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Environmental and Energy Brief
Perspectives for the Environmental and Energy Community
D.C. Circuit Upholds U.S. EPA’s 2021 Interstate Ozone Transport Rule
On March 3, 2023, the D.C. Circuit Court of Appeals rejected an industry challenge to the April 2021 Revised Cross-State Air Pollution Rule (CSAPR) Update Rule from the Environmental Protection Agency (EPA or Agency), which required power plants in 12 “upwind” states to reduce nitrogen oxide (NOx), an ozone precursor, emissions such that those states did not inhibit downwind states’ ability to comply with the 2008 Ozone National Ambient Air Quality Standard (NAAQS).
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Rob Abrams
Brittany A. Bolen
Washington, D.C.
bbolen@sidley.com
James R. Bieke
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
White House Solicits Comments on Recommendations for Increased Public Engagement in Federal Rulemaking
On Tuesday, February 7, 2023, the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget issued a set of recommendations for broadening public engagement in the federal regulatory process and invited public input on the recommendations through March 10, 2023. The recommendations were developed in response to a commitment to support greater public engagement in the rulemaking process included in the Fifth U.S. Open Government National Action Plan released December 2022. OIRA stated that the recommendations were informed by written submissions and a public engagement session held in November 2022. Thus, OIRA’s solicitation for public input on the recommendations provides a unique opportunity for stakeholders to potentially shape future federal regulatory reform actions.
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Rob Abrams
Brittany A. Bolen
Washington, D.C.
bbolen@sidley.com
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Andrew R. Stewart
Washington, D.C.
satewart@sidley.com
The Enforcement Angle: DOJ’s Environment & Natural Resources Division
The United States has an intricate system of laws, regulations, policies, and programs to respond to environmental and public health concerns. Enforcement is vital to that system’s effectiveness. The U.S. Department of Justice’s Environment & Natural Resources Division (ENRD) is tasked with enforcing the United States’ civil and criminal environmental laws, including the Clean Air Act, Clean Water Act, and hazardous waste laws. Their mission also involves the protection of the Nation’s natural resources and handling cases relating to tribal rights and resources.
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Justin A. Savage
Washington, D.C.
jsavage@sidley.com
Nicole E. Noëlliste
Washington, D.C.
nnoelliste@sidley.com
Companies With Environmental-Related Concerns Should Pay Attention to DOJ’s Voluntary Self-Disclosure Policy
On February 22, 2023, the U.S. Department of Justice (DOJ) announced the formalization of its voluntary self-disclosure policy for corporate criminal enforcement (VSD Policy) for all U.S. Attorney’s Offices (USAO). The VSD Policy details the circumstances under which a disclosure will qualify as a voluntary self-disclosure under the policy and, in turn, provides incentives to companies to make eligible self-disclosures. One such incentive — provided that the company makes an eligible self-disclosure, fully cooperates, and timely and appropriately remediates the criminal conduct — is that the USAO will not seek a guilty plea unless there are aggravating factors present. This is the first time DOJ has issued nationwide standards for voluntary self-disclosures for corporate criminal enforcement.
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Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Rose Quam-Wickham
Washington, D.C.
rquamwickham@sidley.com
DOE Announces Over $4B in Energy Transition Project Tax Credit and Grant Programs
The U.S. Department of Energy (DOE), alongside the Internal Revenue Service (IRS) and Department of the Treasury, has announced plans to implement programs funded by the Inflation Reduction Act and the Bipartisan Infrastructure Law: the Low-Income Communities Bonus Credit Program (48(e)), the Qualifying Advanced Energy Project Credit (48C)), and the Advanced Energy Manufacturing and Recycling Grant Program. Together, these programs will make available more than $4 billion in federal tax credits and grants for energy transition projects in an effort to “accelerate domestic clean energy manufacturing and ensure traditionally underserved communities benefit from clean energy technologies.”
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Curtis Hart
Washington, D.C.
chart@sidley.com
Sarah Tucker
Washington, D.C.
stucker@sidley.com
California Agency Releases Roadmap for Phaseout of High-Risk Pesticides
The California Department of Pesticides Regulation (DPR) recently released a “roadmap” for the state to fulfill two key goals by 2050: transition to sustainable pesticide management (SPM) and elimination of the use of “high-risk” pesticides. While the roadmap is aspirational and does not provide specific rules at this time, the roadmap goals were developed by a multiagency workgroup in coordination with various stakeholders. It is expected that proposed rules will be forthcoming from DPR and other state agencies as these agencies move toward achieving the roadmap goals.
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Caleb J. Bowers
Los Angeles
cbowers@sidley.com
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Maureen F. Gorsen
Century City
maureen.gorsen@sidley.com
Andrew R. Stewart
Washington, D.C.
satewart@sidley.com
FERC Approves New Extreme Cold Weather Reliability Standards
On February 16, 2023, the U.S. Federal Energy Regulatory Commission (FERC) approved two new North American Electric Reliability Corporation (NERC) Reliability Standards: EOP-011-3 (Emergency Operations) and EOP-012-01 (Extreme Cold Weather Preparedness and Operations). The new standards stem from FERC and NERC’s joint inquiry into Winter Storm Uri — the February 2021 winter storm event that led to the largest controlled firm load shed event in U.S. history, with over 4.5 million people losing power and at least 210 people losing their lives. The joint inquiry resulted in the issuance of a November 2021 report that included recommendations for NERC reliability standard enhancements to improve extreme cold weather operations, preparedness, and coordination. The November 2021 report found that the bulk power system “cannot operate reliability without adequate generation.”[1]
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Grace Dickson Gerbas
Dallas
gdicksongerbas@sidley.com
Christopher J. Polito
Washington, D.C.
cpolito@sidley.com
Sarah Tucker
Washington, D.C.
stucker@sidley.com
California Senator Reignites Corporate Greenhouse Gas Emissions Disclosure Bill
A new bill introduced in the California legislature tees up corporate disclosure legislation that narrowly failed to pass the State Assembly during last year’s term. The bill would impose broad greenhouse gas (GHG) reporting requirements on large businesses doing business in California and could effectively set a national standard for these businesses to report GHG emissions.
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Caleb J. Bowers
Los Angeles
cbowers@sidley.com
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Heather M. Palmer
Houston
hpalmer@sidley.com
Maureen F. Gorsen
Century City
maureen.gorsen@sidley.com
Sonia Gupta Barros
Washington, D.C.
sbarros@sidley.com
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Samuel B. Boxerman
sboxerman@sidley.com
Keturah A. Brown
keturah.brown@sidley.com
Grace Dickson Gerbas
gdicksongerbas@sidley.com
Terence T. Healey
thealey@sidley.com
Kenneth W. Irvin
kirvin@sidley.com
Christopher J. Polito
cpolito@sidley.com
Casey Khan
ckhan@sidley.com
Michael L. Lisak
mlisak@sidley.com
Brittany A. Bolen
bbolen@sidley.com
Brooklyn Hildebrandt
bhildebrandt@sidley.com
Nicole E. Noëlliste
nnoelliste@sidley.com
Hannah Posen
hposen@sidley.com
Jack Raffetto
jraffetto@sidley.com