The European Banking Authority (“EBA”) recently published final rules for lenders on how they must publish data on environmental, social and governance (“ESG”) risks, and how these risks may affect their balance sheets. The watchdog hopes that the proposed rules will help to “address shortcomings of institutions’ current ESG disclosures at EU level by setting
Environment, Health & Safety incident response
California proposes further modifications to its “Short-Form” Proposition 65 warnings
As we reported this past year, the California Office of Environmental Health Hazard Assessment (OEHHA) seeks to significantly amend the regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) to limit use of the previous State-approved “safe harbor” short-form warnings for regulated chemicals in consumer products. The State announced on December 13, 2021 further amendments to the proposed regulations, but generally continues to propose that use of the current “short form” safe harbor warning be dramatically scaled back, which will impact thousands of consumer products by requiring more specificity in future warning language.
As background, current California law allows a manufacturer, distributor or retailer of a consumer product to place either a “long form” or “short form” warning on the product or product packaging if one or more of 900+ regulated chemicals is in the product. The long form warning identifies by name “at least one” chemical from each regulated chemical risk category (i.e., carcinogens or reproductive toxicants). The short form alternate warning only requires identification of the risk category (ies) – not particular chemicals.
After reviewing over 160 written and oral comments on a prior proposed version of the regulations, OEHHA modified the proposed regulation again to:…
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EPA issues proposal to reduce GHGs and VOCs from new and existing oil and natural gas sources
In response to President Biden’s Executive Order entitled, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” the Environmental Protection Agency (EPA) recently issued a proposed rule taking aim at greenhouse gases (GHG) and volatile organic compounds (VOC) emissions from new and existing oil and natural gas production, processing, transmission, and storage facilities. The proposal contains three basic components. In a break with precedent, EPA did not provide proposed regulatory language.
First, the proposed rule would revise the new source performance standards (NSPS) for GHGs and VOCs for new, modified, and reconstructed sources, including the production, processing, transmission, and storage segments. Specifically, EPA proposes to a new subpart OOOOb that would update and expand the current requirements under CAA Section 111(b) for methane and VOC emissions from sources constructed, modified, or reconstructed after November 15, 2021. NSPS OOOOb would include standards for emission sources not regulated previously under the 2016 NSPS OOOOa. Among other changes, EPA proposes to apply to VOC emissions thresholds to storage vessel tank batteries as opposed to individual storage tanks. EPA has also suggested a change to the definition of legal and practical enforceability which could impact the utilization of state-level permitting previously used to reduce the potential to emit to below the 6 ton per year VOC-threshold.
Second, the proposed rule would create a new subpart OOOOc that would contain the first nationwide emissions guidelines (EG). The EG would be a state model rule that states could use to develop, submit, and implement state plans that establish performance standards to limit GHGs from existing sources.…
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Update on OSHA vaccine ETS litigation: Challengers seek hearing en banc as government moves to dissolve stay
After the Sixth Circuit was selected via a lottery in November to hear the consolidated challenges made against the recent OSHA emergency temporary standard (the “ETS”), there has been a flurry of activity in the case. There are currently two main issues pending before the court, which will certainly shape the dispute: (1) several petitioners…
OSHA’s vaccine ETS has arrived for large private employers
On October 21, 2021, we published an article called “Waiting for OSHA: pending vaccine ETS and increased enforcement.” In the article, we discussed the then-pending Emergency Temporary Standard (ETS) regarding vaccinating the workforce OSHA was tasked with developing by President Biden in his “Path Out of the Pandemic” memorandum. The ETS is scheduled…
Waiting for OSHA: pending vaccine ETS and increased enforcement
Since President Joe Biden issued his “Path Out of the Pandemic” memorandum and Executive Order 14042 on September 9, 2021, employers have had to navigate piecemeal instructions on vaccine mandates. For example, federal contractors and subcontractors received vaccine mandate guidance from the Safer Federal Workforce Task Force on September 24, 2021. However, employers should not grow too comfortable with the current status of pandemic regulations, which continue to change in various jurisdictions and will again on a federal level soon.
OSHA’s Emergency Temporary Standard
In his “Path Out of the Pandemic” memorandum, President Biden specifically tasked the Occupational Safety and Health Administration (OSHA) with developing a rule to encourage vaccinations among the workforce – the Emergency Temporary Standard (ETS). The ETS will require employers with over 100 employees to do the following:
- either (a) ensure all employees are fully vaccinated, or (b) require any employees who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work; and
- provide paid time off for any time to get vaccinated and/or to recover if they are ill post-vaccination.
