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Corporate Sustainability, Climate Change & ESG
Climate change is no longer solely the concern of scientists. Governments, businesses, and individuals are making a concerted effort to change their patterns to protect the environment. Especially as economies around the world rebuild from the COVID-19 pandemic, many private and public entities are following the example set by the United Nations to take climate-positive actions by creating green jobs, encouraging green investments, and making environmental, social, and governance (ESG) and corporate sustainability central parts of their operations.
Navigating evolving incentives and global requirements require a watchful eye to keep up with all the developments. The ESG, corporate sustainability, and climate change teams at Morgan Lewis do just that on a global scale.
Insights
Environmental, social, and governance (ESG) investing continues to be a hot-button issue as new state legislatures prepare for their next legislative session. The majority of US state legislative assemblies allow bills to be prefiled ahead of the new legislative session to introduce legislation prior to the beginning of the next session. State politicians often use the prefiling process as a way to demonstrate their top priorities ahead of a new session. Examining trends in prefiled bills can help identify the proverbial “canaries in the coal mine” indicating where the political winds will blow in an upcoming legislative session.
The Biden administration released the US National Blueprint for Transportation Decarbonization (Blueprint) on January 10, 2023, setting forth a strategy for decarbonizing the transportation sector in order to achieve the economy-wide 2030 and 2050 emissions reduction goals.
While the Department of Labor’s environmental, social, and governance rule garnered a lot of attention in 2022, there are two other developments simmering that could have significant implications for ERISA plans and financial services providers to ERISA plans as we move into 2023. These are proposed changes to (1) the rules on how to obtain a prohibited transaction exemption from the Department of Labor (DOL) and (2) the rules for qualified professional asset managers (QPAMs).
With a view toward promoting environmental, social, and governance (ESG) investments and building a more sustainable society, the Japan Financial Services Agency (FSA) has proposed new guidelines that define the scope of ESG Public Funds subject to the guidelines.
On January 1, 2023, newly constructed standalone energy storage facilities became eligible for an investment tax credit (ITC) under Section 48 of the Internal Code of 1986, as amended (Code), pursuant to provisions of the recently enacted Inflation Reduction Act (IRA). Storage facilities placed in service before 2023 generally were only eligible for an ITC when constructed as part of a combined renewable generation (typically solar) plus storage facility and the storage system was charged by the paired renewable generation system at least for the 5-year initial operating period. Storage developers and owners will now be able to take advantage of new and significant tax credit opportunities, whether or not the storage system is paired with a renewable generation energy facility.
Later this month, the US Department of Energy’s (DOE) Office of Energy Efficiency and Renewable Energy (EERE) intends to issue, on behalf of the Hydrogen and Fuel Cell Technologies Office, a funding opportunity announcement (FOA) to support the research, development, and demonstration (RD&D) of affordable hydrogen and fuel cell technologies. EERE’s notice stated that the FOA will focus on key hydrogen delivery and storage technologies and durable fuel cell technologies, particularly for heavy-duty trucks to reduce carbon dioxide emissions and eliminate pollution from the tailpipe.
The California Air Resources Board approved its final 2022 Scoping Plan update on December 15, 2022. The plan is the most ambitious in the country in terms of proposed greenhouse gas reduction efforts, chiefly aiming to reach carbon neutrality in the state by 2045 or earlier.
Many people spent the last week of 2022 celebrating holidays or seeking travel adventures both far and near. However, a select group of personnel at the US Internal Revenue Service (IRS) and Department of the Treasury opted for a different path. On December 29, the IRS and Treasury issued a number of documents providing information and clarification on issues concerning tax credit eligibility for purchases of clean vehicles beginning in January 2023.
The Japan Financial Services Agency has proposed a hard law amendment that will provide an additional environmental, social, and governance (ESG) information source for asset managers investing in Japanese listed companies, amid global developments in the ESG disclosure framework. Listed companies in Japan with a current fiscal year end of March 31, 2023, or later will need to prepare their annual public disclosure documents under the new regime.
On December 13, 2022, the Department of Energy’s Office of Fossil Energy and Carbon Management released a Funding Opportunity Announcement (FOA) to make available up to $1.236 billion of funding to promote the development of four Regional Direct Air Capture (DAC) Hubs. This FOA is intended to accelerate the commercialization of, and demonstrate the processing, transport, geologic storage, and conversion of carbon dioxide (CO2) captured from the atmosphere.
The UK Financial Conduct Authority (FCA) recently published its consultation paper, CP22/20, on the use of Sustainability Disclosure Requirements (SDR) and investment labelling. The consultation paper proposes rules to help investors (particularly retail investors) navigate the investment product landscape and identify sustainable investment products, require additional sustainability disclosure, reduce greenwashing, and generally make the United Kingdom a trusted centre for sustainable investment. Subject to the consultation (responses to which are due by 25 January 2023), the FCA intends to review and set out its final policy statement by June 2023.
The Federal Trade Commission (FTC or Commission) voted on December 14 (4-0, with Chair Khan issuing a separate statement) to commence a long-awaited regulatory review of the Guides for the Use of Environmental Marketing Claims (Green Guides or Guides). As part of its review, the Commission will seek public comment on a number of “hot” topics, including climate change and energy-related claims, recyclability and recycled content claims, and the use of now-ubiquitous buzzwords like “sustainable” and “organic.”
The European Union remains committed to its Green Deal. Despite all odds, geopolitical concerns and the energy crisis may actually accelerate the EU green transition and trigger a reduction of fossil fuel imports, with the additional objective of securing the European Union’s energy independence. The share of renewables in the EU electricity mix is expected to grow from 37% in 2021 to 69% in 2030.
As the world responds to rapid changes across economic, social, environmental, geopolitical, and COVID-19 landscapes, many investors and companies are increasingly incorporating ESG—environmental, social, and governance—considerations into their business and investment decisions. Although commercial nuclear power plants have played an important role in the global economy since the Eisenhower administration’s “Atoms for Peace” initiative, the acknowledgement of nuclear energy as an investible asset is a fairly recent shift.
Türkiye’s renewable energy market has experienced substantial growth with renewable electricity generation nearly tripling in the last decade. Turkish Electricity Transmission Co. (TEİAŞ) General Directorate data shows that as of September 2022, energy from renewable energy sources (i.e., biomass, geothermal, hydro, solar, and wind) accounted for almost 55% of the installed power in Türkiye. The Turkish government has made it a strategic priority to promote the expansion of renewable energy resources.
FERC issued three orders focused on increasing regulations for inverter-based resources (IBRs) in fulfillment of one of its primary goals to protect the reliability of the bulk-power system. FERC ensures this reliability through the North American Electric Reliability Corporation (NERC), an independent Electric Reliability Organization that develops and enforces mandatory reliability standards. The reliability standards are only mandatory for certain entities registered with NERC, but most IBRs are not required to register and therefore are not obligated to follow the reliability standards.
On December 1, 2022, the Environmental Protection Agency (EPA) published its proposed “set” rule for the Renewable Fuel Standard (RFS) Program. In addition to setting the volume and percentage standards for renewable fuels for 2023 through 2025, EPA proposed several regulatory changes to the RFS Program, the most notable of which was its proposal to create a new program to govern the Renewable Identification Numbers (RINs) for renewable electricity, which are known as “eRINs.”
The US Department of Commerce (DOC) issued its preliminary determination on December 2, 2022, related to circumvention of antidumping and countervailing duty (AD/CVD) orders A-570-979 and C-570-980 (the Orders) with respect to Cambodia, Malaysia, Thailand, and Vietnam. DOC determined that imports of certain crystalline silicon photovoltaic (CSPV) cells exported from Cambodia, Malaysia, Thailand, or Vietnam using parts and components produced in China are circumventing the AD/CVD orders on solar cells and modules from China.
The US Department of Labor released a final rule reframing how ERISA-regulated fiduciaries can consider environmental, social, and governance factors in retirement plan investment decision making.
The US Department of Labor (DOL) released the Final ESG Rule on November 22, 2022, regulating the consideration of environmental, social, and governance (ESG) factors by fiduciaries of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (ERISA). The Final ESG Rule, “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights,” also addresses proxy voting.
Federal contractors’ fitness for the job may soon be tied to more detailed disclosures of their greenhouse gas emissions and plans to reduce them.
The energy industry and market participants have provided a variety of comments on what role the Commodity Futures Trading Commission (CFTC) should play in the voluntary carbon markets, in response to a June 2022 request for information on how the CFTC can help enhance the integrity and transparency of the voluntary carbon markets and what aspects of the voluntary carbon markets are susceptible to fraud and manipulation.
At the EU level, three significant texts aimed at reinforcing environmental, social, and governance (ESG) compliance among corporations are currently being drafted: a proposed directive to implement and strengthen corporate reporting obligations relating to human rights and the environment; a proposed directive to create an EU legal framework on sustainable corporate governance, including cross-sector corporate due diligence along global value chains; and a proposed regulation to prohibit products made with forced labor on the EU market.
Over the last few years, investors and financial markets have become more focused on environmental, social, and governance (ESG) considerations in making investment decisions. ESG considers how investments impact the environment, social factors, and governance issues. Investors are increasingly applying these nonfinancial factors in making investment decisions.
Requirements associated with the Texas Commission on Environmental Quality’s (TCEQ’s) new Public Participation Plan became effective on November 1, 2022. The plan, which is intended to enhance TCEQ’s compliance with Title VI of the Civil Rights Act of 1964, requires applicants for certain new permits, registrations, or activities, as well as applicants seeking to make certain changes to existing permits, registrations, or activities, to complete a Public Involvement Plan Form and possibly develop a Public Involvement Plan.
The US Environmental Protection Agency (EPA) released on November 2 the final version of its fifth Contaminant Candidate List (CCL 5) that significantly expands the draft CCL’s definition of per- and polyfluoroalkyl substances (PFAS). The new definition, which EPA revised following a year-long public comment and review process, may implicate thousands of individual PFAS chemicals for future regulation under the Safe Drinking Water Act.
Hydrogen will play a key role in addressing the climate crisis, supporting a transition to net zero, and achieving a sustainable clean energy future. As a versatile energy carrier and chemical feedstock, hydrogen offers many advantages and an ability to leverage renewables, nuclear, and fossil fuels with carbon capture and storage. It can also be used as a fuel or feedstock for applications that do not have competitive and efficient clean alternatives.
The US Environmental Protection Agency recently proposed a rule change that would formally repeal a 2008 rule and require all existing major industrial facilities to include “fugitive” emissions in preconstruction evaluations of major modifications for purposes of triggering New Source Review permitting.
Anti-ESG state legislation continues to focus on public retirement plan investing and asset management. Over the last year, 18 states have proposed or adopted state legislation or regulation limiting the ability of the state government, including public retirement plans, to do business with entities that are identified as “boycotting” certain industries based on environmental, social, and governance (ESG) criteria. Since our last update, four states have either adopted or proposed legislation or other forms of regulation that would restrict ESG activities using state assets.
