Last week, among many actions taken by the Biden-Harris Administration on Earth Day 2021, one may have flown under the proverbial radar, though it does have significant legal implications for greenhouse gas regulation and the whole-of-government(s) approach:  the U.S. Department of Transportation’s (DOT) National Highway Traffic Safety Administration (NHTSA) notice proposing to repeal the preemption portions of NHTSA’s 2019 rule entitled “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program,” 84 Fed. Reg. 51,310 (Sept. 27, 2019) (SAFE I Rule).  NHTSA, “Corporate Average Fuel Economy (CAFE) Preemption; Notice of Proposed Rulemaking (signed Apr. 24, 2021) (Proposed Rule).

Continue Reading Administration Takes Step 1 For California to Blaze the Greenhouse Gas Vehicle Standard Trail

On Earth Day, as expected, the Biden-Harris Administration continued its efforts to fulfill campaign commitments on climate change.  The big announcement came on what is called the “Nationally Determined Contribution” or NDC.  The Administration announced that the United States will aim to cut its greenhouse gas emissions from 2005 levels by 50% by 2030.  This reflects an increased commitment from the United States’ prior commitment of cutting emissions by 25% from 2005 levels by 2025.

Continue Reading Biden-Harris Administration Makes the Most of Earth Day on Climate Issues

On Monday, the State of California launched a new group out of Governor Newsom’s office – the Climate-Related Risk Disclosure Advisory Group just as CERES (Coalition for Environmentally Responsible Economies), a non-profit organization that has been a significant voice over the past decade on climate and sustainability economic issues, issued a report entitled, Turning Up the Heat, The need for urgent action by U.S. financial regulators in addressing climate risk.

Continue Reading Actions on Climate Change Disclosure in California and New Report Indicate Spring May Be In Like a Lion and Out Like One Too!

Environmental, social and corporate governance (ESG) – like climate change and environmental justice – has been a hot topic of discussion in the early days of the Biden administration. Illustrating the interconnectedness of the trending issues, climate change and environmental justice are pillars of ESG.

Continue Reading Environmental, Social and Corporate Governance: What are the Risks, Really?

A January 12, 2021 US Department of Justice (DOJ) memorandum extends and provides additional legal analysis to support the government’s increasing drumbeat against settling cases and reducing environmental penalties in recognition of Supplemental Environmental Projects or “SEPs.”  The new memo addresses the limited circumstances under which attorneys in DOJ’s Environment and Natural Resources Division (ENRD), the division of DOJ that represents EPA and other federal agencies in enforcing environmental laws, may include certain mitigation requirements in settlement agreements.  Issued last week by ENRD Assistant Attorney General Jeffrey Bossert Clark on the same day that he announced his departure from the Department, the memo bolsters the previously provided rationale for ENRD’s policy prohibiting SEPs in settlement agreements.  It also distinguishes SEPs from “equitable mitigation,” which the memo defines more narrowly and considers to be both permissible and appropriate.  The memo also lists criteria to guide ENRD attorneys evaluating whether equitable mitigation measures are appropriate in a given civil enforcement case.
Continue Reading New Memo Doubles Down and Bolsters Justice Department Positions on Limiting Supplemental Environmental Projects

In challenges to California development projects, the “usual suspects” typically include environmental NGOs or neighborhood organizations.  However, that’s not always the case, as illustrated by a new lawsuit filed by the South Coast Air Quality Management District (“SCAQMD”) against the Port of Los Angeles.
Continue Reading With ZEVs and Air Toxics in Mind, CARB Seeks to Inject Itself into SCAQMD’s Lawsuit Against Port of LA

On October 27, 2020, in a succinct order, the United States Court of Appeals for the District of Columbia Circuit (“the Court” or “D.C. Circuit”) denied motions for stay and for summary vacatur filed by several environmental advocacy groups, including the Environmental Defense Fund and Sierra Club, as well as states and local governments, with leadership from the States of New York and California in litigation challenging EPA’s Oil and Natural Gas Sector:  Emission Standards for New, Reconstructed, and Modified Sources Review, 85 Fed. Reg. 57,018 (Sept. 14, 2020) (“Methane Repeal Rule,” or the “Rule”).  Order at 1, California, et al. v. Andrew Wheeler, et al., No. 20-1357 (D.C. Cir. Oct. 27, 2020).  In addition to an opposition filed by EPA, regulated industry trade groups, including the American Petroleum Institute (“API”), weighed in with the Court on EPA’s behalf to oppose the stay.

Continue Reading U.S. Court of Appeals Refuses to Put EPA’s Rescission of Obama-Era Methane Regulations on Hold and Sets Expedited Briefing Schedule

On October 14, 2020, the California Air Resources Board (ARB) issued an enforcement alert entitled “Self-Disclosure of Non-Compliance Software and Other Violations by December 31, 2020.” The alert states that ARB will provide up to a 75% reduction in penalties for timely self-disclosed violations where the company “expeditiously” settles the matter.

Continue Reading California Air Resources Board Offering Lower Penalties for Self-Disclosure of Mobile Source Software and Other Violations by End of 2020

Company Boards of Directors and senior executives of oil and gas companies should take notice of a May 14, 2020, guidance document issued by the Chemical Safety Board (CSB) entitled, “CSB Best Practice Guidance for Corporate Boards of Directors and Executives in the Offshore Oil and Gas Industry for Major Accident Prevention.,”  And don’t be deceived by its title reference to offshore activities.  Companies also need to pay mind to the guidance for onshore operations.  Why?  If there is an accident, government agencies will likely argue that the principles articulated apply equally as well on dry land. 
Continue Reading Chemical Safety Board’s New “Best Practice Guidance for Corporate Boards of Directors and Executives in the Offshore Oil and Gas Industry for Major Accident Prevention” – Onshore Operators Take Notice!

On March 11, the U.S. Environmental Protection Agency completed an important rulemaking under Title VI of the Clean Air Act Amendments of 1990, revising its requirements applicable to the management of refrigerants in appliances and industrial process refrigeration. The rulemaking corrects what the EPA states was an incorrect Obama-era interpretation of the Clean Air Act, that would have allowed the agency to issue sweeping and costly regulations for refrigerants that companies had invested in to alleviate the problem of ozone-layer depletion pursuant to the 1987 Montreal Protocol.
Continue Reading EPA Reversal of Refrigerant Requirements Is Good for Companies