Tag: environment

SEC Issues Long-Awaited Climate Risk Disclosure Rule

INTRODUCTION

On Wednesday, 6 March 2024, the Securities and Exchange Commission (SEC) approved its highly anticipated final rules on “The Enhancement and Standardization of Climate-Related Disclosures for Investors” by a vote of 3-2, with Republican Commissioners Hester Peirce and Mark Uyeda dissenting. Accompanying the final rules was a press release and fact sheet detailing the provisions of the rulemaking. The final rules will go into effect 60 days after publication in the Federal Register and will include a phased-in compliance period for all registrants.

This is likely to be one of the most consequential rulemakings of Chairman Gary Gensler’s tenure given the prioritization of addressing climate change as a key pillar for the Biden administration. However, given the significant controversy associated with this rulemaking effort, the final rules are likely to face legal challenges and congressional oversight in the coming months. As such, it remains unclear at this point whether the final rules will survive the forthcoming scrutiny.

WHAT IS IN THE RULE?

According to the SEC’s fact sheet:

  • “The final rules would require a registrant to disclose, among other things: material climate-related risks; activities to mitigate or adapt to such risks; information about the registrant’s board of directors’ oversight of climate-related risks and management’s role in managing material climate-related risks; and information on any climate-related targets or goals that are material to the registrant’s business, results of operations, or financial condition.
  • Further, to facilitate investors’ assessment of certain climate-related risks, the final rules would require disclosure of Scope 1 and/or Scope 2 greenhouse gas (GHG) emissions on a phased-in basis by certain larger registrants when those emissions are material; the filing of an attestation report covering the required disclosure of such registrants’ Scope 1 and/or Scope 2 emissions, also on a phased-in basis; and disclosure of the financial statement effects of severe weather events and other natural conditions including, for example, costs and losses.
  • The final rules would include a phased-in compliance period for all registrants, with the compliance date dependent on the registrant’s filer status and the content of the disclosure.”

NEXT STEPS

The final rules are likely to face significant opposition, including legal challenges and congressional oversight. It is expected that there will be various lawsuits brought against the final rules, which are likely to receive support from several industry groups, or potentially GOP-led state attorneys general who have been active in litigating against environmental, social and governance (ESG) policies and regulations. It is also possible that the final rules could face criticism from some climate advocates that the SEC did not go far enough in its disclosure requirements.

Further, it is expected that the House Financial Services Committee (HFSC) will conduct oversight hearings, as well as introduce a resolution under the Congressional Review Act (CRA), to attempt to block the regulations from taking effect. HFSC Chairman Patrick McHenry (R-NC) indicated that the Oversight and Investigations Subcommittee will hold a field hearing on March 18 and the full Committee will convene a hearing on April 10 to discuss the potential implications of the rules. If a CRA resolution were to pass the House and garner sufficient support from moderate Democrats in the Senate to pass, it would likely be vetoed by President Biden.

Ultimately, the SEC climate risk disclosure rules are unlikely to significantly change the trajectory of corporate disclosures made by multinational companies based in the U.S., most of whom have already been making sustainability disclosures in accordance with the Financial Stability Board’s Task Force on Climate-Related Financial Disclosures. The ongoing problem for investors is that such disclosures are not standardized and therefore are not comparable. Consequently, many of these large issuers may continue to enhance their sustainability disclosures in accordance with standards issued by the International Sustainability Standards Board and the Global Reporting Initiative as an investor relations imperative notwithstanding the SEC’s timetable for implementation of these final rules.

A more detailed analysis of the SEC rules is forthcoming from our Corporate and Asset Management and Investment Funds practices in the coming days.

Copyright 2024 K & L Gates
For more news on the SEC’s Climate Disclosure Rule, visit the NLR Environmental, Energy & Resources section.

EPA Emphasizes its Criminal Enforcement Program

This Alert Update supplements a recent VNF alert analyzing the Environmental Protection Agency’s (EPA’s) enforcement priorities for fiscal years (FY) 2024-2027. EPA recently announced that its criminal program helped to develop the Agency’s national enforcement compliance initiatives and strongly suggested that it would look to pursue criminal cases under each initiative.

Previously announced National Enforcement and Compliance Initiatives (NECIs) for FY 2024-2027 include climate change, coal ash landfills and impoundments, a new focus on contaminants such as per- and polyfluoroalkyl substances (PFAS), and environmental justice initiatives. Current NECIs address aftermarket defeat devices for mobile sources, hazardous air pollutant (HAP) emissions, and compliance with the National Pollutant Discharge Elimination System (NPDES) permit program.

EPA’s head of the Office of Enforcement and Compliance Assurance (OECA), David Uhlmann, stated the agency is “promoting far greater strategic coordination between our criminal and civil enforcement programs” when speaking to the American Legal Institute-Continuing Legal Education’s (ALI-CLE) Environmental Law 2024 meeting on February 22, 2024.

Uhlmann highlighted that some prior cases handled civilly should have been potentially handled criminally, and that this may change moving forward. The practical implications for companies of the shift to a more active EPA criminal program may include significantly higher penalties and potential jail time for violations. Uhlmann also noted that “EPA will continue to reserve criminal enforcement for the most egregious violations.” His comments suggest that “egregiousness” will be evaluated based on the adverse effects of the violation, particularly on disproportionately overburdened communities, and the degree of intent. Uhlmann also added that companies could avoid criminal prosecution if they are “honest with the government” and have “strong ethics, integrity, and sustainability programs.”

The U.S. Justice Department’s Environment and National Resources Division (ENRD) litigates both civil and criminal cases for EPA and closely coordinates on enforcement initiatives. The Assistant Attorney General of ENRD, Todd Kim, also spoke during the February 22 ALI-CLE panel, and focused some of his remarks on the enforcement of environmental laws in the online marketplace. He cautioned that “online companies, just like brick-and-mortar companies, would do well to take pains to ensure that they are complying with environmental laws in selling and distributing products,” because EPA and the Department of Justice (DOJ) will enforce such laws in all market settings.

Both Uhlmann and Kim highlighted “21st century” challenges and opportunities, with NECIs addressing challenges and new opportunities such as data availability and analysis allowing EPA and DOJ to better enforce environmental laws and regulations in a targeted and effective manner. Some of the newest data and data analytics are being used to advance EPA’s environmental justice priorities. “So again, companies would do well to think about the ways we use data and to be talking with their neighbors to ensure that they’re doing what they can to ensure that disproportionately overburdened communities are getting the help they need,” Kim stated.

These EPA and DOJ statements clearly signal a potential increase in criminal environmental enforcement actions, creating additional risks for companies that run afoul of regulatory requirements. These corporate risks, which also may also be borne by executives and other employees, may be mitigated through the prompt detection and reporting of non-compliant conduct and through the development and maintenance of robust compliance programs. The ability to conduct prompt and thorough internal investigations and compliance audits should be a central part of an effective corporate compliance program.

© 2024 Van Ness Feldman LLP
by: Arthur “A.J.” Singletary , Paul Libus , Britt Speyer Fleming , Michael D. Farber of Van Ness Feldman LLP

For more news on Environmental Protection Enforcement, visit the NLR Environmental, Energy & Resources section.

Striking a Balance: The Supreme Court and the Future of Chevron Deference

In its frequent attempts to enforce the separation of powers that the Constitution’s framers devised as a system of checks and balances among the executive, legislative, and judicial branches of the federal government, it is often the so-called “Fourth Branch”—that includes the varied administrative agencies—that is at the heart of things.[1]

These agencies possess a level of technical and scientific expertise that the federal courts generally lack. And, without reference to expertise, Congress often leaves it to agencies and the courts to interpret and apply statutes left intentionally vague or ambiguous as the product of the legislative compromise required to gain passage. This phenomenon begs the question of the extent to which the federal courts may defer to administrative agencies in interpreting such statutes, or whether such deference abnegates the judicial prerogative of saying what the law is. Having passed on several opportunities to revisit this question, the Supreme Court of the United States has finally done so.

In what potentially will lead to a decision that might substantially change the face of federal administrative law generally while voiding an untold number of agency regulations, the Supreme Court, on January 17, 2024, heard oral argument in a pair of appeals, Loper Bright Enterprises, et al., v. Raimondo, No. 22-451, and Relentless, Inc., et al. v. Department of Commerce, No. 22-1219, focusing on whether the Court should overrule or limit its seminal decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Almost 40 years ago, the Chevron decision articulated the doctrine commonly known as “Chevron deference,” which involves a two-part test for determining when a judicial determination must be deferential to the interpretation of a statute. The first element requires determining what Congress has spoken directly to the specific issue in question, and the second is “whether the agency’s answer is based on a permissible construction of the statute.”

Among the most cited Supreme Court cases, Chevron has become increasingly controversial, especially within the conservative wing of the Court, with several Justices having suggested that the doctrine has led to the usurpation of the essential function of the judiciary.

