitting Roadmap06.15/Alert
On Friday, June 2, the California Energy Commission (CEC) hosted a workshop on permitting offshore wind energy facilities off the coast of California. The workshop came days after the CEC adopted a report entitled “Assembly Bill 525 Offshore Wind Energy Permitting Roadmap,” created in response to Assembly Bill 525, which established a goal for California to deploy up to 5,000 megawatts of offshore wind by 2030 and 25,000 megawatts by 2045. California aims to power 25 million homes with offshore wind by 2050. The report is the latest effort to bolster the development of California’s Offshore Wind Strategic Plan, which will be submitted to the legislature in 2023.
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Overview of the Impact of the 88th Legislative Session on the Oil, Gas and Renewables Industries in Texas06.14/Alert
While Texas is the top crude-oil and natural-gas producing state in the United States, it also leads the nation in wind power generation and is second only to California on utility-scale solar (source: U.S. EIA). During the 88th Legislature’s regular session (which ended on May 29, 2023), the Texas Legislature considered numerous bills whose stated purpose was to make the Texas electric grid more reliable—stemming from continuous calls for industry reform following disastrous Winter Storm Uri, which saw over two-thirds of Texans lose power and over 200 deaths. During Winter Storm Uri, many types of power generation failed, including both natural gas- and renewables-powered generation. However, various state officials—including Governor Greg Abbott and Lt. Gov. Dan Patrick—focused their criticism in the aftermath of the storm on renewables generation. The large proportion of non-dispatchable generation (such as wind and solar powered electricity) is perceived by certain officials and observers as a threat to the overall reliability of the Texas grid, with some arguing that increased dispatchable generation (typically gas-fired electricity) is urgently required (source: Lt. Gov. Dan Patrick: Statement on the Passage of the Texas Senate’s Power Grid Reform Package).
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EPA Proposes Aggressive Carbon Pollution Standards to Reduce Greenhouse Gas Emissions05.31/Alert
On May 23, 2023, the Environmental Protection Agency (EPA) published greenhouse gas (GHG) emissions standards for fossil-fuel-fired power plants, both new and existing, in The Federal Register. Interested parties have 60 days to provide comments on the proposed rule language, which will be due on or before July 24, 2023.
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Florida’s Response to ESG Investing05.11/Alert
As many financial institutions and investment managers move towards integrating environmental, social and governance (ESG) factors into their decision making, Governor DeSantis signed a new law that prohibits reliance on ESG when it comes to Florida’s funds.
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EPA Continues the Beat with an Advanced Notice of Proposed Rulemaking for Additional CERCLA Hazardous Substance Designations for PFAS05.09/Alert
On April 13, 2023, the Environmental Protection Agency (EPA) issued an Advanced Notice of Proposed Rulemaking (ANPRM) requesting input on seven potential future hazardous substance designations of per- and polyfluoroalkyl substances (PFAS) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (See Addressing PFAS in the Environment, 88 Fed. Reg. 22399, Apr. 13, 2023.) The seven PFAS identified are:
• Perfluorobutanesulfonic acid (PFBS), CASRN 375–73–5;
• Perfluorohexanesulfonic acid (PFHxS), CASRN 355–46–4;
• Perfluorononanoic acid (PFNA), CASRN 375–95–1;
• Hexafluoropropylene oxide dimer acid (HFPO–DA), CASRN 13252–13–6 (sometimes called GenX);
• Perfluorobutanoic acid (PFBA), CASRN 375–22–4;
• Perfluorohexanoic acid (PFHxA), CASRN 307–24–4; and
• Perfluorodecanoic acid (PFDA), CASRN 335–76–2.
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Concerns Over PFAS Contribute to New Federal Legislation Expanding FDA’s Authority Over Cosmetics04.24/Alert
On December 29, 2022, President Biden signed the Modernization of Cosmetics Regulation Act of 2022 (MoCRA) into law. (See Consolidated Appropriations Act, 2023, Pub. L. No: 117-328, § 3501-06.) MoCRA substantially expands the authority of the Food and Drug Administration (FDA) to promulgate new regulations over cosmetics and initiate enforcement against manufacturers and distributors of cosmetic products that present health risks. Most MoCRA provisions, including those dealing with facility registration and product listing, take effect on December 29, 2023, and existing facilities will have to register and comply with its product listing requirements as of this date.
