Author: National Law Forum

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Twelve Tips for Effective In-Person Networking in the Post-Pandemic World

I recently got on my first flight since the pandemic. I had been avoiding travel and conferences for many reasons, but it’s time to stop hiding at home and behind my computer screen.

Over the next few weeks I am speaking at several lawyer retreats and industry conferences – I’m excited but nervous.

I feel like a fish out of water (I accidentally let my TSA pre-check expire as well as my passport during Covid). It’s also the first time I’m leaving my pandemic puppies (I think it’s more traumatic for me than them).

I’m looking forward to seeing familiar faces and meeting new ones, and getting to know my clients in a setting other than Zoom because human connections are important and powerful.

In-person networking is essential – it is the secret sauce to building long-term and meaningful relationships. Those relationships can lead to opportunities of all kinds.

Even as an extroverted extrovert, I’m a bit rusty on networking.

I have been doing countless presentations to a computer screen since March 2020 and so being able to see and interact with real people is a much welcome change. A return to “normalcy.”

But after years of being an “expert” network, I’m not actually sure what to do when I actually see people again in a profesional group setting.

Do I hug? (I’m Italian, we like to hug) Shake hands? Fist bump? Just smile and nod? So glad we aren’t bathing in hand sanitizer anymore or cloroxing everything with which we come in touch.

Many of us are in the same position after the past few years, and we don’t feel like the same person we used to be. But that’s okay. Let’s collectively give ourselves a break (and some grace). We are all in the same boat – together.

Here are 12 tips for effective in-person networking I plan to use:

Ask people about themselves more then I talk about myself.
Practice active listening.
Say their names a few times when talking to them – it helps me remember them and makes people like you more.
Write notes after each meaningful conversation.
Exit conversations gracefully.
Follow up and connect on LinkedIn with new and renewed contacts.
Put my LinkedIn QR code on my iPhone home screen to facilitate easy networking. Here’s how.
Add new contacts to my CRM.
Immerse myself in the programming. I am not going to check my email every second or do unnecessary work.
Write a key takeaways blog and LinkedIn post from the sessions I enjoyed and tag the speakers.
Create an email OOO message that supports my brand and business (see example from Paula Edgar).
Have an intimate dinner with my clients/colleagues to get to know them better.

Do you have any tips for in-person networking in the post-pandemic environment?

Article By Stefanie M. Marrone of Stefanie Marrone Consulting

For more legal marketing and business of law news, click here to visit the National Law Review.

Proposed Senate Bill Would Deny Deductions for NIL Contributions

On September 28, 2022, U.S. Senators Ben Cardin (D-Md.), a member of the Senate Finance Subcommittee on Taxation and Internal Revenue Service (IRS) Oversight, and John Thune (R-S.D.), ranking member of the Subcommittee on Taxation and IRS Oversight, introduced the Athlete Opportunity and Taxpayer Integrity Act, which seeks to deny charitable deductions for any contribution used by the donee to compensate college athletes for the use of their name, image, or likeness (“NIL”) by reason of their status as athletes.

One entity type that is impacted by the Athlete Opportunity and Taxpayer Integrity Act are “NIL collectives” that have been established as 501(c)(3) organizations. These types of NIL collectives have been used to allow donors to make tax deductible contributions that are then used to fund NIL opportunities for college athletes, for example, by having a college athlete provide services to a separate charity in exchange for payment from the NIL collective. A press release from Senator Cardin noted that “[s]uch activity is inconsistent with the intended purpose of the charitable tax deduction, and it forces taxpayers to subsidize the potential recruitment of – or payment to – college athletes based on their NIL status.”

Notably, the Opportunity and Taxpayer Integrity Act would only apply to charitable deductions. A person engaged in a trade or business would still be able to deduct payments to college athletes for the use of their name, image, or likeness if such payments qualify as ordinary and necessary business expenses.

Although it is not clear at this time whether the Opportunity and Taxpayer Integrity Act will pass, it does indicate increased scrutiny over nonprofit NIL collectives and possibly other NIL arrangements.

Article By Richard T. Hewlett, Shawn A. Strand, and Jessica E. Visser of Varnum LLP

For more election law and legislative news, click here to visit the National Law Review.

