The Nickel Report

The 28th Conference of Parties (COP28) to the United Nations Framework Convention on Climate Change (UNFCCC) negotiating process will take place in Dubai, United Arab Emirates, beginning today, November 30, through December 12. As in the past, we are closely following the events on the ground in Dubai and the actions taken and the commitments made toward achieving the climate change goals of the 2015 Paris Agreement.

The themes of COP28, set by the host nation, include technology and innovation (aligning on actions by governments and the private sector to limit warming to 1.5°C); inclusion (engagement with diverse peoples); frontline communities (ensuring the most climate-vulnerable communities can adapt); and finance (funding to close the finance gap on adaptation and the energy transition and aligning public and private finance with the Paris Agreement’s goals). Beyond these themes – that will guide the two-week negotiations – there are a few specific issues we expect to be a priority at COP28, which we briefly discuss below and intend to follow closely.  

On October 17, 2023, the California Attorney General (AG) Rob Bonta released an enforcement advisory letter to manufacturers, distributors, and sellers of food packaging and cookware detailing how he intends to enforce AB 1200, a law which: 1) bans the sale of regulated per- and polyfluoroalkyl substances (PFAS) in food packaging in California, and 2) requires disclosure and labeling of chemicals on a “designated list,” including PFAS, that are present in the food contact surface or the handle of cookware products sold in California. Because the individual laws do not provide specific enforcement mechanisms, this announcement is the first time the AG’s office has articulated the authorities it plans to use to enforce these laws. The enforcement advisory letter provides a clear warning to the regulated community, from manufacturers to importers to distributors and retailers, that California will be enforcing its PFAS laws. Similar advisories could be issued in the future for California’s other laws restricting PFAS in juvenile products, textiles, and cosmetics.

On October 13, 2023, the US Department of Justice (DOJ) published its first annual report detailing the implementation of its Comprehensive Environmental Justice Enforcement Strategy (EJ Strategy). As we reported, in mid-2022, DOJ established an Office of Environmental Justice (OEJ), and the US Environmental Protection Agency (EPA) established a new Office of Environmental Justice (EJ) and External Civil Rights. DOJ’s OEJ is housed in the Environmental and Natural Resources Division (ENRD). DOJ intended its EJ Strategy to extend throughout the Department, in that OEJ’s mandate is to engage all DOJ bureaus, components, and offices in the collective pursuit of environmental justice. DOJ’s new report cites two main executive branch agencies involved in environmental protection and community development: EPA and the Department of Housing and Urban Development (HUD). The report touts efforts that DOJ views as EJ-related “successes” and details a number of authorities DOJ has relied upon in EJ-focused enforcement, including Title VI of the Civil Rights Act, the Clean Air Act, the Safe Drinking Water Act, and the Affordable Care Act. Building on these highlighted successes, DOJ states that it will continue its focus on enforcement proceedings where there is a nexus with environmental justice and will seek EJ-focused mitigation to resolve such proceedings.