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Maine and Massachusetts Consider PFAS Legislation04.21/Alert
Maine Regulators Propose Rules Providing Guidance on Newly Enacted Ban on PFAS-Containing Products
The Maine Department of Environmental Protection has proposed a new rule intended to establish, in greater detail, the procedures necessary for compliance with Public Law c. 477, entitled “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution.” As discussed in a previous post, this law, which went into effect January 1, 2023, imposes reporting requirements for consumer products with intentionally added per- and polyfluoroalkyl substances (PFAS) and phases out products containing PFAS beginning with carpets, rugs and fabric treatments. The proposed regulation largely echoes the language of the statute itself but does provide new definitions material to the statute’s “currently unavailable use” exemption and elaborates on the required content of the statutorily prescribed notices regarding PFAS-containing products. -
The Nuclear Regulatory Commission Unanimously Votes to Separate Fusion Energy Regulation from Nuclear Fission04.19/Alert
On April 14, 2023, in a unanimous vote, the Commissioners of the U.S. NRC directed that fusion energy devices will be regulated under the agency’s existing rules for use of byproduct materials in 10 C.F.R. Part 30, with only a limited-scope rulemaking. This approach separates the regulatory framework for fusion from the utilization facility framework applicable to nuclear fission energy and will allow the NRC to tailor its regulatory approach to the emerging fusion energy sector.
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Canadian Government Moves Forward on Major Clean Hydrogen Investment Tax Credit04.12/Alert
On Tuesday, March 28, Canadian Prime Minister Justin Trudeau and Deputy Prime Minister Chrystia Freeland presented Budget 2023: A Made-in-Canada Plan, the 2023 – 2024 Canadian federal budget proposal. The proposed budget includes several clean energy programs, including a $17.7 billion CAD ($12.6 billion USD) Clean Hydrogen Investment Tax Credit (ITC).
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Department of Energy Announces Strategy for Offshore Wind Deployment04.12/Alert
On Thursday March 29, 2023, the Department of Energy (DOE) announced its offshore wind strategy to advance the deployment of offshore wind energy in the United States. The strategy reflects the DOE’s comprehensive approach for accelerating a carbon-free electricity sector by 2035 and a net-zero economy by 2050.
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Nuclear Energy Agency Announces Publication of the Small Modular Reactor Dashboard04.06/Alert
On March 13, 2023, the Organization for Economic Co-operation and Development (OECD) Nuclear Energy Agency (NEA) announced publication of the Small Modular Reactor Dashboard, a compilation of verified publicly available information on progress-to-date towards SMR first-of-a-kind (FOAK) deployment and commercialization. This information aims to help the public understand the pace of progress to commercial deployment of these technologies as governments consider available paths to achieve net zero by 2050.
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Application Windows Opening for New Federal Funding03.31/Alert
On August 16, 2022, the passage of the Inflation Reduction Act (IRA) marked the establishment of a trifecta of bipartisan legislation aimed at improving U.S. economic competitiveness through innovation and domestic industrial productivity. In total, the IRA, the CHIPS and Science Act (CHIPS) and the Infrastructure Investment and Jobs Act (IIJA) provide about $2 trillion in federal funding, offering businesses and organizations a rare opportunity to apply for federal grants or take advantage of other federal incentive benefits. Many application windows for grants, loans and other incentives have opened since the passage of these landmark bills, with additional application periods opening across the first three quarters of 2023. Businesses should be assessing how available programs align with objectives and growth plans and preparing to meet critical eligibility and compliance obligations to obtain benefits. Though more details are still to come, below are considerations for companies seeking to benefit from new federal spending and incentive programs to support infrastructure projects, technology innovation, semiconductor manufacturing, and climate protection and clean energy initiatives.
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EPA Proposes Stringent Regulation of PFAS in Drinking Water03.16/Alert
On March 14, 2023, the EPA proposed a National Primary Drinking Water Regulation under the Safe Drinking Water Act to establish Maximum Contaminant Levels (MCLs) for six per- and polyfluoroalkyl substances (PFAS).
