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The environmental justice provisions included in the Inflation Reduction Act of 2022 (“IRA”) continue the Biden Administration’s commitment to environmental justice.  The administration has already demonstrated a consistent desire to build environmental justice into its programs through programs such as the Justice40 Initiative.  This initiative directs 40% of the climate change, sustainability, and other

The Federal Energy Regulatory Commission (FERC) has opened the door for fuel cell systems with integrated hydrocarbon reformation equipment to be certified as Qualifying Facility cogenerators under the Public Utility Regulatory Policies Act of 1978 (PURPA).  The agency adopted a final rule that amends the definition of the useful thermal output of a QF cogenerator so that such fuel cell systems may qualify.
Continue Reading FERC Rule: Some Fuel Cell Facilities May Qualify as QFs

The UK Government recently announced that it is developing legislation that would make it illegal for large businesses operating in the UK to use certain commodities that have not been produced in line with local laws, and require in-scope companies to conduct due diligence to ensure that their supply chains are free from illegal deforestation and ecosystem change. A failure to comply could result in significant fines (the precise levels of fines are yet to be determined).
Continue Reading UK: new “world-leading” deforestation and ecosystem supply chain law

The California Air Resources Board unanimously adopted the Advanced Clean Trucks rule, which is designed to accelerate the adoption of zero-emission medium and heavy duty vehicles (“ZEV”).  By 2045, 100% of new trucks sold in the state will be ZEVs, consistent with the state’s broader goal of becoming carbon neutral by that year.
Continue Reading CARB Adopts Advanced Clean Trucks Rule to Speed Zero Emission Vehicle Deployment

Project development agreements with states and state-owned enterprises (SOEs) are often governed by the law of the host country (sometimes with freezing, stabilization, or other limiting clauses), while also being subject to arbitration seated in a neutral venue.  The assumption is that the courts of the neutral venue will have exclusive jurisdiction to supervise the arbitration and confirm, or set aside, any arbitral award.

A decision issued last week by the U.S. Court of Appeals for the D.C. Circuit in P&ID v. Nigeria puts that assumption in doubt by suggesting that an award can also be set aside by the courts of the state whose substantive law applies to the merits of the dispute.  Together with recent judgments in other jurisdictions, the decision underscores the importance for investors of:  (i) resisting selection of the host state’s substantive law where possible; and (ii) particularly where that is not possible, including express language confirming the parties’ agreement that, notwithstanding the choice of the host state’s law to govern interpretation of the contract, the arbitration process will be governed by the law of the arbitral seat.
Continue Reading D.C. Circuit Decision Underscores Need for Careful Drafting of Choice of Law Clauses in Host Country Agreements

Landowners seeking restoration damages in state courts, at sites where there is a cleanup remedy previously selected by EPA, may pursue such claims only if they first obtain EPA approval for the proposed restoration work.  Atlantic Richfield Co. v. Christian (No. 17–1498, April 20, 2020).
Continue Reading EPA Is The CERCLA Gatekeeper: Plaintiffs Need EPA Approval To Seek State Court Damages For Restoration

On May 21, in an open virtual meeting the SEC’s 23-member Investor Advisory Committee debated and endorsed the Investor as Owner Subcommittee’s long-awaited recommendations that the Commission begin in earnest an effort to update the reporting requirements of Issuers to include material, decision-useful, environmental, social and governance (ESG) factors.  That same day, BlackRock shareholders debated in a virtual annual meeting whether the world’s largest asset manager is living up to CEO Larry Fink’s much ballyhooed commitment to sustainability as BlackRock’s new standard of investing and investment stewardship (as previously detailed in this blogpost).  While the path forward on possible new principles-based SEC disclosure rules around ESG factors may be long and uncertain, the Subcommittee’s recommendations offer useful considerations for companies in preparing currently required SEC filings and voluntary sustainability reports.
Continue Reading Will the SEC Offer Hope for Clear, Uniform Sustainability Disclosure Standards?

As described in an earlier post to this blog, the Commerce Department initiated an investigation under Section 232 of the Trade Expansion Act of 1962 into whether “laminations for stacked cores for incorporation into transformers, stacked and wound cores for incorporation into transformers, electrical transformers, and transformer regulators are being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security.”
Continue Reading National Security Tariff Investigation of Steel-Based Components of Electrical Transformers: Comment Dates Set

EPA on May 19 released a proposed rule that would put in place a set of regulations governing EPA’s issuance, modification, and withdrawal of guidance documents.  This proposal implements portions of Executive Order 13891, and builds on EPA’s previous efforts to create a comprehensive portal of guidance documents earlier this year.  Generally speaking, the stated purpose of the rule is to allow for increased transparency and public involvement in EPA’s guidance-formulation process, but the proposal also contains several key limitations.
Continue Reading Six Highlights of EPA’s Proposal to Expand Reform of Guidance Documents

The Commerce Department on May 4, 2020, announced a new investigation under Section 232 of the Trade Expansion Act of 1962, examining whether “laminations for stacked cores for incorporation into transformers, stacked and wound cores for incorporation into transformers, electrical transformers, and transformer regulators are being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security.”
Continue Reading National Security Tariff Investigation Targets Steel-Based Components of Electrical Transformers