No single answer exists for how the regulated community is expected to meet their environmental obligations or address potential delays in environmental compliance, especially amidst shelter-in-place orders in several states due to the COVID-19 pandemic. However, relief from environmental obligations during this pandemic may be available under certain environmental laws and legal obligations. The nature of that relief will largely depend on the specific legal requirement, the impact on the source itself, and the evolving response by federal and state governments to the COVID-19 outbreak.
Both communities and companies will no longer benefit from the use of Supplemental Environmental Projects (SEPs) in settlements of environmental enforcement actions, following the United States Department of Justice’s (DOJ) comprehensive policy review and prohibition of the practice in all settlements. Despite 30 years of productive use backing these mutually beneficial arrangements, which began during my time at the DOJ in the 1990s, the DOJ has officially called it quits for now – at least until the next administration has a chance to reconsider this decision. For those who have not been immersed in these environmental enforcement actions, SEPs allow settling parties to mitigate a portion of a civil penalty in exchange for performance of environmentally beneficial projects. Continue Reading Everyone Loses with New DOJ Policy Ending 30-Year Practice of Supplemental Environmental Projects
Federal officials often conduct unannounced, sometimes intrusive inspections of regulated entities, which can be a major disruption to companies’ operations and has historically left them with little to do about it but wait for the interruption to pass – until now. The Office of Management and Budget (OMB) and the U.S. Environmental Protection Agency (EPA) recently issued two documents aimed at improving the efficiency and normalizing the process of conducting environmental inspections and investigations. Continue Reading Regulated Entities: It’s Time to Speak Up if You Don’t Like How Federal Agents Come Knocking
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).
The Trillion Trees Initiative was in focus at the January 2020 World Economic Forum in Davos. President Trump endorsed the initiative in his State of the Union address. Companies may want to consider this and other green initiatives as the trend for company sustainability continues to gain traction. Continue Reading The Trillion Trees Initiative and Sustainability
Chairman Jay Clayton provided his own view of climate disclosure criteria, and two other commission members also provided insight at the end of last month. This indicates that climate disclosure issues are top of mind for members and staff at the U.S. Securities and Exchange Commission (SEC).
The chair indicated that he would continue to rely on the principles that have guided SEC disclosures for decades. For environmental and climate-related issues, the guiding principle of materiality remains the foremost indicator of a disclosure obligation. Climate is one of several issues that the chair notes as “evolving.” Continue Reading SEC Indicates it Will Not Modify Climate Change Disclosure Criteria
Regulated entities may not be able to challenge an agency’s informal decisions if those decisions are unpublished and the entity was not a party to the decision. In a recent D.C. Circuit case, the court dismissed a plaintiff’s petition to review an agency’s informal decision for lack of jurisdiction. The plaintiff’s petition, according to the court, had failed to identify a final agency action, such as a discrete informal adjudication or decision making. Continue Reading Can a Federal Court Obtain Jurisdiction Over an Agency’s Unpublished Informal Decisions?
Even though communities are likely to reap many benefits from proposed renewable energy projects, local opposition can delay – or altogether thwart – the progress of renewable energy projects. Most renewable energy projects require some level of zoning or permit approvals to proceed, and garnering support is proving to be especially difficult. This final post of our three-part series on the 2020 renewable energy outlook (read the first post here and the second post here) examines how local opposition can form and what utilities can do to gain a community’s backing and trust. Continue Reading 2020 Renewable Energy Outlook: Strategies to Elicit Community Support
A district court judge adopted the rarely applied “constructive submission” doctrine, which could ultimately give advocacy groups leverage over states that ignore Clean Water Act (CWA) requirements. This decision may embolden advocacy groups and comes at a time when, as noted in previous posts on this blog, enforcement actions brought by public citizens continue to grow as an effective means of enforcing environmental laws and regulations. Continue Reading Advocacy Groups Have a New Opening to Enforce the CWA When States Do Not Act
As federal tax incentives for wind and solar energy projects set to expire this year, project costs will increase, which is sure to impact the renewable energy market in 2020. Without these added financial benefits, strategic utility developers will need to pursue cost-effective development options and other available tax incentives to continue making the most of renewable project investments.
As one of several trends we recently introduced as part of our 2020 renewable energy outlook series, this post takes a closer look at developing projects on brownfields and capitalizing on other federal, state, and local tax incentives for developers. Continue Reading 2020 Renewable Energy Outlook: Redevelopment Opportunities and State and Local Tax Incentives in Lieu of Waning Federal Incentives