Best Practices For Auto Boards During Industry Revolution

The Nikola case stands at the intersection of several emerging risk areas in the automotive industry. For example, as regulators in the U.S. and European Union continue to ratchet up the pressure on climate change goals, and environmental, social and corporate governance, boards need to be extra careful about their companies’ commitments to going carbon neutral and the efficacy of electric vehicles.

That means putting clear plans and metrics in place to ensure appropriate follow-through and effective communications with investors so that they are well-informed about the caveats, risks and limitations.

(more…)

, , ,

U.S. Appeals, Seeks Stay of Injunction of Social Cost of Greenhouse Gas Estimates

On Saturday, February 19, 2022, the United States appealed an injunction prohibiting federal agencies from adopting and relying on the interim Social Cost of Greenhouse Gas estimates established by the Interagency Working Group. (more…)

, , ,

Federal Judge Blocks Biden’s Social Cost of Greenhouse Gas Estimates

On February 11, 2022, Judge James Cain of the U.S. District Court for the Western District of Louisiana granted a motion for a preliminary injunction filed by Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi, South Dakota, Texas, West Virginia, and Wyoming (Plaintiff States) to prohibit federal agencies from adopting and relying on the interim Social Cost of Greenhouse Gas (SC-GHG) estimates established by the Interagency Working Group (IWG). Executive Order 13990 mandated that IWG publish estimates of the monetized damages associated with incremental increases in greenhouse gas emissions. (more…)

, , , ,

VW Cert Petition Raises Clean Air Act Circuit Split

On August 27, 2021, Volkswagen AG and several affiliates (petitioners) filed a petition for a writ of certiorari to the Supreme Court of the United States seeking to overturn a decision of the Ohio Supreme Court that held the Clean Air Act (CAA) did not preempt state antitampering law. Petitioners assert that the Ohio Supreme Court’s decision was wrong because the CAA preempts state laws regulating emission controls. In support of their request to the U.S. Supreme Court, petitioners argue that there is a growing split among lower courts on the issue of CAA preemption, with the U.S. Court of Appeals for the Ninth Circuit (and now the Ohio Supreme Court) holding that the CAA does not preempt state emission control laws and the Alabama Supreme Court and intermediate appellate courts in Tennessee and Minnesota holding that it does. (more…)

, ,

Biden Administration Proposals: Sustainable Fuels, Greenhouse Gas Reductions in the Aviation Industry

U.S. President Joe Biden unveiled an initiative to promote the production and use of sustainable fuel in the aviation industry on Thursday, September 9. This initiative includes a goal to cut emissions in the aviation sector by 20% by 2030 and is part of the Administration’s goal to reach net-zero emissions by 2050. (more…)

, , , , , , , , ,

FERC Climate Change Concerns to Delay Five Pending Natural Gas Pipeline Projects

On May 27, 2021, the Federal Energy Regulatory Commission (FERC) indicated that it would increase the timeline for making a decision on five pending applications for Natural Gas Act (NGA) Section 7 certificates of public convenience and necessity when it issued notices of intent to prepare an environmental impact statement (EIS) to each of the project sponsors. Each of the applications concern pipeline expansion projects that were the subject of environmental assessments (EAs) performed by FERC staff. The notices state that the new EISs will tier off of the existing EAs and will be limited in scope to assisting FERC in its consideration of the subject projects’ contribution to climate change in the FERC decision-making process.

(more…)

, , , , , ,

FERC Makes First Significance Determination on Greenhouse Gas Emissions

On March 22, 2021, the Federal Energy Regulatory Commission (FERC or Commission) for the first time issued an order that assessed whether greenhouse gas emissions related to a natural gas pipeline certificate project would significantly contribute to climate change. FERC purported to perform the assessment pursuant to its obligation under the National Environmental Policy Act (NEPA) to take a “hard look” at a project’s environmental impacts.

(more…)

, , , , , , , , , ,

EU Emissions Compliance Regulation Gaining Traction

Historically, the emissions standards for mobile sources promulgated by the U.S. Environmental Protection Agency (EPA) have been viewed as more ambitious than European Union (EU) standards. The United States’ stringent enforcement of mobile source emission standards may result in significant financial penalties; extensive injunctive relief, such as recalls and high-cost mitigation projects; corporate compliance requirements; and in some cases, criminal indictment.

On the other side of the Atlantic, in the EU, mobile emissions compliance regulations are becoming more robust. In particular, the EU appears to be adopting a stricter approach on emissions through a growing body of case law on the interpretation and application of existing emissions compliance regulations. In a judgment on 17 December 2020, in CLCV and Others, the Court of Justice of the European Union (Court) adopted a potentially broad interpretation on the definition of defeat devices and appeared to limit the scope of exceptions for their use in vehicles sold, registered, or put into service in the EU.1 This judgment is likely to set the benchmark for other proceedings on the admissibility of defeat devices in the EU.

Notably, there are at least six cases pending before the Court on mobile source emissions and the concept of defeat devices for light-duty passenger and commercial vehicles under Regulation (EC) No 715/2007 (Regulation).2

(more…)

, , , , , ,