On June 30, 2020, Democratic members of the House Select Committee on the Climate Crisis unveiled a 538-page report that calls for reaching net-zero greenhouse gas (GHG) emissions economy-wide by 2050. The report, titled “Solving the Climate Crisis: The Congressional Action Plan for a Clean Energy Economy and a Healthy and Just America,” includes over a hundred policy recommendations to meet the 2050 goal.

Continue Reading House Democrats Release Climate Action Plan

Following months of development and building on a host of previous renewable and alternative energy portfolio programs intended to incrementally decarbonize the electric sector, Massachusetts is poised to codify a Clean Energy Peak Standard (CPS) in the summer of 2020. In contrast to the existing Massachusetts programs, which have incentivized renewable and alternative energy sources simply to “show-up,” the CPS takes aim at incentivizing new and existing generation resources to “show-up at the right time” in order to further reduce greenhouse gas (“GHG”) emissions. Electricity generators and commercial, industrial and residential energy consumers alike should understand this new incentive program.
Continue Reading Massachusetts Races to Decarbonize the Peak

Facing growing criticism that they impede sustainable development goals, investment protections afforded by traditional international investment agreements (IIAs) are steadily eroding. Increasingly, the trend is toward provisions allowing host states greater flexibility to regulate environmental, transparency, human rights and other social impacts. At the same time, enhanced corporate social responsibility (CSR) obligations have become more common in recent IIAs.

Continue Reading Eroding Investor Protections: Managing CSR and Political Risk in the Sustainable Brave New World

Joining a growing chorus of states, several Northeastern states, including Massachusetts, Maine and Rhode Island, have recently announced their intentions to impose a ban on the use of hydrofluorocarbons (HFCs). The looming regulatory actions by these states are generally anticipated to follow an HFC ban rulemaking model established by the members of the US Climate Alliance.[1] It remains to be seen, however, whether the states will look to additional regulatory options, as it was a worldwide product ban in the late 1980s that inadvertently set the stage to now limit alternatives containing HFCs due to their climate forcing potential as a greenhouse gas (GHG).
Continue Reading Ozone’s Cure is Climate’s Scourge—Northeast States to Ban Use of Hydrofluorocarbons

All three branches of the federal government are currently considering the question of whether the Migratory Bird Treaty Act (MBTA) prohibits the take of protected birds that is incidental to some otherwise lawful activity. The latest development is a proposal by US Fish and Wildlife Service (USFWS or Service) to issue a regulation expressly defining the scope of the MBTA to exclude take “that results from, but is not the purpose of, an action (i.e., incidental taking or killing).” 85 Fed. Reg. 5915 (Feb. 3, 2020). This proposal is the latest effort by the USFWS to bring clarity and certainty to a question that has been the subject of dispute for years and is currently both the subject of pending lawsuits and proposed legislation before Congress. If adopted, the rule should bolster the current administration’s effort to defend its interpretation of the statute, but the question is likely to be litigated further, assuming Congress does not intervene (seemingly unlikely for now). Continue Reading USFWS Makes Another Move to Exclude Incidental Take from the Migratory Bird Treaty Act

Grocery shopping, you stand in the dairy section. The milk in front is dated three days out, but you see the milk toward the back is dated ten days out. You push aside the “three-day” milk and grab a half-gallon of the organic, one-percent “ten-day” milk. You may have just contributed to “food waste.” If food waste were a country, it would be the third largest source of greenhouse gas (GHG) emissions, behind only China and the United States.

While food waste has been an issue for some time (the statistic above has been circulating since at least 2011), the last 18 months have seen the United States government taking a more active role in the subject. In October 2018, the United States Environmental Protection Agency (EPA), United States Food and Drug Administration (FDA) and the United States Department of Agriculture (USDA), (collectively, the Agencies) signed a formal agreement increasing their collaboration and coordination regarding the reduction of food waste as part of a newly announced Winning on Reducing Food Waste initiative (Federal Agreement). Continue Reading Momentum Gaining in Federal Efforts to Address Food Waste?

While coming from opposite ends of the political spectrum, the administrations of US President Donald Trump and Mexico’s recently elected chief executive, Andrés Manuel López Obrador (commonly referred to as “AMLO”), have each heralded significant policy shifts with potential to affect bilateral relations as well as international energy markets. Continue Reading US-Mexico Energy & Environmental Policy Transition: Opportunity Amidst Uncertainty?

In September 2018, the US Interior Department issued a final rule rescinding the 2016 Venting and Flaring Rule, which took effect November 2018. The old rule, which never went into effect, would have required oil and gas companies to capture leaked methane gas, repair and prevent leaks, and devise new plans to reduce the flaring and venting of natural gas. Following the effectiveness of the new rule, the applicable policies setting limits on releases of methane gas will mostly be left to individual states. Continue Reading Finding the Win-Win-Win through Commercialization of Flare Gas

As is almost always the case following a change in administration, many EPA policies and interpretations are being reviewed and, depending on your point of view, either appropriately reconsidered or “rolled back.” Front and center in this debate is the practical reality that such reviews take time, including in some cases the time necessary to comply with procedural requirements for notice and comment rulemaking. The extent to which the EPA can take the time it believes is necessary is currently playing out in courts across the country, which are grappling with questions of the degree to which the EPA can postpone regulatory compliance deadlines or delay statutorily required actions while it conducts that review.

Continue Reading Limits on the Timing of Administrative Review/Reconsideration: A Review of Several Recent Cases