On April 27, the Biden administration announced new proposed infrastructure initiatives that may enable developers to finally break ground on their “shovel-ready” transmission line projects, including over $8 billion in financing tools from the U.S. Department of Energy (DOE) as part of the administration’s effort to develop low-carbon energy. On the same day, the U.S. Department of Transportation (DOT) also issued new guidance on how federal and state agencies can work together to approve developers looking to use the land running alongside highways, known as the federal highway right-of-way (ROW), for construction of power transmission, clean-energy, and connectivity projects.
Continue Reading Biden Administration Infrastructure Plan Could Jumpstart “Shovel-Ready” High-Voltage Transmission Line Projects

Stakeholders have made clear that corporate responsibility is not just a fad or a slogan. With increasing data showing that sustainable investing opportunities can mitigate risk and deliver strong returns, environmental, social, and governance has quickly become an integral part of a company’s reporting and a significant factor in successful business deals.

Schiff Hardin today launched its new ESG team to help companies develop appropriate disclosures and institutional programs that incorporate ESG principles, including climate change, supply chain resiliency/disruption, water use, waste and recycling, environmental and energy justice, human rights, diversity, equity and inclusion, board composition, executive compensation, and anti-corruption.
Continue Reading Schiff’s New ESG Team

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

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?

The U.S. Environmental Protection Agency (EPA) announced last week its latest step in the implementation of its Action Plan—a preliminary regulatory determination regarding two per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The Action Plan was issued in February 2019 and outlined the agency’s efforts to address PFAS contamination in groundwater. This latest step comes on the heels of the EPA’s November 2019 proposal to add PFAS to the list of chemicals for which facilities must report use under the Emergency Planning and Community Right to Know Act (EPCRA).

Continue Reading EPA Takes One Step Closer to Regulating PFAS in Drinking Water

Municipalities and other local governments do not have free rein when it comes to regulating the environment, and the Second Circuit’s recent decision in Vermont Railway, Inc. v. Town of Shelburne is a clear reminder of that fact.

Continue Reading Second Circuit Derails Municipal Ordinance Targeted at Railway Operations

The future of the Obama Presidential Center remains uncertain after last week’s court ruling allowed a citizen suit against it to proceed. But businesses facing citizen suits should take comfort in courts’ continued willingness to consider—and occasionally grant—motions to dismiss citizen suits for lack of standing.
Continue Reading Obama Presidential Center Decision Reinforces Bar for Citizen Suit Standing

The U.S. Supreme Court signaled that it remains concerned with the issue of administrative deference following its grant of certiorari last week to hear Kisor v. O’Rourke specific to the issue of whether the Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co. Overruling one or both of these decisions could result in courts giving considerably less deference to agencies’ interpretations of their own regulations.
Continue Reading Administrative Agency Deference Theme Reemerges with SCOTUS Considering Overturning Auer

While the manufacturing industry assesses the benefits of President Trump’s promised relaxation of federal environmental policy, many may find themselves increasingly embroiled with other challenges. Likely at the top of that list are disputes with “citizen scientists” – non-scientists eager to fill in what they see as gaps in Environmental Protection Agency (EPA) regulation and enforcement.

Continue Reading Three Strategies for Manufacturers to Address Escalating Citizen Science

Last month, the U.S. District Court for the Eastern District of Kentucky sided with a utility and dismissed a citizen suit based on the Resource Conservation and Recovery Act (RCRA) and Clean Water Act (CWA). The opinion contradicts other recent federal court decisions analyzing the applicability of the CWA to coal ash discharges through groundwater.

Continue Reading Kentucky Decision Has Implications for Utilities Fighting Citizen Suits