ICYMI: California to conserve land, coasts to capture carbon and fight climate change

California has joined dozens of nations in a global pact to preserve biodiversity and prevent species loss by pledging to conserve 30 percent of the state’s land and coastal water by 2030 (“30 by 30”).  Governor Gavin Newsom signed the executive order earlier this month, which also directs the state to streamline approval of land restoration projects, protect native plants and animals from invasive species, and reinvigorate the population of pollinating insects in California.  Finally, several agencies are directed to develop policies to capture more carbon from the atmosphere and store it in the state’s natural and working lands such as forests, rangeland, farms, wetlands and coasts.  These strategies, intended to help California reach its goal of carbon neutrality by 2045, could include planting cover crops, restoring wetlands, managing forests more actively to reduce wildfire risk, and planting trees and creating parks in urban areas.

30 by 30 has been championed internationally and is supported by the United Nations.  However, the Senate Republican Caucus called Newsom’s order an “overreach.”  This follows Newsom’s historic executive order to require that, by 2035, all new passenger vehicles sold in California be “zero-emission.”  Both the electric car and the 30 by 30 orders will likely face uphill climbs, but are important and ambitious actions in California’s fight against climate change.

California Senate Bill May Hamstring a Challenger’s Ability to Slow Down a Project under the California Environmental Quality Act

When a proposed project in California, say a new condominium or a power plant, requires environmental review under the California Environmental Quality Act (CEQA), a project opponent can, effectively, block a project from moving forward even if it has the necessary approvals from the local government agency that has oversight.  This is because the project opponent can appeal the local agency’s final CEQA determination to state court through a petition for writ of mandamus.  Once the petition is filed, the project opponent, now the petitioner, can control, under current law, preparation of the administrative record that needs to be lodged with the court.  A petitioner may also be able to leverage a monetary settlement which may not be related to mitigation measures meant to address the alleged environmental effects that the CEQA determination failed to adequately address.

Senate Bill (SB) 950 could take away from the petitioner both of these levers of control.  There would also be faster case management procedures at the trial level.

Preparation of the Record

Currently, Public Resources Code section 21167.6 allows the petitioner to elect to prepare the administrative record. This allows the petitioner to use all of the time permitted to prepare the record, 60 days, and raise objections along the way which could pave the way for extending the record preparation period.  Not until the record is prepared and certified are deadlines triggered for responsive pleadings and, following that, briefing on the merits.

SB 950 would amend section 21167.6 and allow the local agency, now the respondent, and/or the project proponent, now the real party in interest, to seize record preparation duties.  So, even if the petitioner elects to prepare the record, the respondent can override the election under the proposed law.

Settlements Reported to the State Attorney General

SB 950 would add Public Resources Code section 21167.7.5 which would require a settling petitioner to submit a report to the State Attorney General if the settlement involves money paid directly to the petitioner or petitioner’s counsel other than reasonable attorney fees or costs.  The purpose of this new provision is to “[d]iscourag[e] CEQA cases filed primarily for monetary gain by requiring confidential reporting to the Attorney General of settlements involving monetary payments, other than attorney’s fees[.]”

SB 950 would authorize sanctions against a petitioner for refusing to or failing to file the settlement report with the Attorney General.  Also, “[i]f the Attorney General determines that a petitioner or a member of an organization that is a petitioner has filed multiple actions under this division resulting in primarily monetary settlements that do not further the purposes of this division, the Attorney General may pursue an action seeking appropriate remedies pursuant to” the state’s Unlawful Competition Laws.

Faster Case Management Schedule

SB 950 would add Public Resources Code section 21167.8.5 which would require the respondent local agency to file within 20 days after receiving the petition a request for a case management conference.  If feasible the Court must set the conference no later than 30 days after the request has been filed.  This new section would also require the parties to meet and confer 10 days before the conference, and file a separate or joint statement five days before the conference.

