Late on July 27, Sen. Joe Manchin and Senate Majority Leader Charles Schumer announced an agreement on the Inflation Reduction Act (IRA): a reconciliation package that implements prescription drug pricing reform, invests in Affordable Care Act health care subsidies, imposes a corporate minimum tax and improves tax enforcement, and—most relevant for this post—provides $369 billion to support energy production and reduce greenhouse gas emissions.

Continue Reading Overview of the Inflation Reduction Act

On July 14, 2022, the U.S. Department of Commerce (“Commerce”) issued a request for a range of additional factual information in connection with the agency’s ongoing circumvention inquiries into solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam that employ inputs from mainland China.[1]  The deadline to respond is July 21st.

Continue Reading Commerce Requests Factual Information in Solar Circumvention Inquiries on Level of Investment, Non-Financial Barriers, and Research and Development Expenses

The European Parliament and Council are in the last stages of the legislative procedure to adopt a Regulation on Batteries and Waste Batteries (“Sustainable Batteries Regulation”), which the European Commission proposed in December 2020.  Among other many requirements, the proposed Sustainable Batteries Regulation will require manufacturers to ensure that the portable batteries contained in their electronic devices are removable and replaceable.  These requirements will apply to a large variety of electronic devices, including household appliances, IT, telecommunications equipment, and medical devices.  They are part of a broader sustainable products package that includes other legislative proposals, such as the Commission proposal for a Regulation on Ecodesign Requirements for Sustainable Products and an upcoming legislative initiative on the right to repair, and will require manufacturers to redesign the electronic devices that they market in the European Union and European Economic Area (“EU/EEA”).

Continue Reading Upcoming EU Removability and Replaceability Requirements on Portable Batteries

On July 1, 2022, the U.S. Department of Commerce (“Commerce”) issued proposed rules implementing President Biden’s emergency declaration to provide temporary tariff relief on certain imports of solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam.[1] Commerce has provided the public with a 30-day period to comment on the proposed rules.

If enacted in their current form, the proposed rules would provide meaningful relief and increased tariff certainty to U.S. importers of solar cells and modules from these four Southeast Asian countries.  Specifically, under the proposed rules, Commerce will not impose tariffs during the emergency period established by President Biden on imports of solar cells and modules from those countries even if the products are found to be circumventing an existing antidumping (“AD”) or countervailing duty (“CVD”) order.  The proposed rules do not affect tariffs on imports that are already within the scope of existing AD/CVD orders on solar cells and modules from mainland China or Taiwan, including in-scope modules that incorporate cells from mainland China or Taiwan but are assembled in a different country.

While the proposed rules would represent a positive development for foreign manufacturers, U.S. importers, and U.S. consumers, including the U.S. solar project development industry, if promulgated in their current form, changes to the rules are possible.  It is therefore important for parties with a stake in Commerce’s pending circumvention inquiries to file comments by the August 1, 2022 deadline. 

Continue Reading Commerce Invites Comments on Proposed Rules Implementing Presidential Emergency Declaration on Solar Tariffs 

The Environmental Protection Agency has issued three requests for information regarding recycling issues, a first step towards distributing funds and carrying out mandates contained in the last year’s Infrastructure Investment and Jobs Act, commonly known as the Bipartisan Infrastructure Law. The programs for which EPA is requesting information are primarily directed toward improving recycling of consumer waste:

The Environmental Protection Agency has issued three requests for information regarding recycling issues, a first step towards distributing funds and carrying out mandates contained in the last year’s Infrastructure Investment and Jobs Act, commonly known as the Bipartisan Infrastructure Law. The programs for which EPA is requesting information are primarily directed toward improving recycling of consumer waste:

Program TopicFundingInformation requested
(1) Develop best practices for collecting batteries for recycling in ways that are (i) technically and economically feasible for states and municipalities, (ii)environmentally sound and safe for waste management workers, and (iii) optimize the value and use of material derived from recycling of batteries. IIJA Sec. 70401(b).      





(2) Establish a program to promote battery recycling through the development of voluntary labeling guidelines for batteries and other forms of communication materials for battery producers and consumers about the reuse and recycling of critical materials from batteries. IIJA Sec. 70401(c).  
$10 million to EPA to develop battery collection best practices                          




$15 million to EPA to develop voluntary labeling program

EPA has identified key information categories on which stakeholder insights would be most helpful:
– Scope and prioritization of the battery collection best practices;
– Understanding the battery collection and recycling system;
– Information on labeling guidelines for batteries regarding reuse and recycling; and
– Information on battery reuse and recycling communication materials directed towards battery producers and consumers.    

Within each category, EPA lists a broad range of specific questions about the current recycling practices, including, for example:
– What battery types/chemistries are collected?        
– When do original equipment manufacturers take back or retain ownership of batteries at end-of-life?
– What should be the goals of developing voluntary labeling guidelines for batteries?  
EPA’s Solid Waste Infrastructure for Recycling (SWIFR) program, which supports post-consumer materials management and recycling efforts. See IIJA Division J.$275 million in grants to qualifying entities in increments of $55 million per year from fiscal years 2022-2026EPA is seeking comment on how to distribute funds under SWIFR and on current waste management systems more broadly. In particular, EPA seeks input, on the challenges facing communities with regard to post-consumer materials management, eligible uses for SWIFR funds, specific recommendations to improve post-consumer materials management.
(1) Establish grant program to fund improvements in residential and community recycling programs, including those that tackle waste prevention, through public education and outreach. IIJA Sec. 70402(b).