Federal Agencies Announce Investments and Resources to Advance National Biotechnology and Biomanufacturing Initiative

As reported in our September 13, 2022, blog item, on September 12, 2022, President Joseph Biden signed an Executive Order (EO) creating a National Biotechnology and Biomanufacturing Initiative “that will ensure we can make in the United States all that we invent in the United States.” The White House hosted a Summit on Biotechnology and Biomanufacturing on September 14, 2022. According to the White House fact sheet on the summit, federal departments and agencies, with funding of more than $2 billion, will take the following actions:

Leverage biotechnology for strengthened supply chains: The Department of Health and Human Services (DHHS) will invest $40 million to expand the role of biomanufacturing for active pharmaceutical ingredients (API), antibiotics, and the key starting materials needed to produce essential medications and respond to pandemics. The Department of Defense (DOD) is launching the Tri-Service Biotechnology for a Resilient Supply Chain program with a more than $270 million investment over five years to turn research into products more quickly and to support the advanced development of biobased materials for defense supply chains, such as fuels, fire-resistant composites, polymers and resins, and protective materials. Through the Sustainable Aviation Fuel Grand Challenge, the Department of Energy (DOE) will work with the Department of Transportation and the U.S. Department of Agriculture (USDA) to leverage the estimated one billion tons of sustainable biomass and waste resources in the United States to provide domestic supply chains for fuels, chemicals, and materials.
Expand domestic biomanufacturing: DOD will invest $1 billion in bioindustrial domestic manufacturing infrastructure over five years to catalyze the establishment of the domestic bioindustrial manufacturing base that is accessible to U.S. innovators. According to the fact sheet, this support will provide incentives for private- and public-sector partners to expand manufacturing capacity for products important to both commercial and defense supply chains, such as critical chemicals.
Foster innovation across the United States: The National Science Foundation (NSF) recently announced a competition to fund Regional Innovation Engines that will support key areas of national interest and economic promise, including biotechnology and biomanufacturing topics such as manufacturing life-saving medicines, reducing waste, and mitigating climate change. In May 2022, USDA announced $32 million for wood innovation and community wood grants, leveraging an additional $93 million in partner funds to develop new wood products and enable effective use of U.S. forest resources. DOE also plans to announce new awards of approximately $178 million to advance innovative research efforts in biotechnology, bioproducts, and biomaterials. In addition, the U.S. Economic Development Administration’s $1 billion Build Back Better Regional Challenge will invest more than $200 million to strengthen America’s bioeconomy by advancing regional biotechnology and biomanufacturing programs.
Bring bioproducts to market: DOE will provide up to $100 million for research and development (R&D) for conversion of biomass to fuels and chemicals, including R&D for improved production and recycling of biobased plastics. DOE will also double efforts, adding an additional $60 million, to de-risk the scale-up of biotechnology and biomanufacturing that will lead to commercialization of biorefineries that produce renewable chemicals and fuels that significantly reduce greenhouse gas emissions from transportation, industry, and agriculture. The new $10 million Bioproduct Pilot Program will support scale-up activities and studies on the benefits of biobased products. Manufacturing USA institutes BioFabUSA and BioMADE (launched by DOD) and the National Institute for Innovation in Manufacturing Biopharmaceuticals (NIIMBL) (launched by the Department of Commerce (DOC)) will expand their industry partnerships to enable commercialization across regenerative medicine, industrial biomanufacturing, and biopharmaceuticals.
Train the next generation of biotechnologists: The National Institutes of Health (NIH) is expanding the Innovation Corps (I-Corps™), a biotech entrepreneurship bootcamp. NIIMBL will continue to offer a summer immersion program, the NIIMBL eXperience, in partnership with the National Society for Black Engineers, which connects underrepresented students with biopharmaceutical companies, and support pathways to careers in biotechnology. In March 2022, USDA announced $68 million through the Agriculture and Food Research Initiative to train the next generation of research and education professionals.
Drive regulatory innovation to increase access to products of biotechnology: The Food and Drug Administration (FDA) is spearheading efforts to support advanced manufacturing through regulatory science, technical guidance, and increased engagement with industry seeking to leverage these emerging technologies. For agricultural biotechnologies, USDA is building new regulatory processes to promote safe innovation in agriculture and alternative foods, allowing USDA to review more diverse products.
Advance measurements and standards for the bioeconomy: DOC plans to invest an additional $14 million next year at the National Institute of Standards and Technology for biotechnology research programs to develop measurement technologies, standards, and data for the U.S. bioeconomy.
Reduce risk through investing in biosecurity innovations: DOE’s National Nuclear Security Administration plans to initiate a new $20 million bioassurance program that will advance U.S. capabilities to anticipate, assess, detect, and mitigate biotechnology and biomanufacturing risks, and will integrate biosecurity into biotechnology development.
Facilitate data sharing to advance the bioeconomy: Through the Cancer Moonshot, NIH is expanding the Cancer Research Data Ecosystem, a national data infrastructure that encourages data sharing to support cancer care for individual patients and enables discovery of new treatments. USDA is working with NIH to ensure that data on persistent poverty can be integrated with cancer surveillance. NSF recently announced a competition for a new $20 million biosciences data center to increase our understanding of living systems at small scales, which will produce new biotechnology designs to make products in agriculture, medicine and health, and materials.