Chevron deference affects a wide range of federal regulations, and the Court’s ruling, whether or not Chevron is retained in some form, is likely to result in significant changes to how agencies may implement statutes and how parties affected by regulations may seek relief from the impact of those regulations. Interestingly, commentators on the recent oral argument in the case are widely divided in their predictions as to the outcome—some suggesting that the conservative majority of the Court will overrule Chevron outright, others suggesting that the Court has no intention at all to do so.

Based on remarks made during the oral arguments by Justice Gorsuch, and by Justices Amy Coney Barrett and Elena Kagan, as well as Justice Kagan’s fashioning of a majority that clarified a related interpretive rule in an earlier case focusing on agencies’ authority to interpret their own regulations, we suggest that there is a substantial possibility that the Court will take a moderate path by strengthening judicial scrutiny at the “Step One” level while recognizing that there are technical and scientific matters as to which courts have no expertise. At the same time, the Court may make it clear that, essentially, legal issues are within its prerogatives and are not subject to agency interpretation.

We examine how the Court might find a path to a better balancing of agency and judicial functions that is consistent with and builds upon other recent rulings involving the review of actions taken by administrative agencies. Whatever the outcome, the Court’s ruling in these cases will have a profound impact on individuals and entities that are regulated by federal agencies or that depend on participation in government programs, such as Medicare and Social Security.

A Chevron Refresher

Most law students and lawyers have some familiarity with the touchstone for judicial review of agency rules that was articulated in Chevron, a case that dealt with regulations published by the Environmental Protection Agency to implement a part of the Clean Air Act.[2] The Supreme Court explained that judicial review of an agency’s final rule should be based on the two-part inquiry that we mentioned earlier. First, the reviewing court should determine whether Congress made its intent unambiguously clear in the text of the statute; if so, the inquiry ends, and both the agency and the reviewing court must give effect to Congress’s intent. This has become known by the shorthand phrase “Step One.”

If Congress’s intent is not clear, either because it did not address a specific point or used ambiguous language, then the court should defer to the agency’s construction if it is based on a permissible reading of the underlying statute. This has become known as “Step Two.”

In applying Step Two, a reviewing court should determine if the gap left by Congress was explicit or implicit. If the ambiguity is explicit, then the agency’s regulations should be upheld unless they are arbitrary, capricious, or contrary to the statute.[3] If the ambiguity is implicit, then the “court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”[4]

Chevron deference is not a blank slate for courts to find ambiguity. It recognized that the judiciary “is the final authority on issues of statutory construction” and instructed that in applying Step One, judges are expected to apply the “traditional tools of statutory construction.”[5] It also recognized that any deference analysis should fit within the balance among the branches of government. The Supreme Court explained that while Congress sets an overall policy, it may not reach specific details in explaining how that policy is to be executed in particular contexts. In these situations, the executive branch may have the necessary technical expertise to fill in the details, as it is charged with administering the policy enacted into law. The Court noted that the judiciary was not the ideal entity to fill in any gaps left in legislation because “[j]udges are not experts in the field” and that courts are not political entities. As a result, agencies with expertise are better suited to carry out those policies. Moreover, even if agencies are not accountable to the public, they are part of the executive branch headed by the President, who (unlike judges with life tenure) is directly accountable to the electorate.[6]

Nevertheless, during the recent oral arguments, the Chief Justice stated that the Court had not in recent years employed Chevron itself in its analysis of agency action. The reason why the issue of whether Chevron unduly intrudes upon the judicial function, and whether it should be overruled or modified, relates to the fact that it is widely used in lower court review of administrative actions. Its reconsideration also relates to increasing jurisprudential conservatism on the Supreme Court and the application of originalism and, more widely, textualism.

The Chevron concept of deference to agency regulations exists alongside a line of cases in which courts have deferred to an agency’s interpretations of its own regulations. In both Bowles v. Seminole Rock & Sand Co.[7] and Auer v. Robbins,[8] the Supreme Court developed the principle that courts are not supposed to substitute their preference for how a regulation should be interpreted; instead, a court should give “controlling weight” to that interpretation unless it is “plainly erroneous or inconsistent with the regulation.”[9] Nevertheless, the Court has refused to extend that form of deference to subregulatory guidelines and manuals where there is little or no evidence of a formal process intended to implement Congress’s expressed intent.[10]

The Chevron framework has generated criticism, including statements by several current Justices. Their position relies on an argument that Chevron distorts the balance of authority in favor of the executive and strips courts of their proper role. In a recent dissent from a denial of certiorari, Justice Gorsuch complained that Chevron creates a bias in favor of the federal government and that instead of having a neutral judge determine rights and responsibilities, “we outsource our interpretive responsibilities. Rather than say what the law is, we tell those who come before us to go ask a bureaucrat.”[11] Justice Thomas has written that the Administrative Procedure Act does not require deference to agency determinations and raises constitutional concerns because it undercuts the “obligation to provide a judicial check on the other branches, and it subjects regulated parties to precisely the abuses that the Framers sought to prevent.”[12]

Chevron and the Herring Fishermen

The dispute that has brought Chevron deference to the Supreme Court in 2024 starts with the business of commercial fishing for herring. The National Marine Fisheries Service (NMFS) published a regulation in 2020 that requires operators of certain fishing vessels to pay the cost of observers who work on board those vessels to ensure compliance with that agency’s rules under the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (“Act”). Several commercial fishing operators challenged the regulations, which led to two decisions by the U.S. Courts of Appeals for the District of Columbia Circuit and the First Circuit. Both courts upheld the regulations, but on slightly different grounds. In the first decision, Loper Bright Enterprises, Inc. v. Raimondo,[13] the District of Columbia Circuit followed the traditional Chevron analysis and concluded that the Act did not expressly address who would bear the cost of the monitors. The NMFS’s interpretation of the statute in the regulation was found to be reasonable under Step Two of Chevron based on the finding that the agency was acting within the scope of a broad delegation of authority to the agency to further the Act’s conservation and management goals, and on the established precedent concluding that the cost of compliance with a regulation is typically borne by the regulated party.

The second decision by the First Circuit, Relentless, Inc. v. United States Department of Commerce,[14] took a slightly different approach. That court focused on the text of the Act and concluded that the agency’s interpretation was permissible. It did not anchor its decision in a Chevron analysis and stated that “[w]e need not decide whether we classify this conclusion as a product of Chevron step one or step two.”[15] The First Circuit also emphasized that the operators’ arguments did not overcome the presumption that regulated entities must bear the cost of compliance with a relevant statute or regulation.

The parties have staked out starkly different views of Chevron’s legitimacy and whether it is compatible with the separation of powers in the U.S. Constitution. The fishermen petitioners argue that Chevron is not entitled to respect as precedent because the two-part test was only an interpretive methodology and not the holding construing the Clean Air Act. Their core argument is that Chevron improperly and unconstitutionally shifts power to the executive branch by giving more weight to the agencies in rulemaking and in resolving disputes where the agency is a party and shifts power away from the judiciary’s role under Article III to interpret laws and Congress’s legislative authority power under Article I. Taking this one step further, the petitioners argue that this shift violates the due process rights of regulated parties. They also argue that Chevron is unworkable in practice, citing instances where the Supreme Court itself has declined to apply the two-part test and the lack of a consensus as to when a statute is clear or ambiguous, making the application of Chevron inconsistent. Put another way, according to the petitioners, the problem with Chevron is that there is no clear rule spelling out how much ambiguity is needed to trigger deference to an agency’s rule. Next, they argue that Chevron cannot be applied when an underlying statute is silent because this allows agencies to legislate when there is a doubt as to whether Congress delegated that power to the agency at all and that it would run counter to accepted principles of construction that silence can be construed to be a grant of power to an agency. Finally, they contend that Chevron deference to agencies conflicts with Section 706 of the Administrative Procedure Act, where Congress authorized courts to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”[16]

The Secretary of Commerce argues that there are multiple reasons to preserve Chevron deference. First, the Secretary argues that Chevron fits within the balance of power between the branches of the federal government. In the Secretary’s view, Chevron deference is consistent with the separation of powers doctrine, as it respects (1) Congress’s authority to legislate and to delegate authority to an administrative agency, (2) the agency’s application of its expertise in areas that may be complex, and (3) the judiciary’s authority to resolve disputed questions of law. Therefore, the Chevron framework avoids situations where courts may function like super-legislatures in deciding how a statute should be implemented or administered and second-guess policy decisions.

