The Nickel Report

On August 16, 2024, federal agencies released their “Spring 2024” Unified Regulatory Agenda detailing the regulations that they are developing over the next several months as well as long-term actions planned over the next few years.

On September 5, 2024, the US Environmental Protection Agency (EPA) concurrently issued a direct final rule and proposed rule to change the reporting period and submission deadline for its reporting rule for per- and polyfluoroalkyl substances (PFAS) under Section 8(a)(7) of the Toxic Substances Control Act (TSCA).

On Friday, August 31, 2024, both houses of the California legislature approved a bill (SB 219) making targeted changes to the SB 253 and 261 climate disclosure obligations, which are discussed at length in our previous post.

On July 25, 2024, the US Environmental Protection Agency (EPA) proposed to designate acetaldehyde (CASRN 75-07-0), acrylonitrile (CASRN 107-13-1), benzenamine (CASRN 62-53-3), vinyl chloride (CASRN 75-01-4), and 4,4-methylene bis(2-chloroaniline) (MBOCA) (CASRN 101-14-4) as high-priority substances for risk evaluation under the Toxic Substances Control Act (TSCA).

Recent developments could impact implementation timing and compliance obligations under California’s landmark climate emissions disclosure and financial risk reporting laws that were enacted last year.

States across the country continue to add to the growing patchwork of restrictions for per- and polyfluoroalkyl substances (PFAS) in products, posing challenges for those who manufacture, distribute, and sell products in the U.S. In 2024 alone, states introduced nearly 250 bills addressing PFAS, including restrictions for PFAS in products. Thirteen states have already enacted laws regulating PFAS in products, including (as previously reported) Minnesota and California. In the past few months, Maine, Colorado, Connecticut, Vermont, and Rhode Island have joined the list, each with its own unique and nuanced set of requirements, deadlines and exemptions. The variations in these state laws presents a complicated compliance matrix, necessitating an informed and strategic approach, particularly for companies navigating the complexities of extensive, global supply chains. Below, we provide our analysis of these new laws that companies selling products in these states should be aware of.

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. 

Earlier this month, the US Department of Energy (DOE) released the first National Definition of a Zero-Emissions Building. DOE intends for this definition to set forth “standardized, consistent, and measurable minimum criteria” that can be adopted by public and private entities to support the transition for buildings toward zero emissions. The release of the definition follows on the heels of DOE’s National Blueprint for the Buildings Sectors, published in April. The Blueprint sets forth actions with the aim of reducing greenhouse gas emissions from US buildings 65% by 2035 and 90% by 2050 from a 2005 baseline, with cross-cutting goals of equity, affordability, and resilience. While this definition serves only as non-binding guidance, it may influence other regulatory and industry standards as buildings move toward decarbonization.  

On May 28, the Biden Administration released a joint policy statement and a set of principles for voluntary carbon markets.  The statement provides an additional signal of the Administration’s support for voluntary carbon markets as a means of encouraging decarbonization efforts, while the principles put the weight of the Administration behind specific concepts underpinning the credibility of voluntary carbon credits and voluntary credit markets.

Back in October of 2023, we provided a list of “Frequently Asked Questions” and answers regarding the US Environmental Protection Agency’s (EPA’s) final reporting rule for per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act (TSCA). As of May 8, 2024, many companies are facing a one-year countdown to the deadline for submitting their reports to EPA. To help you prepare for this impending deadline, we are providing a second installment of “Frequently Asked Questions” and answers about EPA’s rule.

On March 6, 2024, by a party-line vote of 3-2, the US Securities and Exchange Commission (SEC) adopted final rules (entitled “The Enhancement and Standardization of Climate-Related Disclosures for Investors”) requiring most public companies to disclose climate-related information in registration statements and annual reports filed with the SEC. The SEC first proposed climate disclosure rules in March 2022, and the proposal has been a source of much debate and controversy, generating over 24,000 comment letters, more than any regulation in the history of the SEC.

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On February 1, 2024, EPA released two proposed rules under the Resource Conservation and Recovery Act (RCRA) that will advance EPA’s PFAS Strategic Roadmap. These two actions would subject certain PFAS—and potentially other emerging contaminants—to RCRA corrective action and may also be a precursor to EPA listing certain PFAS as hazardous waste under RCRA. Once published in the Federal Register, comments on the Definition Rule will be due in 30 days, and comments on the PFAS Hazardous Constituent Rule will be due in 60 days.

On December 14, 2023, the European Parliament and the European Council reached a provisional deal on the Corporate Sustainability Due Diligence Directive (CS3D). Initially proposed by the European Commission in February of 2022, the CS3D requires certain companies to account for and mitigate adverse human rights and environmental impacts throughout their supply chains, including both their own operations as well as upstream and downstream activities. In November 2022, the European Council adopted the general approach proposed by the European Commission. Since then, the Council and the European Parliament have negotiated the parameters of the CS3D to reach a provisional agreement. While press releases from the Council, the Parliament, and the Commission all confirm an agreement has been reached, the text of the agreed upon CS3D is not yet publicly available. It is likely to be released in early 2024.

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.

A set of mandatory environmental, social, and governance (ESG) reporting standards, the European Sustainability Reporting Standards (ESRS), are set to enter into force in the European Union (EU) at the end of this year.  These standards were adopted by the European Commission, the EU’s executive branch, on July 31, 2023 and, barring rejection by the European Parliament or the European Council, will be implemented as part of the EU’s Corporate Sustainability Reporting Directive (CSRD) – a fundamental pillar of the broad “EU Green Deal” – which requires mandatory ESG reporting for certain companies that do business in the EU.  This summary provides an overview of who is subject to the CSRD and when, summarizes key information covered under this initial set of standards, highlights technical guidance from the entity that created the standards, and discusses planned future development of additional standards.