A recording of the White House summit is available online.

Article By Lynn L. Bergeson and Carla N. Hutton of Bergeson & Campbell, P.C.

For more environmental, energy, and resources legal news, click here to visit the National Law Review.

Supreme Court Set to Decide Whether NLRA Preempts State Law Claims for Property Damage Caused During Strikes

The U.S. Supreme Court’s upcoming term will include review of whether the National Labor Relations Act (the “Act”) preempts state court lawsuits for property damage caused during strikes, which could have significant implications for employers and unions.

Factual Background

The case – Glacier Northwest Inc. v. International Brotherhood of Teamsters Local Union No. 174 – began over five years ago when the Union in Washington State representing the Employer’s truck drivers went on strike. The Union timed their strike to coincide with the scheduled delivery of ready-mix concrete, and at least 16 drivers left trucks that were full of mixed concrete, forcing the Employer to rush to empty the trucks before it hardened and caused damage. The Employer was able to do so, but incurred considerable additional expenses and, because it dumped the concrete in order to avoid truck damage, lost its product.

Employer Brings State Law Suit for Property Damage

After the incident, the Employer sued the Union under Washington State law for intentional destruction of property. The Union argued that the suit was preempted by the Supreme Court’s decision in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959) (“Garmon”). In Garmon, the Supreme Court held that, although the Act does not expressly preempt state law, it impliedly preempts claims based on conduct that is “arguably or actually protected by or prohibited by the Act.” The Supreme Court held in Garmon that conduct is “arguably protected” when it is not “plainly contrary” to the Act or has not been rejected by the courts or the National Labor Relations Board (the “Board”).

State Court Holdings

The Washington State trial court dismissed the Employer’s suit for property damage because strikes are protected by the Act. The Washington Court of Appeals reversed, holding that intentional destruction of property during a strike was not activity protected by the Act, and thus, not preempted under Garmon.

Finally, the Washington Supreme Court reversed again, holding that the Act impliedly preempts the state law tort claim because the intentional destruction of property that occurred incidental to a work stoppage was at least arguably protected, and the Board would be better-suited to make an ultimate determination on this legal issue.

Question Before the Supreme Court

The Supreme Court will now determine whether the National Labor Relations Act bars state law tort claims against a union for intentionally destroying an employer’s property in the course of a labor dispute.

Under Garmon, the Act does not preempt suits regarding unlawful conduct that is plainly contrary to the NLRA, and the Employer argues that the strike at issue here was plainly unprotected because of the intentional destruction of property. In other words, the conduct is not even arguably protected by the Act such that the Act would preempt – it was, rather, plainly unprotected conduct, and thus, the proper subject of a lawsuit. The Employer also cited the “local feeling” exception to Garmon, which creates an exception to preemption where the States may have a greater interest in acting, such as in the case of property damage or violence.

The Union argued in opposition to the Employer’s certiorari petition that the Employer merely challenged the Washington Supreme Court’s conclusion that the conduct was arguably protected by the Act, and not its reasoning. Moreover, whether or not the conduct was protected should be decided by the Board, which is better-suited to decide the matter.