California Governor Gavin Newsom signed into law two bills banning per- and polyfluoroalkyl substances (PFAS) in textiles and cosmetics on September 29, 2022, while simultaneously vetoing a bill that would have required manufacturers and certain other businesses to submit annual reports concerning the usage of PFAS in products sold or imported into the state. These new consumer regulations will have far-reaching implications for companies up and down the supply chain doing business in one of the world’s largest economies.
US Environmental Protection Agency Administrator Michael Regan announced on September 24 that the agency is establishing a new national office focused on advancing environmental justice and civil rights.
With the increasing focus on transitioning to clean energy and a low-carbon economy, companies continue to turn to the voluntary carbon markets, purchasing carbon credits to help decarbonize their operations and achieve their emission reduction goals. However, several factors—the need for additional transparency, standardization, and accountability—may keep purchasers of carbon credits from having full confidence in the voluntary carbon markets, despite their recent growth. In 2021, the voluntary carbon markets quadrupled from 2020 to approximately $2 billion in market value.
The US government took important steps this year to promote a growing hydrogen economy. On August 16, 2022, shortly after the US Department of Energy (DOE) announced a game-changing program to fund $8 billion for the development of regional hydrogen hubs in accordance with the provisions of the Infrastructure Investment and Jobs Act, President Joseph Biden signed the Inflation Reduction Act (IRA) into law, funding approximately $369 billion in new renewable and green energy projects across the country.
Environmental, social, and governance (ESG) investing—especially the “E”—is an increasingly hot topic for investors, but it presents unique legal issues for retirement plan decisionmakers who have strict fiduciary duties to retirement plans and their participants. There are certain considerations for US retirement plans, especially regarding the interplay between the primary applicable US law, ERISA, and environmental-focused investing.
Over the last few years, the conversation surrounding greenhouse gas emissions (GHG) and decarbonization goals has become louder and louder. In April 2021 US President Joseph Biden announced a goal of reducing US GHG emissions by 50-52% by 2030, and the COP-26 summit held in November 2021 saw many other world leaders setting similarly ambitious goals for GHG emissions reductions and decarbonization. One energy source with the potential to help achieve these goals is green hydrogen.
Since President Biden took office, companies have invested nearly $85 billion in the manufacturing of electric vehicles (EVs), batteries, and EV chargers in the United States. This is triple the investment made in domestic EV manufacturing in 2020 and more the 28 times the investment in batteries from two years ago, and the sale of EVs in the United States has tripled in the same period. The Biden-Harris administration is crediting the increase in the development and adoption of EV to an aggressive and holistic funding strategy driven by the White House.
A group of state treasurers and state attorneys general (AG) have raised concerns that certain environmental, social, and governance (ESG) features of certain fund disclosures and other marketing collateral could create liability under state Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) and Anti-Boycott, Divestment, and Sanctions (Anti-BDS) laws. This is an issue that could impact government retirement plans and/or asset managers to public and private retirement plans.
With Forbes calling environmental, social, and governance (ESG) factors the “biggest economic trend of 2021,” many technology companies are at an inflection point as they evaluate adopting a full suite of ESG strategies into their overall business plan.
A group of state treasurers and state attorneys general (AG) have raised concerns that certain environmental, social, and governance (ESG) features of certain fund disclosures and other marketing collateral could create liability under state Unfair and Deceptive, or Abusive Acts or Practices (UDAAP) and Anti-Boycott, Divestment, and Sanctions (Anti-BDS) laws.
The US Securities and Exchange Commission (SEC) announced on August 25, 2022, that it has adopted new rules to require enhanced pay for performance disclosure that will apply to 2023 proxies for calendar year-end issuers.
The California Air Resources Board (CARB) voted on August 25, 2022, to approve the Advanced Clean Cars II rule that prohibits the sale of new gasoline-fueled cars by 2035. The rule sets forth a plan whereby automakers must deliver an increasing amount of zero-emission light-duty vehicles each year, essentially phasing out the manufacturing of gasoline-fueled cars. The requirements begin in 2026, when 35% of cars manufactured for sale must be zero-emission or plug-in hybrid vehicles. The required amount rises to 68% of cars manufactured for sale by 2030, then to 100% by 2035.
This post serves as an update to our prior blog post analyzing the impact of this anti-ESG state legislation on public retirement plan investing.
Environmental, social, and governance (ESG) continues to be a focus area for many companies. As technology companies shift ever increasingly toward the cloud, it is important to keep up to date with ESG issues that may arise for their own company, their vendors, and clients.
At the same time that the federal government, through the US Department of Labor, appears to be easing retirement plan fiduciaries’ paths to considering certain environmental, social, or governance (ESG) factors in making investment decisions, some states are passing legislation that would prohibit the states from doing business with managers who invest based on ESG criteria.
The new Inflation Reduction Act includes a $27 billion Greenhouse Gas Reduction Fund that will support competitive grants to national and local “green banks,” which will use the money to invest in projects and innovations intended to reduce or avoid greenhouse gas emissions and other forms of air pollution. While the fund will provide plenty of opportunity to those “green banks,” program applicants should be wary of potential pitfalls that could spark False Claims Act liability.
The Inflation Reduction Act of 2022, which US President Joseph Biden signed into law August 16, will dramatically affect a range of climate change, healthcare, prescription drug pricing, and tax matters. With an investment of more than $400 billion in spending, the act is expected to bring in more than $700 billion in revenue.
The Inflation Reduction Act of 2022 proposes significant changes and expansions to the existing federal income tax benefits for renewable energy, fuel production, and other green technologies.
The world of personal mobility is changing. As countries seek to reduce carbon emissions and cut down on vehicular congestion in their cities, escooters, autonomous delivery robots, and drones (collectively, “micromobility”) have grown in popularity as new clean-energy personal mobility devices. According to the Pew Center, more than 30% of the world’s population lives in cities that are inhabited by more than one million people. Seeking to capitalize on this clean-energy movement in large urban markets, micromobility startups have raised more than $5.7 billion in funding in the last seven years, led by investment in autonomous delivery robots. Market analysts who have followed these trends project that the micromobility sector will be valuated at $300 billion to $500 billion by 2030. In the Automotive and Mobility Industry Group at Morgan Lewis, our lawyers are tracking these industry metrics as well as the current and future regulatory landscape for micromobility devices.
The US Supreme Court’s recent invalidation of the Obama-era Clean Power Plan under the “major questions” doctrine could make it more difficult for the Environmental Protection Agency to craft a similar regulation in the future.
Another boost to the growing US offshore wind industry came on June 23, 2022, when the Biden-Harris administration and several cabinet secretaries announced new initiatives, including a partnership with 11 eastern states described as a “first-of-its-kind forum for collaboration between federal and state officials to accelerate offshore wind progress.”
The California Air Resources Board’s proposal to reduce statewide greenhouse gas emissions calls for “squeezing the carbon out of every sector” of California’s economy.
On June 9, the Department of Transportation (DOT), through the Federal Highway Administration (FHWA), proposed mandatory standards concerning the development and operation of publicly available electric vehicle (EV) charging infrastructure in US markets. DOT’s proposal is the first-ever effort of the US government to impose mandatory standards on EV charging infrastructure in an effort to create uniformity and consumer transparency in the EV charging sector. DOT’s proposal is subject to comment and consideration, and a final rule is expected later this year.
As the US Department of Labor (DOL) continues to contemplate the role of environmental, social, and governance (ESG) considerations in ERISA plan investing, ESG issues surrounding retirement plans are cropping up in another way: as a target for proxy vote proposals that seek to require companies to evaluate their ESG commitments in retirement plans.
ESG securitisation has the potential to play a key role in achieving sustainable finance objectives in the European Union. There have been a number of regulatory developments and other advances in this area, including the joint consultation paper recently published by the European Supervisory Authorities regarding the draft regulatory technical standards with respect to certain sustainability disclosures for simple, transparent and standardised securitisations.
In a 3-1 vote, the US Securities and Exchange Commission on May 25 proposed amendments to Rule 35d-1 under the Investment Company Act of 1940 (the Names Rule) that, if adopted as proposed, could cause new entrants and existing issuers alike in the registered funds’ space to reevaluate not only the names of their funds, but also the investment policies required under the Names Rule and related prospectus disclosure.
Singapore’s Green Finance Industry Taskforce (GFIT) published a second consultation paper on 12 May 2022, proposing detailed thresholds and criteria for a revised Singapore taxonomy for Singapore-based financial institutions to identify “green” activities or activities transitioning towards green.
In a 3-1 vote on May 25, 2022, the US Securities and Exchange Commission (SEC) approved a proposed environmental, social, and governance (ESG) rulemaking for investment advisers and funds. The proposed rule and form amendments are intended to achieve more standardized and comparable disclosures and reporting of ESG information to both investors and the SEC. Importantly, the proposed amendments would establish a new ESG disclosure framework for prospectuses, annual reports, and adviser brochures, incorporating both qualitative and quantitative information regarding ESG investment practices.
A lawsuit filed by 17 states challenges California’s authority to implement climate change–related vehicle emission standards and zero-emissions goals, prompting 20 states to seek to intervene in order to defend California’s role in reducing greenhouse gas emissions.
With the push to transition to a low-carbon economy, carbon offsets have become an option that many have turned to in order to decarbonize and achieve their climate goals. The demand for carbon offsets is quickly increasing, and the industry has recognized the need for quality standards applicable to a carbon offset, the ability to monitor, report, and verify carbon offsets, and mechanisms that ensure market integrity. Next month, the Commodity Futures Trading Commission (CFTC) will be hosting a meeting to discuss issues related to the supply and demand for high quality carbon offsets and to gather information to assess its potential role in regulating products involving carbon offsets.
FERC recently held a Staff-led technical conference to discuss whether, and if so, how, the Commission should require additional financial assurance mechanisms in the licenses and other authorizations it issues for hydroelectric projects, to ensure that licensees have the capability to carry out license requirements and, particularly, to maintain their projects in safe condition. The feedback received during the conference, as well as the comments to be filed, will likely shape the ultimate FERC rule on financial assurance requirements currently under consideration.
Nuclear energy promises an available and adaptable source of zero-carbon energy. As such, it is poised to play a significant role in the global drive to achieve net-zero carbon emissions by 2050. While some energy companies and governments have recently announced plans to phase out their use of nuclear power, others are looking at nuclear power as a tool to mitigate the rising cost of oil and gas and to reinforce their energy security.
FERC believes that barriers to transmission investment pose significant risks to the energy economy. Inadequate transmission can lead to transmission congestion, which in turn impedes capital investment in energy infrastructure and the facilities necessary to ensure reliable and efficient service. That problem is compounded by changing supply and demand conditions and an increasingly diverse generation mix, which can create ripple effects on competitive wholesale markets.
According to FERC, one of the biggest shortcomings of existing regional transmission planning is its focus on short-term needs. Long-term planning, while part of planning processes today, is not sufficient in FERC’s view and has led to “piecemeal” transmission development and an overreliance on meeting transmission needs through generator interconnection processes, which are not designed with larger regional facilities in mind.
