President Biden’s sweeping infrastructure proposal, the American Jobs Plan, takes a broad view of what constitutes infrastructure and tackles many of the issues President Biden highlighted in his campaign, including climate change, the state of the country’s traditional infrastructure, and social inequality. The massive $2 trillion plan creates incentives and opportunities for utilities and other entities in the energy sector to remediate legacy sites and pivot toward a more resilient and greener energy infrastructure. Continue Reading American Jobs Plan Targets Resilience, Green Tech, and Remediation to Strengthen Crumbling Infrastructure
Recently, the U.S. Environmental Protection Agency (EPA) took a preliminary step toward requiring limits on some National Pollutant Discharge Elimination System (NPDES) discharges of per- and polyfluoroalkyl substances (PFAS) into surface water. On March 17, EPA issued an advance notice of proposed rulemaking pursuant to the Clean Water Act (CWA), which seeks public comment on data EPA has collected about certain PFAS discharges to surface water and requests additional information about businesses that make or use these substances (the ANPRM). The public has until May 17, 2021, to submit comments. Continue Reading EPA Considering Revised Effluent Limitations Guideline Relating to PFAS
The U.S. Environmental Protection Agency (EPA) recently progressed its effort to stymie the aftermarket tuning of vehicles used for racing and competition in a complaint alleging that Gear Box Z violated the Clean Air Act by selling certain types of aftermarket software that modifies the engine control module (ECM), among other practices. EPA’s action is part of its national mobile source enforcement initiative to prevent the manufacturing, sale, and installation of aftermarket tuning and emission control defeat devices, in which EPA has pursued enforcement against both large and small suppliers. Continue Reading EPA Reinforces Position that Certain Types of ECM Changes in Road-Certified Vehicles Constitute “Tampering” Under the Clean Air Act
In one of the latest developments in the Biden administration’s recent initiatives to strengthen environmental, social, and governance (ESG) efforts in the United States, the U. S. Department of Labor (DOL) announced last week that it would not enforce a final rule requiring fiduciaries subject to ERISA to evaluate investment opportunities based upon financial performance factors, rather than ESG metrics. The DOL stated that the final rule “created a perception that fiduciaries are at risk if they include any environmental, social and governance factors in the financial evaluation of plan investments.” Continue Reading DOL Will Not Enforce ESG-Related Final Rule
Last week, the U.S. Securities and Exchange Commission (SEC) announced the creation of a new 22-person Climate and Environmental, Social, and Governance (ESG) Task Force in its Division of Enforcement, a notable development in a series of recent steps taken by the Biden administration focused on increasing ESG accountability. Continue Reading New SEC Task Force Further Demonstrates Biden Administration’s Sharp Focus on Climate and ESG Issues
On January 19, the D.C. Circuit vacated the Affordable Clean Energy Rule (ACE), a rule intended to reduce greenhouse gas (GHG) emissions emitted from power plants. Am. Lung Ass’n et al. v. EPA, No. 19-1140. The lengthy opinion touches on numerous issues raised over the last 10 years as EPA has bumped toward the goal of regulating greenhouse gases. The opinion appears to be grounded in EPA’s own assertions, made in this and other rulemakings, that climate change is a grave threat to society and power plants are a significant source of GHGs. Continue Reading Affordable Clean Energy Rule Vacated
Over the past several years, Environmental, Social and Governance (ESG) initiatives have gained popularity among investors, but have gained less traction in federal law. ESG are a set of criteria that investors use to evaluate the environmental and societal impacts of a business. Some European countries require that companies report their ESG metrics, but ESG reporting in the United States has generally been voluntary. There are some indications that a Biden administration — especially coupled with a democratic congress — may seek to amplify ESG reporting in the U.S. As an early indication of such action, the new administration is expected to view ESG differently than the Trump administration. Continue Reading ESG in the First 100 Days?
Regulated industries pay close attention to how regulators use scientific data, because the stakes are high. While scientific knowledge may evolve rapidly, regulatory processes — and the business decisions that rely on them — tend to proceed more deliberately. As a result, the regulated community has long pushed the U.S. Environmental Protection Agency (EPA) to base its decisions only on scientific information that is present in the public domain and thus subject to greater scrutiny. Continue Reading EPA Releases Late-Term “Secret Science” Rule
Last month, we wrote about “midnight” regulations issued by the Trump Administration and a process available for Congress to respond. Since then, the Trump Administration took an important step towards issuing one such regulation, regarding activities that “incidentally” harm protected migratory birds. If finalized, this rule would be the culmination of a years-long effort to loosen the Migratory Bird Treaty Act’s (MBTA) restrictions, which could aid energy and infrastructure developers and operators.
As specific policies, legislative priorities and cabinet nominations are revealed in the coming weeks, manufacturers and energy companies are beginning to consider what a Biden Administration will mean for their business. However, until the Georgia runoff elections are completed on January 5, 2021, the balance of power in the U.S. Senate will remain unclear. As a result, industry must also continue to plan for the possibility that a Democrat-controlled Congress could employ the Congressional Review Act (CRA) to quickly reverse regulations finalized in the waning months of the Trump Administration. Continue Reading Election 2020: Congressional Review Act Could Allow for Quick Regulatory Reversals