According to the Secretary, courts know how to apply the traditional tools of statutory interpretation, and if an ambiguity exists after that exercise is complete, it is appropriate to defer to an administrative agency that has technical or scientific experience with the subject matter being regulated. In addition, the Secretary contends that Chevron promotes consistency in the administration of statutes and avoids a patchwork of court rulings that may make it difficult or impossible to administer a nationwide program, such as Social Security or Medicare. Third, the Secretary notes that Chevron is a doctrine that has been workable for 40 years and that over those decades, Congress has not altered or overridden its holding, even as it has enacted thousands of statutes since 1984 that either require rulemaking or have gaps that have been filled by rulemaking. As a result, the Secretary argues that there are settled interpretations that agencies and regulated parties rely on, and overruling Chevron would lead to instability and relitigating settled cases. Finally, the Secretary argues that Chevron deference cannot be limited to interpretations of ambiguous language alone, as there are no accepted criteria for distinguishing ambiguous statutory language from statutory silence.

The Oral Argument

The Supreme Court heard arguments in both cases on January 17, 2024. Over more than three hours of argument, the Justices focused on several questions. Justices Kagan, Sotomayor, and Jackson expressed concerns that abandoning the Chevron framework would put courts in the position of making policy rather than just ruling on questions of law. In their view, courts lack the skills and expertise to craft policy and should not act as super-legislators. They also stressed that there are situations in which the tools of statutory construction do not yield a single answer or that Congress has not addressed the question either because it left some matters unresolved in the statute or through other subsequent changes not contemplated by Congress, such as the adoption of new technologies. In these cases, the Justices wanted to know why deference to an agency was not appropriate and did not see any clear indication that Congress intended that courts, not agencies, should make determinations when the statutory language is ambiguous or silent. They also questioned why the Supreme Court should overrule Chevron when Congress has been fully aware of the decision for 40 years and has not enacted legislation to eliminate the ability of a court to defer to an agency’s determinations.

The members of the more conservative wing of the Supreme Court questioned counsel about weaknesses in the Chevron framework. Justice Gorsuch returned to his earlier criticism of Chevron and asked the parties to define what constitutes enough ambiguity to allow a court to move from Step One to Step Two. He further questioned whether there was sufficient evidence that Congress ever intended to give the government the benefit of the doubt when an individual or regulated entity challenges agency action. Justice Gorsuch, along with Justices Thomas and Kavanaugh, asked whether Chevron actually resulted in greater instability and whether it was appropriate to abandon Chevron in favor of the lesser form of deference articulated in Skidmore v. Swift & Co., where deference is not a default outcome and a court is supposed to exercise its independent judgment to give weight to agency determinations based on factors including the thoroughness of the agency’s analysis, the consistency and validity of the agency’s position, and the agency’s “consistency with earlier and later pronouncements, and all those factors which give it power to persuade.”[17] The follow-up questions asked whether it was correct to accord deference to agency regulations when the agency’s policy can shift from administration to administration.

Where Is the Conservative Court Likely to Go?

The length of the argument and the alacrity of questioning do not mean that the Supreme Court is going to overrule the 40-year-old, highly influential Chevron doctrine. It is, however, quite likely that the doctrine will be narrowed and clarified. To say nothing of the recent oral argument, several recent decisions evidence a reluctance to abandon deference altogether. In a pair of decisions issued in 2022 involving Medicare reimbursement to hospitals, the Court resolved deference questions by relying on the statutory text alone.

Those decisions involved challenges to a Medicare regulation governing hospital reimbursement, and a published interpretation of a section of the Medicare statute governing reimbursement for outpatient drugs. Although the Court ruled in the government’s favor in the former case and against the government in the latter case, neither decision relies on Chevron—even though in one case, the petitioner’s counsel expressly asked the Court to overrule Chevron during the oral argument.[18] Yet, by relying on the text of each statute to resolve a regulatory dispute, the Court’s reasoning in both decisions is consistent with Step One of the Chevron test and demonstrates that it is workable in practice and need not result in a dilution of judicial review. In addition, the Court has developed another limit to agency action in its decisions, finding that when a regulatory issue presents a “major question,” deference is irrelevant unless the agency can show that Congress expressed a clear intent that the agency exercise its regulatory authority. This concept remains a work in progress because the Court has not defined criteria that make an issue a major question.[19]

These cases provide a useful background to an increasingly jurisprudentially conservative, textually oriented Court. Two cases that were specifically discussed during oral argument are particularly significant in plotting the Court’s landing place with regard to Chevron. Justice Gorsuch made multiple references to Skidmore, which sets forth the principle that a federal agency’s determination is entitled to judicial respect if the determination is authorized by statute and made based on the agency’s experience and informed judgment. Unlike the Chevron standard, the Skidmore standard considers an agency’s consistency in interpreting a law it administers.

The second, and more recent, precedent that is even more likely to guide the narrowing of Chevron is Kisor v. Wilkie.[20] There, a 5-4 divided Court adopted a multi-stage regime for reviewing an agency’s reliance upon arguably ambiguous regulations that is roughly analogous to Chevron’s two-stage analytical modality. In doing so, it modified, but did not overrule, Auer v. Robbins, 519 U.S. 452 (1997), and its doctrinal predecessor, Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), which permit a court to defer to an agency’s interpretation of its own ambiguous regulation, so long as that interpretation is reasonable, even if the court believes another reasonable reading of the regulation is the better reading.

Kisor saw a mixed bag of Justices joining, or dissenting from, various parts of the Kagan opinion. What made the majority as to its operative section was the Chief Justice’s joining Justice Ginsburg, Breyer, and Sotomayor. With Justice Ginsburg having been succeeded by Justice Barrett, and Justice Breyer having been succeeded by Justice Jackson, one might hypothesize that there now would be a conservative 5-4 majority that would have overruled Auer. However, it was Justice Barrett who raised the possibility of “Kisorizing” Chevron, a suggestion quickly adopted by Justice Kagan. Justice Gorsuch, a longtime opponent of Chevron, is likely amenable to a Skidmore-oriented result.

The Kagan opinion cabins and arguably lowers the level of deference an agency’s interpretation of a rule should receive. Thus, with a strong nod to the Court’s jurisprudential drift to the right, Justice Kagan begins with the truism that whatever discretion an agency might claim, the Court’s analysis must proceed under the proposition that an unambiguous rule must be applied precisely as its text is written. It is not unlikely that, if the Court narrows Chevron (as we predict it shall), it also will begin with a more robust requirement to apply the statutory text in Step One and re-emphasize the need to exhaust all of the tools of statutory construction; in other words, there is no need for deference unless there is genuine ambiguity. If an agency’s determination is to become relevant, it only becomes so after ambiguity is established.[21]

In short, if the law gives a definitive answer on its face, there is nothing to which a court should defer, even if the agency argues that there is an interpretation that produces a better, more reasonable result. This is a textual determination that addresses the criticism of the so-called Administrative State’s acting as a quasi-legislature to which the Court yields its own power to say what the law is.

However, even a reasonable agency interpretation, the Kagan opinion notes, might not be dispositive. The opinion must be the agency’s official position, not one ginned up for litigation purposes, and it must reflect the agency’s particular expertise.

­Conclusion

In its 40-year life, Chevron deference has been at the heart of the application of federal administrative law. No case among all of the many governmental functions that the Supreme Court considers has been more widely cited, and no administrative law case has been more controversial, especially among jurisprudential conservatives. While asked by various parties to do so, the Court has declined, and the Chevron structure has been applied, often inconsistently, by federal courts. Perhaps reflecting the increasingly conservative direction of the Court, we have reached a point where the Court will consider retiring this long-standing precedent or, alternatively, refreshing it based on the experience of courts and agencies since 1984.

Justice Kagan’s analytic method in Kisor v. Wilkie could also apply to tightening Chevron. In her decisions, she has exhibited great fidelity to reading text literally, avoiding the perils of legislation from the bench. As she wrote in Kisor:

[B]efore concluding that a rule is genuinely ambiguous, a court must exhaust all the traditional tools of construction. . . . For again, only when that legal toolkit is empty and the interpretive question still has no single right answer can a judge conclude that it is more one of policy than of law. That means a court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read. Agency regulations can sometimes make the eyes glaze over. But hard interpretive conundrums, even relating to complex rules, can often be solved. A regulation is not ambiguous merely because discerning the only possible interpretation requires a taxing inquiry. To make that effort, a court must carefully consider the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on. . . . Doing so will resolve many seeming ambiguities out of the box, without resort to . . . deference” (citations and internal punctuation omitted).[22]

Text alone might not provide the answer in every case, as Justice Kagan recognizes as she outlines four additional steps that might lead to judicial deference to agency statutory interpretations. However, to the extent that a majority of the Court elects to retain Chevron, though narrowing it, her approach in the analogous setting reflected in Kisor would be effective in resolving the two cases now at bar—recognizing agency expertise in technical and scientific matters beyond the competency of the judiciary while preserving the function of the courts to determine what the legislature actually wrote, not to write it themselves.