In addition, SB 950 amends Public Resources Code section 21167.8 to shorten the time to file a notice setting forth the time and place parties will discuss “procedural issues and timeliness associated with the litigation and the potential usefulness of settlement discussions, mediation, or arbitration in the case.”  The time period was 45 days; it would be 30 days under the new law.

Public consultation now open in respect of laws on Electromagnetic Compatibility and Packaging Waste

Within the last few days, the European Commission has opened the ‘public consultation’ stage of its evaluation of the law relating to both electromagnetic compatibility and packaging waste.

Evaluation of the Electromagnetic Compatibility (EMC) Directive 2014/30/EU

Although the EMC Directive was implemented fairly recently, it largely incorporated its predecessor directive without any major amendments. As a result, the sector specific aspects of the EU law relating to electromagnetic compatibility have not been reviewed in detail in over 30 years.

Accordingly, in January 2020 the Commission announced its intention to undertake a review of the EMC Directive, to assess whether it is still fit for purpose in terms of effectiveness, efficiency, relevance, and coherence. The Commission has indicated that the evaluation intends to collect evidence and information to identify areas that may need to be amended, particularly in light of scientific and technological progress, and in particular the increased digitalisation of the equipment falling in scope of the Directive.  On the basis of the conclusions reached, the Commission will assess whether next steps may be necessary to improve the performance of the Directive.

The public consultation period for the EMC Directive review is now open until 29 January 2021.

Evaluation of the Packaging Waste Directive 94/62/EC

In June of this year, the Commission published an initial assessment document on a proposal for a new directive on packaging waste, to replace the current Packaging Waste Directive. The Commission has stated that the purpose of the review is to improve packaging design to facilitate its cost-effective recycling and reuse, and reduce the generation of packaging waste, in line with the objectives of the Circular Economy Action Plan.

The new directive is still to be developed, but based on the issues raised in the Commission’s Inception Impact Assessment it is expected to include:

  • A requirement that all packaging be reusable or recyclable, and an enforceable definition of “recyclable packaging”;
  • Restrictions on the use of some types of packaging material, and a reduction of the complexity of packaging materials;
  • Recycled content targets for specific packaging formats;
  • Minimum GPP (Green Public Procurement) criteria and targets for packaging.

The public consultation period for the Packaging Waste Directive review is now open until 6 January 2021.

Safety groups urge Congress to consider implications of cannabis bill

Recently, several health and safety groups, including the National Safety Council, the American College of Occupational and Environmental Medicine, and 20 other safety organizations recommended in a letter to the U.S. House of Representatives to hold hearings on the workplace and public safety implications of the proposed Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2019 (H.R. 3884).  According to the Congressional Record Service, the MORE Act proposes several changes, including publishing data on cannabis business owners and employees, removing cannabis from the list of scheduled substances under the Controlled Substances Act, and eliminating criminal penalties for individuals who manufacture, distribute, or possess marijuana. The groups expressed concern about the possible effects on workplace health and safety that the MORE Act could have. A House vote on the MORE Act is expected to occur later this year.

European Commission launches consultation to regulate green claims in marketing and combat ‘Greenwashing’

The European Commission has opened a consultation on a potential legislative proposal on substantiating green claims made when advertising and marketing products. The proposals are intended to implement one aspect of the European Green Deal which states, among other things, that “Companies making ‘green claims’ should substantiate these against a standard methodology to assess their impact on the environment”.

This consultation contains a section targeting (a) the opinion of the general public, and (b) more relevant stakeholders – including businesses and business associations, public administrators, standardisation bodies, method, label and initiative owners, academia, investors and the financial sector, and non-governmental organisations (NGOs).

The purpose of the consultation is to tackle two issues:

  • The reliability and scope of labels/initiatives presently available to demonstrate the environmental performance of products and companies;
  • ‘Greenwashing’ – the false impression of the environmental impact or benefits of specific products and companies, which misleads market actors and reduces the incentive to find sustainable alternatives for products and activities.

