Recent Blog Posts

NOTE: The SEC soon after delayed implementation of these Rules after many states filed suit against (although a number of other states filed litigation supporting the Rules), so the Rules are not currently in effect at the federal level.

On March 6, 2024, the U.S. Securities and Exchange Commission (“SEC”) issued final Rules requiring covered companies to disclose “material” climate change risk impacts from their operations (“the Rule”). The text of the Rule, which will be published in the Federal Register shortly, can be found at https://www.sec.gov/files/rules/final/2024/3311275.pdf. The Rule was adopted in final form after a two year public comment period on the proposed rule, which resulted in significant changes in the final Rule. The Rule is very lengthy and complex and a detailed analysis is beyond the scope of this Alert. However, some of the key elements of the new Rule “require a registrant to disclose, among other things: material climate-related risks; activities to mitigate or adapt to such risks; information about the registrant's board of directors' oversight of climate-related risks and management’s role in managing material climate-related risks; and information on any climate-related targets or goals that are material to the registrant's business, results of operations, or financial condition”. See the Fact Sheet to the SEC Rule: https://www.sec.gov/files/33-11275-fact-sheet.pdf. Larger companies, as that category is defined in the Rule by annual revenues, must also disclose both the direct emissions of greenhouse gases from their operations ("Scope 1 Emissions”) and indirect emissions by their energy provider (“Scope 2 Emissions”). Smaller companies as defined in the Rule are exempt from these emission disclosures. In a significant change from the proposed rule, covered companies are not required to disclose emissions from upstream suppliers and downstream users, purchasers, etc., as is required under the EU Corporation Sustainability Reporting Directive, the State of California and the International Sustainability Standards Board. Note: Companies covered by the Final SEC Rule also may be covered by di erent international and other (e.g. California) climate disclosure rules and it is yet to be determined how the interaction between these di erent sets of requirements will play out in real terms. As is typical of significant federal rulemaking in the U.S., this Rule is already the subject of litigation both by parties concerned about the burdens of the Rule and environmental advocates concerned the Rule is not su iciently strong. These parties may seek to stay the enforcement of the Rule and thus the true e ective date of the Rule and whether it will be vacated or modified is up in the air.

ALERT. Today the Supreme Court resurrected Justice Scalia’s narrow interpretaion of “waters of the United States” and rejected Justice Kennedy’s broader interpretaion, thereby dooming the EPA’s recent Clean Water Act Rule as it applies to “adjacent” wetlands. Simply put this is a return to the Trump CWA Rule and rejection of the Biden Rule. In a subsequent post I will address the significance of this ruling in detail, but the fact the landowner faced possible criminal penalties appears to have influenced the Justices even as they also disagreed on the proper scope of the federal authority over wetlands.

SCOTUS recent decision invalidating the Biden WOTUS Rule contains no surprises as it simply parrots the SCOTUS Sackett decision, as it must. And it was no surprise that the Supreme Court with its new super majority adopted Justice Scalia’s very simplistic WOTUS interpretation that removes substantial acres of wetlands from federal jurisdiction, consistent with the Trump Rule. However the lack of deference to scientific determinations by the Army Corps and EPA is troubling and foreshadows further activist decisions by this Court in the arena of envronmental law. Moreover the decision unfortunately will not end the decades long litigation over WOTUS as each affected interest group will find ways to attack the latest version of this Rule, thereby continuing the risks and uncertainty for affected landowners. Is it wishful thinking that Congress could some day reach a consensus on a middle of the road amendment to the CWA to put this issue to bed?

Following the Supreme Court's Opinion in Maui, the public and the regulated community need clear guidance on what discharges to groundwater are subject to the Clean Water Act. See our article published in Environment 360 on August 11, 2021. Linkedin: https://www.linkedin.com/in/kenneth-reich-5ab1a61a/detail/recent-activity/shares/

Good riddance to bad rulemaking. A District Court invalidates the Trump Waters of the United States Rule. https://www.linkedin.com/in/kenneth-reich-5ab1a61a/detail/recent-activity/shares/

Is this the last stop for Maui in its fight to avoid CWA jurisdiction over its wastewater discharges to the ocean? It would seem so…https://www.linkedin.com/in/kenneth-reich-5ab1a61a/detail/recent-activity/shares/

Supreme Court opens narrow crack to regulate discharges to groundwater under the Clean Water Act in County of Maui v. Hawaii Wildlife Fund,  https://www.supremecourt.gov/opinions/19pdf/18-260_i4dk.pdf… https://www.linkedin.com/pulse/alert-supreme-court-opens-crack-regulation-point-source-kenneth-reich/?trackingId=nf87%2FmYPgrem6Dfl9T%2F%2FUw%3D%3D

See this balanced article on the need for better planning by the energy industry to avoid the kinds of blackouts that recently occurred in Texas and California from extreme weather events: https://www.linkedin.com/in/kenneth-reich-5ab1a61a/detail/recent-activity/shares/Good practical tips on how to conduct a remote mediation… https://www.linkedin.com/in/kenneth-reich-a034aa146/detail/recent-activity/shares/

Proposed "Reforms" to NEPA (https://lnkd.in/dbP3KgF). While NEPA undoubtedly is in need of reform to better streamline the process and prevent undue delays, the proposed "reforms" of the Trump Administration are in effect a gutting of the statute…https://www.linkedin.com/posts/kenneth-reich-a034aa146_climatechange-environment-sustainability-activity-6623670574596018176-P_rl

Unfortunately but predictably, the issue of where to draw the line on federal jurisdiction of the "waters of the U.S." has been a political football for decades. Now the Supreme Court is set to consider whether groundwater can be considered a conduit for pollutants into waters of the U.S., an issue that has split the circuit courts…https://www.linkedin.com 2019

Two Circuit Courts of Appeals Have Held that Discharges of Pollutants Through Groundwater to Waters of the US Are Covered by the Clean Water Act, April, 2019… https://www.linkedin.com/pulse/two-circuit-courts-appeals-have-held-discharges-pollutants-reich/

This is a no-nonsense analysis of why the Trump Administration's war on everything but coal is doomed to fail--based on economics not rhetoric. It's time for the US to lead the world, most particularly Russia, China and India, into a less carbon-based future, not solely for altruistic reasons but also because it will produce tremendous economic benefits to the country as our booming alternative energy industry thrives both here and abroad…https://www.linkedin.com/posts/kenneth-reich-a034aa146_tvas-quest-to-reduce-emissions-is-powering-activity-6501885992406908929-7P1Q

Older Blogs:

Selected Articles (Also see posts on Linkedin)

"Coping with the Uncertainties of Mercury Regulation" (Power Engineering, September 2006)

"Turning Brown into Green: How Developers Limit Liability" (Banker & Tradesman, July 2006)

"Selected Tips for Paying Attention to Details in Legal Writing in the Electronic Age", Massachusetts Law Office Assistance Program