In December, the Biden-Harris administration signed an executive order that established five ambitious goals related to net-zero emissions. One of the ways the energy industry is seeking to meet those goals is through carbon capture and sequestration (CCS). While this is not new technology, there is a renewed focus on using technology to reach net-zero goals by the mid-century. But achieving widespread adoption of this carbon management tool and the deployment of alternative energy sources like blue and green hydrogen requires careful navigation of related environmental and regulatory considerations.
Partner Levi McAllister and associate Maggie Curran authored an article for POWER magazine on how the Biden-Harris administration is utilizing the Defense Production Act to increase materials needed for electric vehicle batteries.
A bipartisan group of US senators recently proposed legislation intended to broadly address electric vehicle (EV) fleet management, as both the federal government and the private sector continue adopting EV use at an unprecedented rate in the US market.
The US Supreme Court recently heard oral arguments in West Virginia v. the Environmental Protection Agency (EPA), a major environmental case questioning the extent of the EPA’s authority to regulate greenhouse gas emissions.
The US Supreme Court issued an order on April 6 staying the district court vacatur of the US Environmental Protection Agency’s 2020 Clean Water Act Section 401 Certification Rule, which imposed restrictions on state and tribal authority to deny permits under Section 401 of the Clean Water Act. This order allows the Trump-era certification rule to remain in place until the disposition of the appeal in the US Court of Appeals for the Ninth Circuit and the disposition of a petition for writ of certiorari, if certiorari is sought following the appeal.
US President Joseph Biden issued a directive to the secretary of defense on March 31, invoking the Defense Production Act (DPA) to spur the domestic production of critical minerals needed to produce large-capacity batteries for the automotive, emobility, and stationary electricity storage sectors.
Be sure to check out the latest issue of Empowered, our energy industry newsletter.
In an Insight published by Practical Guidance, partners Justin Cupples and Cosimo Zavaglia discuss opportunities and challenges facing state and local tax authorities as they determine how to best use electric vehicle tax credits and federal infrastructure funds.
In a Reuters article, partners Elizabeth Goldberg and Lance Dial and associate Rachel Mann wrote about recent rulemaking from the US Department of Labor (DOL) that may impact how fiduciaries and other stakeholders approach environmental, social, and governance (ESG)-related investments. The DOL’s proposed rule "Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights,” as well as the agency’s request for input on ways climate change may affect the retirement industry, could prompt the DOL to take additional action related to ESG investment.
In a move that was telegraphed at the outset of the Biden-Harris administration, the US Environmental Protection Agency announced March 9 that it is reversing a Trump-era decision to revoke California’s authority to set tailpipe emission standards more stringent than those established by the Agency. This action restores California’s role in setting more stringent emission and fuel efficiency standards that, in practice, tend to drive the US market as a whole.
Partner Peter Sharp, and associates Paul Mesquitta and Charlotte Warke authored an article for Insurance Day about climate change related coverage issues. They discussed property and business interruption insurance and anti-concurrent causation clauses.
State and local tax authorities are facing the same issues today as they did before the pandemic: determining how to use their arsenal of audit activities, interpreting existing tax laws, and crafting and passing new tax proposals to combat budget deficits and increase tax revenue. The electric vehicle (EV) industry is an area that is ripe for states to try to apply outdated tax laws to a cutting-edge business.
As anyone in the electric vehicle sector is aware, network charging infrastructure is a threshold issue to be addressed in order to get more electric vehicles (EVs) on the roads in US markets.
This edition of Morgan Lewis Retail Did You Know? examines the pending New York Fashion Sustainability and Social Accountability Act (S7428/A8352), which, if passed by the state legislature, would be the first fashion sustainability law in the United States. Apparel and footwear companies that do business in New York State should consider the potential impact of the bill, which imposes broad-reaching disclosure requirements related to social and environmental sustainability.
The US Department of Labor (DOL) recently announced that it is seeking comment on the impact of climate change on retirement security and what actions, if any, the agency should take to protect retirement savings from such risks.
The Infrastructure Investment and Jobs Act (IIJA) is slated to provide unprecedented levels of federal spending toward physical infrastructure, allocating $1.2 trillion not only for funding roads, bridges, and rails, but also for funding projects like high-speed internet, electric grid modernization, and an electric vehicle (EV) charging station network.
Partners Rebecca Kelly and Bill Nash wrote an article for The Oath examining some of the regulatory trends and sectors that will shape the Middle East over the next 12 months.
Many asset managers have signed up for the Net Zero Asset Managers Initiative (NZAMI), a commitment to supporting the goal of net-zero greenhouse gas emissions by 2050. However, as partners Lance Dial and Miranda Lindl O’Connell argue in an article published by Corporate Compliance Insights, the implementation of NZAMI can create unanticipated challenges, among them issues with fiduciary duties, client reporting, and portfolio management.
It has been reported that some asset managers in the Gulf Cooperation Council (GCC) expect stronger inflows amid growing demand for environmental, social, and governance (ESG) and Islamic-compliant investments. The rise in the global popularity of ESG investing presents a unique opportunity to investors, asset managers, and banks in the GCC to offer more “green” Islamic investment products to attract and obtain investment from a broader pool of potential investors that seek to invest in an ESG-compliant manner. Additionally, while “green” investments that tick the boxes of ESG and Shari’a compliance may currently be limited, the rise in innovative structured solutions that allow for exposure to certain ESG investments that would otherwise not be Shari’a compliant are increasingly being used by family offices, regional banks, and institutional investors and could bridge the gap further.
The Intergovernmental Panel on Climate Change has declared that “[i]t is indisputable that human activities are causing climate change, making extreme climate events, including heat waves, heavy rainfall, and droughts, more frequent and severe.” Many of the world’s governments are seeking to address the long-term impact of climate change as well as the immediate consequences of events such as Hurricane Ida, the Australian bushfires, floods in Germany, and increasing California wildfires. With these developments come key questions for policyholders—how can businesses be protected from the potential of increasing losses (both physical and economic) resulting from climate change and extreme climate events? Will relevant insurance coverage be available? If so, at what cost?
A unanimous three-judge panel in the US Court of Appeals for the Tenth Circuit affirmed on December 28, 2021 that private citizens and environmental groups have the right to seek enforcement of the Clean Air Act’s anti-tampering provisions under its citizen-suit provision, 42 USC § 7604.
The automotive industry was awash in change in 2021, driven by investment trends, new goals set by the Biden-Harris administration, and international electric vehicle developments. Looking back, 2021 will be viewed as a transformational year for the ways in which automobiles were—and will be—designed, manufactured, powered, sold, and regulated.
The global impact of our planet’s changing climate garnered significant attention in 2021. The United States rejoined the Paris Agreement at the beginning of the year and in November, during the United Nations Climate Change Conference (COP26), world leaders made aggressive national carbon emissions reduction commitments. The industry responded with plans to meet national goals through increased investment in renewable energy resources (such as offshore wind and solar), new energy technologies that facilitate the commercialization of carbon capture and sequestration, and green hydrogen projects, as well as projects designed to electrify the transportation sector.
Partner Peter Sharp and associate Paul Mesquitta authored an article for Insurance Day about policyholder liability and climate change–related coverage.
Many organizations have longstanding sustainability initiatives for reducing waste through efforts such as recycling or reductions in printing. However, organizations are now also looking to their use of technology to help improve the sustainability of their operations.
The Federal Energy Regulatory Commission recently issued a final rule, Order No. 880, revising its hydropower project inspection and safety regulations. The updates revise part 12 of FERC’s regulations and conclude an approximately year and a half of rulemaking in Docket No. RM20-9.
The US Senate and House of Representatives have both passed HR 6256, the bicameral, bipartisan Uyghur Forced Labor Prevention Act, with the Senate approving the measure by unanimous consent on December 16. The White House has indicated that President Joseph Biden will sign the legislation into law. At that time, parties seeking to import goods into the United States will have 180 days to ensure that their supply chains are not exposed to China’s Xinjiang Uyghur Autonomous Region or, if they are, that the importer can be issued an exception based on yet-to-be-written due diligence, supply chain tracing, and supply chain management provisions.
Partners Lance Dial and Celia Soehner write in Reuters that as more investors seek strategies to further their environmental, social, and governance (ESG) goals, demand has grown for asset management firms to think critically about how they address ESG issues within operations and investment product offerings.
Asset managers face a long and growing list of questions, demands, and expectations from investors, financial regulators, and other stakeholders about their approach to sustainable investing. A new report from Morgan Lewis and BlueMark shows that there are several areas of alignment between financial regulations and voluntary standards, which provide a basis for how asset managers should evaluate and refine their sustainable investing practices.
The US Department of Transportation’s Federal Highway Administration (FHWA) recently issued a notice seeking public comment on two new electric vehicle (EV) programs that will receive funding under the Infrastructure Investment and Jobs Act (IIJA), which was signed into law by President Biden on November 15, 2021.
In Energy Central, partner Daniel Skees and associate Arjun Ramadevanahalli write that the US Department of Energy’s notice of Request for Information seeking public input on energy supply-chain issues and related technologies will be significant to the nation’s efforts at meeting emissions goals—including the licensing and deployment of advanced nuclear reactors.
Despite the global attention being paid to combatting climate change, nuclear energy is often ignored in the discussion about how to reduce carbon emissions, but as a reliable, low-carbon energy source, nuclear power is poised to play a very real part in achieving net zero emissions in the United States. Morgan Lewis lawyers discuss some of the key advantages of including nuclear power in the future US energy portfolio.
The Federal Register recently published the US Department of Energy’s (DOE) notice of Request for Information (RFI) seeking public input on energy sector supply chains. The RFI requests that stakeholders provide comment on a wide variety of issues concerning supply chains of energy and related technologies.
The US Environmental Protection Agency (EPA) recently issued a proposed rule under the Clean Act intended to reduce emissions of greenhouse gases (GHGs) and air pollutants from crude oil and natural gas operations (production, processing, transmission, and storage segments).
While the Net Zero Asset Managers Initiative commitment (the NZAMI Commitment) is a clear signal to the market of an asset manager’s commitment to addressing the risks and challenges of climate change, it is a significant undertaking for asset managers and has several regulatory implications. This White Paper discusses these associated challenges and provides a roadmap that asset managers can follow to help ensure NZAMI Commitment compliance.
Partners Daniel Skees and Stephen Spina and associate Arjun Ramadevanahalli authored an article for Law360 about the recently passed Infrastructure Investment and Jobs Act.
President Joseph Biden signed the $1.2 trillion Infrastructure Investment and Jobs Act (the Act) on November 15, 2021, which allocates $550 billion in new spending over the next five years to improve US infrastructure, including critical investments in the energy sector. These investments will cover power grid infrastructure, electric vehicles and charging stations, renewable energy, nuclear power, hydropower, and cybersecurity with the goal to strengthen the energy industry, support emission-free power generation, and bolster emerging technologies.
The Chancery Lane Project, a UK-based nonprofit network of legal professionals, has published a “Net Zero Toolkit” to help organizations achieve net zero goals. The toolkit includes 100 “climate clauses” aligned with the 2015 Paris Agreement goals.
Morgan Lewis partner Vasilisa Strizh and associate Anastasia Kiseleva co-authored the Russia chapter of The Legal 500’s 2021 edition of its Blockchain Country Comparative Guide, a country-specific Q&A that provides readers an overview of blockchain laws and regulations applicable in Russia.