With consumers more focused on the impact of products than ever before, the Commission is bringing the regulation of these claims into sharp focus. There are a large number of different initiatives and standards which all claim to demonstrate the environmental credentials of a product but the large number (over 200) of environmental labels currently used across the EU limits their usefulness to the consumer.

The EU has taken steps to tackle this through the European Green Deal and the 2020 Circular Economy action plan, both of which recommended that companies substantiate green/environmental claims against a standard methodology to assess their impact on the environment.

In 2013 the Commission adopted a Recommendation establishing the Product and Organisational Environmental Footprint methods. These methods are voluntary; they measure the environmental performance of a product or organisation throughout the value chain from the extraction of raw materials to the end of life, using 16 environmental impact categories.

Proposals

The Commission consulted on An Inception Impact Assessment Roadmap on Green Claims on earlier this summer until 31 August 2020 and identified three potential proposals:

  1. Updating the previous 2013 Recommendation based on the outcome of the 2013-2018 pilot phase.
  2. Establishing a voluntary EU legal framework enabling companies to make green claims in accordance with the Environmental Footprint methods, as a complement to existing methods (developed by private or public entities, at national or international level).
  3. Establish an EU legal framework requiring companies making claims related to the impacts covered by the Environmental Footprint method to substantiate them via that method.

The EU is now calling on interested parties to participate in an online questionnaire to gather opinion for a potential legislative proposal that will harmonise laws on substantiating environmental claims. For more information on the steps the EU has taken or to participate in the consultation, please click here. —https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12511-Environmental-performance-of-products-businesses-substantiating-claims/public-consultation

The deadline to submit responses for this consultation is 3 December 2020 (midnight Brussels time).

California going electric: Sale of new gasoline-powered cars banned in 2035

California will ban the sale of new, gasoline-powered cars by 2035, an aggressive action by Governor Gavin Newsom to combat the causes of climate change.

The executive order Newsom signed will require that all new passenger vehicles sold in California beginning in 2035 be “zero-emission.”  That category currently includes battery-powered electric cars and those running on hydrogen fuel cells. The ban will also include hybrid and plug-in hybrid vehicles that still use some gasoline or diesel in addition to electricity.  Older gasoline-powered cars on the road after 2035 and sales of used gasoline-powered cars would still be allowed.  The order further directs that all new medium- and heavy-duty trucks be zero-emission by 2045, which aligns with the state’s goal to eliminate all net emissions from its economy by 2045.

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Up, Up, and a (New) Way to Facilitate Compliance: Drones and Their Capabilities as HSE Compliance Tools

Drones, a generic term for unmanned aircraft, have been utilized in military applications for decades. More recently, however, advances in drone technology and construction have made the devices more accessible. These advances and increased accessibility have allowed more commercial and industrial applications to take off. For example, certain retailers are considering ways to efficiently use drones to make residential deliveries, and drones can help developers plan and manage construction projects and monitor progress.

Drones as HSE Compliance Tools

One application for which drones may be particularly (and increasingly) useful is health, safety, and environmental (HSE) compliance. Petrochemical complexes and refineries, for example, are vast and complicated operations subject to myriad HSE requirements. Many pieces of equipment and processes spread out across a facility require environmental monitoring and inspection pursuant to those HSE requirements, but are located in hard-to-access areas. Indeed, leak detection and repair (LDAR) requirements may apply to a flange or valve on a pipe rack 30 feet off the ground. Rather than having a worker undertake the necessary prerequisites to safely conduct monitoring at that equipment, a drone could be deployed instead. Likewise, a drone could be deployed in response to a process safety incident to assess the scene (e.g. identify the source of the release, evaluate emissions) and facilitate a safer response.

In a similar way, drones may help petrochemical facilities and refineries comply with site security regulations. Laws like the Chemical Facility Anti-Terrorism Standards (CFATS) and the Maritime Transportation Security Act (MTSA) generally require subject facilities to implement plans and protocols to ensure site security. These plans might involve surveillance at site boundaries or around critical infrastructure, and drones may provide an efficient way to perform such surveillance.

