California Air Resources Board Set to Finalize Ambitious Climate Plan

On November 16, 2022, the California Air Resources Board (CARB) released an updated version of its 2022 Scoping Plan for Achieving Carbon Neutrality. The plan sets ambitious goals for achieving carbon neutrality in California by 2045. Despite the plan’s being only a guiding document, it will likely lead to other agency actions that set stringent requirements related to reducing greenhouse gas emissions.

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Upcoming Decision From U.S. Supreme Court Could Further Restrain Authority of Administrative Law Judges

Two cases recently argued before the U.S. Supreme Court address the question of whether federal agencies have authority to mandate proceedings before administrative law judges (ALJs). The plaintiffs in these cases have challenged the constitutionality of ALJ proceedings and, depending on how broadly the resulting opinion is written, the Court’s decision could limit the authority of ALJs across the federal government including within the Environmental Protection Agency (EPA).

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U.S. EPA Proposes to More Than Double Toxic Substances and Control Act Fees

On November 16, 2022, the U.S. Environmental Protection Agency (EPA) proposed to raise its current Toxic Substances and Control Act (TSCA) fees, some of which would be more than doubled. This supplemental notice of proposed rulemaking modifies EPA’s proposal from January 11, 2021, which then aimed to increase the TSCA fees largely for inflation adjustment. TSCA allows EPA to collect fees from manufacturers, including importers, for the agency’s activities under TSCA Sections 4, 5, 6, and 14. Under the TSCA, EPA is required to adjust the fees “as necessary” every three years. In 2018, EPA promulgated a fee rule in 40 CFR part 700, subpart C, and set the current fees pursuant to that rule.

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Extensive Climate Disclosure Requirements Proposed for Federal Contractors

On November 10, 2022, the Federal Acquisition Regulatory Council, composed of the Department of Defense, the General Services Administration, the National Aeronautics and Space Administration, and chaired by the Office of Federal Procurement Policy in the Office of Management and Budget, issued a proposed rule that would require certain federal contractors to disclose climate-related information to the System for Award Management (SAM) and, in certain instances, make such information publicly available on its website. (more…)

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U.S. SEC Deals With the Shadow of West Virginia v. EPA

The U.S. Securities and Exchange Commission (SEC) has missed its self-imposed October deadline for finalizing the proposed rule titled “The Enhancement and Standardization of Climate-Related Disclosures for Investors.” The commission had to reopen the public comments period for this rulemaking in October following a technical glitch that kept a number of public comments from reaching it. Adding to the delay is the significant number of comments that the commission has received relating to the proposal that, if finalized, would require companies to delineate how climate change would put their operations at risk and, perhaps more importantly, would require disclosures regarding Scope 3 emissions — emissions generated by their supply chain and customers when using their products. As proposed, the rule would impose an increased reporting burden starting with data collection as early as January 2023. When asked about this increased burden in a recent Senate hearing, SEC Chair Gary Gensler said that the commission is “trying to balance … out” the need for standardizing the reporting with the burden imposed by it. (more…)

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The Enforcement Angle: INTERPOL’s Pollution Crime Working Group

Many nations, including the United States, have an intricate system of laws, regulations, policies, and programs to respond to environmental and public health concerns. But some countries have lax or nearly non-existent environmental controls and enforcement, leaving them vulnerable to illegal discharges into their waterways, the air, and the ground. (more…)

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Energy Companies Petition U.S. Supreme Court to Review Remand of Climate Change Litigation to State Court

On October 14, 2022, BP, Chevron, ExxonMobil, and other major energy companies petitioned the U.S. Supreme Court to review a decision by the Fourth Circuit Court of Appeals to send a climate change lawsuit back to state court (the Petition). In the underlying lawsuit, the City of Baltimore is seeking climate-change-related infrastructure damages for the defendants’ alleged deception of consumers and the public about climate change. The defendants previously removed the case to federal court, but the District Court for the District of Maryland remanded the case to state court—a decision the Fourth Circuit later upheld. (more…)

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U.S. Department of the Interior Announces First Offshore Wind Lease Sale in the Pacific

On October 18, 2022, the U.S. Department of the Interior (DOI) announced that the Bureau of Ocean Energy Management (BOEM) will auction offshore wind energy leases along the outer continental shelf off the coast of central and northern California (the Announcement). The sale will be the first-ever offshore wind lease sale on the West Coast and the first U.S. sale to support potential commercial-scale floating offshore wind energy development. According to the Announcement, the five lease areas, totaling approximately 373,268 acres, have the potential to produce over 4.5 GW of offshore wind energy and power more than 1.5 million homes. (more…)

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Terence T. Healey

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Kenneth W. Irvin

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Allison H. In

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