The US Department of Labor on October 14 published in the Federal Register a “Notice of Proposed Rulemaking on Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights.” The proposed rule, if adopted in its current form, would be a significant revision of two controversial regulations adopted at the end of the administration of US President Donald Trump that were perceived by some as imposing new hurdles when considering environmental, social and governance (ESG) factors in making fiduciary investment decisions for US retirement plans and investors subject to ERISA.
The IRS recently issued guidance on the utility of and weight to be afforded informal “frequently asked questions” (FAQs) published on its website—clarifications that became necessary given the IRS’s heavy reliance on FAQs as the preferred form of guidance throughout COVID-19 in its attempt to swiftly clarify and interpret standards of newly enacted relief programs often administered by the IRS and the US Department of the Treasury.
The Centers for Medicare and Medicaid Services (CMS) announced that it had restarted the Targeted Probe and Educate (TPE) audit process, effective September 1, 2021. More recently, the Medicare Administrative Contractors for hospice have targeted “claims with revenue code 0656 [General Inpatient Care] greater than or equal to 7 days submitted with dates of service on or after January 1, 2020” for active, pre-pay medical review.
The US Department of Labor (DOL) released on Wednesday, October 13, a Notice of Proposed Rulemaking on Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights (the proposed rule), which would amend a prior regulation (the 2020 rule).
The Department of Labor (DOL) released on October 13, 2021, a Notice of Proposed Rulemaking on Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights (Proposed Rule), which would amend a prior regulation (the 2020 Rule). This blog post provides a high-level summary of the Proposed Rule and outlines how it may affect environmental, social, and governance (ESG) investing for ERISA plans.
Partners Elizabeth Goldberg, Michael Richman, Julie Stapel, and Lance Dial, along with associates Rachel Mann and Gena Yoo, authored an article for Practical Guidance on a recent proposed regulation from the US Department of Labor.
As the Biden-Harris administration, state governments, and utilities prioritize addressing climate change through reduction of carbon emissions, the United States could soon rival Europe in its use of offshore wind turbines, explained partners Ella Foley Gannon and Dan Skees and associate Scott Clausen in an article written for Reuters.
A report presented on September 23, 2021, into the February 2021 power outages in Texas and the US Midwest caused by extreme cold weather identified the causes of the outages and outlined a series of recommendations. Commenting on the report, jointly authored by the Federal Energy Regulatory Commission (FERC) and the North American Electric Reliability Corp. (NERC), FERC Chairman Richard Glick stated FERC “must take these recommendations seriously, and act decisively, to ensure the bulk power system doesn’t fail the next time extreme weather hits.”
Financial losses caused by recent storms, fires, hurricanes, and other natural disasters are a significant and urgent problem. Insurance industry observers predict that such extreme weather may result in losses of over $100 billion this year alone. From the fires blazing through the Pacific Northwest and California to the destruction caused by Tropical Storm Henri and Hurricane Ida across the South and Northeast, every sector of the economy has been impacted by severe weather events. Most recently, Tropical Storm Nicholas left over half a million customers without power across Texas alone. After responding to the initial, often substantial, concern for securing public safety, companies must evaluate what to do next to recover.
August 2021 proved to be a busy month for stakeholders in the electric vehicle (EV) sector. Between US President Joseph Biden's August 5 executive order to encourage the development of EVs and $15 billion in funds earmarked for EV support in the Senate-approved infrastructure legislation, the growth outlook for EVs and other zero-emission transportation is strong.
Transactions involving a Special Purpose Acquisition Company (SPAC) accounted for more than 50% of new publicly listed US companies in 2020. Described as the new way to go public, SPAC transactions have proven to be an effective way to raise capital. SPACs are used in a variety of sectors and the clean energy space is no exception, as the number of renewable energy SPACs keep growing. This article will briefly explain why “green SPACs” became so popular and why, despite the challenges in the SPAC market, the green SPAC frenzy is likely to continue.
The promotion of green finance and investment in sustainable projects continues to be a key policy of the government of the United Arab Emirates (UAE). The UAE government (with its related entities) has traditionally been the initiator of the financing of sustainable investments and initiatives; however, this is increasingly changing as the private sector becomes more involved. Given the current policies of the UAE government and the other governments within the Gulf Cooperation Council (GCC), it is extremely likely that green finance will continue to grow throughout the Middle East and North Africa (MENA).
In the eight months since Richard Glick took the helm of the Federal Energy Regulatory Commission (FERC), a number of changes to federal regulation of the development of natural gas infrastructure are in the works and several recent orders have showcased diverging positions at the Commission.
The US Department of Health and Human Services recently announced the establishment of the Office of Climate Change and Health Equity (OCCHE). Noting that the OCCHE is “the first office of its kind at the national level to address climate change and health equity,” the OCCHE will be tasked with assisting with regulatory efforts aimed at reducing greenhouse gas emissions and criteria air pollution throughout the healthcare sector.
How to best address impacts from our rapidly changing climate is an issue that has permeated almost all sectors of the global economy, traversing industries and impacting all. Governments and businesses around the world are taking action to reduce greenhouse gas emissions and adapt to or mitigate anticipated climate change impacts. These initiatives promise to drive emerging market opportunities and public demand to accelerate existing trends toward energy efficiency, jump-start alternative technologies, and prod changes in financing and tax policy.
The European Commission and the European External Action Service issued Guidance on Due Diligence for EU Businesses to Address the Risk of Forced Labour in Their Operations and Supply Chains (Guidance) on 12 July as a guide for European companies to implement effective human rights due diligence practices.
The newest edition of Morgan Lewis Spark, a quarterly update highlighting new and amended Russian legislation of importance to companies operating in the Russian energy and mining sectors.
It’s been a big week for electric vehicles. Between the Biden-Harris administration’s August 5 executive order to encourage the development of electric vehicles (EVs) and $15 billion in funds in the Senate-approved infrastructure legislation, the growth outlook for EVs and other zero-emission transportation is strong.
The US Securities and Exchange Commission (SEC) approved new disclosure rules on August 6 regarding board member diversity of Nasdaq-listed companies. Nasdaq’s new rules require most companies to tell shareholders how many of their board members are diverse in terms of race, gender, and LGBTQ+ status and, if they do not have at least two diverse directors, they must explain to shareholders why by August 2022.
In a move that the Biden-Harris administration is promoting as a partial fulfillment of a campaign promise to cut US greenhouse gas emissions (GHGs) at least in half by 2030, President Joseph Biden signed a new executive order last week setting a goal of 50% of all new passenger cars and light trucks to be zero emissions vehicles by 2030 and building on Environmental Protection Agency (EPA) proposed tailpipe emission standards that are set to begin with the 2023 car model year.
Companies doing businesses in the European Union should note an important development that could introduce a duty of care for companies. On 10 March 2021, the EU Parliament approved an outline proposal for an EU Directive on Mandatory Human Rights, Environmental and Good Governance Due Diligence (Directive).
As of July 15, 2021, both Federal Collegiate Courts in Administrative Matters Specialized in Economic Competition (Tribunal Colegiado en Materia Administrativa Especializado en Competencia Económica, Radiodifusión y Telecomunicaciones) have issued decisions lifting two permanent suspensions of the Amendments to Mexico’s Power Industry Law (the Amendments). However, the Amendments remain unenforceable due to injunctions with general effect granted in other amparo constitutional proceedings presented before Mexican district courts.
While the future of private investment in Mexico’s power industry remains uncertain, renewable energy investors should be aware of current proceedings regarding changes to the law.
The US Environmental Protection Agency (EPA) reversed a Trump administration decision involving use of nuclear materials. On June 30, the EPA announced that it was “withdrawing, revoking and rescinding” its conditional approval of The Fertilizer Institute’s (TFI) request to approve the use of phosphogypsum (PG) in road construction. PG is a radioactive byproduct of fertilizer production and is regulated by the EPA. This action follows the EPA’s earlier announcement that it is reviewing a Trump administration decision on cleanup standards for radionuclide-contaminated effluent at a Tennessee Superfund site, which we reported on. Together, the two decisions confirm that the EPA continues to scrutinize prior agency decisions and to more strictly regulate radioactive materials.
The US Environmental Protection Agency (EPA) recently announced a site-specific review that has broader implications for Superfund site cleanups with radionuclide contamination. The EPA is reviewing a Trump-era decision on the applicability of water quality regulations for radionuclide-contaminated effluent from a Tennessee Superfund site. This review could result in reversing the prior determination that the Clean Water Act’s (CWA’s) technology-based effluent limits do not apply. If the EPA reverses this decision, it could signal that the EPA is looking to impose more stringent standards for the cleanup and discharge of radionuclide-contaminated water at other sites.
On June 16, Connecticut joined seven other states—California, Massachusetts, New Jersey, Nevada, New York, Oregon, and Virginia—in adopting an energy storage deployment goal as a strategy to address climate change. In furtherance of Connecticut’s move toward 100% carbon-free power by 2040, Governor Ned Lamont enacted Public Act No. 21-53, which establishes a goal to deploy one gigawatt (GW) of energy storage by 2030. The act also sets interim targets of deploying 300 megawatts (MW) of storage by the end of 2024 and 650 MW by the end of 2027.
On June 11, 2021, the US Department of the Interior’s (DOI’s) Bureau of Ocean Energy Management (BOEM) issued a proposed sale notice to sell commercial wind energy leases on the Outer Continental Shelf (OCS) in the New York Bight. The New York Bight is an area of shallow waters located between Long Island and the New Jersey coast that is adjacent to the greater metropolitan tristate area, which is home to more than 20 million people. BOEM proposes to offer for sale eight lease areas and to complete the lease sale by holding a public auction.
The environmental, social, and governance (ESG) landscape is being shaped by the establishment of various ESG standards and frameworks, many of which have been adopted on a voluntary basis by funds, investment managers, and the companies in which they invest. Although, as of June 2021, there are currently no ESG-specific regulations or rules in the United States, there are many existing securities laws that apply to ESG investing and related claims, and the Securities and Exchange Commission (SEC) is focused on ESG investing from policy, regulatory, examination, and enforcement perspectives. There are a number of steps that funds and their investment managers can, and should, take to assess and address the potential issues presented by ESG investing.
Hydrogen has been widely touted as a solution to achieve ambitious emissions reduction goals. But in order to unleash hydrogen’s potential as a viable energy source to meet current targets, it needs to be produced in larger quantities than it is today without generating large amounts of undesirable emissions during the production process, and at a cost that is not prohibitive.
In this article, we provide a high-level overview of the regulatory regime and key trends in green finance in the Europe, Middle East, and Africa (EMEA) region. This Part 1 addresses the European Union (EU), the United Kingdom, Russia, and Kazakhstan; we will continue with other key jurisdictions in Part 2 in a future issue.
The US energy storage industry is experiencing rapid growth, with approximately 3.5 gigawatt hours (GWh) of energy storage installed in 2020, which is greater than the aggregate 3.1 GWh of energy storage installed from 2013 through 2019. In 2021, the annual deployment of energy storage in the United States is expected to reach nearly 4 GW as a result of large-utility scale procurements, and this number is expected to grow to nearly 7 GW by 2025.
