The Nickel Report

On November 29, Voters in Switzerland narrowly rejected the “Responsible Business Initiative” (RBI), which would have extended liability to multinational corporations and their subsidiaries and suppliers for noncompliance with international environmental and human rights standards, not just in Switzerland but also when doing business abroad. The majority of Swiss voted in favor of the RBI, but the referendum failed due to unique requirements associated with Switzerland’s direct democracy.

While the election results are not yet final, this article will proceed from the assumption that former Vice President Biden will become President in January and that Republicans will win at least one of the two U.S. Senate seats in Georgia to be decided by runoff, and thus will have a majority in the U.S. Senate.

In challenges to California development projects, the “usual suspects” typically include environmental NGOs or neighborhood organizations.  However, that’s not always the case, as illustrated by a new lawsuit filed by the South Coast Air Quality Management District (“SCAQMD”) against the Port of Los Angeles.

On October 30, 2020, EPA published in the Federal Register a proposed rule to revise its 2016 Cross-State Air Pollution Rule Update (the CSAPR Update) to further reduce interstate air pollution from 12 upwind states. EPA is proposing this revision pursuant to its authority under the Clean Air Act’s “Good Neighbor” provision (section 110(a)(2)(D)(i)(l)), which requires upwind states to prevent sources located within their borders from contributing significantly to nonattainment or interfering with maintenance, of the national ambient air quality standards (NAAQS) in downwind states.

As we reported in an earlier posting, on June 4, 2020, the Massachusetts Attorney General’s Office (“AGO”) filed a petition, which requested the Massachusetts Department of Public Utilities (“DPU”) to open an investigation into potential changes to local natural gas distribution company (“LDCs”) operations to support the Commonwealth’s legislatively mandated greenhouse gas (“GHG”) emission limit reductions (the “Petition”). Specifically, the AGO’s Petition seeks to evaluate the industry, regulatory and policy adjustments that are requisite to meet the state GHG limits, and to “determine what near and long-term adjustments are necessary to maintain a safe and reliable gas distribution system and protect consumer interests as the Commonwealth transitions” to carbon neutrality by 2050.

The United States Environmental Protection Agency recently published a final rule on “EPA Guidance; Administrative Procedures for Issuance and Public Petitions.” 85 Fed. Reg. 66,230 (Oct. 19, 2020). The Guidance Rule clarifies the location on the web of certain EPA guidance; provides requirements for guidance development, including for development of particularly significant guidance; and specifies procedures for the public to petition for modification, withdrawal, or reinstatement of guidance. The Guidance Rule is EPA’s response to Executive Order 13891 by President Trump on Promoting the Rule of Law through Improved Agency Guidance Documents and related guidance from the Office of Management and Budget (OMB). The Executive Order and the OMB Guidance both emphasize the need for accessibility and transparency of the guidance process.  The provisions of the Guidance Rule – and their impact on accessibility and transparency– are discussed below.

On October 27, 2020, in a succinct order, the United States Court of Appeals for the District of Columbia Circuit (“the Court” or “D.C. Circuit”) denied motions for stay and for summary vacatur filed by several environmental advocacy groups, including the Environmental Defense Fund and Sierra Club, as well as states and local governments, with leadership from the States of New York and California in litigation challenging EPA’s Oil and Natural Gas Sector:  Emission Standards for New, Reconstructed, and Modified Sources Review, 85 Fed. Reg. 57,018 (Sept. 14, 2020) (“Methane Repeal Rule,” or the “Rule”).  Order at 1, California, et al. v. Andrew Wheeler, et al., No. 20-1357 (D.C. Cir. Oct. 27, 2020).  In addition to an opposition filed by EPA, regulated industry trade groups, including the American Petroleum Institute (“API”), weighed in with the Court on EPA’s behalf to oppose the stay.