The Regulatory Framework

Note that the types of drones most likely to be used for HSE compliance are regulated by the Federal Aviation Administration (FAA) and may be regulated by state and local laws as well. At the federal level, FAA regulations (14 CFR Part 107) apply to “unmanned aircraft” and “small unmanned aircraft systems” (Small UASs), which encompass unmanned aircraft weighing less than 55 pounds including their communication and control components. Small UASs must be registered with the FAA prior to deployment, and their operators must generally obtain a remote pilot certification in order to fly the devices. The regulations also govern other aspects of Small UAS operation including when (time of day) and how high the devices may fly. Before deploying a drone, facilities should consult with legal counsel and evaluate the federal, state, and local regulations that apply to their drone operations.

Environmental agencies have also utilized drone technology and expressed interest in its utility for compliance monitoring.  For example, the U.S. Chemical Safety and Hazard Investigation Board utilizes drones for site examination when conducting investigations of chemical releases at facilities.  The U.S. Environmental Protection Agency (EPA), likewise, has published information about the role of drones in sampling and emissions monitoring.  In March 2020, the EPA issued a grant of $320,000 to the Pennsylvania Department of Environmental Protection that in part would be used to fund drone-based methane detectors to estimate emissions from specific equipment used in natural gas development.

Conclusion

Advances in drone technology and accessibility to the devices make them increasingly useful and versatile tools, especially for HSE compliance. The HSE compliance applications for drones outlined above offer just a glimpse of their utility. Therefore, companies with HSE compliance obligations should seriously consider the various uses for drones at their facilities. This is especially true during a global health pandemic when social-distancing and efficient remote work are more important than ever.

European Commission announces far-reaching plans for revision of EU Ecodesign laws

On 14 September 2020, the European Commission published its “Sustainable Products Initiative”, which aims to revise the existing Ecodesign Directive in order to meet the product sustainability objectives set out in the Circular Economy Action Plan.

The Circular Economy Action Plan seeks to make products fit for a climate neutral, resource efficient and circular economy, reduce waste, and ensure that sustainability progressively becomes the norm. The Commission has stated that, in order to achieve these objectives, the Ecodesign Directive should be amended (or entirely new legislative measures adopted, where appropriate) to create a comprehensive set of requirements that ensure that all products placed on the EU market become increasingly sustainable. It can be assumed that, in due course, this would also lead to existing ecodesign implementing measures being amended, although this is not addressed in the information published by the Commission so far.

For this to occur, the Commission proposes that the scope of the Ecodesign Directive be widened beyond energy-consuming products and made applicable to the broadest possible range of consumer goods. The Commission’s intention is to set appropriate minimum sustainability and/or information requirements for various product groups at EU-level, in particular those identified in the context of the value chains featuring in the Circular Economy Action Plan, such as electronics, ICT, textiles, furniture and high impact intermediate products like steel, cement and chemicals.

In addition, the Commission has indicated that it will consider the following measures, some of which would apply across all sectors, while others would target specific sectors in particular:

  • establishing overarching product sustainability principles;
  • establishing EU rules to make producers responsible for providing more circular products and intervening before products can become waste (for example providing products as a service, providing repair service/or ensuring spare parts availability);
  • establishing EU rules for setting requirements on mandatory sustainability labelling and/or disclosure of information to market actors along value chains in the form of a digital product passport;
  • establishing EU rules for setting mandatory minimum sustainability requirements on public procurement of products;
  • requirements to address social aspects throughout the product lifecycle as part of sustainability principles and requirements, where appropriate and feasible;
  • measures on production processes, for example to facilitate recycled content or remanufacturing and to track the use of hazardous substances in such processes;
  • measures to ban the destruction of unsold durable goods.