Takeaway

Employers should gain much greater clarity into whether they can seek relief from such conduct via a damages lawsuit. If the Court finds that such conduct is not preempted and may be litigated in state court, such a ruling could go far in protecting employers’ interests in contentious labor disputes and potentially shift the balance of power towards employers during these disputes.

Article By Michael J. Lebowich, Joshua S. Fox, and Thomas B. Fiascone of Proskauer Rose LLP

For more labor and employment legal news, click here to visit the National Law Review.

USDA Focused on Accurate “Made in the USA” Beef Labeling

In response to industry concerns for mislabeled beef products, U.S. Agriculture Secretary Tom Vilack recently said that the “Product of the USA” label on meat products should undergo a full-scale review. Vilack maintains that he is “committed to ensuring that the ‘Product of USA’ label reflects what a plain understanding of those terms means to U.S. consumers.” In March, we reported that the Tenth Circuit dismissed lawsuits based on meat producer’s use of allegedly deceptive and misleading “Product of the USA” labels on their beef products that did not originate from cattle born and raised in the United States.
The issue of country-of-origin beef labeling (“COOL”) continues to be a source of debate. Earlier this week, the FTC finalized a rule that is intended to tighten the use of the Made in the USA standard. The FTC said that this update would benefit small businesses who lack the resources to defend their products from foreign imitators. However, the FTC rule does not require USDA action. In response, the beef industry is demanding Congress to act swiftly.
R-CALF, a group of USA-based cattle ranchers, has been pushing hard for reforms on COOL. On September 22, R-CALF released a poll that shows staggering support for mandatory COOL legislation by the American public. R-CALF reports that 86 percent of American voters support the American Beef Labeling Act that reinstates mandatory country of origin labeling for beef, and 90 percent of voters are concerned that foreign importers of beef can legally put a “Product of USA” sticker on a package containing beef that was born, raised, and harvested outside the United States.
Currently, Congress is working through prospective beef labeling legislation that would require USDA oversight of COOL. The American Beef Labeling Act (S.2716) is a bipartisan bill that was introduced in the Senate in 2021; however, the bill has languished without action in the U.S. Senate Agriculture Committee. In March 2022, a bipartisan companion bill was introduced in the U.S. House (H.R.7291), which has also seen little to no progress in the House Agriculture Committee. Keller and Heckman will continue to monitor these legislative developments and USDA action.

For more Food and Drug Law news, click here to visit the National Law Review.

USCIS Increases Automatic Extension Period for Certain Green Card Renewal Applicants

On September 28, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that certain Permanent Resident Cards (also known as green cards) would automatically be valid for twenty-four months from the expiration date of the green card based on a properly filed application to renew an expiring or expired green card. The increased automatic extension period, which took effect on September 26, 2022, expands the twelve-month automatic extension period previously provided.

Under the previous practice, in effect since January 2021, USCIS automatically extended the validity of green cards up to twelve months for lawful permanent residents who properly filed Form I-90, Application to Replace Permanent Resident Card. In an effort to provide applicants who experience longer I-90 processing times with proof of lawful permanent resident status as they await their renewed green cards, on September 26, 2022, USCIS:

“updated the language on Form I-90 receipt notices to extend the validity of a Green Card for 24 months for individuals with a newly filed Form I-90”; and
“began printing amended receipt notices for individuals with a pending Form I-90” to extend the validity of a green card for twenty-four months.

According to the press release, “[t]hese [revised] receipt notices can be presented with an expired Green Card as evidence of continued status.”

For more Immigration Law updates, click here to visit the National Law Review.

6 Tips to Better Organization for Lawyers

Practicing law involves managing countless details and deadlines. For this reason, organization for lawyers can become a challenge for many lawyers in a high-paced law firm juggling various projects.

Without essential organization skills or resources to support the workload, it’s easy for information or tasks to innocently fall through the cracks. Adversely, this can leave lawyers feeling burnout or overwhelmed which could lead to a deterioration of quality of service, impacting overall client satisfaction.

Maintaining organization for lawyers is more than having pristine files and an uncluttered office — it includes critical skills like strategic planning, time management, and task prioritization.

Why Do Lawyers Struggle with Organization?

For years, lawyers were often depicted as busy professionals constantly shuffling through papers and running to the courthouse. Remote work and the rise in legal technology have certainly modernized a lawyer’s day-to-day activities, but that doesn’t mean those tasks are necessarily organized.