Partners Kirstin Gibbs, Jennifer Josefson, Felipe Alice, Olivier Chambord, Hao Su, and Tsugu Watanabe authored a Petroleum Review article about the global energy transition to net zero emissions.
Partner Bryan Killian spoke with Harvard about his path to becoming an environmental lawyer and the types of matters in which he supports clients.
US President Joseph Biden issued the Executive Order on Climate-Related Financial Risk on May 20, 2021, directing federal agencies across the US government to take action addressing climate-related financial risk.
Vineyard Wind has received approval from the Bureau of Ocean Energy Management (BOEM), the US Army Corps of Engineers, and the National Marine Fisheries Service for its 800 megawatt offshore wind farm located about 15 miles off the coast of Martha’s Vineyard. The approval is likely to facilitate the development of additional projects and has been touted as helping achieve President Biden’s ambitious climate change goals.
Just over 100 Days into the Biden-Harris administration, the course being charted by the government for automobile emissions and emerging automotive mobility technologies is becoming clearer. It includes retooling the current approach toward emissions regulations, including the Corporate Average Fuel Economy (CAFE) standards and the California Waiver as well as revitalizing the federal government’s sustainability efforts to achieve or facilitate clean and zero emission vehicles for federal, state, local, and tribal government fleets. But with new and existing legal and regulatory pitstops along the way, companies attempting to leverage these developments should consider the updates below before shifting into gear.
In a recent Lawflash, our colleagues Ken Kulak and Ariel Braunstein reported that at the Leaders Summit on Climate, hosted by the Biden-Harris administration on April 22 and 23 in Washington, DC, President Joseph Biden set aggressive goals for reducing greenhouse gas emissions in the United States and set forth his aim to encourage the investment in and use of new green technology and to explore pollution reduction strategies.
US President Joseph Biden and Vice President Kamala Harris have consistently framed their policies with what they call the four major “crises” facing the nation: COVID-19, the economy, climate, and inequity.
During the Leaders Summit on Climate, hosted by the Biden-Harris administration on April 22 and 23 in Washington, DC, President Joseph Biden set aggressive goals for reducing greenhouse gas (GHG) emissions in the United States.
The Biden-Harris administration has set its sights on an ambitious environmental policy agenda, focusing on climate change and environmental justice as key initiatives, and intends to implement its agenda through an “all of government” approach. The all-of-government strategy, first deployed in the United Kingdom in the late 1990s, employs a coordinated, multi-department, multi-agency approach to address particularly complex problems.
A team of independent legal counsel issued a legal opinion (the Opinion) on 14 April on Directors’ Responsibilities and Climate Change under Singapore law, concluding that directors of corporations in Singapore are obliged to consider climate change risks as part of their duties to act in the best interests of the company. This LawFlash summarizes the key issues in the Opinion.
The pace of regulatory and legislative developments in climate change and renewable energy over the past few years has been dizzying. With a new US presidential administration now focused on energy issues, examples set from forward-thinking states, and recent lessons learned on the importance of grid stability, here are some of the expected federal actions aimed at achieving energy goals in the “new abnormal.”
Partner Levi McAllister authored a Law360 article about the threshold issues of which market participants affected by electric vehicle (EV) penetration should be aware. In the piece, Levi discussed current growth trends and projections, the Biden-Harris administration’s agenda related to EVs, and practical issues in the sector.
In the US Securities and Exchange Commission staff’s most recent guidance addressing environmental, social, and governance (ESG) investing, the staff of the Division of Examinations released an April 9 Risk Alert noting observations made during recent examinations of investment advisers and funds (both registered and private) engaged in ESG investing.
The education industry, like many others, saw a fundamental shift in 2020 as remote learning challenged some of the long-held traditions of institutions, educators, and related companies. From federal support of reopening in-person classes to changes in college athletics to overall financial challenges, here are some of the trends we could see defining the industry for the rest of 2021.
Consistent with the Biden-Harris administration’s “whole of government” approach to climate change as announced in its Day 1 and Day 7 executive orders, on March 29 the administration announced a variety of concrete initiatives that executive agencies will be taking to accelerate the development, permitting, and construction of US offshore wind projects and boost the already-growing industry as a whole. In addition to highlighting the importance of offshore wind in lowering carbon emissions and addressing climate change, the announcement emphasized the substantial collateral benefits that the administration expects offshore wind growth will bring, including jobs, investment, and related infrastructure improvements.
The Biden-Harris administration announced its American Jobs Plan, a legislative framework laying out an ambitious $2 trillion investment in physical and human infrastructure, on March 31. The bulk of the proposed spending is directed to rebuild US infrastructure in the form of physical improvements on roads, bridges, airports, and ports, with additional investment and tax credits to support clean energy generation and storage, electric vehicles, and energy efficiency.
Since the 2015 Paris Agreement, countries around the globe have been analyzing their energy and development strategies and planning to meet their commitments. While some countries have made progress by, among other things, implementing new technology and examining different energy sources in an effort to achieve their commitments, other countries have been slower to implement any change. However, the events of 2020 appear to have breathed fresh air into the climate change dialogue.
Since the 2015 Paris Agreement, countries around the globe have been analyzing their energy and development strategies and planning to meet their commitments. While some countries have made progress by, among other things, implementing new technology and examining different energy sources in an effort to achieve their commitments, other countries have been slower to implement any change. However, the events of 2020 appear to have breathed fresh air into the climate change dialogue.
Partners Carl Valenstein and Celia Soehner authored a Bloomberg Law Insight column about the need for companies to be cautious and exact when they are drafting mandatory or voluntary environmental, social, and governance (ESG) disclosures. In the piece, they outline the US Securities and Exchange Commission’s areas of focus and best practices for developing an ESG program and disclosures.
Morgan Lewis’s 15th annual 2020 Year in Review and a Look Forward provides a comprehensive overview and analysis of key 2020 US Securities and Exchange Commission (SEC) enforcement and examination developments, notable broker-dealer cases, and anticipated enforcement priorities for 2021, including under the potential leadership of SEC chair nominee Gary Gensler.
In a somewhat expected development, the US Department of Labor’s Employee Benefits Security Administration (EBSA) issued an enforcement statement on Wednesday announcing that it will not enforce the recently published final rules on “Financial Factors in Selecting Plan Investments”—commonly known as the ESG Rule—and “Fiduciary Duties Regarding Proxy Voting and Shareholder Rights” (Proxy Voting Rule).
President Joe Biden signed an executive order on February 24 to address possible vulnerabilities in the supply chains of critical national economic sectors, including the energy sector. The executive order directs various executive departments and agencies to complete, in coordination with private stakeholders, a series of assessments to evaluate the resiliency of supply chains in those key sectors. In his prepared remarks, President Biden explained that the order was prompted partly by concerns surrounding shortages in semiconductors, which are vital components of electronic devices used in everything from mobile phones to motor vehicles.
FERC announced on February 22 that it will open a new proceeding to examine the threats of climate change and extreme weather to electric reliability. The investigation will assess how grid operators prepare for and respond to extreme weather events, including, droughts, extreme cold, wildfires, hurricanes, and prolonged heat waves. The proceeding will include a technical conference with an opportunity for parties to submit comments in advance of that conference.
President Joe Biden has been in office for 34 days and his nominee for Secretary of Labor, Marty Walsh, has not yet been confirmed. So far, Mr. Walsh has not publicly stated much regarding his views or intended priorities with respect to ERISA, although it is known that he has a background in labor organizing and the pension issues related to labor unions.
The Federal Energy Regulatory Commission (FERC) issued a Notice of Inquiry (NOI) on February 18 seeking new information and comments on whether it should revise its policy statement on the certification of new interstate natural gas transportation facilities (Policy Statement). In light of environmental justice concerns raised in certificate proceedings and President Joe Biden’s directives in the Executive Order on Tackling the Climate Crisis at Home and Abroad, which we discussed in our January 28 LawFlash, FERC added environmental justice as a fifth area of examination.
FERC Chairman Richard Glick announced his plans on February 11 to better incorporate environmental justice and equity concerns into FERC’s decisionmaking process.
The US Department of Energy submitted a report to the president last month on “Economic and National Security Impacts under a Hydraulic Fracturing Ban.” This 80-page report analyzed the effects of a hypothetical United States ban on high-volume hydraulic fracturing technology used with any new or existing onshore wells starting in 2021 through 2025.
The US Department of Energy submitted a report to the president last month on “Economic and National Security Impacts under a Hydraulic Fracturing Ban.” This 80-page report analyzed the effects of a hypothetical United States ban on high-volume hydraulic fracturing technology used with any new or existing onshore wells starting in 2021 through 2025.
The inauguration of US President Joe Biden on January 20, 2021, marked the beginning of what will surely be a major transition across the US legislative and regulatory landscape—including the laws and regulations governing financial services firms in the United States.
In 2020, a growing number of lawsuits and other legal developments potentially associated with climate-driven impacts continued to challenge owners of permitted facilities, including energy infrastructure. Increasingly, owners are accused of failing to prepare for the effects of climate change, including larger floods, stronger hurricanes, and more extreme storm surges.
Join Morgan Lewis for the first semester of the 2021 Global Public Company Academy, launching on February 10.
The US Court of Appeals for the DC Circuit held that EPA’s interpretation that emissions controls under Section 111 of the Clean Air Act must be limited to those that can be applied “at” and “to” a stationary source was inconsistent with the Clean Air Act.
Immediately following his inauguration on January 20, US President Joseph R. Biden, Jr. began taking executive action to enact many of his administration’s initial priorities, which included a number of executive orders, memoranda, and directives to cabinet agencies to address policies he detailed during his campaign, including the COVID-19 pandemic, climate change, equality, and the global economy. To help clients navigate potential changes from these actions, Morgan Lewis has provided a quick analysis of many of these orders and their impact. We will release more detailed pieces as the president unveils additional specifics of his First 100 Days plan.
As the 46th president of the United States, Joe Biden took significant steps on his first day in office to advance the energy and climate initiatives of his administration. This LawFlash provides a brief summary of several key actions, including the notice of the United States’ intention to rejoin the Paris Agreement, cancellation of the federal permit for the Keystone XL Pipeline Project, and directives by President Biden to certain federal agencies, as well as an overview of key members of his climate team who will be advancing administration policies.
The US Congress has adopted the first extensive update to US federal energy policies in over a decade in the Energy Act of 2020 (Energy Act), which President Donald Trump signed into law on December 27 as part of the Consolidated Appropriations Act, 2021. The Consolidated Appropriations Act also includes the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (Taxpayer Act), which includes tax provisions important to the energy sector.
Morgan Lewis partners Michael Richman, Julie Stapel, Elizabeth Goldberg, and Craig Bitman authored a Lexis Nexis Practical Guidance article about the US Department of Labor’s (DOL’s) proposed three ERISA regulations and one prohibited transaction class exemption, including the newly finalized Financial Factors in Selecting Plan Investments.
