Supreme Court Justice Antonin Scalia undoubtedly had a significant impact on environmental law during his 30 years on the High Court. Known for his strong opinions and quotable prose, he often showcased both in opinions on environmental issues. One of my personal favorite quotes from Justice Scalia came in his strident dissent in the landmark GHG ruling of Massachusetts v. EPA. In his critique of the majority opinion, he argued that the majority’s reasoning would lead to the conclusion “that everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’” Massachusetts v. EPA, 549 U.S. 497, 558 (2007).
Jenner & Block Webinar: The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know
On Tuesday, February 23rd, from 12:00– 1:15 pm CT, Jenner & Block Partners Lynn Grayson and Steven Siros will present a CLE webinar on The Top Environmental, Health and Safety Issues for 2016 - What You Need to Know. The webinar will provide an overview of key environmental, health and safety issues in 2016 including the following topics:
- Issues relating to the Corps’ jurisdiction under the Clean Water Act;
- Fallout under the Safe Drinking Water Act after Flint;
- U.S. EPA’s Clean Power Plan regulations, UNFCCC COP 21, and the potential regulation of aircraft GHG emissions;
- Status of TSCA reform efforts;
- Litigation relating to GMOs under FIFRA;
- RCRA waste regulation amendments;
- OSHA penalty updates;
- U.S. EPA challenges;
- Water scarcity and sustainability; and
- Technological innovation and its impact on environmental practitioners.
To register for this free Webinar click here.
In an unusual step, on Tuesday, February 9, 2016, the U.S. Supreme Court granted a stay of EPA’s “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,662 (October 23, 2015) (a/k/a “the Clean Power Plan”). The stay is unusual because the challenges to the Clean Power Plan are still before the D.C. Circuit Court, which denied a request for a stay in January.
President Obama addressed the nation last night in his final State of the Union speech. While the President covered a wide range of topics, he spent time to discuss the often politicized and controversial topics of climate change and alternative energy. When outlining the “four big questions” he believes the nation has to address, Obama asked “how do we make technology work for us, and not against us, especially when it comes to solving urgent challenges like climate change?”
Later, Obama dismissed anyone who disputes the science of climate change, and framed the challenge of climate change as an opportunity for American businesses to invest in alternative energy. He claimed that the solar energy industry employs more Americans than the coal industry and pushed for giving homeowners the freedom to generate and store their own energy. Obama stated that he wants to accelerate the transition from “old, dirtier energy sources” by pushing to “change the way we manage our oil and coal resources so that they better reflect the costs they impose on taxpayers and our planet.”
The United States Environmental Protection Agency ("U.S. EPA") recently announced its 2015 enforcement statistics, noting that for fiscal year 2015, U.S. EPA initiated enforcement actions resulted in $404 million in penalties and fines. In addition, companies were required to invest more than $7 billion to control pollution and remediate contaminated sites; convictions for environmental crimes resulted in 129 years of combined incarceration for convicted defendants; and there was a total of $39 million committed to environmental mitigation projects that benefited communities throughout the United States.
The largest single penalty was the result of a Clean Air Act settlement with two automobile manufacturers that resulted in a $100 million penalty, forfeiture of emissions credits and more than $50 million being invested in pollution control and abatement measures. U.S. EPA's 2015 enforcement numbers were up from 2014 ($100 million in fines and penalties collected in 2014).
Please click here to go to U.S. EPA's 2015 enforcement statistics website.
The Hong Kong Stock Exchange announced this week it will require listed companies to strengthen reporting on environmental, social and governance (ESG) matters, responding to investor demand for greater transparency in these areas. Many changes will take effect January 1, 2016. A transition to mandatory reporting for key performance indicators such as greenhouse gas emissions will phase in by January 1, 2017.
On Saturday, December 12th, the 195 parties to the COP21 in Paris agreed to a historic agreement aimed at reducing greenhouse gas emissions from both developed and developing nations. The Paris Agreement aims to keep global temperatures to "well below 2 °C above preindustrial levels."
