On May 25, 2023, the U.S. Supreme Court issued a 9-0 decision ending a nearly 16-year battle over the Clean Water Act’s (CWA) applicability to certain wetlands. In a five-justice majority opinion, the Court found that the CWA applies only to wetlands that are “as a practical matter indistinguishable” from “relatively permanent, standing or continuously
The Biden administration just announced draft regulations that would require most coal-fired and gas power plants to capture and sequester up to 90 percent of their carbon emissions by the middle of the next decade, a move with the potential to transform the U.S. electricity sector and perhaps offer a boost to the fledgling domestic
The US Environmental Protection Agency (EPA) recently proposed a significant addition to its Renewable Fuel Standards (RFS) program—the renewable electricity RIN (eRIN). The eRIN is a new kind of renewable identification number (RIN) obligated parties could obtain to meet their renewable volume obligations and comply with the RFS program.
Under the current RFS program, obligated
We are not expecting further big climate reduction commitments from countries this year at COP27. The leaders of China and Russia (the world’s first- and fifth-largest climate polluters) are not attending the event, nor are officials from many of the largest economies, including India and Australia. U.S. President Joseph Biden will make only a short
The Sixth Circuit issued an order on September 9, 2022 granting review of a class certification from March 7, 2022 that certified a class of roughly 11.8 million Ohio residents claiming injuries from per- and polyfluoroalkyl substances, or PFAS.
Background
Filed in 2018 in the Southern District Court of Ohio, the lawsuit alleged the named
Introduction
President Biden signed the Inflation Reduction Act of 2022 (the Act) into law on August 16, 2022. The Act represents an expansive investment in the energy industry, with many provisions targeting clean energy and climate change issues through funding and tax credits. However, several notable provisions from an environmental permitting and compliance standpoint are buried amongst the financial and tax provisions. These environmental provisions relate to permitting and compliance that the regulated industry, especially energy companies, should watch closely.
Funding for Permitting and Programmatic Development
The Act provided significant funding to regulatory authorities for a number of permitting-related activities.
For example, the National Oceanic and Atmospheric Administration (NOAA) received $20 million to assist with permitting and project review. The funds are meant to result in more efficient, accurate, and timely reviews for planning, permitting and approval processes through hiring and training personnel and obtaining new technical and scientific services and equipment.
The United States Environmental Protection Agency (U.S. EPA) received $40 million for its permitting and project review efforts. The funds will be utilized to develop efficient, accurate, and timely reviews for permitting and approval processes through hiring and training of personnel, development of U.S. EPA programmatic documents, procurement of technical or scientific services for reviews, development of environmental data and new information systems, purchase of new equipment, developing new guidance documents, and more.
The Act provided over $62.5 million to the Council on Environmental Quality to develop programmatic documents, tools, guidance, and improvement engagement. These funds will also support collection of data regarding environmental justice issues, climate change data, development of mapping/screening tools, and tracking and evaluation of cumulative impacts.
Several other federal agencies received millions in funding for review and planning of electricity generation infrastructure, like the Federal Energy Regulatory Commission, the Department of Energy, and the Department of the Interior. Funding will be used to facilitate timely and efficient reviews, as well as generate environmental programmatic documents, environmental data, and increase stakeholder and community involvement.
In sum, regulators involved in environmental and energy permitting received a substantial boost in funding targeting the permitting process, including supporting the development and build out of programmatic documents and capabilities. The funding could improve the timing of the permitting processes for these agencies, but it could also lead to additional administrative burdens in the form of new application and compliance materials and increased regulatory scrutiny where a regulator has more time and money to invest in the regulatory process.Continue Reading Environmental aspects of the Inflation Reduction Act of 2022
The U.S. Securities and Exchange Commission is requiring large business to report on their (indirect) Scope 3 emissions. This reporting obligation comes in addition to company reporting on the carbon impact of its own activities and the power it consumes.
Key takeaways
A company’s reporting obligation would depend on a number of specific factors, which
Before the 2010s, many real estate deals closed without the mere mention of per- and polyfluoroalkyl substances (PFAS) as part of negotiations or in diligence. Leap forward a decade to 2022 and diligence questions relating to the presence of PFAS on real estate are essentially market, especially for industrial and some commercial properties. The paradigm shift cannot be attributed solely to one force; instead, a culmination of regulatory, statutory, judicial, and transactional considerations have elevated PFAS to an issue that could seriously impede or even kill a deal.
Whether involved as a seller, buyer, lender, or another interested party concerned about the liabilities, there are several key considerations, among others, that parties to real estate transactions should be aware of in 2022.Continue Reading PFAS and Real Estate Transactions: Key Considerations in 2022
On the back of unfortunate geopolitical developments this year, which have drastically changed the path to a carbon-neutral economy, we are pleased to present “Energy transition – An evolving journey” – a thought leadership campaign containing practical insights on the trends, opportunities and challenges in the energy industry going forward.
Please see link to the
We previously reported on requirements for Scope 3 emissions in the proposed climate disclosure rule released by the U.S. Securities Exchange Commission (“SEC”) on March 21, 2022 (“Proposed Rule”). In addition to Scope 3 emissions, the Proposed Rule would also require a registrant to disclose information about its direct GHG emissions (Scope 1) and indirect emissions from purchased electricity or energy sources (Scope 2). This post focuses on attestation requirements in the Proposed Rule for those Scope 1 and Scope 2 disclosures.
Who is subject to Scope 1 and Scope 2 attestation requirements and when is compliance required?
Section 229.1505 of the Proposed Rule would require a company that is an accelerated filer or large accelerated filer[1] to include an attestation report in its Scope 1 and 2 disclosures. The attestation requirement also applies to foreign private issuers.
The Proposed Rule does not make compliance with Scope 1 and 2 disclosure and attestation requirements immediate. Instead, subject companies are provided a grace period to achieve compliance with Scope 1 and 2 disclosure requirements. The Proposed Rule would also provide a transition period for the assurances required for the Scope 1 and 2 disclosure attestations (see further discussion below). The proposed compliance timeframes are as follows:
| Filer Type | Scopes 1 and 2 GHG Disclosure Compliance Date | Limited Assurance | Reasonable Assurance |
| Accelerated Filer | Fiscal year 2024 (filed in 2025) | Fiscal year 2025 (filed in 2026) | Fiscal year 2027 (filed in 2028) |
| Large Accelerated Filer | Fiscal year 2023 (filed in 2024) | Fiscal year 2024 (filed in 2025) | Fiscal year 2026 (filed in 2027) |
Who prepares the attestation report?
Under the Proposed Rule, a GHG emissions attestation provider would be required to prepare and sign the attestation report. The attestation provider would not need to be a registered public accounting firm. However, the Proposed Rule includes characteristics of acceptable attestation providers including:
According to the agency, the proposed expertise requirement is intended to ensure that the attestation provider is sufficiently competent to perform the attestation engagement. With respect to independence, SEC states that emissions disclosures by independent attestation providers should improve the reliability of the disclosure.Continue Reading Scope 1 and 2 Emissions Attestation Requirements under SEC’s Proposed Climate Disclosure Rule