Lawyers have a lot to manage in a high-stress, high-performance environment. Often, this can lead to a system of organization that’s known only to the lawyer — billable hours written on sticky notes, case files interspersed with other papers, and deadlines tracked on a notepad. To avoid chaos, here are a few tips to have a more organized work life.

Organization for Lawyers: 6 Tips

Maintain an Organized Workspace

There’s no right or wrong way to set up an office or workspace, but it should work for you. That said, clutter can be a barrier to organization. Keep your desk tidy and free of clutter. Put away anything you’re not working on right now and gather loose documents and file them.

If your law firm relies on paper, consider the benefits of transitioning to a digital process. Lawyers have traditionally dealt with mass amounts of paper which can lead to disorganization and hinder productivity. Limiting the amount of paper you use in your day-to-day with a digital filing system will greatly improve the accessibility you have to the work you need.

Establish a Routine

While we all have the same amount of hours in the day, the way we use them directly impacts our productivity.

Highly productive people often start the day with a priority to-do list that reflects the tasks that absolutely must get done that day. The rest are tasks that you could do, if you have time, to get a jump on the next day’s work.

When you’re planning your routine, be sure to leave time to make calls and emails, take a break, and have lunch. Before signing off for the day, take a few minutes to create your priority to-do list for the next day.

Block Time

We’re more connected than ever before, which comes with the pressure to stay in touch with work colleagues, family, and friends at all times. Our devices can become a source of distraction instead of productivity at work.

This is where blocking time comes in handy. For some, using time blocks and a calendar is more effective than to-do lists. Use your calendar as a time-blocking tool and divide your day into different blocks of time, each with a specific task.

Improve Time Management

Lawyers often find themselves struggling to balance time spent on non-billable administrative tasks and their caseload.

Fortunately, legal project management tools can help with time management, time tracking, and overall organization, with project management features to manage your caseload along with time tracking and billing functionalities. The right platform allows you to separate time and expenses, add notes or related files, collaborate with colleagues, and set customizable notifications to ensure you’re focused on the highest-priority tasks.

Commit to Better Communication

One of the casualties of disorganization is a reduction in client satisfaction. This can be due to a decrease in the quality of service a lawyer provides because they’re so busy.

A simple way to combat this is by blocking time, but also leveraging modern technology to streamline your communication. Features like client portals are a way for clients to feel connected to your firm while also having on-demand access to the information they need.

Track Time in Real Time

When you’re shuffling between cases, it can be easy to lose track of your billable time. This is why it’s important to have resources that allow lawyers to work as they go without having to guess how many hours they spent on a client.

Neither overestimating nor underestimating billable hours is good for a law firm. If you overestimate your time, you could be in violation of the American Bar Association’s Rule 1.5 on billing and fees. If you underestimate your time, you’re leaving money on the table for valuable services you’ve provided to your client.

Tracking time in real-time is important for accuracy and your organization’s well-being. Time tracking tools allow you to set timers on your laptop, tablet, smartphone, or desktop.

Proper timekeeping not only helps you stay organized and bill accurately, but it helps you identify where you could improve your time management and productivity to get more accomplished in your day.

How Legal Technology Keeps Lawyers Organized

Law practice management software offers plenty of tools to help you stay organized. Time tracking, project management, and document management tools ensure you can organize files, plan your calendar and tasks, communicate with clients, and track time to improve your productivity from anywhere.

Organized Lawyers Are an Asset

Firms and clients realize the value of having modern processes to assist lawyers with staying on top of tasks and deadlines. It may not happen overnight, but taking steps toward better organization with tools like law practice management software will improve your efficiency and productivity.

This article was authored by Nina Lee of Bill4Time.

For more law office management news updates, click here to visit the National Law Review.

Cyber Incident Reporting for Critical Infrastructure Act

On September 12, 2022, the Cybersecurity and Infrastructure Security Agency (“CISA”) released a Request for Information (“RFI”) seeking public input regarding the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (“CIRCIA”). The public comment period will close on November 14th, 2022. The RFI provides a “non-exhaustive” list of topics on which CISA seeks public input, including:

Definitions and criteria of various terms, such as “covered entity,” “covered cyber incident,” “substantial cyber incident,” “ransom payment,” “ransom attack,” “supply chain compromise” and “reasonable belief;”
Content of reports on covered cyber incidents and the submission process (e.g., how entities should submit reports, report timing requirements, and which federal entities should receive reports;
Any conflict with existing or proposed federal or state cyber incident reporting requirements;
The expected time and costs associated with reporting requirements; and
Common best practices governing the sharing of information related to security vulnerabilities in the U.S. and internationally.

