The Nickel Report

Over the past two weeks, the California Air Resources Board (CARB) has finally taken steps to begin implementation of climate disclosure legislation that was passed in 2023.

On June 24, 2024, the Supreme Court granted a petition for writ of certiorari in Seven County Infrastructure Coalition v. Eagle County, CO, (23-975), a case challenging the scope of an environmental review conducted by the Surface Transportation Board (“Board”) pursuant to the National Environmental Policy Act ("NEPA”) for an 88-mile rail line project in Utah. The question before the Court is whether NEPA requires federal agencies to study the environmental impacts of proposed projects beyond the proximate effects of the action that an agency has no authority to regulate.

The Chevron doctrine – the bedrock principle of administrative law under which courts afforded deference to administrative agency interpretations in the face of statutory ambiguity – is no more.  On June 28, 2024, the U.S. Supreme Court issued a long-anticipated decision that addresses the authority of regulatory agencies to dictate policy and the extent to which courts will exercise their own judgment as to the meaning of a statute and how that may bound agency decisions. 

The Division of Mine Reclamation (DMR) has announced it will be taking “heightened efforts” to enforce regulatory compliance under the California Surface Mining and Reclamation Act (SMARA), the state’s comprehensive surface mining and reclamation program.  DMR’s objective is to “enable the highest standards of regulatory compliance and equity”.

On May 1, the Council on Environmental Quality (CEQ) published the final Phase 2 rule overhauling the National Environmental Policy Act (NEPA) implementing regulations. The final rule, titled the “Bipartisan Permitting Reform Implementation Rule” (Phase 2 Rule), will apply to all actions starting the NEPA processes beginning after July 1, 2024, and the agencies have discretion to apply to NEPA reviews that are currently underway.

With the growing emergence of Extended Producer Responsibility (EPR) laws, companies selling products in the United States must increasingly plan for the end of a product’s life. EPR programs shift waste-management responsibilities that have traditionally been handled by consumers or state and local governments to the “producer” of the product.

Most existing EPR programs in the United States target packaging materials, especially plastic packaging. So far, four states have finalized EPR legislation for packaging: Maine, Oregon, Colorado, and California.[1] Each of these states is currently in the process of developing a regulatory program. In 2023, several additional states introduced EPR legislation, signaling that other states may soon follow.

On October 7, 2023 California Governor Gavin Newsom signed two landmark climate disclosure laws aimed at making major companies publicly disclose their greenhouse gas emissions and report on their climate-related financial risks. The first, the Climate Corporate Data Accountability Act (SB 253), will require all business entities with an annual revenue exceeding $1 billion to disclose their greenhouse gas emissions in a format accessible to the public. The second, SB 261, will require all business entities with annual revenue exceeding $500 million to publish a report on their “climate-related financial risks” on their websites. These first-in-the-nation laws are broader than the proposed SEC climate disclosure rule and reach more than just California-based entities.