The Senate Environment and Public Works Committee voted to send S. 4897, the American Nuclear Infrastructure Act of 2020, to the Senate floor on December 2. Senator John Barrasso (R-WY) sponsored the bill, with Senators Mike Crapo (R-ID), Cory Booker (D-NJ), Sheldon Whitehouse (D-RI), and Shelley Moore Capito (R-WV) as bipartisan cosponsors.
The US Securities and Exchange Commission (SEC) announced that it voted on November 19, 2020 to adopt rules to modernize, simplify, and enhance certain financial disclosures required of public companies under Regulation S-K.
A new US presidential administration brings new priorities across various areas and industries, including regulation and enforcement of activities that affect the environment. With President-Elect Joe Biden expected to assume the presidency on January 20, 2021, there are a number of considerations for companies tracking potential changes to the law governing the use of chemicals and antimicrobials.
The US Department of Energy (DOE) has released the Hydrogen Program Plan, a strategic framework that intends to “accelerate research, development, and deployment (RD&D) of hydrogen and related technologies in the United States.”
The US Department of Labor’s final ERISA regulation generally follows its proposal but without the focus on environmental, social, and governance investing.
A recent report from the US Commodity Futures Trading Commission encourages financial regulators to consider the risks climate change poses to the US financial system and includes recommendations for addressing these risks.
With a recent executive order, California is the first state in the nation to commit to ending the sale of fossil fuel–powered vehicles. The order also directs the expedited regulation and closure of oil extraction and production facilities.
Keeping up the steady stream of new and proposed guidance coming from the US Department of Labor (DOL), the Employee Benefits Security Administration issued a proposed regulation on September 4, 2020 that would require significant changes in how ERISA fiduciaries consider and approach proxy voting and the exercise of other shareholder rights.
As environmental, social, and governance (ESG) considerations continue to gain traction with investors, asset managers are confronted with varying levels of regulation that they must balance with the wide array of ESG demands being made by investors. Our global investment funds team has prepared a White Paper as a regulatory framework to navigate such considerations across the United States, United Kingdom, European Union, Hong Kong, and Singapore.
The US Department of Labor has issued guidance on private equity in 401(k) plan designated investment alternatives and a proposed regulation on environmental, social, and governance investing.
When considering acquisition of land from a municipality or other government agency for purposes of development, it is imperative to determine whether the desired land is held in the public trust. That could significantly derail development plans.
Morgan Lewis partners Ayesha Waheed, Chadi Salloum, Jennifer Josefson, and Richard Filosa authored an article for Project Finance International on the adoption of environmental, social, and governance criteria for project finance lenders and investors seeking more responsible investment opportunities.
Recent updates from Singapore amid the coronavirus (COVID-19) pandemic include elevated restrictions on what businesses are considered essential, a new facility for more affordable loans for small and medium-sized enterprises, and new research and development work.
A hot topic in the world of money management, including the management of assets in retirement plans, is the consideration of environmental, social, and governance (ESG) factors when evaluating investments.
The guidance clarifies that environmental, social, and governance factors may be relevant to a plan fiduciary’s evaluation of an investment’s economic merits.
In the News
Partner Lance Dial spoke with ESG Clarity about expected and enacted state legislation around environmental, social, and governance (ESG).
Partner William Yonge spoke to IFLR about the Sustainable Finance Disclosure Regulation
Partner Christina Renner spoke to IFLR about the EU Foreign Subsidy Regulation (FSR) and how its implementation intersects with the US Inflation Reduction Act of 2022 (IRA).
Associate Caitlin Zeytoonian is quoted in a WSJ Pro Sustainable Business article on the Federal Trade Commission’s (FTC’s) open comment period on the Green Guides, which act as a roadmap for companies when marketing sustainable products or practices. The Green Guides haven’t been updated since 2012, creating uncertainty for companies relying on the outdated guide.
The rapid growth of non-bank financial services requires careful regulation to balance competition with access, transparency, and privacy protection. In an article for Bloomberg Law, partner Robin Nunn considers alternative credit options that can mean the difference between financial well-being and hardship.
Partner Levi McAllister spoke with Law360 about the Inflation Reduction Act of 2022’s tax credit requirements for electric vehicle manufacturers, which require battery materials to be sourced and ultimately assembled in the United States or a select group of countries.
S&P Global Market Intelligence quoted partner Pamela Wu about the funds earmarked by the Inflation Reduction Act of 2022 for manufacturers of electrolyzer and fuel cell equipment.
Partners Levi McAllister and Douglas Hasting and associate Maggie Curran wrote an article for Law360 breaking down a proposal from the US Environmental Protection Agency (EPA) to create a new program to govern renewable identification numbers for renewable electricity. The article also discusses the potential implications of the proposal for electric vehicle manufacturers and renewable natural gas producers.
Partners Ryan Lighty and Kirstin Gibbs wrote an article for Reuters discussing signs that the nuclear industry is poised for growth and investment in the coming years. The article notes provisions in the Inflation Reduction Act of 2022 and growing interest in environmental, social, and governance considerations by investors as some of the factors that could drive investment toward nuclear power plants.
Partner Andrew Gray is quoted in a Forbes article about how a more collaborative, decentralized leadership model can transform the economy, pointing to the use of technology in the financial management industry—allowing individuals to make trades without a broker.
Partner Julie Stapel was quoted in a Pensions & Investments article about a new rule from the US Department of Labor (DOL) allowing environmental, social, and governance (ESG) factors to be considered by retirement plan fiduciaries making investment decisions.
Partner Barron Avery and associate Sarah-Jane Lorenzo authored a Law360 Expert Analysis article regarding the Biden administration’s recently proposed amendment to the Federal Acquisition Regulation (FAR), including the two tiers of obligations based on a newly proposed distinction that would label contractors as “significant” or “major” depending on how much federal funding they receive.
Partner Elizabeth Goldberg is quoted in a Bloomberg Law article about the implications of a new rule from the US Department of Labor for fiduciaries of employee benefit plans subject to the Employee Retirement Income Security Act of 1974 on how to consider environmental, social, and governance (ESG) factors in plan investments.
Partner Carl Valenstein is quoted in an MIT Technology Review article about challenges in building wind turbines off the California coast. Carl noted that floating wind turbine developers will likely have to comply with the Jones Act, which would require the wind power sites to be built, owned, and crewed primarily by American citizens.
Partners Pamela Wu and Kirstin Gibbs authored a Law360 Expert Analysis column outlining considerations for developers and investors evaluating clean hydrogen projects, e.g., the potential to qualify for new funding and tax benefits.
Partner Elizabeth Goldberg spoke to CQ Roll Call about the US Department of Labor’s new rule allowing retirement plan fiduciaries to consider environmental, social, and governance (ESG) factors in investment decisions. Elizabeth said the rule is helpful for fiduciaries of employee benefit plans covered by the Employee Retirement Income Security Act.
Partners Elizabeth Goldberg, Julie Stapel, and Michael Richman, and associate Rachel Mann, wrote an article for Law360 outlining key takeaways of the US Department of Labor’s rule clarifying that fiduciaries regulated by the Employee Retirement Income Security Act may take into account environmental, social and governance (ESG) factors when making investment decisions. Among other things, the rule takes a “middle-of-the-road approach to ESG factors,” in making clear that consideration of ESG factors is allowed by not prescribed.
Partner Elizabeth Goldberg is quoted in a Law360 article about a new rule from the US Department of Labor (DOL) that provides guidance on how managers of Employee Retirement Income Security Act (ERISA) plans can consider environmental, social, and governance (ESG) factors in investment decisions.
Partner Lance Dial spoke with Institutional Investor’s Corner Office about a new rule from the US Department of Labor (DOL) allowing asset managers to consider environmental, social, and governance (ESG) factors when making investment decisions.
Partner Elizabeth Goldberg is featured in SHRM’s Compensation & Benefits Update newsletter in an article about the issuance of a final rule by the US Department of Labor (DOL) allowing retirement plan fiduciaries to consider climate change and other environmental, social, and governance (ESG) factors when picking investment options and exercising shareholder rights for plan-held securities.
Partner Lance Dial spoke with Ignites about the US Department of Labor’s (DOL’s) final rule regarding the consideration of environmental, social, and governance (ESG) factors in choosing retirement plan investments.
Partner Kelly Gibson’s previous quotes were cited by The Corporate Counsel about the US Security and Exchange Commission’s (SEC’s) view of materiality and environmental, social, and governance (ESG) disclosures.
Partners Kelly Gibson and Lance Dial wrote an article for ESG Clarity explaining to investment advisers and funds how the US Security and Exchange Commission has put more focus on environmental, social, and governance (ESG) issues. The article notes that as ESG has grown more important to investors, the agency has emphasized the need for accurate, consistent, and comparable disclosures.
Partners Kelly Gibson and Liz Goldberg, along with associate Michael Hacker, wrote an article for Reuters addressing ways companies and asset managers can help ensure disclosures related to environmental, social, and governance issues do not invite an investigation or enforcement action from the US Securities and Exchange Commission (SEC).
Partner Andrew Gray was featured in a Protocol article about how technology innovation is affecting the financial services sector. Andrew noted that artificial intelligence (AI) systems are increasingly able to drive greater access to financial systems.
Partner Kelly Gibson’s remarks at the Securities Enforcement Forum 2022 about how companies can prepare for the US Securities and Exchange Commission’s (SEC’s) proposed climate risk disclosure rule were featured in a CFO Dive article.
Partner Julie Stapel is featured in a PLANADVISER article about how the US Department of Labor’s delay in finalizing environmental, social, and governance (ESG) guidance for retirement plans played a role in the decrease of ESG incorporation by institutional investors this year.
Partners Amanjit Fagura and Alishia Sullivan authored an article for Private Equity Law Report about the prevalence of environmental, social, and governance (ESG) strategies among Shari’a-compliant funds and in investment-making decisions. They discuss the impact of recent ESG trends and the interplay of Shari’a and ESG, in addition to outlining risks and considerations when forming ESG Shari’a-compliant funds.
Partner Duke McCall was featured in a Q&A with The National Law Journal about the significance of the US Environmental Protection Agency’s (EPA’s) new Office of Environmental Justice and External Civil Rights and how it may affect new permitting requests.
Partners Louise Skinner and William Yonge authored an article for Investment Week about the consideration given to the ‘social’ element of environmental, social, and governance (ESG) by private funds and investors.
Partners Erin Martin and Celia Soehner authored an article for Bloomberg Law outlining ways public companies can prepare for an expected move by the US Securities and Exchange Commission (SEC) to take a closer look at human capital disclosures in public company filings. Erin and Celia note important steps for public companies to take to be responsive to the potential regulatory scrutiny and investor demands.
Partner Kelly Gibson was quoted in a The Wall Street Journal article that highlights key takeaways from the publication’s Pro Sustainable Business Forum.
Partner Lance Dial and associate Rachel Mann wrote an article for Hedge Fund Law Report about the ongoing debate over regulation aimed at environmental, social, and governance (ESG) investments. The article discusses the history, federal regulation, in-state debates, and future of ESG investing.