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Department of Energy Announces $6 Billion Funding Opportunity for Industrial Decarbonization and Emissions Reduction Projects03.13/Alert
On March 8, 2023, the Department of Energy (DOE) announced approximately $6 billion in funding to accelerate decarbonization projects in energy intensive industries and provide American manufacturers a competitive advantage. Funded by the Bipartisan Infrastructure Law (BIL) and Inflation Reduction Act (IRA), the Industrial Demonstrations Program will focus on revolutionizing energy intensive industrial processes with the highest emissions, where decarbonization technologies will have the greatest impact. Industries that represent the greatest opportunities include iron, steel, steel mill products, aluminum, cement, concrete, glass, pulp, paper, industrial ceramics and chemical products.
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Seeking Certainty: Redefining “Waters of the United States”03.09/Alert
Making good on a promise to redefine the Clean Water Act (CWA) term, “Waters of the United States” or WOTUS, on January 18, 2023, the latest revised definition of “Waters of the United States” was published in the Federal Register by the U.S. Army Corps of Engineers (ACOE) and the Environmental Protection Agency (EPA) at 86 FR 3004. The effective date of this rule will be March 20, 2023. Remarkably, this action marks the fourth time in eight years that these agencies have attempted to craft a workable definition of WOTUS and thereby affect far-ranging impacts on everything from infrastructure and agriculture to private land use. While the agencies indicate that the newly redefined WOTUS is, in many ways, a return to the longstanding regulatory regime, there are several notable changes.
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Department of Energy Opens Second Award Cycle for Civil Nuclear Credit Program03.08/Alert
On March 2, 2023, the Department of Energy (DOE) announced the opening of the second round awards cycle of the Civil Nuclear Credit (CNC) Program and released application guidance. The application guidance describes the timelines, deliverables and supporting information needed to apply for CNC certification and to submit sealed bids to receive allocated credits.
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CHIPS Act Funds Start to Flow: First Funding Opportunity Announced for Commercial Front-end and Back-end Semiconductor Fabrication Facilities03.03/Alert
On February 28, 2023, the first funding opportunity opened under the Creating Helpful Incentives to Produce Semiconductors and Science Act (CHIPS Act), federal legislation that appropriated $52.7B in federal funding to boost the semiconductor industry, including $39B in semiconductor manufacturing incentives.
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EPA Launches Initiative to Replace Lead Pipes in Underserved Communities02.23/Alert
In 2021, the White House introduced the Biden-Harris Lead Pipe and Paint Action Plan, which promises to replace all lead service lines in America over the next decade. The White House dubbed the plan “game-changing” and anticipates that it will put “pipefitters to work replacing all of America’s lead pipes and service lines.”
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Amid the Rise of Greenwashing Litigation, Guidance Due for Updates May Become Law02.21/Alert
How terms like “net zero,” “carbon neutral” and “sustainable” are defined and how such standards are measured are critically important to companies seeking to accurately brand their services and products. Lawsuits related to greenwashing are on the rise, with consumer groups and environmental non-governmental organizations (eNGOs) utilizing consumer protection laws to challenge statements made in green marketing campaigns and how companies account for their claims of environmental-friendliness.
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Alternating Current Yields Alternating Decisions on Bankruptcy Priority Treatment02.21/Alert
Scientists have been puzzling over the nature of electricity since as early as 565 B.C., when the Greek philosopher Thales of Miletus experimented by rubbing amber on fur to attract feathers. Thales, however, did not have to ponder the legal nature of the static electricity he observed.
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North Carolina, California, Wisconsin and Illinois Sue Companies over PFAS “Forever Chemicals” Contamination02.21/Alert | nc-ca-wi-il-sue-companies-pfas
In the last eight months, the attorneys general of North Carolina, California, Wisconsin and Illinois have sued various primary manufacturers of per- and polyfluoroalkyl substances (PFAS), as well as over a dozen secondary manufacturers of PFAS-containing products. Each lawsuit alleges that the manufacture and distribution of PFAS and PFAS-containing products has led to widespread environmental contamination and harmful exposure.
