On May 24, 2021, the U.S. Supreme Court vacated and remanded First, Ninth, and Tenth Circuit rulings that sent climate change litigation to state courts (Order List: 593 U.S. – May 24, 2021). The Supreme Court’s orders come fresh off its May 17, 2021, decision in Mayor and City Council of Baltimore v. BP P.L.C., et al., in which the Supreme Court addressed appellate court review of a district court’s remand orders.
On May 25, 2021, the U.S. Supreme Court issued a unanimous opinion in a case addressing whether a settlement agreement resolving Clean Water Act (CWA) liability can ripen a cause of action for contribution action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). For companies crafting settlement language related to environmental contamination or preparing to file contribution claims, Guam v. United States provides an important consideration regarding what potential liabilities to include or leave out.
Earlier in May, the Texas Legislature passed a bill (SB 13) that would prevent Texas from investing in environmental, social, and governance (ESG) financial products that boycott Texas energy companies. If signed into law by Republican Gov. Greg Abbott, SB 13 would require Texas’ public pension funds to “sell, redeem, divest, or withdraw all publicly traded securities of [any] financial company …” that “boycott[s] energy companies.” (more…)
On May 20, 2021, U.S. President Joe Biden issued an executive order (EO) on “Climate-Related Financial Risk,” which established a comprehensive policy to advance disclosure and mitigation of climate-related financial risk in an effort to achieve the U.S. goal of net zero emissions by 2050.
On May 19, 2021, the U.S. Federal Energy Regulatory Commission (FERC) issued an order dismissing rehearing requests (Dismissal Order) of its February 18, 2021, Order Establishing Briefing in Algonquin Gas Transmission, LLC (Docket No. CP16-9-012) (Briefing Order). The Briefing Order had found that concerns raised regarding the operation of a compressor station that FERC had authorized to place into service on September 24, 2020, warranted further consideration. FERC set the matter for a paper hearing, with deadlines established for initial and reply briefs. The Briefing Order drew fierce criticism in dissents by Commissioners Mark Christie and James Danly on grounds that FERC was acting outside of its statutory authority and resulted in over 100 comments and briefs filed by a diverse group of pipeline industry members and advocates, environmental nongovernmental organizations and consumer groups, and former FERC commissioners as well as requests for rehearing by the affected pipeline and four individual trade associations representing pipeline operators, investors, and shippers.
On May 13, the White House Environmental Justice Advisory Council (WHEJAC or the Council) voted and agreed on recommendations to advance the Biden administration’s environmental justice (EJ) agenda. Housed within the U.S. Environmental Protection Agency (EPA), the WHEJAC was established by Executive Order (EO) 14008 to recommend to the White House Environmental Justice Interagency Council how to address current and historic EJ issues.
WHEJAC adopted recommendations of the three working groups: the Justice40 Initiative (Justice40), EO 12898, and Climate and Economic Justice Screening Tool.
On May 14, 2021, the U.S. Environmental Protection Agency (EPA) rescinded a rule issued during the Trump administration that changed how EPA calculated and presented the costs and benefits of rules under the Clean Air Act (CAA). Advanced on the ground of providing greater transparency, the rule had required EPA to determine the benefits that a new regulation provided directly, while separately valuing the “co-benefits” that would accrue by reducing other pollutants not covered by the new regulation. Industry had argued that EPA regulations should be based solely on the value of reducing the emissions it was authorized to regulate — while opponents argued the rule would ignore obvious benefits and justify weakening regulation.
On May 10, 2021, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register requesting comments on a new request for information to the commercial sterilization and fumigation sector about the use of ethylene oxide (EO). The request, which was initially distributed to nine EO commercial sterilization facilities, is part of EPA’s technology review of the National Emissions Standards for Hazardous Pollutants (NESHAP). EPA explained that “[w]hile [initial] data gathering efforts have been successful, there are still several important information gaps that should be filled prior to any final rulemaking activity.” (more…)
On April 29, 2021, the U.S. Environmental Protection Agency (EPA) announced that it plans to add certain chemicals to companies’ annual release reporting requirements. The Emergency Planning and Community Right to Know Act (EPCRA) established the Toxics Release Inventory (TRI) to track releases of certain chemicals that EPA deemed a threat to human health and the environment. EPCRA requires certain facilities to issue annual reports showing their releases of chemicals so that such releases can be included on the TRI.
On May 7, 2021, U.S. Environmental Protection Agency (EPA) Administrator Michael Regan wrote the mayor of Chicago, suggesting that the city suspend a decision on a permit seeking to expand a metal recycling plant in Chicago’s southeast side until a full environmental justice (EJ) analysis is conducted. Administrator Regan’s action is consistent with his comments during the first meeting of the White House Environmental Justice Advisory Council (discussed here), in which Regan outlined EPA’s intention to use Title VI of the Civil Rights Act to advance EJ concerns in connection with facility siting decisions.