On October 7, 2023, California Governor Newsom signed two landmark bills into law, Senate Bill (SB) 253 and SB-261, imposing new requirements on large companies doing business in California to publicly report their annual greenhouse gas (GHG) emissions and climate-related risks. These laws apply to both publicly traded and privately held companies, exceeding the scope of the climate disclosure rule proposed by the U.S. Securities and Exchange Commission (SEC) in March 2022. Our professionals have prepared a more detailed summary here; some key highlights are included below.Continue Reading California Adopts Landmark GHG Emissions and Climate Risk Reporting Laws

EPA’s long-promised rules for reducing CO2 emissions from fossil fuel-fired power plants have now been published. In the proposal, EPA lays out “performance standards” for new natural gas-fired power plants and “emission guidelines” for states to use in developing standards for existing gas- and coal-fired power plants.Continue Reading EPA’s New Carbon Standards for Power Plants Require Quick Decisions

The Biden administration has enormous climate and carbon management goals, which rightfully include the geologic sequestration of carbon dioxide as a core part of its climate adaptation strategy. The administration, to its credit, has worked with Congress to provide tax credits and billions of dollars of new funding for programs targeting the transportation and sequestration of carbon, but without equal commitment to the regulatory side of the house, the administration’s ambitious goals are at risk.
Continue Reading EPA UIC Class VI Program Administration Creates Potential Weak Link in Climate Adaptation Strategy

Much ado is being made of recent amendments to the Clean Air Act (CAA) contained in the Biden administration’s budget reconciliation law passed in mid-August, commonly referred to as the Inflation Reduction Act (IRA). And with good reason, as the law includes the most significant changes to the CAA since 1990, and the new sections formally define greenhouse gases (GHGs) as an “air pollutant,” consistent with the Supreme Court’s 2007 decision in Massachusetts v. EPA.

However, the IRA amendments to the CAA do not in fact make significant substantive changes in law. Legally speaking, they can’t, given that the IRA is merely a reconciliation bill through which Congress may only assign funding. More to the point, none of the IRA amendments to the CAA address in any way the limitations the Supreme Court recently placed on EPA’s authority to adopt climate change regulation in West Virginia v. EPA, notwithstanding some characterizations to the contrary.Continue Reading Clean Air Act Amendments Minimally Impact EPA’s Authority to Pass Climate Change Regulation

On the last day of what was already an historic term, the Supreme Court issued another significant decision impacting EPA’s authority under the Clean Air Act to regulate greenhouse gas emissions and address climate change. As EPA embarks on a third attempt at a rule targeting CO2 emissions from existing power plants that will pass legal muster, the question now is how the Court’s decision will affect that new rule.
Continue Reading West Virginia v. EPA: The Supreme Court Speaks Again on Climate

On June 7, the U.S. Fish and Wildlife Service (FWS) issued a proposed rule titled, “Endangered and Threatened Wildlife and Plants; Designation of Experimental Populations.” In issuing the proposed rule, FWS re-affirms its authority to designate and introduce experimental populations of protected species into areas of habitat outside of their historical range when climate change, invasive species, or other threats have affected or will affect that range. Importantly, this proposal only applies to species managed by FWS. Species managed by NMFS are governed by separate regulations, which NMFS updated back in 2016. These changes will make the FWS regulations more similar to those of NMFS. Pursuant to NMFS’ existing regulations, experimental populations of salmon have been re-introduced in certain waterways in the Western United States. FWS’s proposal could result in similar re-introduction of experimental populations of terrestrial and freshwater species.
Continue Reading FWS Proposes to Account for Climate Change When Designating Experimental Populations

The Securities and Exchange Commission (SEC or Commission) published proposed rules on March 21 that, for the first time, would codify the Commission’s expectations regarding what kinds of climate-related disclosures public companies must make in their required filings to the SEC. Prior to now, companies have had to rely on 2010 guidance from the Commission to determine what information they should disclose to investors regarding their climate-related risks.
Continue Reading SEC Publishes Proposed Rule Requiring Climate Disclosures

To help reboot after the holiday break, here is a list of air topics we expect to make news in 2022 with a short discussion of why each one may be important to you.
Continue Reading Welcome Back! These Are the Air Topics That Will Make News in 2022

The Congressional Review Act (CRA) was adopted in 1996 to give Congress a more powerful check on agency regulation that outpaces congressional intent. But now, for the first time, Congress has used that powerful authority in reverse. By disapproving a de-regulatory action — the rescission of the Subpart OOOOa new source methane standards for the oil and gas sector — Congress has brought a dead rule back to life. The birth, death, and now re-birth of Subpart OOOOa (often pronounced “quad-O-A”) raises several new and important questions.
Continue Reading Subpart OOOOa: What Happens When Congress Revives a Repealed Rule?

On April 5, the U.S. Court of Appeals for the D.C. Circuit vacated a Trump-era rule that would have prevented the Environmental Protection Agency (EPA) from setting greenhouse gas (GHG) emissions standards for almost any class of stationary sources, except for fossil fuel-fired electric generating units. The court’s decision, issued at the request of the new Biden EPA, clears the way for new sector-by-sector GHG regulations should the new administration seek to set new GHG standards under Section 111 of the Clean Air Act (CAA).
Continue Reading Rule Limiting EPA Regulation of GHG Emissions Vacated by D.C. Circuit