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EPA Tentatively Rejects the Center for Biological Diversity’s Petition to Regulate PVC as a Hazardous Waste01.23/Alert
Introduction and Background
Few materials generate as much controversy as polyvinyl chloride (PVC). Versatile, durable and available at a comparatively low cost, PVC offers a wide range of advantages across numerous industries, cementing its place as one of the market’s most popular materials. For example, PVC’s rigidity and strength makes it a popular construction material, and its high chlorine content makes PVC fire-resistant. PVC is also present in food packaging, children’s toys, and other industrial, retail and commercial materials. -
Effective January 1, 2023, Numerous States Begin to Impose Notification Requirements and Prohibitions on Products Containing “Intentionally Added” PFAS01.20/Alert
In all, California, Colorado, Connecticut, Hawaii, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont and Washington have placed or soon will be placing prohibitions on the distribution of per- and polyfluoroalkyl substances (PFAS) in food packaging containers, cookware and, in other cases, a wide range of products under the authority of consumer protection laws. Companies across the supply chain will be impacted by these regulations. Industry has criticized the state laws as overreaching, particularly considering the inability of certain state agencies to enforce these laws effectively.
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Efforts to Regulate Plastic Pollution Likely to Increase in 202301.17/Alert
Public concern regarding plastic pollution in the United States has continued to grow in recent years. While more traditionally centered on unmanaged plastic waste and U.S. recycling capacity, this has evolved to include issues such as microplastics, plastic-related chemicals, ESG and the environmental justice impacts of the plastics industry. In line with this growing concern, regulatory efforts aimed at addressing plastics have accelerated, and there was significant movement toward greater plastics regulation in 2022 at the state, federal and international levels.
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Department of Energy Establishes the High-Assay, Low-Enriched Uranium (HALEU) Consortium12.15/Alert
On December 7, 2022, the U.S. Department of Energy (DOE) established the High-Assay, Low-Enriched Uranium (HALEU) Consortium. HALEU (uranium enriched to between 5% and 20%) will be required by a large number of advanced reactor designs under development in the United States. However, domestic availability of HALEU is currently lacking and presents an obstacle to large-scale deployment of advanced nuclear.
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Proposed Rule on Greenhouse Gas Emissions Would Impose Significant Compliance Obligations on Federal Contractors12.06/Alert
The Federal Acquisition Regulatory Council recently issued a far-reaching proposed rule that includes significant compliance obligations for contractors related to their greenhouse gas emissions.
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IRS Provides Highly Anticipated Wage and Apprentice Guidance for Applicable Tax Credits under the Inflation Reduction Act12.01/Alert
On November 30, 2022, the Internal Revenue Service (IRS) published Notice 2022-61 (Notice) in the Federal Register providing further guidance on compliance with newly applicable wage and apprenticeship requirements under the Inflation Reduction Act (IRA), which taxpayers must comply with to receive the fully available tax credits for new renewable energy, energy storage, hydrogen, biogas, carbon capture projects and electric vehicle charging infrastructure projects.
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The Infrastructure and Investment Jobs Act (IIJA): An Anniversary Report11.16/Alert
November 15, 2022, marked the one-year anniversary of President Biden signing the Infrastructure and Investment Jobs Act (IIJA) into law. The historic $1.2 trillion dollar investment into infrastructure marked a major bipartisan accomplishment for the 117th Congress and may ultimately represent one of the most impactful accomplishments of the Biden administration. The IIJA, which is also sometimes referred to as the Bipartisan Infrastructure Law (BIL), made investments into roads, bridges, electric vehicles, broadband, hydrogen hubs, cybersecurity, water infrastructure and grid resilience, among other areas of infrastructure.
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The Senate Ratifies the Kigali Amendment, Strengthening U.S. Commitment to Phase Down Hydrofluorocarbons10.20/Alert
On September 21, 2022, the U.S. Senate voted to ratify the 2016 Kigali Amendment to the Montreal Protocol on Substances That Deplete the Ozone Layer. In so doing, the United States formally joins 137 other nations in pledging to reduce the production and consumption of hydrofluorocarbons (HFCs). HFCs are greenhouse gases commonly used in a variety of applications including refrigeration, air-conditioning, building insulation, fire extinguishing systems, refrigerated shipping and aerosols. Because individual HFCs often have significantly greater warming potential than carbon dioxide, HFCs are widely considered one of the most potent drivers of climate change.