* * * *

ENDNOTES

[1] Besides the administrative bureaucracy, various jurists and commentators have, under this rubric, included the press, the people acting through grand juries, and interest or pressure groups. Those institutions represent the arguable influence of extra-governmental sources. We are focused here on the level of judicial deference afforded to federal administrative agencies.

[2] 467 U.S. at 842-43.

[3] 5 U.S.C. § 706(2)(A).

[4] Id. at 844.

[5] Id. at 843, fn.9.

[6] Id. at 865-66.

[7] 325 U.S. 410, 414 (1945).

[8] 519 U.S. 452, 461 (1997).

[9] Id.

[10] United States v. Mead Corp., 533 U.S. 218, 229 (2001); Christensen v. Harris County, 529 U.S. 576 (2000).

[11] Buffington v. McDonough, No. 21-972 (Gorsuch, J., dissenting at 9) (2022).

[12] Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199,1213 (2015) (Thomas, J., concurring in the judgment).

[13] 45 F.4th 359 (D.C. Cir. 2022).

[14] 62 F.4th 621 (1st Cir. 2023).

[15] Id. at 634.

[16] 5 U.S.C. § 706.

[17] 323 U.S. 134, 140 (1944).

[18] Becerra v. Empire Health Foundation, 142 S.Ct. 2354 (2022), and American Hospital Ass’n v. Becerra, 142 S.Ct. 1896 (2022). The request to overrule Chevron appears in the transcript of the American Hospital Ass’n oral argument, at 30.

[19] West Virginia v. EPA, 142 S.Ct. 2587 (2022); Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014).

[20] 139 S. Ct. 2400 (2019).

[21] Kisor predicated deference, if at all, upon five preliminary stages. First, as noted, the reviewing court should determine that a genuine ambiguity exists after applying all of the tools of statutory construction. This is consistent with Step One of Chevron, but Justice Kagan makes it clear that this is a heightened textual barrier. Second, the agency’s construction of the regulation must be “reasonable”; this is a restatement of Step Two of Chevron. The Court cautioned that an agency can fail at this step. Third, the agency’s construction must be “the agency’s ‘authoritative’ or ‘official position,’” which was explained as an interpretation that is authorized by the agency’s head or those in a position to formulate authoritative policy. Fourth, the regulatory interpretation must implicate the agency’s “substantive expertise.” Finally, the regulatory interpretation must reflect the agency’s “fair and considered judgment” and that a court should decline to defer to a merely “convenient litigating position” or “post hoc rationalizatio[n] advanced” to “defend past agency action against attack.”

[22] 139 S.Ct. at 2415.

©2024 Epstein Becker & Green, P.C. All rights reserved.
For more news on Energy and the Environment, visit the NLR Environmental, Energy & Resources section.

Oil Pollution Act: Tips for Spill Response, Compliance, and Enforcement

Oil spills commonly occur when least expected and, even in smaller quantities can significantly disrupt business operations and create risks for enforcement and/or litigation. It’s important that companies are prepared and know the environmental requirements for when the least expected happens, including understanding what actually is “oil” (hint: it’s broader than you might think!), who to notify, legal authorities at play, and best practices to ensure compliance and minimize exposure to regulators and/or private parties.

What is “Oil” Anyway?

Section 311 of the Clean Water Act (CWA) and the Oil Pollution Act (OPA) make up the federal statutory framework for oil spills. However, many companies may not realize that both petroleum-based and non-petroleum-based substances are regulated as “oil” under the CWA and OPA. As a result, many companies may not realize that they are subject to these laws and, therefore, fail to adequately prepare for compliance and/or response both pre- and post-spill.

Specifically, Section 311(a)(1) of the CWA defines oil as “oil of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil.” 40 CFR § 112.2 further defines oil as “oil of any kind or in any form, including, but not limited to: fats, oils, or greases of animal, fish, or marine mammal origin; vegetable oils, including oils from seeds, nuts, fruits, or kernels; and, other oils and greases, including petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other than dredged spoil.” This definition is notably broader than what many may consider “oil” (i.e., crude oil and refined petroleum products) and encompasses animal fats, vegetable oils, and non-petroleum oils.

When to Notify?

The CWA and OPA require companies to notify the National Response Center (NRC) of oil spills as soon as they are discovered (i.e., within 15 minutes). This applies to all discharges that reach navigable waters of the U.S. (WOTUS) or adjoining shorelines and (1) cause a sheen; (2) violate applicable water quality standards; or (3) cause a sludge or emulsion beneath the surface of the water or upon adjoining shorelines. In practice, this typically results from a sheen, which 40 C.F.R. § 110.1 defines as an “iridescent appearance on the surface of water.” The Oil Pollution Prevention regulations (discussed further below) also identify discharges from regulated facilities that require reporting, though there are exceptions—for example, when the discharge is in compliance with a permit under Section 402 of the CWA.

Under state and local laws, notification may be much more stringent. For example, California requires immediate reporting of “any significant release or threatened release” of a hazardous material, which includes oil. This can be subjective and requires a fact- and legal-specific evaluation of whether the release qualifies as “threatened” and/or “significant.” In Georgia, immediate notification is required either when the oil creates a “significant sheen on top of state waters” or when the amount discharged is unknown—further creating different criteria for when reporting is required. Regardless of what triggers notification, it is important that companies understand that different agencies—federal, state, and local—may each have different reporting requirements, and accurate and timely reporting is absolutely crucial. Often, failure to timely report is the first violation sought by agencies and can result in increased penalties and additional scrutiny.

What Authorities Are at Play?

At the federal level, two agencies primarily exercise authority over oil spills—the U.S. Environmental Protection Agency (EPA) and U.S. Coast Guard (CG). Depending on the location of the spill, the EPA or CG may lead federal oversight with the EPA overseeing inland spills and CG overseeing offshore spills. The Pipeline and Hazardous Materials Safety Administration and Federal Railroad Administration may also exercise authority for pipeline or railroad releases, respectively.

As mentioned above, Section 311 of the CWA and OPA—enacted in 1990 in response to the Exxon Valdez oil spill—make up the federal statutory framework for oil spills. In practice, these authorities are best categorized into two areas: (1) oil spill response; and (2) oil spill prevention and preparedness. It is important for companies to understand the expectations for both (discussed in more detail below), and the National Oil and Hazardous Substances Pollution Contingency Plan (often referred to as the National Contingency Plan or NCP), which outlines the federal government’s cleanup strategy for responding to oil spills, including other cleanups under CERCLA. The goal of the NCP is to ensure that resources are available and responses are consistent. Thus, when the federal government oversees a cleanup, the federal On-Scene Coordinator will expect that all response efforts, including those conducted by the responsible party, are consistent with the NCP.

At the state level, most utilize their respective water laws to address oil spills, though some states, like Louisiana, have laws comparable to OPA. At the local level, municipalities have notification and emergency response authorities that will be applicable. In the end, it’s very important that companies understand that several layers of government may have some form of oversight depending on the size, impact, and location of an oil spill.

OPA v. CWA

While the CWA and OPA are complimentary, including OPA amending the CWA, companies should understand the goals and implications of both. Generally, the CWA focuses on oil spill enforcement for cleanups and penalties, and the OPA broadens national and regional capability for preventing, responding to, and paying for oil spills.

For the CWA, Section 311(b)(3) expressly prohibits the discharge of oil (or hazardous substances) into or upon WOTUS and adjoining shorelines in quantities that may be harmful.1 For oil, this generally means discharges to WOTUS that cause sheening or violate applicable water quality standards. Sections 311(c) and (e) of the CWA provide extensive authority to the federal government to respond to these discharges, including threatened discharges, by issuing orders—either unilaterally or by consent—to owners, operators, or persons in charge of the facility from which the discharge occurs.

Sections 311(b)(6) and (7) of the CWA further empower the federal government to pursue significant penalties—both administrative and civil—for spills that reach WOTUS and/or when responsible parties fail to comply with an order. If gross negligence or willful misconduct is involved, you can expect even greater penalties—commonly more than three-fold—not to mention possible criminal liability. Internally, the EPA utilizes the Civil Penalty Policy for Sections 311(b)(3) and (j) of the CWA and factors outlined in Section 311(b)(8) of the CWA, including the seriousness of the violation, economic benefit to the responsible party, history of prior violations, and efforts to minimize or mitigate the discharge, to evaluate enforcement and penalty calculations.

Akin to the CWA, Section 2702(a) of OPA also makes responsible parties liable for removal costs and natural resource damages resulting from any discharge of oil, including a substantial threat of discharge, to WOTUS and adjoining shorelines. Notably, this includes not only costs incurred by the federal government, but also costs or damages to private parties, including damages for the loss of personal property, loss of revenues/profits due to injury, and cost of additional services during or after a spill. OPA further aims to strengthen national and regional response strategies, amend the National Oil and Hazardous Substances Pollution Contingency Plan, require facilities to develop prevention and response plans, and establish a fund for damages and cleanup costs—each discussed below.