Partner Duke McCall was featured in an InsideEPA.com article about how lawyers are guiding clients through potential changes to the permitting process from the creation of the Office of Environmental Justice and External Civil Rights within the US Environmental Protection Agency.
Partners Kelly Gibson and Erin Martin are featured in a The Legal Intelligencer article discussing how the US Security and Exchange Commission (SEC) could focus more on human capital disclosures as more companies include details about their workforce as part of their environmental, social, and governance (ESG) priorities.
Partners Levi McAllister and Sheila Armstrong and Senior Director Timothy Lynch wrote an article for Law360 covering key considerations for companies and individuals looking to use federal funding meant to encourage the adoption of electric vehicles. The article addresses access to charging infrastructure, ownership and operation of chargers, commercial agreements, vehicle-to-grid capacity, and the Inflation Reduction Act of 2022.
Partner and member of the firm’s Climate Change Working Group Duke McCall was quoted in an article from Chemical Week about the creation of the Office of Environmental Justice and External Civil Rights (OEJECR) within the United States Environmental Protection Agency (EPA).
Law360 named partner Levi McAllister as a 2022 Transportation MVP.
Partners Ayesha Waheed and Victoria Weir drafted a chapter for Lexology’s Getting the Deal Through, providing an overview of how infrastructure development is essential for the advancement of global sustainability.
Levi McAllister spoke with Law360 about how federal support for the adoption of electric vehicles could help California’s plan to phase out sales of new gasoline-powered vehicles by 2035. Levi discussed President Joseph Biden's August 2021 executive order, which set a 2030 target for 50% of all new cars and trucks sold in the United States to be electric or hybrid.
Partners Erin Martin and Lance Dial are featured in a The Legal Intelligencer article as part of a group of lawyers navigating the quickly evolving climate change disclosure regulatory landscape tied to the US Securities and Exchange Commission’s (SEC’s) environmental, social, and governance (ESG) rules.
Partner Kirstin Gibbs spoke with Reuters Events Renewables about how the Inflation Reduction Act of 2022 (IRA) is the latest tool by the Biden-Harris administration to support the growing hydrogen industry.
Partner Lance Dial spoke with Pensions & Investments about comments the US Securities and Exchange Commission received on its proposals around environmental, social, and governance disclosures.
A Morgan Lewis LawFlash by partners Brian Soares and Celia Soehner is referenced in an HR Today article regarding a recent US Securities and Exchange Commission rule around environmental, social, and governance (ESG) metrics.
Partner Lance Dial is featured in the second article of a two-part series from Private Equity Law Report on best practices for private fund managers to comply with proposed environmental, social, and governance (ESG) rules from the US Securities and Exchange Commission (SEC).
Partners Lance Dial and Liz Goldberg and associate Rachel Mann authored an article for Law360 about the trend of states passing legislation that would prohibit business with managers who invest based on environmental, social, and governance (ESG) criteria. These anti-ESG state legislative efforts could complicate the use of ESG by public retirement plans and put retirement plan fiduciaries and providers of retirement plan investment products in a tricky spot, looking to bridge their fiduciary obligations with these new limitations.
Partner Lance Dial is featured in a Private Equity Law Report article on the best practices for private fund managers in complying with proposed environmental, social, and governance (ESG) rules from the US Securities and Exchange Commission (SEC).
Partner Lance Dial spoke with ESG Clarity about the US Securities and Exchange Commission’s proposals around fund names and environmental, social, and governance (ESG) disclosures.
A CNBC.com article cited a LawFlash by partners Paul Gordon and Ryan Lighty and associates Jared Sanders, Scott Clausen, and Wendy Simon-Pearson about what the Inflation Reduction Act of 2022 (IRA) could do for the nuclear industry.
Associates Rachel Mann and Timothy Durbin authored a column for GreenBiz discussing proposed regulations from the US Securities and Exchange Commission (SEC) and US Department of Labor (DOL) that highlight the potential impact of environmental, social, and governance (ESG) factors on corporate financial performance.
Partner Ryan Lighty detailed the US Congress’s efforts to incentivize coal-to-nuclear transitions in an article for Law360.
Partner Ella Foley Gannon spoke with Law360 about the Biden-Harris administration’s emphasis on transmission project permitting on public lands.
Partner Levi McAllister spoke with Law360 about the Inflation Reduction Act, which earmarks funds to encourage the purchase and development of clean vehicle technology. Levi commented on how this proposed legislation is another tool the Biden-Harris administration is deploying to meet its electric vehicle goals.
Partner Lance Dial was quoted by Private Equity Law Report about the US Securities and Exchange Commission’s proposed rules to require fund managers to disclose their environmental, social, and governance (ESG) investments.
Partners Sharon Perley Masling and Louise Skinner and associate Liz Polido authored an article for Bloomberg Law detailing recent developments employers are reporting from the social part of environmental, social, and governance (ESG) metrics. The desire by regulators, investors, employees, and other stakeholders for a company to report its impact on the world is growing. As value creation beyond financial performance is becoming a critical issue, organizations should continue enhancing ESG efforts while implementing processes to address any challenges and potential regulatory requirements
Partner Levi McAllister was quoted by Law360 in a midyear update on the transportation industry.
Partner Kirstin Gibbs and associate Pamela Wu drafted an article for Reuters on how new natural gas permitting proposals from the US Federal Energy Regulatory Commission (FERC) could affect the development of new pipelines. This proposal is gaining a lot of attention in the energy industry, as President Joseph Biden has pledged more natural gas to supplement the previous supply from Russia.
Partner Lance Dial was interviewed by Responsible Investor about a Texas bill requiring the state comptroller to list companies that have pledged not to work with the fossil fuel industry due to environmental, social, and governance commitments.
Partner Rick Rothman was quoted in a Bloomberg Law article on the US Environmental Protection Agency’s (EPA’s) incoming carbon rules, which will need to avoid running afoul of the US Supreme Court’s recent decision on power plant emissions.
Partners Lesli Ligorner and Louise Skinner authored an article for European Pharmaceutical Review about environmental, social, and governance issues across Asia and Europe, focusing on social inclusion considerations.
Partner Neeraj Arora spoke with Law360 for a midyear update on the state of energy dealmaking.
In an article for POWER magazine, partner Daniel Skees and associate Robert Goldfin discussed the federal and state support for new offshore wind projects to achieve emissions-reduction goals. They also lay out some of the key points to consider when navigating regulatory, environmental, and stakeholder hurdles that could lead to costly delays.
Partner Levi McAllister spoke with Automotive News for a special report on the electric vehicle (EV) industry.
Partner Amanjit Fagura spoke to Salaam Gateway about Sharia-compliant environmental, social, and governance (ESG) investments in the Islamic finance industry.
Partner Levi McAllister and associate Maggie Curran wrote an article for Law360 on proposed federal mandatory standards for the development and operation of publicly available electric vehicle (EV) charging infrastructure in US markets.
Partner Levi McAllister and associate Pamela Tsang Wu authored an article for Law360 about the carbon offset market.
In the second article of a two-part series, partner Rick Rothman detailed the Biden-Harris administration’s energy targets related to electric vehicles (EVs) and related litigation around the proposed transition to EVs. Rick details California’s implementation of climate change-related vehicle emissions standards and zero-emissions goals and how those may apply to other states.
Partner Michael Kraut is quoted in a Legal Dive article regarding US Bank’s implementation of guidelines designed to promote well-being in its outside counsel relationships through a pilot program the bank launched in tandem with seven law firms, including Morgan Lewis.
In a Reuters article, partners Andrew Budreika and Liz Goldberg and associate Ben Stango examine some key credit agreement provisions governing one of the hottest banking products in environmental, social, and governance (ESG)—sustainability-linked loans (SLLs).
Partner Levi McAllister spoke with Law360 about a recent proposal from the US Department of Transportation to standardize the development and maintenance of electric vehicle charging stations
BOSTON, June 7, 2022: Morgan Lewis advised True Green Capital Management (TGC), a renewable energy infrastructure private equity fund manager and the sponsor of True Green Capital Fund IV, with capital commitments of $660.9 million.
Partner Lance Dial was interviewed by The Investment News Podcast to discuss the US Securities and Exchange Commission’s (SEC’s) new proposed rules related to environmental, social, and governance investing.
Associate Amy McDonald spoke with Ignites about the US Securities and Exchange Commission’s (SEC’s) proposal that details how investment funds should disclose their portfolio companies’ greenhouse gas emissions.
Partner Sharon Perley Masling drafted an article for Sports Business Journal on how sports teams and leagues can support athletes’ mental health.
Associate Amy McDonald spoke with Bloomberg Law about the US Securities and Exchange Commission’s (SEC’s) proposal that would require investment funds to disclose their portfolio companies’ greenhouse gas emissions.
Partner Lance Dial spoke with Compliance Week about the US Securities and Exchange Commission’s (SEC’s) proposal for new environmental, social, and governance (ESG) disclosure requirements for investment advisers, investment companies, and business development companies.
Partner Kirstin Gibbs drafted an article for POWER magazine about the role carbon capture and storage (CCS) projects could play in reaching the net-zero carbon emission goals set by the US government. Kirstin details large projects related to CCS and carbon capture utilization and storage (CCUS) that are under way and some of the federal incentives that support these projects.
Partner Elizabeth Goldberg spoke with Law360 discussing key takeaways from the US Department of Labor's comment period, soliciting input on how the agency could protect workers' retirement savings from climate-related financial risks.
Partner Ella Foley Gannon commented in a Utility Dive article on an auction held by the Bureau of Ocean Energy Management (BOEM) that garnered $315 million in bids to lease areas off the coast of Wilmington, North Carolina, to potentially develop at least 1.3 gigawatts of offshore wind.
Partner Peter Sharp and associates Paul Mesquitta and Charlotte Warke authored an article for Insurance Day providing an overview of the future of climate-related insurance.
The US Supreme Court issued an order on April 6 staying the district court vacatur of the US Environmental Protection Agency’s 2020 Clean Water Act Section 401 Certification Rule, which imposed restrictions on state and tribal authority to deny permits under Section 401 of the Clean Water Act. This order allows the Trump-era certification rule to remain in place until the disposition of the appeal in the US Court of Appeals for the Ninth Circuit and the disposition of a petition for writ of certiorari, if certiorari is sought following the appeal.
Morgan Lewis partners Lance Dial, Erin Martin, and Kirstin Gibbs drafted an article for Reuters describing key provisions of the US Securities and Exchange Commission’s (SEC’s) proposed climate disclosure rules related to asset management.
Levi McAllister spoke with E&E News about the potential impact the conflict in Ukraine may have on the US energy market if the supply of certain metals are restricted.
Utility Dive spoke with partner Neeraj Arora about how the supply chain constraints are expected to affect the energy storage industry.
The demand for ESG lawyers has jumped this year as both regulators and companies are embracing sustainability as a corporate value. But, as The National Law Journal points out in the feature “Greenwashing Is No Longer Good Enough,” ESG lawyering is more than just compliance and enforcement—it requires a multi-practice outlook.
In an interview with Pensions & Investments, partner Erin Martin explained how the US Securities and Exchange Commission’s (SEC’s) proposal to expand climate-related disclosures required by public companies could be a “monumental rule-making initiative.”
