On January 12, 2023, the US Environmental Protection Agency (“EPA”) published its proposed National Enforcement and Compliance Initiatives (“NECIs”), soliciting public comment on the Agency’s potential Initiatives for fiscal years 2024 through 2027. These NECIs will guide EPA’s Office of Enforcement and Compliance Assurance (“OECA”) in its enforcement efforts over the next four years by focusing resources on “serious and widespread environmental problems where federal enforcement can make a difference.” Unsurprisingly, the identified NECIs build off EPA’s FY2022 Enforcement Results (on which we recently reported) and reflect OECA’s overarching goal: “to protect human health and the environment by holding polluters accountable and compelling regulated entities to return to compliance.”
EPA’s FY2022 Enforcement Results: Key Focus on Environmental Justice and Climate Change
The US Environmental Protection Agency (“EPA”) announced its enforcement and compliance results for Fiscal Year 2022 (“FY2022”) in late December. In the Annual Results report prepared by EPA’s Office of Enforcement and Compliance Assurance (“OECA”), OECA highlights EPA’s efforts to target the most serious violations of the country’s core environmental statutes and civil rights laws—effectuating the mission and principles set forth in its FY2022 to 2026 EPA Strategic Plan. According to OECA, EPA’s enforcement and compliance program used “a range of tools and best practices” to specifically target water, air, land and chemical violations that impacted communities the most. In so doing, EPA reportedly reduced, treated or eliminated approximately 95 million pounds of pollutants and compelled violators to pay over $300 million in fines, restitution or penalties. The enforcement and compliance trends highlighted below continue an overall decline seen in the last decade, yet provide evidence that EPA is succeeding in its enforcement and compliance efforts in areas that are the biggest priority for the Biden administration.
The Results of COP26
After over two weeks of conferencing, the 26th Conference of the Parties to the United Nations Framework on Climate Change (COP26) concluded with the finalization of the Glasgow Climate Pact (the “Glasgow Pact”) listing the accomplishments of the summit. The Glasgow Pact reaffirms the long-term global goals (including those in the Paris Agreement) to hold the increase in the global average temperature to “well below 2°C” above pre-industrial levels and to pursue efforts to limit temperature increase to 1.5°C above pre-industrial levels. It also states that limiting global warming to 1.5°C requires “rapid, deep, and sustained reductions in global greenhouse gas (GHG) emissions, including reducing global carbon dioxide emissions by 45 per cent by 2030 relative to the 2010 level and to net zero around mid-century, as well as deep reductions in other greenhouse gases.”
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Global Carbon Markets: What’s Next?
Carbon markets are tools that aim to cost-effectively reduce the emission of carbon dioxide (CO2) and other greenhouse gases (GHG). The Paris Agreement sets a goal to keep the global average temperature from rising by 1.5°C (2.7°F) above preindustrial levels and, failing that, prevent it from rising 2°C (3.6°F). Carbon markets are viewed as the primary market-based vehicle to drive reduction in GHG emissions to meet the ambitious Paris Agreement goal.
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SEC Issues Sample Climate Change Comment Letter
On September 22, 2021, the Division of Corporation Finance (Division) of the Securities and Exchange Commission (SEC) issued a sample comment letter to highlight its increased focus on climate change-related disclosures or the absence of such disclosures in issuer filings under the Securities Act and the Exchange Act. This sample comment letter follows a recent increase in climate-related comments the Division has issued during the disclosure review process, and many of the sample comments appear to be derived from actual comment letters issued in 2021. The sample is consistent with the SEC’s 2010 Guidance Regarding Disclosure Related to Climate Change, which does not mandate specific, line item climate change-related disclosures, but instead takes a principles-based approach.
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State Lawmakers Confront the Challenge of the Energy Transition
As we have reported previously in this blog, in March 2021, the Massachusetts Governor signed historic climate legislation designed to effectuate the Commonwealth’s goal of net-zero emissions by 2050 (Chapter 8 of the Acts of 2021 or the “Act”). Some of the more controversial items in the Act were the provisions to incorporate requirements into the state’s building code to advance construction and/or retrofitting of buildings with energy systems designed to reduce emissions. In general, the efforts to facilitate a transition away from fossil-fuel energy systems in buildings continue to prove difficult as existing programs and policies are not necessarily designed to prompt the shift away from traditional energy systems at the pace that some argue is required to meet the aggressive emission targets of the state goals.
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Waterfront Development Stalled or a Moment for Climate Resiliency?
Waterfront development in Massachusetts has a new problem. In particular, projects that rely on a municipality’s approved municipal harbor plan and a corresponding building height exemption from what the Massachusetts waterfront development law otherwise requires will likely be blocked, at least for now. The impact is not limited to Boston, as municipal harbor plans reach deep into waterfront zoning and development statewide.
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Biden-Harris Administration Makes the Most of Earth Day on Climate Issues
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.
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Third Time’s the Charm? Massachusetts Climate Legislation Finally Set to Become Law
On March 18, 2021, the Massachusetts House joined the Senate in passing a revised, historic climate legislation that appears to finally have enough support from the Governor’s office to be signed into law. As we have highlighted in this blog previously, complete agreement between the Commonwealth’s executive and legislative branches on the Next-Generation Roadmap for Massachusetts Climate Policy S.9 (the “Bill”) has proven elusive. When we last left this topic, the Governor of Massachusetts was faced with a decision to: (1) sign the Bill; (2) veto it for a second time; or (3) return the Bill to the Legislature with recommended amendments. On February 7, 2021, the Governor did the latter, returning the Bill to the Legislature with approximately 50 recommended changes to various sections within the Bill. On March 15, the Senate adopted certain further amendments to the original Bill, which the House then likewise adopted on March 18th, and again laid the Bill before the Governor. This leaves the Governor another ten days to either sign the Bill or veto it for the third time and face the possibility of a Legislative override.
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Pulling on the same oar? Federal, State, and Local Measures Need Alignment to Achieve Climate Goals
The Commonwealth of Massachusetts is poised to outline its planned steps to achieve the goals of its climate change-focused policies. On December 7, 2020, the Massachusetts Executive Office for Energy and Environmental Affairs (“EOEEA”) hosted a webinar to discuss the development and pending release of the Massachusetts Decarbonization Roadmap to 2050 (the “Roadmap”), which EOEEA indicates it will publish this month. The Roadmap constitutes the plan of the Commonwealth to identify cost-effective and equitable pathways and strategies for Massachusetts to reach Net Zero emissions by 2050, and the priorities to achieve an on-pace interim goal by 2030. In addition to the development of the Roadmap, the Commonwealth is in the process of preparing the 2020 update to the Clean Energy and Climate Plan (“CECP”), which is mandated to receive updates every five years under the Global Warming Solutions Act (“GWSA”).
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