While it is typically always the priority of the federal government to have responsible parties pay for and conduct their own spill cleanups, when a responsible party is unknown, unable, or refuses to pay, funds from the Oil Spill Liability Trust Fund (OSLTF) can be utilized to pay for the response. The OSLTF is managed by the CG’s National Pollution Funds Center (NPFC) and the NPFC thereby manages any oversight or cleanup costs incurred by the federal government. Thus, if an oil spill occurs at your facility and the federal government incurs costs responding or overseeing, the NPFC will be the entity that seeks recovery of those costs—even if the EPA later pursues penalties for the same discharge pursuant to Sections 311(b)(6) and (7) of the CWA. In addition, when a non-liable party performs a cleanup or incurs damages as a result of an oil spill, that party may file a claim for reimbursement directly against the responsible party and/or seek reimbursement from the NPFC.

Lastly, regarding liability, both the CWA and OPA are strict liability and provide limited liability defenses for acts of God, acts of war, or acts/omissions of third parties—comparable to CERCLA. Even so, it’s important to note that Section 309(g)(6) of the CWA states that the federal government may not seek enforcement, including penalties, if the state “has commenced and is diligently prosecuting an action” under a comparable state law. This includes issuing a final order or directing a responsible party to pay a penalty. As mentioned above, states typically pursue oil spill violations via their respective water laws, which may be considered comparable. State penalties may often be substantially less than those sought by the federal government—thus, early engagement with the state can be advantageous depending on the circumstances.

Oil Pollution Prevention Regulations

Section 311(j) of the CWA and OPA, as outlined in 40 C.F.R. Part 112, require facilities that store oil in significant quantities to prepare Spill Prevention, Control, and Countermeasure (SPCC) Plans to prevent accidental releases from reaching WOTUS or adjoining shorelines. Facilities with a greater risk of release and impact to WOTUS may also be required to develop a Facility Response Plan (FRP) to prepare for “worst-case spills.” At the outset, companies should confirm whether these regulations are applicable to their operations and facilities.

SPCC plans are required for facilities that are: (1) non-transportation-related (i.e., they store, process, or consume oil rather than simply move it from one facility to another); and (2) collectively store more than 1,320 gallons of oil above ground or 42,000 gallons below ground that could reasonably be expected to discharge oil to a WOTUS or adjoining shorelines. This can include oil drilling and production facilities, oil refineries, industrial, commercial, and agricultural facilities storing/using oil, facilities that transfer oil via pipelines or tank trucks (including airports), and facilities that sell or distribute oil, like marinas. Practically, these regulations require facilities to have a written plan certified by a professional engineer (apart from qualified facilities), maintain adequate secondary containment for oil storage, maintain updated lists of the federal, state, and local agencies that must be contacted in case of a spill, and follow regular inspection requirements, among other requirements.

In addition to SPCC, FRP plans are required for facilities that could reasonably expect to cause “substantial harm” to the environment by discharging oil into or upon WOTUS. They either have: (1) total oil storage capacity greater than or equal to 42,000 gallons and transfer oil over water to/from vessels; or (2) total oil storage capacity greater than or equal to 1 million gallons and either do not have sufficient secondary containment, are located at a distance such that a discharge could cause “injury” to habitat or shut down a drinking water intake, or within the past five years, have had a reportable discharge greater than or equal to 10,000 gallons. If so, given that FRP is self-identifiable, the facility must prepare and submit its FRP plan to its applicable EPA regional office. Among other things, these plans include evaluating , medium, and worst-case discharge scenarios, descriptions and records of self-inspections, drills, and response training, and diagrams of the facility site plan, drainage, and evacuation plan.

EPA commonly conducts inspections at subject facilities to ensure that SPCC and FRP plans are effectively implemented. Should your facility have an oil spill, plan on an inspection very soon to evaluate compliance and mitigation efforts with your respective requirements.

Suggested Actions

Beyond being aware of the above implications and requirements, below are several actions to consider to ensure compliance and minimize possible enforcement and/or litigation when the least expected occurs.

  • Act Fast: Should an oil spill occur, regardless of size, act fast to respond, mitigate, and determine if notification is required. This includes immediate internal coordination with those responsible for responding, as well as outreach to your environment counsel and/or consultant. If the determination for reporting is close, it is recommended that you report (with a qualified caveat) rather than withhold.
  • Education and Training: Ensure your staff is trained to effectively respond to, report, and prevent oil spills. Oil spills happen despite best attempts otherwise. When the inevitable happens, make sure facility staff are prepared to respond and mitigate the potential impacts of the spill, including having spill reporting hotlines and other contact numbers easily accessible and staff trained on where all information is located. Also, learn from past spills and/or near spills by conducting evaluations and identifying lessons learned to be utilized to prevent future spills.
  • Prepare for Outside Communication: If the spill is significant or causes public impacts, be prepared for outreach by the public, including local news and community groups. Notifications to the NRC are available online and impacts to public or private property often lead to alerts to local news and organizations. Ensure your public affairs contact(s) are aware and develop necessary communication, including desk statements, should the spill create public attention.
  • Review Compliance: Evaluate your current compliance with federal, state, or local requirements, including the development, assessment, and update (if needed) of SPCC and/or FRP response plans. This includes determining if either or both are required at your facility. Should a spill occur, it is important to make sure your response plans are up-to-date and ready for implementation.
  • Regular Audits and Updates: Periodically audit your spill response and prevention measures (SPCC and FRP plans), including any changes to facility operations, secondary containment features, or volumes of oil stored, to identify and correct inaccuracies and ensure that your plans are up-to-date. For FRP, this includes submitting updates to the appropriate EPA regional office within 60 days of each change that may materially affect the response to a worst-case discharge.
  • Insurance: Though not always necessary, consider appropriate insurance coverage to mitigate potential financial liabilities.
  • Consultation: If you have any doubts about your obligations during an oil spill or need assistance with compliance, please do not hesitate to contact your environment counsel or consultants for guidance and support.

1 While this discussion focuses on the impacts of oil spills, it’s important to remember that Section 311 of the CWA (though not OPA) also applies to hazardous substances—discharges to a WOTUS that exceed a reportable quantity pursuant to 40 C.F.R. § 117.3—though the federal government may typically utilize the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), or combination thereof, to pursue such releases.

© 2024 Beveridge & Diamond PC
For more news on Oil Spills, visit the NLR Environmental, Energy & Resources section.

Multistate Coalition Supports EPA’s Proposed Revisions to the Safer Choice Standard

As reported in our December 5, 2023, memorandum, the U.S. Environmental Protection Agency (EPA) proposed updates to the Safer Choice Standard on November 14, 2023, that include a name change to the Safer Choice and Design for the Environment (DfE) Standard (Standard), an update to the packaging criteria, the addition of a Safer Choice certification for cleaning service providers, a provision allowing for preterm partnership termination under exceptional circumstances, and the addition of several product and functional use class requirements. 88 Fed. Reg. 78017. On January 16, 2024, California Attorney General Rob Bonta announced that, alongside a coalition of 12 attorneys general, he submitted a comment letter that:

  • Supports EPA’s proposed revisions to its Safer Choice Standard;
  • Recommends that EPA not allow products with plastic primary packaging to use the Safer Choice label or DfE logo;
  • Recommends that if EPA does allow products with plastic primary packaging to use the label and logo, EPA should prohibit the use of chemical recycling in meeting the proposed standard’s plastic packaging recycled content requirements; and
  • Calls on EPA to exclude any products or packaging that contain any per- and polyfluoroalkyl substances (PFAS), “whether intentionally introduced or not.”
©2024 Bergeson & Campbell, P.C.
For more news on EPA’s Safer Choice Standard, visit the NLR Environmental, Energy & Resources section.

Taking Stock of a Big Month for Methane Policy

November has been a big month for methane policy, featuring announcements of new international, domestic, and private sector initiatives.  A common thread across all of the new initiatives is the aim of achieving more ambitious, credible, and internationally consistent standards for measurement, monitoring, reporting, and verification (MMRV) of methane emissions from the oil and gas sector.  Below is a review.

China’s Methane Pledge.  China is the world’s largest emitter of methane, accounting for 14% of the global total, and, for the first time, the government made an international announcement about methane policy.  At a November summit held in Sunnylands, California, President Joe Biden and Chinese President Xi Jinping announced a new agreement to address climate change. Previous Chinese pledges had only targeted carbon dioxide, but the new agreement includes a first-ever commitment by the country to tackle non-CO2 emissions, including methane.  Just prior to the Sunnylands summit, the Chinese government issued an action plan outlining goals to curb flaring and to develop a methane MMRV program.

