Environmental Law Explored: A Podcast SEERies

In this podcast Steven Ferrey (Suffolk University Law School) and Steve Weissman (Center for Law, Energy & the Environment), two experts in environmental/energy/land use law analyzing what became a legal Rubik’s Cube with many different moving pieces to be realigned by attorneys and clients. New policy is changing electric power to move most of the U.S. economy rapidly to utilize electric power in lieu of conventional direct use of fossil fuels for heating, vehicles, and industry. This fundamental transformation occurs amid demands for much more electric power for artificial intelligence, data centers, and cryptocurrency mining, with the Supreme Court in West Virginia v. EPA declaring that “The electric power sector is among the largest in the U.S. economy, with links to every other sector.” This podcast identifies multiple resulting new challenges and provides legal “workarounds” regardless of who sits in the White House.

French President Macron warned the U.S. Congress: “We’re killing our planet. Let us face it. There is no Planet B.” As the United States now rapidly responds to move to clean energy to power our future, in mid-2024 the Supreme Court fundamentally altered legal options:

• Creating a new major questions doctrine fundamentally reducing presidential power particularly related to energy, clean air, and climate;
• Critically “overruling” the most cited Supreme Court decision in the last 50 years, which also involves the environment
• Eliminating the ability of certain federal agencies enforcing laws to impose civil fines; and
• Extending dramatically the statute of limitations to challenge federal regulations affecting environment/energy/land-use (renewable electricity is less dense and requires five to ten times as much land as conventional generation of electricity)

This podcast provides a user-friendly road map through this fast-realigning legal maze, and for those interested this podcast is backed up by a new ABA book (Powering the Future: A Lawyer's Guide to Clean Energy) containing all precedent and providing state-by-state charts analyzing barriers, legal differences, and how lawyers may take advantage of achievable workarounds region-by-region.

This new episode focuses on the recent U.S. Supreme Court decision in Loper Bright Enterprises, Inc. v. Raimondo and its impact on administrative law, moderated by Norm Dupont, Of Counsel at Aleshire & Wynder. The discussion features Professor Lisa Heinzerling of Georgetown University Law, a leading scholar in environmental and administrative law, and John Cruden, a Principal at Beveridge & Diamond and former Assistant Attorney General for the Department of Justice's Environment and Natural Resources Division. The panel examines the court’s 6-3 ruling, which overturned the long-standing Chevron doctrine, shifting the power of statutory interpretation from agencies to judges, now requiring judges to determine the "best interpretation" of ambiguous laws. Heinzerling provides context on the Chevron doctrine’s 40-year application and potential alternatives, while Cruden discusses the implications for future cases from a private lawyer’s perspective. Together, they explore the broader effects on administrative agencies, environmental policy, and statutory interpretation.

In this podcast, David Rieser (K&L Gates) and Amy Edwards (Holland & Knight) will discuss the challenges and uncertainties of incorporating PFAS compounds into Phase I environmental assessments, including how to detect their presence and manage associated risks in real estate transactions.

Now that EPA has identified two PFAS compounds as hazardous substances, ASTM’s most recent Phase I methodology (ASTM E-1527-21) allows environmental professionals to include those PFAS compounds as part of their Phase I assessment. Yet it’s not clear how they determine whether PFAS are present or likely present at a property, let alone whether that presence is the result of a past or threatened release.

On the one hand, PFAS can be associated with certain locations, such as airports which used firefighting foam and certain industries such as manufacturers producing non-stick material and products. At the same time, PFAS have been found in surprising places with no clearly identifiable sources, such as Antarctica. While Phase Is are always more art than science, the level of uncertainty around PFAS makes the process especially fraught. Buyers and sellers will have to decide whether this is an issue they want addressed and consultants will be concerned about their risks of addressing or not addressing PFAS. These choices may affect the ability of the buyer to assert an innocent landowner or bona fide purchaser defense to a CERCLA claim regarding the costs to address PFAS. Unscrupulous parties may look to take advantage of the uncertainty to obtain favorable leverage and unscrupulous consultants may use the uncertainty to sell unnecessary services.

In short, this is a good time to hear from experts in Phase I requirements and nuances. Amy Edwards has participated in the ASTM Phase I process from the beginning, has a wealth of environmental transactional experience and has read more Phase Is than she cares to admit. David Rieser is an experienced environmental attorney and has written extensively on transactional issues. Together they intend to talk through the PFAS issues in Phase Is in the hope of finding useful approaches to deal with these thorny issues.