In March 2022, President Biden signed CIRCIA into law. CIRCIA creates legal protections and provides guidance to companies that operate in critical infrastructure sectors, including a requirement to report cyber incidents within 72 hours, and report ransom payments within 24 hours. The CISA website features more information about the law, the RFI, and a list of public listening sessions with CISA to provide input.

Article By Privacy and Cybersecurity Practice Group at Hunton Andrews Kurth

For more privacy and cybersecurity legal news, click here to visit the National Law Review.

California Law Prohibits Cooperation with Out-of-State Entities Regarding Lawful Abortion

In response to Dobbs v. Jackson Women’s Health Organization, California Governor Gavin Newsom recently signed AB 1242 into law, which “prohibits law enforcement and California corporations from cooperating with out-of-state entities regarding a lawful abortion in California.”

In particular, AB 1242 prohibits California companies that provide electronic communication services from complying with out-of-state requests from law enforcement regarding an investigation into, or enforcement of, laws restricting abortion.

Sponsored by California Assembly member Rebecca Bauer-Kahan and California Attorney General Rob Bonta, AB 1242:

takes an innovative legal approach to protect user data. The bill prohibits California law enforcement agencies from assisting or cooperating with the investigation or enforcement of a violation related to abortion that is lawful in California. This law thereby blocks out-of-state law enforcement officers from executing search warrants on California corporations in furtherance of enforcing or investigating an anti-abortion crime. For example, if another state wants to track the movement of a woman traveling to California seeking reproductive health care, the state would be blocked from accessing cell phone site tower location data of the woman by serving a warrant to the tech company in California. In addition, if another state wants Google search history from a particular IP address, it could not serve an out-of-state search warrant at Google headquarters in CA without an attestation that the evidence is not related to investigation into abortion services. Although the first state to enact such a law, as California often is when it comes to privacy rights, we anticipate that other states will follow suit and that these laws will be hotly contested in litigation.

Article By Linn F. Freedman of Robinson & Cole LLP

For more data privacy and cybersecurity legal news, click here to visit the National Law Review.

Tax Credits in the Inflation Reduction Act Aim to Build a More Equitable EV Market

In February of this year, it was high time for me to buy a new car. I had driven the same car since 2008, and getting this-or-that replaced was costing more and more every year. As a first-time car buyer, I had two criteria: I wanted to go fast, and I wanted the car to plug in.

Like many prospective purchasers, I started my search online and by speaking with friends and who drove electric vehicles, or EVs for short. I settled on a plug-in hybrid sedan, reasoning that a plug-in hybrid electric vehicle (PHEV) was the best of both worlds: the 20-mile electric range was perfect for my short commute and getting around Houston’s inner loop, and the 10-gallon gas tank offered freedom to roam. In the eight months since I’ve had the car, I’ve bought less than ten tanks of gas. As the price of a gallon in Texas soared to $4.69 in June, the timing of my purchase seemed miraculous.

When it was time to transact, the dealer made vague mention of rebates and tax credits, but didn’t have a comprehensive understanding of the details. Enter Texas’s Light-Duty Motor Vehicle Purchase or Lease Incentive Program (LDPLIP). Administered by the Texas Commission on Environmental Quality (TCEQ), the program grants rebates of up to $5,000 for consumers, businesses, and government entities who buy or lease new vehicles powered by compressed natural gas or liquefied petroleum gas (propane), and up to $2,500 for those who buy or lease new EVs or vehicles powered by hydrogen fuel cells.

Rebates are only available to purchasers who buy or lease from dealerships (so some of the most popular EVs in the U.S. don’t qualify). There is no vehicle price cap, nor is there an income limit for purchasers. In June of 2022, the average price for a new electric vehicle was over $66,000, according to Kelley Blue Book estimates. But the median Texan household income (in 2020 dollars) for 2016-2020 was $63,826.