EU Methane Regulation.  The European Union (EU) also broke new ground on methane policy this month.  After all-night talks, the EU’s governing entities finalized a new Methane Regulation, which targets not only domestic sources of methane but also emissions attributable to imports of natural gas into the Continent—including from the United States. For imports, the Regulation establishes phased requirements.  The first phase focuses on data collection coupled with a mechanism for detecting and rapidly addressing large leaks.  The second phase will condition imports on application of prescribed, uniform MMRV measures.  Starting in 2030, importers will be subject to a limit on their methane “intensity”—a metric that measures methane emissions per unit of gas throughput.  The methane intensity limit will apply across the entire value chain, from pre-production through final delivery.  The Regulation requires the EU Commission to promulgate the intensity standard by 2027.

International Working Group on MMRV for Natural Gas Markets.  To support not only these emerging governmental policies but also expanding private sector efforts to create a market for “Differentiated Gas,” a multilateral initiative was announced in November—the International Working Group to Establish a Greenhouse Gas Supply Chain Emissions Measurement, Monitoring, Reporting, and Verification (MMRV) Framework for Providing Comparable and Reliable Information to Natural Gas Market Participants (the Working Group). The Working Group’s members consist of the U.S. government, eleven other governments, the European Commission, and the Mediterranean Gas Forum.  The Working Group’s objective is to develop a consensus-based, consistent international framework for supply chain MMRV.  A consistent framework will make it easier for buyers to demand and suppliers to provide natural gas with a lower greenhouse gas profile.  The Working Group will not prescribe emission targets, but it acknowledges that governments may use its work products to inform regulatory processes.

The Working Group has stated that it will draw on input from expert stakeholders.  To that end, a consortium of three universities participating in the Energy Emissions Modeling and Data Lab (EEMDL) has convened a group of academic, think tanks, ENGO, and market experts to develop recommendations for MMRV standards for the Differentiated Gas market. (I am a participating expert in the EEMDL initiative.)  This month, a subset of the experts group published a paper in Nature Energy outlining the issues.

Financial Institutions Call for Industry Action.  Underscoring the increasing private sector demand for Differentiated Gas, two major financial institutions released reports in November calling for industry action.  JP Morgan, one of the world’s largest financiers of fossil fuel projects, issued a report underscoring its commitment to achieve a net zero-aligned emission intensity reduction target for its oil and gas sector portfolio. Methane reductions are a key element of its net-zero strategy.  To that end, the report identifies and exhorts the industry to adopt best-in-class practices for methane MMRV and mitigation.

In the same week, one of the world’s largest insurance underwriters for the oil and gas sector, Chubb, rolled out a Methane Resource Hub, a digital resource center for its clients. The site provides information on MMRV and mitigation techniques, technologies, studies, and policies.

Waiting for EPA.  Also expected in November is EPA’s proposed implementation rules for the “Methane Fee” that was enacted as part of the Inflation Reduction Act (IRA).  The IRA provisions apply a per-ton fee to facilities in the oil and gas sector that exceed specified methane intensity limits.  To implement the fee, EPA will need to promulgate methods for facility-level methane intensity measurements.  A significant issue in the rulemaking is the extent to which EPA will allow affected facilities to use advanced methane measurement technologies to calculate their annual emissions.

© 2023 Van Ness Feldman LLP
For more news on methane policy, visit the NLR Environmental, Energy & Resources section.

Permitting Reform Package Passes as Part of Debt Ceiling Deal

The past year’s long wrangling between Republicans, Democrats, and the White House on permitting reform finally made progress this month when Congress enacted significant reforms to the National Environmental Policy Act (“NEPA”) as part of the legislation to increase the debt ceiling. Prior to this legislation, the core statutory framework of NEPA had remained relatively unchanged for 50 years. Building from Rep. Garrett Graves’ (R-LA., 6th Dist.) “Building United States Infrastructure through Limited Delays and Efficient Reviews” (“BUILDER”) Act of 2023, the permitting reform title of the Fiscal Responsibility Act of 2023 (“FRA” or “legislation”) tackles four key areas:

(1) reforming NEPA to make the federal environmental review process simpler and quicker;

(2) directing a study of the existing capacity of our transmission grid to reliably transfer electric energy between distinct regions and subsequent recommendations to improve interregional transfer capabilities within the grid;

(3) streamlining permitting for energy storage projects; and

(4) congressional ratification of the Mountain Valley Pipeline.

Several of the reforms to NEPA codify changes to the Council on Environmental Quality (“CEQ”) NEPA implementing regulations made during the Trump Administration.

While these provisions are intended to yield significant benefits for projects requiring federal approvals or funding, the actual impact will depend substantially on how the reforms are implemented, and there remains considerable interest in other aspects of permitting and siting reform making further legislative action likely.

Key NEPA Reforms

The FRA includes numerous changes to NEPA. We have highlighted several key changes here.

Narrowing the Scope of “Major Federal Action”

The term “major Federal action” is the trigger for requiring environmental review under NEPA – federal actions that qualify as a “major Federal action” must be considered under NEPA. The new legislation narrows the definition of what constitutes a “major Federal action” by limiting the term to actions that the lead agency deems are “subject to substantial Federal control and responsibility.” The legislation does not define this phrase, leaving substantial room for agency interpretation. Building on this general concept, the amendments codify the regulatory definition of a “major Federal action,” with modifications. As now defined, certain federal actions will be excluded from the scope of a major federal action, including:

  • non-federal actions (i.e., private or state actions) “with no or minimal Federal funding”;
  • non-federal actions (i.e., private or state actions) “with no or minimal Federal involvement where a Federal agency cannot control the outcome of the project”;
  • funding assistance consisting exclusively of general revenue sharing funds, where the federal agency does not have “compliance or enforcement responsibility” over the use of those funds;
  • “loans, loan guarantees, or other forms of financial assistance where a Federal agency does not exercise sufficient control and responsibility over the subsequent use of such financial assistance or the effect of the action”;
  • Small Business Act business loan guarantees under section 7(a) or (b) of the Small Business Act or title V of the Small Business Investment Act of 1958;
  • federal agency activities or decisions with effects located entirely outside of the jurisdiction of the United States; and
  • non-discretionary activities or decisions that are made in accordance with the agency’s statutory authority.

The meaning and application of these exclusions to specific actions will be subject to interpretation and likely litigation going forward. For example, what constitutes minimal funding—a threshold dollar amount or a percentage of the federal funding contribution in relation to overall project cost—is not clearly identified under the revisions. Resolution of this question will be critical to determining what actions are subject to NEPA review going forward. Given the recent dramatic increase in federal funding opportunities from the Inflation Reduction Act and Infrastructure Investment and Jobs Act, determining what actions are subject to NEPA review based on the level of federal funds involved is likely to become a more frequent and important question.

Scope of Review

When an agency action constitutes a “major Federal action,” the FRA also focuses and limits the scope of the NEPA review in two key ways.

First, the legislation modifies the statute’s existing, broad language requiring that “major Federal actions” significantly affecting the quality of the human environment include a detailed statement on the “environmental impact of the proposed action.” The revised language statutorily limits environmental review of environmental effects to those that are “reasonably foreseeable.” This change follows from a provision of the Trump Administration’s 2020 NEPA rule—later removed by the Biden Administration—which sought to eliminate long-used concepts of direct, indirect, and cumulative effects and instead focus on effects that are reasonably foreseeable and that have “a reasonably close causal relationship to” the proposed action or alternatives. Although the new statutory language does not go as far as the Trump Administration’s rule, which required a “close causal relationship,” it does follow the trend in case law to only require evaluation of reasonably foreseeable impacts. What project-specific impacts are “reasonably foreseeable” is still likely to be the subject of litigation.

Second, the FRA also makes changes regarding the alternatives analysis, often considered the heart of NEPA review. The legislation clarifies that agencies are to consider a “reasonable range” of alternatives to the proposed agency action, and that such alternatives must both be “technically and economically feasible” and “meet the purpose and need of the proposal.” This seems to codify long-standing guidance from CEQ contained in its 40 Most Asked Questions Concerning CEQ’s NEPA Regulations. In addition, it directs that, in assessing the no action alternative, agencies must include an analysis of any negative environmental impacts of not implementing the proposed action. Whether an agency has met its obligations under NEPA to consider “alternatives to the proposed action” is a frequent source of controversy and litigation, particularly for the authorization of large infrastructure and energy projects.

These changes should both help focus environmental reviews and reduce costs and delays associated with challenges to agencies’ alternative analyses and emphasize the importance of properly defining the “purpose and need” of a proposed action.

Data Standards and Requirements

The FRA includes several provisions related to data. First, it clarifies that in making a determination on the appropriate level of review (Environmental Impact Statement (“EIS”), Environmental Assessment (“EA”), or categorical exclusion), the lead agency can make use of any reliable data source—and that “new scientific or technical research [is not required] unless the new scientific or technical research is essential to a reasoned choice among alternatives, and the overall costs and time frame of obtaining it are not unreasonable.” It is unclear whether this will be applied beyond the determination of what level of review is required. This change has the potential to limit delays due to agencies undertaking or requesting additional studies from project proponents. What is deemed “essential” and what costs and timeframe are “not unreasonable,” however, remain undefined.