In this final episode of the Global Climate Change and U.S. Law series, editor Michael Gerrard will talk with Tracy Hester, Instructional Professor of Law at University of Houston Law Center, and Peter Lehner, Managing Attorney for Earthjustice's Sustainable Food & Farming Program, about engineered methods that remove the pollution before it goes out a smokestack, or that draw it down from the atmosphere; and changed farming methods to reduce agricultural emissions and absorb carbon in plants and soil. This episode will be focused on Part 5, "The Next Legal Frontiers," of "Global Climate Change and U.S. Law 3rd Edition."

Get your copy of Global Climate Change and U.S. Law, Third Edition here: Global Climate Change and U.S. Law, Third Edition (americanbar.org)

Heightened political and investor scrutiny; increasing regulations, lawsuits and government investigations; and numerous employee interests regarding a wide range of ESG issues — all of it amounts to considerable pressure on corporate boards and management to balance the implementation of ESG-related objectives while managing ESG-related risks.

As one example, the SEC’s new Climate-Related Disclosure Rules (if they withstand pending legal challenges) will require disclosure about a registrant’s climate-related goals that materially affect the registrant’s business; meanwhile, companies setting such goals may find themselves the target of political attacks, lawsuits or government investigations. How can boards and management navigate these often diverging objectives while staying on course with their fiduciary duties?

Delving into the governance risks and opportunities covered in the new ABA book “Environmental, Social, Governance: The Professional’s Guide to the Law and Practice of ESG”, this podcast will explore governance aspects in the ever-evolving area of ESG, including the SEC’s recent Climate-Related Disclosure Rules and the challenges created by overlapping and potentially conflicting disclosure regimes (e.g., in California and the EU) and other regulators’ expectations (e.g., the banking agencies); balancing the often competing and impassioned ESG-related expectations of various stakeholders; the intersection between ESG and other emerging issues, like Artificial Intelligence; and best practices for incorporating ESG into a company’s operations.

Get your copy of Environmental, Social, Governance: The Professional’s Guide to the Law and Practice of ESG here: Environmental, Social, Governance: The Professional's Guide to the Law and Practice of ESG (americanbar.org)

In this second episode of the series Global Climate Change & U.S. Law, editor Michael Burger will talk with chapter authors Sheila Foster, Professor of Urban Law and Policy at Georgetown University, and Alice Kaswan, Professor of Law at University of San Francisco, about local innovation, climate justice, and how to adapt to a climate changed world. This podcast will focus on part 3 of the "Global Climate Change and U.S. Law, Third Edition" book, discussing State and Multistate Climate Action and Local Initiatives. This podcast will also touch on some of the Federal topics presented in part 2 of the book.

Get your copy of Global Climate Change and U.S. Law, Third Edition here: Global Climate Change and U.S. Law, Third Edition (americanbar.org)

Explore the implications of FERC Order 1920, a pivotal regulation set to reshape the landscape of energy transmission in the United States. This episode will discuss implications of the Order, focusing on enhanced long-term planning and transparency mandates, the integration of state entities in cost allocation processes, and the requirement for transmission providers to consider grid-enhancing technologies. It will also delve into the challenges and opportunities presented by these changes, including how they aim to bolster grid reliability, accommodate future energy needs, and drive the transition to a more resilient and sustainable energy infrastructure. Whether you're an industry insider, policy maker, or simply passionate about the future of energy, this podcast offers valuable insights into one of the most significant regulatory developments in recent years.

In the series Global Climate Change & U.S. Law, editors Jody Freedman, Michael B. Gerrard, and Michael Burger explore the pivotal themes in their book Global Climate Change and U.S. Law, Third Edition. In this first episode, Jody talks with chapter authors Tom Lorenzen, a Partner at Crowell & Moring LLP, and Jim Rossi, Professor of Law at Vanderbilt University, about the most important developments in federal climate and energy regulation, including major rules and orders issued or being considered by the EPA and FERC.

Get your copy of Global Climate Change and U.S. Law, Third Edition here: Global Climate Change and U.S. Law, Third Edition (americanbar.org)

Join our esteemed Chairs as they illuminate the most pressing topics and key issues in energy law that will shape the year ahead. From regulatory changes and sustainability challenges to groundbreaking technologies and market dynamics, this introduction to the upcoming energy law series promises a front-row seat to the discussions that matter most to professionals navigating the complex world of energy law. Whether you're a seasoned practitioner or new to the field, 'Energy Insights' offers a unique blend of expert analysis, insider perspectives, and engaging dialogue that you won't want to miss.

Joe Goffman, Principal Deputy Assistant Administrator for Air and Radiation at the U.S. Environmental Protection Agency, and Chuck Knauss, former lead Republican Counsel to the House Energy and Commerce Committee during the 1990 Clean Air Act Amendments, discuss the Office of Air and Radiation’s recent accomplishments and its priorities for the coming year.