According to the grant specialist to whom I initially sent my application, the TCEQ has received “a vigorous response” from applicants, however, the TCEQ is limited in the number of rebate grants that it can award: 2,000 grants for EVs or vehicles powered by hydrogen fuel cells, and 1,000 grants for vehicles powered by compressed natural gas or liquefied petroleum gas (propane).

The grant period in Texas ends on January 7, 2023, but on July 5, 2022, the TCEQ suspended acceptance of applications for EVs or vehicles powered by hydrogen fuel cells. As of the writing of this post, the total number of applications received and reservations pending on the program’s website is 2,480.

In comparison with Texas’s rebate program, the EV tax credits in the Inflation Reduction Act of 2022 demonstrate a commitment to building a more equitable EV market. While EVs may be cheaper to own than gas-powered vehicles—especially when gas prices are high—a lot of lower and middle-income families have historically been priced out of the EV market. The IRA takes several meaningful steps towards accessibility and sustainability for a more diverse swath of consumers:

Allows point-of-sale incentives starting in 2024. Purchasers will be able to apply the credit (up to $7,500) at the dealership, and because sticker price is such an important factor for so many purchasers, this incentive will make buying an EV more attractive up front.
Removes 200,000 vehicle-per-manufacturer cap. Some American manufacturers are already past the maximum. Eliminating the cap means bringing back the tax credit for many popular and affordable EVs, which should attract new buyers.
Creates income and purchase price limits. SUVs, vans, and pickup trucks under $80,000, and all other vehicles (e.g. sedans) under $55,000, will qualify for the EV tax credit. For new vehicles, purchaser income will be subject to an AGI cap: $150,000 for individuals and $300,000 for a joint filers.
Extends the tax credit to pre-owned EVs. As long as the purchase price does not exceed $25,000, purchasers of pre-owned EVs (EVs whose model year is at least two years earlier than the calendar year in which the purchase occurs) will receive a tax credit for 30% of the sale price up to $4,000. The income cap for pre-owned EVs is $75,000 for individuals and $150,000 for a joint filers.

A purchaser who qualifies under both programs can get both incentives. Comparing Texas’s state government-level incentives and those soon to be offered at the federal level reveals a few telling differences—new vs. used, income caps, purchase price caps, post-purchase rebates vs. up-front point-of-sale incentives—but the differences all fall under the same umbrella: equity. The IRA’s tax credits are designed, among other things, to make purchasing an EV more attractive to a wider audience.

Of course, the EV incentive landscape has greatly changed since the Energy Improvement and Extension Act of 2008 first granted tax credits for new, qualified EVs. The LDPLIP wasn’t approved by the TCEQ until late 2013, so the U.S. government has arguably had more time to get it right. Some might say that the fact that Texas’s program offers the purchaser of the $150,000+ PHEV the same opportunity to access grant funds as the purchaser of the $30,000 EV means that the LDPLIP is even more “equal.”

It is worth noting that the IRA also sets a handful of production and assembly requirements. For instance, to qualify for the credit, a vehicle’s final assembly must occur in North America. Further, at least 40% the value of the critical minerals contained in the vehicle’s battery must be “extracted or processed in any country with which the United States has a free trade agreement in effect” or be “recycled in North America”—and this percentage increases each year, topping out at 80% in 2027. There is also a rising requirement that 50% of the vehicle’s battery components be manufactured or assembled in North America, with the requirement set to hit 100% in 2029. It is unclear whether automotive manufacturers and the U.S. critical mineral supply chains will be able to meet these targets—and that uncertainty may cause a potential limiting effect on the options a purchaser would have for EVs that qualify for the tax credit.

Time will tell whether the intentions behind the EV tax credits in the IRA have the effect that this particular blogger and PHEV owner is hoping for. While we wait to see whether this bid at creating an equitable EV market bears fruit, we can at least admire this attempt at, as the saying goes, “giving everyone a pair of shoes that fits.”

Article By Dania Abbasi of Foley & Lardner LLP

For more energy and environment legal news, click here to visit the National Law Review.

Author: National Law Forum

Proposed Senate Bill Would Deny Deductions for NIL Contributions

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Federal Agencies Announce Investments and Resources to Advance National Biotechnology and Biomanufacturing Initiative

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