(2) EPA must also develop a Model Recycling Program Toolkit, intended for state, local, and tribal governments to use in carrying out their recycling programs. IIJA Sec. 70402(b)(7).
$15 million per year for five years    EPA requests comment on specific topics, including: Standardized Terminology; Residential Recycling; Consumer Education Materials; Measuring Effective Communication; and Current Stakeholder Education and Outreach Programs.

The current recycling rate in the United States—about 32 percent—is well below what it could be.  EPA has set a target of 50% by the end of the decade, and last year published the agency’s first ever national recycling strategy.  These requests for information focus on some of the most commonly cited reasons for the low rate, including consumer attitudes toward recycling and poor infrastructure in many parts of the country.

The RFIs should be of interest to a broad set of stakeholders.  EPA’s desire to better understand battery recycling practices is of particular note, given the prevalence of batteries in modern consumer products, and the importance of energy storage solutions to the Biden Administration’s climate goals.  The guidelines developed by EPA could ultimately become the basis for either federal or state mandatory requirements.  Manufacturer take-back programs are also specifically mentioned, suggesting that EPA may eventually consider extended producer responsibility for these products, a trend that is prevalent in a number of states. Written comments and information responding to these requests must be received on or before July 25, 2022.  EPA’s Office of Resource Conservation and Recovery (ORCR) will be hosting virtual meetings across the country this year.

On 30 May 2022, the European Union (“EU”) adopted the revised Regulation on guidelines for trans-European energy infrastructure (No. 2022/869) (the “TEN-E Regulation 2022”), which replaces the previous rules laid down in Regulation No. 347/2013 (the “TEN-E Regulation 2013”) that aimed to improve security of supply, market integration, competition and sustainability in the energy sector. The TEN-E Regulation 2022 seeks to better support the modernisation of Europe’s cross-border energy infrastructures and the EU Green Deal objectives.

The three most important things you need to know about the TEN-E Regulation 2022:

  • Projects may qualify as Projects of Common Interest (“PCI”) and be selected on an EU list if (i) they fall within the identified priority corridors and (ii) help achieve EU’s overall energy and climate policy objectives in terms of security of supply and decarbonisation. The TEN-E Regulation 2022 updates its priority corridors to address the EU Green Deal objectives, while extending their scope to include projects connecting the EU with third countries, namely Projects of Mutual Interest (“PMI”).
  • PCIs and PMIs on the EU list must be given priority status to ensure rapid administrative and judicial treatment.
  • PCIs and PMIs will be eligible for EU financial assistance. Member States will also be able to grant financial support subject to State aid rules.
Continue Reading The European Union Adopted New Rules for the Trans-European Networks for Energy

Presidential Action Triggered by Crisis in the U.S. Solar Industry

In recent months, the U.S. solar industry has been in the midst of an existential crisis, triggered by the threatened imposition of retroactive and future tariffs on a significant portion of U.S. imports. That crisis began on April 1, 2022, when the Department of Commerce (“Commerce”) initiated an inquiry to determine whether solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam are circumventing antidumping (“AD”) and countervailing duty (“CVD”) orders on solar cells from China. Solar cells from these countries generally accounted for approximately 80% of U.S. solar module imports in 2020.[1] If Commerce finds circumvention, solar cells and modules from the four target countries could not only be subject to combined AD/CVD tariffs approaching 250%, but Commerce’s regulations also allow for the agency to apply these tariffs retroactively to merchandise entering on or after April 1, 2022 (and potentially as far back as November 4, 2021). This threat of AD/CVD tariffs triggered a steep decrease in imports of solar cells and modules from Southeast Asia, and caused parts of the U.S. solar industry to come to a stand-still, furthering domestic reliance on coal.[2] Given this paralysis in the solar industry, lawmakers and others urged the President to provide relief from potential AD/CVD tariffs.[3]

Continue Reading President Acts to Prevent Import Tariffs on Solar Cells and Modules from Southeast Asia

Like many governments around the world, UK politics currently appear somewhat unstable. And the UK’s problems are a reflection of the world, where established views and beliefs are suddenly no longer the unassailable certainties they have seemed to be for decades.

Davos met this week for the first time in two years against this very unsettled backdrop.  A few thoughts and reflections on discussions there follow…

Continue Reading A Few Thoughts from Davos…

            On May 24, 2022, the National Academies of Sciences released a report, sponsored by EPA, CDC, and others, on indoor chemistry and air quality issues.  The report stresses the importance of these issues given that “people spend, on average, more than 80 percent of their time” in indoor environments, “often in close proximity to sources and processes that emit chemicals” and biological pollutants.  A main theme of the report is that there remain many outstanding questions in this area, and that “the management of indoor chemistry is at a nascent stage,” but rapidly evolving.

            Several aspects of the report are likely to be of particular interest to companies that market products for indoor use, particularly air cleaning and air sensor products.

Continue Reading National Academies of Sciences Report Highlights Indoor Air Quality Issues and Regulatory Considerations

On April 20, 2022, the cybersecurity authorities of the United States, Australia, Canada, New Zealand, and the United Kingdom—the so-called “Five Eye” governments—announced the publication of Alert AA22-110A, a Joint Cybersecurity Advisory (the “Advisory”) warning critical infrastructure organizations throughout the world that the Russian invasion of Ukraine could expose them “to increased malicious cyber activity from Russian state-sponsored cyber actors or Russian-aligned cybercrime groups.”  The Advisory is intended to update a January 2022 Joint Cybersecurity Advisory, which provided an overview of Russian state-sponsored cyber operations and tactics, techniques, and procedures (“TTPs”).

In its announcement, the authorities urged critical infrastructure network defenders in particular “to prepare for and mitigate potential cyber threats by hardening their cyber defenses” as recommended in the Advisory.

Continue Reading International Cybersecurity Authorities Issue Joint Advisory on Russian Cyber Threats to Critical Infrastructure