State plans will be required to implement equally protective rules within 30 days. Though not yet available for review, the status of the pending ETS remains under review by the White House Office of Management and Budget.…
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U.S. EPA releases Roadmap to address PFAS contamination
On October 18, 2021, the U.S. Environmental Protection Agency (EPA) announced a per- and polyfluoroalkyl substances (PFAS) Strategic Roadmap (the Roadmap) detailing steps that the EPA plans to take to address PFAS contamination. PFAS are largely unregulated, but studies linking certain PFAS to health issues and their persistence in the environment and human body are driving the push for increased regulation. Currently, the EPA has established only a non-enforceable health advisory level for two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Additionally, some states have been moving forward at different speeds to establish state-specific PFAS regulations, including drinking water standards and cleanup levels for soil and groundwater remediation. However, the EPA’s Roadmap suggests increased federal regulation looms.
The EPA’s approach under the Roadmap considers the lifecycle of PFAS, focusing not only on remediating PFAS-contaminated sites and regulating PFAS discharges or emissions, but also regulating PFAS at the upstream level where they are produced and incorporated into products. Other areas of focus called out in the Roadmap include (1) an emphasis on enforcement actions at PFAS-contaminated sites and placing responsibilities for limiting exposure on manufacturers, processors, distributors, and similar users; (2) research into PFAS over health effects and remediation technologies; and (3) an environmental justice focus on prioritization of PFAS effects on disadvantaged communities.…
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American Bar Association article on U.S. Climate Litigation Trends – 2021 update
In an article by Casey J. Snyder, Associate at Reed Smith, published by the American Bar Association, we highlighted key U.S. climate litigation trends from 2015-2020. This timeframe showed a general increase in overall climate litigation and an emphasis in state courts to advance novel climate litigation theories, among other trends. New litigation in the…
Signs of the times: Environmental related ESG offerings
A number of signs point to the fact that public companies should expect increased scrutiny on whether their environmental-related ESG offerings, practices and controls are consistent with their disclosures, claims and marketing material.
SIGN #1: The Securities and Exchange Commission (SEC or Commission) announced that New Jersey Attorney General Gurbir Grewal will become the next…
Electrifying transportation network companies in CA: Updates to SB 1014’s Clean Miles Standard + Incentive Program
As we reported, the California Legislature passed SB 1014 – the Clean Miles Standard and Incentive Program (the “Clean Miles Program”) – to reduce greenhouse gas emissions from “rideshare” vehicles. This led to the creation of the Clean Miles Standard regulation, which the California Air Resources Board (“CARB”) fully adopted in May 2021 after receiving stakeholder input. In sum, the Clean Miles Program directed CARB and the California Public Utilities Commission (“CPUC”) to develop and implement new requirements for transportation network companies (“TNCs”) like Uber and Lyft. In this blog post, we discuss the goals and three core requirements of the Clean Miles Program, the new regulations CARB just adopted in furtherance of those core requirements, and other obligations that lie ahead for TNCs.
The Clean Miles Program sets more stringent emissions standards for TNCs over time and encourages TNC drivers to shift to electric vehicles. The Clean Miles Program has three core requirements:
- In 2020, CARB established a greenhouse gas (“GHG”) emissions baseline for vehicles used in TNCs on a per-passenger-mile basis using 2018 as the base year;
- In 2021, CARB and CPUC adopted and implemented, respectively, targets and goals (beginning in 2023) for TNCs to reduce GHG emissions per passenger-mile driven; and
- By January 1, 2022, and every two years thereafter, each TNC shall develop a GHG emissions reduction plan.
CARB satisfied the first requirement and determined the baseline emission rate (301 grams of carbon dioxide (“CO2“) for each mile traveled.
In furtherance of the second and third requirements—CARB adopted (in May 2021) a “Clean Miles Standard” regulation that imposes new requirements that require TNCs to provide information including, but not limited to: (i) total miles that TNC drivers complete; (ii) share of miles completed by qualified “zero-emissions” (e.g., zero-emission vehicle); (iii) miles-weighted average of network-wide CO2 to produce an estimate of the GHG emissions; and (iv) total passenger-miles completed using an average passengers-per-trip estimate to account for trips where exact passenger headcount was not captured. The new regulation also requires TNCs to submit annual reports and a compliance plan every two years starting in January 2022.…
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