Second, the legislation requires that the action agency “ensure the professional integrity, including scientific integrity, of the discussion and analysis in an environmental document.” The practical implications and scope of this scientific integrity mandate are unclear—and is likely to be a subject of agency guidance and, potentially, future litigation.

Efficiency Measures

The FRA further codifies several less controversial changes from the Trump Administration 2020 NEPA rule, which the recent Biden rulemaking had left in place. These changes include expressly recognizing and establishing regulations for EAs. Additionally, these changes include setting page limits for EISs—150 pages generally and 300 pages for agency actions “of extraordinary complexity”—and EAs—75 pages—excluding citations and appendices. Additionally, the changes codify the regulatory presumptive deadlines for completion of NEPA reviews—two years for EISs and one year for EAs. The legislation goes beyond existing regulations by creating the right to judicial review when an agency fails to meet a deadline. Under the new legislation, if an agency misses the deadline, the delayed project’s sponsor may seek a court order requiring the agency to act as soon as practicable, which is not to exceed 90 days from the date on which the order was issued unless the court determines that additional time is needed to comply with applicable law.

Further, the legislation clarifies the role of the NEPA lead agency, specifying that the lead agency must develop a schedule, in cooperation with each cooperating agency, the applicant, and other appropriate entities, for the completion of the environmental review and any permit or authorization required to carry out the proposed agency action. This mirrors provisions previously adopted as part of Title 41 of the Fixing America’s Surface Transportation Act (“FAST-41”) in 2015, which has demonstrated success in requiring coordination and improving the permitting and authorization processes for certain large infrastructure projects. Although the FRA expressly contemplates extensions to the schedule, just having a schedule in place can be a helpful tool in the timely completion of NEPA reviews.

In addition, the legislation authorizes project applicants to hire independent consultants to prepare EISs and EAs, subject to the independent review of the lead agency. This provision can provide project applicants with a path to minimize delays caused by a lack of staff and resources at federal agencies.

Programmatic Reviews and Categorical Exclusions

The FRA also codifies the current agency practice of preparing and relying on programmatic environmental documents to streamline the review process for subsequent actions that implement the evaluated program. The legislation provides that programmatic review can be relied on for five years without additional review, and after five years if the agency reevaluates the analysis. Although this change promotes further use of programmatic reviews, the five-year period presumption and reevaluation process could present challenges in certain cases given the extensive resources and time required to undertake a programmatic review and tiered reviews.

The FRA also seeks to facilitate the use of categorical exclusions in the NEPA process by authorizing agencies to adopt a categorical exclusion established by another agency. The legislation lays out a process for consulting with the agency that established the exclusion to determine whether adoption is appropriate, notifying the public of the plan to use the categorical exclusion, and documenting adoption of the categorical exclusion. Though dependent upon agencies taking advantage of this new flexibility, this could have the effect of enabling some types of projects to forgo detailed environmental review.

Other Provisions

In addition to the NEPA reforms, the FRA includes several other important permitting provisions. The legislation seeks to streamline and accelerate permitting for “energy storage” projects by adding energy storage to the list of “covered projects” under FAST-41.

Additionally, the legislation provides a clear path for the completion of the much-delayed Mountain Valley Pipeline project. The legislation finds the timely completion of the project is in the national interest, and congressionally approves and ratifies the various federal authorizations required for the project. Further, the legislation bars judicial review of federal agency actions with respect to the project.

Finally, the legislation requires the North American Electric Reliability Corporation (“NERC,” the entity responsible for setting reliability standards for the nation’s electric grid) to undertake a study within a year and a half on whether more transfer capacity is needed between existing transmission planning regions—including recommendations on measures to increase the amount of energy that can be reliably moved between the studied regions. The Federal Energy Regulatory Commission will thereafter have a year to seek and consider public comments on the study and file a report with Congress detailing any recommendations for statutory changes. This study provision was in lieu of a larger set of transmission-related actions that are of key interest to Democratic lawmakers that will be the subject of future legislative efforts.

Implications

Although the provisions in FRA are not a silver bullet to solve every NEPA woe experienced by project applicants, it is a significant step in the right direction. The codification of key concepts within the NEPA statute itself (rather than regulation, guidance, or case law) will have a durable, long-lasting impact on implementation of environmental reviews because it limits the regulation issuance/withdrawal cycle that we have witnessed with the recent administration changes.

Looking forward, we can expect a rulemaking by CEQ to align the existing regulations with the revised statutory language, as well as additional rulemakings by other agencies to harmonize their NEPA implementing regulations with the revised law. For the last year, we have awaited the Phase 2 NEPA rulemaking from CEQ, as explained in our previous alert. With this new legislation, it seems likely that CEQ will pause and further revise its proposed regulations to capture these new reforms before issuing additional regulations. We can also expect future guidance—and eventual litigation—on several ambiguous provisions in the new legislation as agencies begin to implement them.

While the intention behind the legislation is to speed and ease what has become a very lengthy, expensive, and perilous environmental review process—far exceeding the original intent of NEPA—whether these goals are achieved will depend on whether federal agencies embrace them or look for ways to interpret the reforms to continue “business as usual.”

For example, to meet the new timelines, it is possible that federal agencies will require applicants to provide all documentation needed for the environmental review before starting the clock. This approach would have the effect of undermining the statutory timeframes as well as the efficacy of the public engagement process. Similarly, while the legislation seeks to curtail the extent of the analysis through page limits, it is foreseeable that relatively short EISs and EAs could be weighed down with thousands of pages of analysis contained in the appendices.

It also remains to be seen how courts will interpret these reforms. The “hard look” standard developed by courts to evaluate the adequacy of environmental review documents may have the effect of ballooning the analyses again despite Congress’ intent to streamline the process.

Finally, while these reforms are substantial, Congress continues to discuss and debate additional reforms to address unresolved federal siting and permitting concerns—particularly with respect to energy infrastructure projects. Notably absent from the legislation was transmission permitting reform language of interest to Democratic lawmakers as well as provisions to support oil and gas leasing on federal lands and to facilitate the siting and permitting of mining projects to boost domestic supplies of critical minerals essential for existing and developing clean energy technologies.

© 2023 Van Ness Feldman LLP

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

European Commission Aims to Tackle Greenwashing in Latest Proposal

On March 22, the European Commission unveiled a proposal, the Green Claims Directive (Proposal), aimed at combating greenwashing and misleading environmental claims. By virtue of the Proposal, the EC is attempting to implement measures designed to provide “reliable, comparable and verifiable information” to consumers, with the overall high-level goal to create a level playing field in the EU, wherein companies that make a genuine effort to improve their environmental sustainability can be easily recognized and rewarded by consumers. The Proposal follows a 2020 sweep that found nearly half of environmental claims examined in the EU may be false or deceptive. Following the ordinary legislative procedure, the Proposal will now be subject to the approval of the European Parliament and the Council. There is no set date for entry into force at this time.

The Proposal complements a March 2022 proposal to amend the Consumer Rights Directive to provide consumers with information on products’ durability and repairability, as well as to amend the Unfair Commercial Practices Directive by, among other things, banning “generic, vague environmental claims” and “displaying a voluntary sustainability label which was not based on a third-party verification scheme or established by public authorities.” The Proposal builds on these measures to provide “more specific requirements on unregulated claims, be it for specific product groups, specific sectors or for specific environmental impacts or aspects.” It would require companies that make “green claims to respect minimum standards on how they substantiate and communicate those claims.” Businesses based outside the EU that make environmental claims directed at EU consumers will also have to respect the requirements set out in the Proposal. The criteria target explicit claims, such as “T-shirt made of recycled plastic bottles” and “packaging made of 30% recycled plastic.”

Pursuant to Article 3 of the Proposal, “environmental claims shall be based on an assessment that meets the selected minimum criteria to prevent claims from being misleading,” including, among other things, that the claim “relies on recognised scientific evidence and state of the art technical knowledge,” considers “all significant aspects and impacts to assess the performance,” demonstrates whether the claim is accurate for the whole product or only parts of it, provides information on whether the product performs better than “common practice,” identifies any negative impacts resulting from positive product achievements, and reports greenhouse gas offsets.

Article 4 of the Proposal outlines requirements for comparative claims related to environmental impacts, including disclosure of equivalent data for assessments, use of consistent assumptions for comparisons and use of data sourced in an equivalent manner. The level of substantiation needed will vary based on the type of claim, but all assessments should consider the product’s life-cycle to identify relevant impacts.