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DOE Announces $50 Million Award for the Design of a Fusion Pilot Plant10.03/Alert
The September 2022 launch of this public-private partnership is the first step toward realizing the Biden Administration’s bold decadal vision for commercial fusion energy.
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NRC Preliminary White Paper on Nuclear Fusion Indicates Paths for Regulatory Options09.19/Alert
A September 2022 Preliminary White Paper issued by U.S. Nuclear Regulatory Commission (NRC) Staff, “Licensing and Regulating Fusion Energy Systems,” indicates that the NRC is considering the option of regulating commercial fusion technologies via a risk-informed framework using 10 CFR Part 30.
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The CHIPS and Science Act Offers Support to Advanced Nuclear and Fusion Industries08.24/Alert
The Act includes significant funding to ensure long-term U.S. competitiveness in the advanced nuclear sector.
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General Services Adminisration Information Request Foreshadows Potentially Significant Rulemaking on Single-Use Plastic Packaging08.04/Alert
Given the federal government’s buying power and wide use of plastic packaging, the GSA’s proposed rulemaking could have consequences for the plastics, packaging and shipping industries.
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Inflation Reduction Act Revives Hope for Biden's Climate Agenda08.03/Alert
The far-reaching proposal would represent the largest legislative climate investment in U.S. history.
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Historic $280 Billion Investment in Domestic Semiconductor Manufacturing and STEM Research and Development to Be Signed into Law07.09/Alert
The legislation is the result of months of negotiations between Congressional Democrats and Republicans to support domestic semiconductor manufacturing and related research and workforce development efforts.
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DOE Establishes $6 Billion Civil Nuclear Credit Program02.18/Alert
On February 11, the U.S. Department of Energy (DOE) announced the release of a Notice of Intent (NOI) and Request for Information (RFI) describing and seeking feedback on its plan to implement the Bipartisan Infrastructure Law’s (BIL) $6 billion Civil Nuclear Credit (CNC) Program. The CNC will support the continued operation of U.S. nuclear reactors, the nation’s largest source of clean power, by providing financial support to certified reactors at risk of economic shutdown.
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California Senate Passes the Climate Corporate Accountability Act02.14/Alert
Continuing its leadership in the battle against climate change, California takes a big step forward by requiring transparency concerning the carbon footprints of the nation’s largest corporations doing business in the state.
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New York State Fashion Act Proves That ESG Is Haute Couture02.09/Alert
The Fashion Sustainability and Social Accountability Act in the Context of ESG
On January 7, 2022, New York State Senator Alessandra Biaggi and Assemblywoman Anna R. Kelles introduced the Fashion Sustainability and Social Accountability Act, A8352/S7428 (“Fashion Act”). The Fashion Act’s purpose is to promote sustainability and accountability regarding the environmental and social impacts of large fashion companies. The Fashion Act defines the latter as fashion retail sellers and fashion manufacturers of “wearing apparel or footwear” with annual worldwide gross revenues of $100 million or more doing business in New York. Given New York’s status as a worldwide hub for the fashion industry, the geographical nexus requirement of the Fashion Act hardly limits its applicability, which stands to cover many household brands and retailers.
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Sixth and Eighth Circuits Confirm the Broad Applicability of the Price-Anderson Nuclear Industries Indemnity Act02.07/Alert
In two recent cases, federal Courts of Appeal issued decisions affirming a broad interpretation of the Price-Anderson Act, and in particular a broad interpretation of the Act’s primacy over state law and jurisdiction. First, in October 2021, the Sixth Circuit issued its decision in Matthews v. Centrus Energy Corporation. It held that the Price-Anderson Act provides the exclusive avenue for asserting liability arising from a nuclear incident, thereby preempting state and tort law claims. Notably, Matthews held that the Price-Anderson Act preempts state law and allows a defendant to remove a claim to federal court even where the claimant does not expressly allege that a nuclear incident occurred, and found that ongoing, slow releases of radioactive materials still constitute “nuclear incidents” under the Act.