Some Member States have already taken action in some of these areas at the national level, which will increase pressure on the Commission to adopt these proposed measures. For example, France published a circular economy law in February 2020 that pre-empts key EU initiatives, with very strict provisions on a right to repair damaged goods, product life plan, destruction of unsold goods and waste management.

The initial feedback period for the Sustainable Products Initiative is open from now until 2 November 2020, with feedback currently restricted to just 4000 characters (roughly 500 words). More detailed public consultation is set to take place in the fourth quarter of 2020, and the Commission’s adoption of a draft directive is planned for the fourth quarter of 2021.

Lithium added to the list of EU Critical Raw Materials, alongside other key materials for clean technologies

On 3 September 2020 the European Commission released an updated action plan (available here) on critical raw materials (CRMs).  In doing so, it has added bauxite, lithium, titanium and strontium to the existing list of CRMs, which now stands at 30 materials.

The Commission also released a foresight report (available here) at the same time, on raw materials for strategic technologies and sectors. The report considers the raw material needed for growing technologies, particularly those in clean energy, electric mobility, ICT, robotics and 3D printing and evaluates future supply risks .

The Commission aims to build resilient and complete EU supply chains for critical raw materials, which is a particularly prominent issuing follow the supply chain disruption caused by the Covid-19 pandemic.

To this end, the action plan includes the launch of an industry-driven European Raw Materials Alliance in Q3 of 2020, intending to follow the model of the European Battery Alliance. The European Raw Materials Alliance will initially focus on rare earth and magnet value chains, with a view to expanding to cover the remaining critical raw material and base metal needs.

The addition of lithium demonstrates the importance of batteries to achieving the EU’s 2050 climate-neutrality scenarios. Under the EU’s Green Deal roadmap, the Commission committed to proposing legislation to ensure a safe, circular and sustainable battery value chain. In June 2020 the European Commission published an inception impact assessment on a proposal for a new regulation on batteries to replace the Batteries Directive. This proposal is expected to be published in September.

The action plan also includes the development of sustainable financing criteria for the mining and extractive sectors in relation to CRMs by the end of 2021. The list of critical raw materials will additionally be important for the promotion of circular economy principles, to ensure a strong market for secondary resources. Eco-design requirements are likely to look to improve the design of electrical and electronic equipment in order to increase the recycling of CRMs.

Updated EU list of Critical Raw Materials

2020 critical raw materials (new as compared to 2017 in bold)
Antimony Hafnium Phosphorus
Baryte Heavy Rare Earth Elements Scandium
Beryllium Light Rare Earth Elements Silicon metal
Bismuth Indium Tantalum
Borate Magnesium Tungsten
Cobalt Natural graphite Vanadium
Coking coal Natural rubber Bauxite
Fluorspar Niobium Lithium
Gallium Platinum Group Metals Titanium
Germanium Phosphate rock Strontium

 

If you have any questions about the EU’s CRM action plan, please contact the author or any other member of the Reed Smith EHS team.

California challenging recent district court decision to limit Proposition 65 warnings on First Amendment ‘compelled speech’ grounds

We recently reported on a potentially seminal California court decision that struck down Proposition 65 warning requirements for a consumer product on grounds of “compelled speech.”   As anticipated, the State is appealing the decision to the U.S. Court of Appeals for the Ninth Circuit, according to a notice filed Wednesday, September 9th.

The State Office of Environmental Health Hazard Assessment listed glyphosate as a chemical known to the State to cause cancer in 2017 under Proposition 65 despite the fact that almost all other government agencies found there to be insufficient or no evidence that glyphosate causes cancer.  However, the State followed the International Agency for Research on Cancer’s classification of glyphosate as “probably carcinogenic,” contrary to the majority.  In a major win for farming groups and herbicide makers, the Court held ruled in National Association of Wheat Growers v. Zeise that the State could not compel companies to provide a warning (compelled speech) without adequate governmental justification, a violation of the First Amendment freedom of speech.

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