The Nickel Report

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.

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.

Last week marked the conclusion of the 28th Conference of Parties (COP28) to the United Nations Framework Convention on Climate Change (UNFCC) in Dubai, United Arab Emirates (UAE). As we previously discussed, the expectations were COP28 would tackle a range of critical issues toward achieving the climate goals set out in the Paris Agreement. Below is an overview of the most significant developments coming out of Dubai, as reflected in the COP28 agreement, and the expectations for future climate action.

The 28th Conference of Parties (COP28) to the United Nations Framework Convention on Climate Change (UNFCCC) negotiating process will take place in Dubai, United Arab Emirates, beginning today, November 30, through December 12. As in the past, we are closely following the events on the ground in Dubai and the actions taken and the commitments made toward achieving the climate change goals of the 2015 Paris Agreement.

The themes of COP28, set by the host nation, include technology and innovation (aligning on actions by governments and the private sector to limit warming to 1.5°C); inclusion (engagement with diverse peoples); frontline communities (ensuring the most climate-vulnerable communities can adapt); and finance (funding to close the finance gap on adaptation and the energy transition and aligning public and private finance with the Paris Agreement’s goals). Beyond these themes – that will guide the two-week negotiations – there are a few specific issues we expect to be a priority at COP28, which we briefly discuss below and intend to follow closely.  

The Greenhouse Gas (GHG) Protocol Corporate Standard and related guidance are widely accepted as leading sources for companies to use in quantifying and reporting their GHG emissions. Companies report GHG emissions for a number of reasons (both legally mandated and voluntary) and in a number of contexts. Accurate accounting and reporting is critical because inaccuracies in emissions reporting can potentially expose the reporting entity to several types of legal liability, as evidenced by the recent proliferation of lawsuits alleging “greenwashing” claims and increasing regulatory scrutiny in this area.

On June 5, 2023, the US Department of Energy (DOE) published its US National Clean Hydrogen Strategy and Roadmap. This report addresses the Infrastructure Investment and Jobs Act (IIJA) requirement that the DOE “develop a technologically and economically feasible national strategy and roadmap to facilitate widespread production, processing, delivery, storage, and use of clean hydrogen.” Notably, in developing this strategy, Congress instructed the DOE to focus on clean hydrogen production and use from a variety of sources—including natural gas, coal, renewable energy, nuclear energy, and biomass.

On December 17, 2022, the US Department of Energy published a Notice of Intent (NOI) to issue a Funding Opportunity Announcement (FOA) titled, Bipartisan Infrastructure Law: Support for Clean Hydrogen Electrolysis, Manufacturing, and Recycling.

On December 17, 2022, the US Department of Energy published a Notice of Intent (NOI) to issue a Funding Opportunity Announcement (FOA) titled, Bipartisan Infrastructure Law: Support for Clean Hydrogen Electrolysis, Manufacturing, and Recycling.

Hydrogen plays a critical role in the United States’ energy mix, providing energy security, economic value, and environmental benefits. DOE’s Office of Energy Efficiency and Renewable Energy (EERE) issued the NOI to achieve such goals by providing financial assistance awards in the form of cooperative agreements. These funds were appropriated by Congress in the Infrastructure Investment and Jobs Act (more commonly known as the Bipartisan Infrastructure Law (BIL)).

On October 18, 2022, the Department of the Interior announced that the Bureau of Ocean Energy Management (BOEM) will hold an offshore wind energy lease sale on December 6, 2022, for areas on the Outer Continental Shelf (OCS) off central and northern California.

This will be the first-ever offshore wind lease sale on America’s west coast and the first-ever U.S. sale to support potential commercial-scale floating offshore wind energy development. Auction details, lease terms, and qualified bidding companies that can participate in the auction will be outlined in a Final Sale Notice (FSN) to be published in the Federal Register later this week.

On May 3, 2022, the Railroad Commission of Texas (Railroad Commission) voted to approve three actions that represent a major step forward in facilitating the deployment of carbon capture, use and sequestration activities (CCUS) in Texas. Specifically, the Railroad Commission approved:

• Publication of proposed amendments to its rules implementing the state program for geologic storage of anthropogenic CO₂ and incorporating federal requirements;
• Submittal to the US Environmental Protection Agency (EPA) of a pre-application to gain regulatory authority over Class VI underground injection control (UIC) wells that are used for injection of CO₂ into deep subsurface formations; and
• A request that the Governor formally ask EPA for Class VI UIC well program approval. [i]  

Last week, the Securities and Exchange Commission (SEC) revealed its much-anticipated proposal to require that public companies disclose climate-related information. The proposed rule is significant because, for the first time, the SEC would mandate that companies (including foreign companies) publicly traded in the US disclose climate-related risk and greenhouse gas (GHG) emissions information beyond the risk information currently required by existing SEC rules applicable to registration statements and annual reports.

The road to net-zero emissions in the Commonwealth of Massachusetts is not a well-defined highway. In fact, at times it feels more like a barely discernible path through deep forested woods. The recent abandonment of the Transportation and Climate Initiative (TCI) in November 2021, less than a year after its announcement, stands as a clear reminder that there remains a vast divide between the ambitious 2050 net-zero emissions goal of the Commonwealth’s historic climate legislation (Chapter 8 of the Acts of 2021 or the Climate Act) and the regulatory changes necessary to achieve it. However, just as one proposed tool to clear the way gets dropped, Massachusetts regulators take up another to keep the track moving forward.

Two recent actions by the Biden Administration will identify areas of focus for environmental justice (EJ) and therefore influence environmental enforcement priorities, federal permitting and licensing, and federal spending, among other actions. On February 18, the White House Council on Environmental Quality (CEQ) released the beta (or draft) version of its Climate and Economic Justice Screening Tool (CEJST), a key component of President Biden’s Justice40 Initiative and mandated by the same Executive Order 14008. As we described last year, the Justice40 Initiative set the goal of “delivering 40 percent of the overall benefits of relevant federal investments” to disadvantaged communities. The CEJST serves a specific purpose: to help agencies identify disadvantaged communities in order to direct federal benefits and help agencies measure whether 40 percent of benefits are being received by those communities.

On November 1, 2021, as the world commences the COP26 gathering in Glasgow, Scotland, for the next round of global climate negotiations, the White House, under the signatures of John Kerry, Special Presidential Envoy for Climate, and Gina McCarthy, National Climate Advisor, issued a strategy stating that achieving net-zero GHG emissions by 2050 is possible and outlining the broad steps for doing so.  The Long-term Strategy of the United States: Pathways to Net-Zero Greenhouse Gas Emissions by 2050 includes the following key elements: 

As a top priority for the Biden Administration and a key component of energy transition plans, offshore wind energy development is front and center and receiving a lot of attention.  The Biden Administration has announced a commitment to create 30 gigawatts of electricity via US offshore wind by 2030. Congress provided a boost to offshore wind development late last year via a 30% investment tax credit to projects that start construction before 2026.  And just last week, Interior Secretary Deb Haaland announced plans to spur that development by offering a slate of offshore wind lease sales by 2025 in federal waters off the East, Gulf, and West Coasts.