Pursuant to Article 10, all environmental claims and labels must be verified and certified by a third-party verifier before being used in commercial communications. An officially accredited body will carry out the verification process and issue a certificate of conformity, which will be recognized across the EU and shared among Member States via the Internal Market Information System. The verifier is required to be an officially accredited, independent body with the necessary expertise, equipment, and infrastructure to carry out the verifications and maintain professional secrecy.

The Proposal is part of a broader trend of governmental regulators, self-regulatory organizations, and standard setters across industries adopting a more formalized approach toward greenwashing. For example, as we recently reported, the UK’s Advertising Standards Authority (ASA) published rules on making carbon neutral and net-zero claims. Instances of enforcement actions over greenwashing allegations have also been on the rise. The Securities and Exchange Board of India recently launched a consultation paper seeking public comment on rules to prevent greenwashing by ESG investment funds, and the European Council and the European Parliament reached an agreement regarding European Green Bonds Standards aimed at, among other things, avoiding greenwashing.

Article By Sukhvir Basran and Rachel Rodman of Cadwalader, Wickersham & Taft LLP

Click here to visit the National Law Review for more environmental law news.

© Copyright 2023 Cadwalader, Wickersham & Taft LLP

The EU’s New Green Claims Directive – It’s Not Easy Being Green

Highlights

  • On March 22, 2023, the European Commission proposed the Green Claims Directive, which is intended to make green claims reliable, comparable and verifiable across the EU and protect consumers from greenwashing
  • Adding to the momentum generated by other EU green initiatives, this directive could be the catalyst that also spurs the U.S. to approve stronger regulatory enforcement mechanisms to crackdown on greenwashing
  • This proposed directive overlaps the FTC’s request for comments on its Green Guides, including whether the agency should initiate a rulemaking to establish enforceable requirements related to unfair and deceptive environmental claims. The deadline for comments has been extended to April 24, 2023

The European Commission (EC) proposed the Green Claims Directive (GCD) on March 22, 2023, to crack down on greenwashing and prevent businesses from misleading customers about the environmental characteristics of their products and services. This action was in response, at least in part, to a 2020 commission study that found more than 50 percent of green labels made environmental claims that were “vague, misleading or unfounded,” and 40 percent of these claims were “unsubstantiated.”

 

This definitive action by the European Union (EU) comes at a time when the U.S. is also considering options to curb greenwashing and could inspire the U.S. to implement stronger regulatory enforcement mechanisms, including promulgation of new enforceable rules by the Federal Trade Commission (FTC) defining and prohibiting unfair and deceptive environmental claims.

According to the EC, under this proposal, consumers “will have more clarity, stronger reassurance that when something is sold as green, it actually is green, and better quality information to choose environment-friendly products and services.”

Scope of the Green Claims Directive

The EC’s objectives in the proposed GCD are to:

  • Make green claims reliable, comparable and verifiable across the EU
  • Protect consumers from greenwashing
  • Contribute to creating a circular and green EU economy by enabling consumers to make informed purchasing decisions
  • Help establish a level playing field when it comes to environmental performance of products

The related proposal for a directive on empowering consumers for the green transition and annex, referenced in the proposed GCD, defines the green claims to be regulated as follows:

“any message or representation, which is not mandatory under Union law or national law, including text, pictorial, graphic or symbolic representation, in any form, including labels, brand names, company names or product names, in the context of a commercial communication, which states or implies that a product or trader has a positive or no impact on the environment or is less damaging to the environment than other products or traders, respectively, or has improved their impact over time.”

The GCD provides minimum requirements for valid, comparable and verifiable information about the environmental impacts of products that make green claims. The proposal sets clear criteria for companies to prove their environmental claims: “As part of the scientific analysis, companies will identify the environmental impacts that are actually relevant to their product, as well as identifying any possible trade-offs to give a full and accurate picture.” Businesses will be required to provide consumers information on the green claim, either with the product or online. The new rule will require verification by independent auditors before claims can be made and put on the market.

The GCD will also regulate environmental labels. The GCD is proposing to establish standard criteria for the more than 230 voluntary sustainability labels used across the EU, which are currently “subject to different levels of robustness, supervision and transparency.” The GCD will require environmental labels to be reliable, transparent, independently verified and regularly reviewed. Under the new proposal, adding an environmental label on products is still voluntary. The EU’s official EU Ecolabel is exempt from the new rules since it already adheres to a third-party verification standard.

Companies based outside the EU that make green claims or utilize environmental labels that target the consumers of the 27 member states also would be required to comply with the GCD. It will be up to member states to set up the substantiation process for products and labels’ green claims using independent and accredited auditors. The GCD has established the following process criteria:

  • Claims must be substantiated with scientific evidence that is widely recognised, identifying the relevant environmental impacts and any trade-offs between them
  • If products or organisations are compared with other products and organisations, these comparisons must be fair and based on equivalent information and data
  • Claims or labels that use aggregate scoring of the product’s overall environmental impact on, for example, biodiversity, climate, water consumption, soil, etc., shall not be permitted, unless set in EU rules
  • Environmental labelling schemes should be solid and reliable, and their proliferation must be controlled. EU level schemes should be encouraged, new public schemes, unless developed at EU level, will not be allowed, and new private schemes are only allowed if they can show higher environmental ambition than existing ones and get a pre-approval
  • Environmental labels must be transparent, verified by a third party, and regularly reviewed

Enforcement of the GCD will take place at the member state level, subject to the proviso in the GCD that “penalties must be ‘effective, proportionate and dissuasive.’” Penalties for violation range from fines to confiscation of revenues and temporary exclusion from public procurement processes and public funding. The directive requires that consumers should be able to bring an action as well.

The EC’s intent is for the GCD to work with the Directive on Empowering the Consumers for the Green Transition, which encourages sustainable consumption by providing understandable information about the environmental impact of products, and identifying the types of claims that are deemed unfair commercial practices. Together these new rules are intended to provide a clear regime for environmental claims and labels. According to the EC, the adoption of this proposed legislation will not only protect consumers and the environment but also give a competitive edge to companies committed to increasing their environmental sustainability.

Initial Public Reaction to the GCD and Next Steps

While some organizations, such as the International Chamber of Commerce, offered support, several interest groups quickly issued public critiques of the proposed GCD. The Sustainable Apparel Coalition asserted that: “The Directive does not mandate a standardized and clearly defined framework based on scientific foundations and fails to provide the legal certainty for companies and clarity to consumers.”

ECOS lamented that “After months of intense lobbying, what could have been legislation contributing to providing reliable environmental information to consumers was substantially watered down,” and added that “In order for claims to be robust and comparable, harmonised methodologies at the EU level will be crucial.” Carbon Market Watch was disappointed that “The draft directive fails to outlaw vague and disingenuous terms like ‘carbon neutrality’, which are a favoured marketing strategy for companies seeking to give their image a green makeover while continuing to pollute with impunity.”

The EC’s proposal will now go to the European Parliament and Council for consideration. This process usually takes about 18 months, during which there will be a public consultation process that will solicit comments, and amendments may be introduced. If the GCD is approved, each of the 27 member states will have 18 months after entry of the GCD to adopt national laws, and those laws will become effective six months after that. As a result, there is a reasonably good prospect that there will be variants in the final laws enacted.

Will the GCD Influence the U.S.’s Approach to Regulation of Greenwashing?

The timing and scope of the GCD is of no small interest in the U.S., where regulation of greenwashing has been ramping up as well. In May 2022, the Securities and Exchange Commission (SEC) issued the proposed Names Rule and ESG Disclosure Rule targeting greenwashing in the naming and purpose of claimed ESG funds. The SEC is expected to take final action on the Names Rule in April 2023.

Additionally, as part of a review process that occurs every 10 years, the FTC is receiving comments on its Green Guides for the Use of Environmental Claims, which also target greenwashing. However, the Green Guides are just that – guides that do not currently have the force of law that are used to help interpret what is “unfair and deceptive.”

It is particularly noteworthy that the FTC has asked the public to comment, for the first time, on whether the agency should initiate a rulemaking under the FTC Act to establish independently enforceable requirements related to unfair and deceptive environmental claims. If the FTC promulgates such a rule, it will have new enforcement authority to impose substantial penalties.

The deadline for comments on the Green Guides was recently extended to April 24, 2023. It is anticipated that there will be a substantial number of comments and it will take some time for the FTC to digest them. It will be interesting to watch the process unfold as the GCD moves toward finalization and the FTC decides whether to commence rulemaking in connection with its Green Guide updates. Once again there is a reasonable prospect that the European initiatives and momentum on green matters, including the GCD, could be a catalyst for the US to step up as well – in this case to implement stronger regulatory enforcement mechanisms to crackdown on greenwashing.

Article By Bruce White of Barnes & Thornburg LLP

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

© 2023 BARNES & THORNBURG LLP