Energy & Environment

On December 17, 2015, the U.S. Department of Justice (DOJ) announced that its Environmental and Natural Resources Division (ENRD) will increase efforts to work with the U.S. Department of Labor (DOL) to investigate and prosecute crimes related to workplace violations. According to the DOJ’s Deputy Attorney General Sally Quillian Yates, “On an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked.” As such, Ms. Yates said the DOJ is “redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”

On October 23, 2015, the U.S. Environmental Protection Agency (EPA) published in the federal register its highly anticipated final rules implementing the Clean Power Plan’s goal of significantly limiting carbon dioxide emissions from existing, new, modified, and reconstructed fossil fuel-fired electric generating units (EGUs). EPA also published its proposed model state trading rules and federal plans for implementation of the required emission reductions from existing EGUs. The rules were finalized on August 3, 2015 and published on EPA’s website at that time.

These rules, which will significantly impact the electric power sector, also have the potential to impact manufacturing operations. Businesses with high energy demands may see the effects of the rules in their electricity bills. However, the rules could also present an opportunity for manufacturers of control equipment for coal-fired steam EGUs as well as natural gas combined cycle units and zero-emitting renewable energy generating units.

On July 14, 2015, following nearly twenty months of talks, international negotiators from seven countries (the United States, the United Kingdom, China, France, Germany, Russia, and Iran) announced that they reached a landmark nuclear agreement to limit Iran’s nuclear program. While this is a historic agreement long in the making, it is important to note that there is no immediate lifting of sanctions against Iran. U.S. government officials have indicated that for now it is status quo for those focused on sanctions compliance.

Husch Blackwell’s Charlie Merrill and Megan Galey’s article, “Looking at RCRA Liability Post-Closure Care Period” appeared in Law360 today.

“Under the Resource Conservation and Recovery Act hazardous waste management regulatory program, the owner or operator of a closed hazardous wasteland disposal unit must perform post-closure care activities and provide financial assurance for the estimated costs…

Yesterday, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced increased economic sanctions against Russia, including measures against Russia’s largest bank – Sberbank Russia – as well as several state-owned defense technology companies and five energy companies (Gazprom, Gazprom Neft, Lukoil, Surgutneftegas and Rosneft).  The United States has also tightened previous restrictions by lowering from 90 days to 30 days the allowable length of debt U.S. citizens and entities may buy from sanctioned Russian banks – Bank of Moscow, Gazprombank OAO, Vnesheconombank (VEB), Russian Agricultural Bank (Rosselkhozbank),  VTB Bank OAO and Sberbank Russia.

In a split decision announced earlier today (Utility Air Regulatory Group v.  Environmental Protection Agency, No. 12-1146, slip op. (June 23, 2014)) the United States Supreme Court ruled the Environmental Protection Agency exceeded its authority in requiring sources of air pollution to comply with the Clean Air Act’s prevention of significant deterioration (PSD) and Title V major source permitting programs solely because of a source’s greenhouse gas emissions.  Further, the Court held that EPA is permitted to include greenhouse gas emissions in determining best available control technology (BACT) for sources that would be subject to PSD on the basis of emissions other than greenhouse gas emissions is a permissible interpretation of the Act.

Next Monday, June 2nd is the deadline for all companies subject to the SEC’s conflict minerals rule to file their Form SD and, if necessary, their conflict mineral report.  We surveyed the filings made through May 28 and this blog highlights some of the good examples, and some less than optimal disclosure. A number of filings were made early today after our review, but if you are not one of the early filers, we hope you find our analysis helpful.

Yesterday a panel of the D.C. Circuit Court of Appeals held the Conflict Minerals Rules’ requirement that a company that issues stock disclose if its products are not “DRC conflict free” violated the First Amendment.

In an effort to de-finance parties engaged in violence and human-rights abuses related to the extraction of gold, tantalum, tin, and tungsten—so-called “conflict minerals”—from Democratic Republic of the Congo, Congress, through rules promulgated by the Securities Exchange Commission, required companies to disclose not “DRC conflict free” in reports filed with the SEC and on the company’s website if they determine upon due diligence that their products contain such minerals.  On appeal of the district court’s ruling in National Association of Manufacturers v. Securities and Exchange Comm’n upholding the law, the Association challenged the SEC’s disclosure requirement as unconstitutionally compelling speech in violation of the First Amendment.