In an interview with CNBC.com, partner Erin Martin discussed the Securities and Exchange Commission’s (SEC’s) recently unveiled proposal to expand climate-related disclosures required by public companies.
In a recent Expert Analysis piece published by Law360, partners Jeremy Esterkin and Rick Rothman discussed the US Environmental Protection Agency’s March 9 announcement reversing the former administration’s decision to revoke California’s authority to set tailpipe emission standards more stringent than those established by the agency.=
In an Insight published by Practical Guidance, partners Justin Cupples and Cosimo Zavaglia discuss opportunities and challenges facing state and local tax authorities as they determine how to best use electric vehicle tax credits and federal infrastructure funds.
Partner Liz Goldberg spoke to Pensions & Investments about the US Department of Labor’s proposed rule titled, “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights,” which states that climate change and ESG factors are open material and that fiduciaries should consider them as factors in the assessment of investment risks and returns.
Partner Carl Valenstein spoke to Law360 about how environmental, social and governance (ESG) factors are impacting the mergers and acquisitions landscape.
Partner Kirstin Gibbs spoke with Law360 about how the Federal Energy Regulatory Commission’s (FERC’s) plans to evaluate natural gas projects based on greenhouse gas emissions may be affected by a recent court decision.
Power Magazine quoted partner Levi McAllister explaining how the US Departments of Energy and Transportation’s new National Electric Vehicle Infrastructure (NEVI) Formula Program will deploy the $5 billion allocated to create a nationwide network of electric vehicle (EV) charging stations.
Partner Lance Dial discussed how to best implement the Net Zero Asset Managers Initiative (NZAMI) in the second half of a two-part Hedge Fund Law Report series.
Partner Lance Dial spoke about the Net Zero Asset Managers Initiative (NZAMI) in the first of a two-part Hedge Fund Law Report article.
In Law360, partner Levi McAllister discusses regulatory frameworks and interconnection policy for emerging electric vehicle (EV) infrastructure, noting much of the EV policymaking will occur at the state level.
Partners Lance Dial and Julie Stapel spoke to InvestmentNews about ESG investing trends in 2022.
Partner Carl Valenstein and associate Jonathan Wilcon authored an article for Law360 about the Jones Act compliance strategies for offshore wind projects.
In Power magazine, partner Levi McAllister writes about how the Infrastructure Investment and Jobs Act could impact the future of electric cars—including the act’s $7.5 billion funding earmarked for building a national network for electric vehicle (EV) charging stations and the establishment of a 25-member EV working group.
Morgan Lewis has been named among the top firms in North America for Innovation in New Solutions by Financial Times. The annual North America Innovative Lawyers special report cited the firm’s expansion of its COVID-19 task force model to provide guidance on the Biden-Harris administration, corporate sustainability, climate change and ESG, and racial justice.
Partner Julie Stapel spoke with Pensions & Investments about the US Department of Labor’s (DOL’s) recent proposal on environmental, social, and governance (ESG) investing, which would permit retirement plan fiduciaries to consider climate change and other ESG factors when selecting investments and exercising shareholder rights.
Partner Julie Stapel spoke with Plan Advisor about the recently proposed rule from the US Department of Labor that would remove barriers to retirement plan fiduciaries’ ability to consider climate change and other environmental, social, and governance (ESG) factors when selecting investments and exercise shareholder rights.
Partners Elizabeth Goldberg, Julie Stapel, Lance Dial, Michael Richman, and Marla Kreindler, along with law clerk Rachel Mann, authored an article for Law360 on the US Department of Labor’s recent proposed rulemaking on how retirement plans can make investment decisions that consider environmental, social, and governance (ESG) factors.
Partner Stephanie Feingold told Bloomberg Law that while it could be years before the Environmental Protection Agency publishes final rules of what constitutes safe PFAS—or “forever chemical”—levels, if an eventual regulation includes manufactured goods, it will apply to “about every manufacturing industry.”
Partner Neeraj Arora spoke with The Bond Buyer Podcast about the trends and risks in energy storage and its continued growth during the pandemic.
Partner Julie Stapel spoke with Law360 about a new US Department of Labor proposal that could break down some Trump-era barriers that discouraged ESG investing by employee retirement funds.
Partner Greg Needles and associate Michael Gorman authored an article for Law360 discussing an Issue Snapshot published by the Internal Revenue Service (IRS) reminding 403(b) plan sponsors of a compliance failure often identified by the IRS during audits of government and tax-exempt entities, including hospitals and universities.
Partner Elizabeth Goldberg spoke with Bloomberg Law about a proposed regulation from the US Department of Labor (DOL), which states that fiduciaries’ duty of prudence “may often require” consideration of the economic effects of climate change.
Partner Stephanie Feingold discussed the US Environmental Protection Agency's pending requirement that companies report their use of so-called “forever chemicals” in Law360.
Partners Conor Larkin, Celia Soehner, and Carl Valenstein authored a Lexis Practical Guidance article that provides some best practices for public companies when evaluating environmental, social, and governance disclosures. The article details Securities and Exchange Commission disclosure strategies and protocol.
Partner Duke McCall discussed a congressional plan to revive a decades-dormant tax on chemicals and possibly on crude oil with Law360.
The publication InsideEPA recently cited a LawFlash written by Morgan Lewis partners Duke McCall and Denise Fellers, of counsel Laurie Matthews, and associate Noorvik Minasian in an article regarding the US Environmental and Protection Agency’s (EPA’s) revamped model consent decree for Superfund enforcement agreements.
Partners Elizabeth Goldberg and Celia Soehner authored an article for Reuters about whether retirement plans can consider environmental, social, and governance (ESG) factors when selecting investment options.
Partner Neeraj Arora spoke with Law360 about a Congressional proposal that would provide for significant clean energy tax credits.
Partner Elizabeth Goldberg authored an article for Lexis’s Practical Guidance on how environmental, social, and governance (ESG) factors are impacting employee benefit plans.
Partner Kirstin Gibbs spoke with Law360 about the potential impact of recent hurricanes on the oil and gas industry.
Partners Carl Valenstein and Celia Soehner spoke with Law360 about best practices for companies looking to update or draft their environmental, social, and governance policies. "More so than at any time I've been practicing, we are getting a lot of questions from clients," Celia said.
Partner Levi McAllister authored an article for Law360 detailing the Biden-Harris administration’s recent executive order in support of electric vehicles and the Senate-approved infrastructure bill that earmarks funds for the development of more zero-emission transportation.
Morgan Lewis partner Carl Valenstein authored this case study on how impact investing can significantly benefit nonprofits beyond financial returns.
Partner Levi McAllister spoke with Law360 about an executive order from the Biden-Harris administration that set ambitious goals for electric vehicles.
Partners Miranda Lindl O'Connell and Carl Valenstein spoke with Pensions & Investments about the US Securities and Exchange Commission's recent attention on climate-risk disclosure.
Morgan Lewis partner James Tynion was quoted in a Zenger article regarding the New Jersey Board of Public Utilities’ recent approval of contracts for the development of Atlantic Shores and Ocean 2 wind farm projects.
Partner Bill Kissinger was quoted in a Utility Dive article regarding the California Public Utilities Commission’s rulemaking that would allow regulators to scrutinize the distributed energy resource (DER) sector more closely. The DER sector is expected to experience growth in California as more electric vehicles, buildings, and distributed solar are integrated into the grid, all of which could pose distribution and planning challenges.
Partner Levi McAllister and associate Patrick Pennella co-authored an article published in Pratt’s Energy Law Report regarding the Federal Energy Regulatory Commission’s (FERC’s) recent actions to remove barriers to the use of distributed energy resources.
Partners Celia Soehner and Jeffrey Boujoukos co-authored a column for Reuters regarding the dilemma of environmental, social, and governance (ESG) reporting among public companies.
Partners Ella Foley Gannon and Neeraj Arora co-authored a Reuters article regarding the Biden-Harris administration’s ambitious approach to climate policy in its first 100 days.
Partner Carl Valenstein authored a column for Pharmaceutical Executive about environmental, social, and governance (ESG) trends in the biopharma sector.
Partners Kirstin Gibbs, Jennifer Josefson, Felipe Alice, Olivier Chambord, Hao Su, and Tsugu Watanabe authored a Petroleum Review article about the global energy transition to net zero emissions.
Partners William Yonge and Rob Mailer authored an article for Investment Week that outlines considerations for environmental, social, and governance (ESG) funds.
Partners Kirstin Gibbs and Felipe Alice and associates Pamela Wu and Patrick Pennella discussed the laws and regulations that govern the siting, construction, and operation of US liquefied natural gas (LNG) projects in a recent Practical Law Oil & Gas article.
Partners Bill Kissinger, Ella Foley Gannon, and Rick Rothman authored an article for Law360 about recent US regulatory and legislative developments addressing climate change and renewable energy.
Partners Kirstin Gibbs and Ella Foley Gannon were quoted by Law360 in an article about the new US presidential administration’s efforts toward tackling climate change.
Partner Levi McAllister authored a Law360 article about the threshold issues of which market participants affected by electric vehicle (EV) penetration should be aware. In the piece, Levi discussed current growth trends and projections, the Biden-Harris administration’s agenda related to EVs, and practical issues in the sector.
Partner Ella Foley Gannon was quoted in a Utility Dive article about the Biden-Harris administration’s $2 trillion infrastructure plan proposal in relation to California. In the piece, she discussed the state’s zero-carbon electricity goals: “Even before some of this gets played out through actual legislation at the federal level, this focus, I think, will dovetail nicely with California’s articulated goals—and hopefully, will incentivize more investment.”
Partner James Tynion spoke with Law360 for an article about the Biden-Harris administration’s proposed $2 trillion infrastructure plan. In the piece, he explained the implications of the tax credit expansions on transmission investment tax credits (ITC).
Morgan Lewis partner Elizabeth Goldberg spoke with Pensions & Investments after the US Department of Labor (DOL) announced it will not enforce the “Financial Factors in Selecting Plan Investments” rule and “Fiduciary Duties Regarding Proxy Voting and Shareholder Rights” rule or take enforcement action against ERISA fiduciaries until it publishes further guidance.
A blog post authored by partner Elizabeth Goldberg and associate Lauren Sullivan was cited in an HR Magazine article about the US Department of Labor’s (DOL’s) decision to not enforce a Trump administration guideline that limited the use of environmental, social, and governance (ESG) criteria when selecting retirement plan investments.
Partner Elizabeth Goldberg spoke with Pensions & Investments about the US Department of Labor’s (DOL’s) Employee Benefits Security Administration focus on environmental, social, and governance (ESG) enforcement.
Partner Julie Stapel was quoted in a PlanSponsor article about a recent US Department of Labor proposal regarding environmental, social, and governance (ESG) investing.
Morgan Lewis partner Marla Kreindler spoke with Plan Sponsor for an article about environmental, social and governance (ESG) principle investments.
Morgan Lewis partner Marla Kreindler spoke with The New York Times about the trend of including environmental, social, and governance issue (ESG) funds in 401(k) plans.
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