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Continue Reading Subpart OOOOa: What Happens When Congress Revives a Repealed Rule?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

On the heels of multiple recent indications that it plans to increase its focus on environmental, social, and governance-related (ESG) corporate disclosures, the Securities and Exchange Commission (SEC or Commission) has solicited help from the public on developing a framework for climate change disclosures. Acting Chair Allison Herren Lee released a statement on March 15, calling for input from investors, registrants, and other market participants “in light of demand for climate change information and questions about whether current disclosures accurately inform investors.”

Continue Reading SEC Seeks Public Comment on Framework for Corporate Climate Change Disclosures

The Securities and Exchange Commission (SEC) announced the creation of a new task force on March 4 to address violations of environmental, social, and governance-related (ESG) disclosure requirements. The Climate and ESG Task Force will be located in the SEC’s Division of Enforcement and led by Acting Deputy Director of Enforcement Kelly Gibson, who will oversee a 22-member team drawn from across the SEC. The task force will focus initially on material gaps or misstatements in disclosure of climate risk under existing rules. The task force will use “sophisticated data analysis to mine and assess information … to identify potential violations” and will also pursue tips, referrals, and whistleblower complaints on ESG-related issues.

Continue Reading SEC Announces Task Force to Enforce ESG Disclosure Requirements

A California state legislator has introduced a bill that would require large corporations doing business in the state to publicly disclose their greenhouse gas emissions (GHGs). The bill, titled the Climate Corporate Responsibility Act, covers publicly traded domestic and foreign corporations with annual revenues in excess of $1 billion. According to state Senator Scott Weiner, who introduced the bill, it could affect up to 5,000 companies. The bill is not limited to any industry sector and would thus impact not only companies typically associated with GHG emissions, like oil and gas producers or power plants, but also would extend to other sectors, including the tech industry, for example.

Continue Reading Mandatory GHG Corporate Disclosure Bill Introduced in California

Just before the inauguration of President Biden, the Trump administration surprised many by failing to revise the stringent CO2 standard for new coal-fired power plants. That standard, adopted by the Obama administration, is based on the use of carbon capture and sequestration — a technology only installed once in the U.S. at a facility that has now been mothballed. When the Trump administration proposed to repeal and replace that standard in 2018, the chance of it surviving in its current form seemed slim. However, as the clock ran out, the Trump EPA failed to finalize its 2018 proposal and instead issued a “significant contribution finding” that attempts to limit regulation of greenhouse gases from new sources to electric utilities alone. While likely to be reversed quickly by the Biden EPA, that determination erects one more barrier to broad regulation of greenhouse gas emissions under the Clean Air Act (Act).

Continue Reading Trump EPA’s Last-Minute Surprise on Climate Standards for New Coal-Fired Utilities Intended to Block Similar Standards for Other Sectors

The U.S. Environmental Protection Agency (EPA or Agency) issued final regulations governing cost-benefit analyses for Clean Air Act (CAA) rulemakings on December 23, 2020. The rule, titled “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” imposes certain requirements on the Benefit-Cost Analysis (BCA) that EPA must conduct for “significant” CAA regulations and requires EPA to consider that analysis when promulgating the regulations, unless otherwise prohibited by law. The rule seeks to force EPA to focus more on the direct benefits of a rule rather than justifying a rule based on the indirect benefits, as EPA has done with certain controversial rules in the past. However, the rule is unlikely to survive long or have much effect under the Biden administration.

Continue Reading EPA Promulgates Final Cost-Benefit Analysis Rule for Clean Air Act Regulations

On May 26, 2020, the Ninth Circuit issued two related decisions in City of Oakland and County of San Mateo brought by California cities and counties against major oil and gas companies. Exclusively citing state law relating to, among other things, nuisance, negligence, and trespass, the California municipalities allege that the companies’ fossil fuel activities have substantially contributed to climate change and, in doing so, impermissibly caused public harm. The municipalities accordingly demand the companies reimburse their costs reacting to and preparing for the effects of climate change. At issue before the Ninth Circuit was whether these claims triggered the jurisdiction of federal courts. Answering this question in the negative, the court determined that the cases must proceed at the state level.

Continue Reading Ninth Circuit Holds that Federal Courts May Not Consider Climate Change Lawsuits

Last week, EPA fulfilled a promise to reverse the expansion of its refrigerant management program during the Obama Administration. That expansion, which was finalized in 2016 and became effective in 2019, EPA extended the regulations for ozone depleting substances (ODS) to non-ODS “substitute” refrigerants, with the intent of reducing emissions of substitutes that consist of greenhouse gases (GHGs), including some with very high global warming potentials. Last week’s final rule returns the refrigerant management program to its original focus, at least with respect to appliance leak repair requirements, although some regulatory requirements for non-ODS substitute refrigerants will remain in place.

Continue Reading EPA Finalizes Rule to Limit Refrigerant Program to Ozone Depleting Substances

On November, 4, the U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced the latest proposal to amend the Coal Combustion Residuals (CCR) rule. Since its original promulgation in April 2015, the CCR rule has been the subject of extensive litigation and numerous rounds of proposed and final revisions. Many of the revisions have sought to address decisions made by the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) and concerns raised by both industry and environmental groups. This latest round of proposed changes—entitled “A Holistic Approach to Closure Part A: Deadline to Initiate Closure”—includes the following three categories of proposed amendments to the CCR Rule.
Continue Reading EPA Proposes Additional Round of CCR Rule Revisions