The agreement is an ambitious accomplishment, more than nine years in the making. However, many climate change activists are claiming it does not go far enough to prevent significant harms from climate change. For example, due to pressure from the United States, the agreement does not say that developed nations "shall" commit to reducing GHG emissions. Instead, the agreement states that developed nations "should" commit to reducing GHG emissions. In addition, the agreement discusses the need for $100 billion a year from developed nations to help developing nations mitigate and adapt to climate change impacts. However, in the final agreement, the $100 billion figure is only mentioned in the non-binding preamble. Many of these changes were pushed by the United States in an attempt to craft an agreement that will not need to be approved by the republican-lead Congress.
President Obama commented after the Paris Agreement was finalized, stating that “[t]his agreement sends a powerful signal that the world is fully committed to a low-carbon future. We’ve shown that the world has both the will and the ability to take on this challenge.” On the other side of the political spectrum, Senate Majority Leader Mitch McConnell stated that President Obama was "making promises he can't keep" and that the agreement was "subject to being shredded in 13 months."
HSBC Holdings PLC, the fourth largest bank by assets in the world, has issued its first green bonds this month. HSBC France raised $500M, offering instruments at an annual coupon rate of 0.625% for a period of five years. Proceeds of the green bond issue will be used to finance renewable energy, energy efficiency, energy conservation, and climate adaptation projects, among others. Green bonds and the financing of climate-related improvement projects have been a key topic during the ongoing COP21 discussions.
HSBC announced its own internal guidelines for green bonds earlier this year. Eligible projects also may include renewables, sustainable waste and water management, sustainable land use and clean buildings and transportation. The issue will prioritize activities in the Middle East and Africa as well as Europe, particularly France. The bank also has announced plans to invest $1B in a green bond portfolio and already has allocated $350M purchasing climate bonds from development banks.
Earlier this year, the World Bank sold $91 million in green bonds tied to an index of “ethical” companies—its largest offering of green bonds linked to an equity index and the first offered to individual investors. See Corporate Environmental Lawyer blog post dated January 16, 2015, "World Bank Sells Record $91M of Green Bonds Tied to 'Ethical' Companies."
Not only are countless businesses publicly supporting a global climate agreement from COP21 as we previously reported, several businesses and business coalitions are pledging to take operational and strategic actions in advance of such an agreement. As reported by Ceres, set out below here are a few of the business coalitions and their pledges:
Delegates from almost 200 nations worked through the night on Friday and into Saturday, working to create the 48-page “Draft Paris Agreement,” made public on Saturday, December 5th. The draft agreement will be the subject of continued negotiations this week in Paris, with the goal of finalizing a long-term climate change agreement among all parties by the end of the week.
The draft agreement lays out three broad goals:
- "To hold the increase in the global average temperature [below 1.5 °C] [or] [well below 2 °C] above preindustrial levels by ensuring deep reductions in global greenhouse gas [net] emissions;
- "To Increase their ability to adapt to the adverse impacts of climate change [and to effectively respond to the impacts of the implementation of response measures and to loss and damage];
- "To pursue a transformation towards sustainable development that fosters climate resilient and low greenhouse gas emission societies and economies, and that does not threaten food production and distribution."
The draft agreement contains many options that will need to be agreed on by negotiators, including:
- The precise goal of the agreement;
- How countries are divided into developed verses developing nations; and
- Whether the agreement’s GHG emissions reductions should be legally binding.
The last point represents a current difference between China and U.S. negotiators. China is pushing for an agreement that is legally binding in its entirety. The U.S. has argued that GHG emissions cuts should not be legally binding; perhaps a pragmatic position due to the fact that legally binding emissions cuts could require the U.S. submit the agreement for approval by the U.S. Senate, which would likely reject any such proposal.
The Corporate Environmental Lawyer blog will continue to track developments from Paris and provide insight and analysis over the week ahead.