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DOE Hydrogen Updates after Bipartisan Infrastructure Bill Passage12.12/Alert
Results of Department of Energy’s June 2021 Request for Information on potential hydrogen demonstration project locations will influence agency as it develops a National Clean Hydrogen Strategy and Roadmap as required by the recently enacted bipartisan infrastructure law.
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Biden EPA Doubles Down on Chemical Regulation with PFAS Strategic Roadmap12.06/Alert
INTRODUCTION
Federal efforts to regulate per- and polyfluoroalkyl substances (PFAS) have continued in recent months. Most notably, on October 21, 2021, the United States Environmental Protection Agency (EPA or the Agency) released its PFAS Strategic Roadmap. This document promises to establish a comprehensive, whole-of-agency approach to regulating PFAS, by building off the Trump EPA’s 2019 PFAS Action Plan and related federal initiatives. The Roadmap reflects EPA’s intent to regulate a broader range of activities than those contemplated in the 2019 Action Plan, as well as to accelerate the implementation of activities identified in the earlier Agency document.
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Senate Confirms Rohit Chopra as CFPB Director10.01/Alert
As CFPB Director, Rohit Chopra will vigorously apply the CFPB’s authority to promulgate rules, conduct examinations, and bring enforcement actions.
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Hydrogen Highlights in the Bipartisan Infrastructure Bill08.31/Alert
On August 10, 2021, the U.S. Senate passed the Infrastructure Investment and Jobs Act (IIJA) by a bipartisan vote of 69–30. In addition to funding for roads and bridges, the $1.2 trillion infrastructure package includes a number of provisions to spur investment in clean energy innovation technologies—in particular, it provides resources to accelerate research, development, demonstration, and deployment of clean hydrogen in the United States. This includes development of a definition for “clean hydrogen,” clean hydrogen supply chains, regional clean hydrogen hubs, and a focus on commercializing the use of clean hydrogen in transportation, utility, industrial, commercial and residential sectors. This is in line with goals stated during President Biden’s campaign to create “green hydrogen at the same cost as conventional hydrogen within a decade.”
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Presidential Executive Order 14008: The Climate Crisis Order07.28/Blog
Presidential Executive Order 14008, “Tackling the Climate Crisis,” a long and unusually detailed Executive Order published in the Federal Register on February 1, 2021 (see 86 FR 7619), has generated considerable discussion and commentary.
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Southern California’s New Indirect Source Rule for Warehousing Operations Tests Jurisdictional Waters06.29/Alert
Rule 2305, a first-of-its-kind air district rule, will impose new costs on warehouses and the Southern California supply chain, potentially testing legal boundaries of local authority to regulate “indirect sources” of emissions.
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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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Environmental Justice Legislation Update04.23/Blog
Environmental Justice, as an urgent priority of the Federal Government, dates back to 1994, and President Clinton’s issuance of Executive Order 12898. This order directed federal agencies to identify and address, as appropriate, the disproportionately high and adverse human health and environment effects of its many programs, policies and procedures on minority populations and low-income populations. The primary legal basis for this order was Title VI of the Civil Rights Act of 1964, in particular, Sections 601 and 602, which prohibit discrimination in programs and activities receiving federal financial aid and assistance. Over the years, the Supreme Court has reviewed the scope and importance of Title VI. In Alexander v. Sandoval, decided in 2001, the Court concluded that while private parties could sue to enforce Section 601 or its implementing regulations, as written, Section 601 only prohibits intentional discrimination. Noting that disproportionate impact is not the sole touchstone of invidious racial discrimination. Moreover, the Court also ruled in Sandoval that private parties cannot sue to enforce regulations implementing Section 602. Perhaps as an acknowledgement of these shortcomings, the Environmental Protection Agency (EPA) has established an administrative system to process environmental justice complaints at 40 CFR Part 7. Without strengthening the statutory base of environmental justice, the program may continue to be the subject of countless symposiums and seminars. However, this may change soon.
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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 Government Law & Strategies 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.