By Paul A. Davies, Edward R. Kempson, Luca Morreale, and Peter Neuböck

Sustainable Finance

Sustainable finance is the practice of redirecting public and private capital towards investments that support ESG goals and outcomes. The market dynamics of sustainable finance are driven by the need for enormous investments to support sustainable transitions and meet net zero targets.[i] According to McKinsey[ii], an estimated US$9 trillion of green investment is required annually to reach this goal, while the EU Commission’s 2030 climate target plan calls for an additional €350 billion of investment per year to 2030.[iii] To address this funding gap, institutional investors and financial institutions with more than US$130 trillion in assets under management have announced sustainable finance commitments.[iv]

The Occupational Safety and Health Administration (OSHA) recently released two memos instructing enforcement officers on “instance-by-instance” citations and de-grouping violations to deter infractions. 

OSHA’s prior policy on instance-by-instance citations, published in 1990, applied just to willful citations. The new guidance identifies several scenarios where such citations may be issued, including high-gravity serious violations specific to falls, trenching,…

On February 8, the U.S. Fish and Wildlife Service (FWS) proposed regulatory changes (Proposed Rule) focused on the application and approval process for Endangered Species Act (ESA) permits issued under Section 10. Section 10 of the ESA authorizes FWS to permit take of listed species where such take is necessary for scientific purposes or the enhancement of propagation or survival of the species, or where the take is incidental to an otherwise lawful activity. Section 10 permits are used for Candidate Conservation Agreements with Assurances and Safe Harbor Agreements, which are voluntary landowner agreements designed to benefit candidates or listed species, respectively. Section 10 permits also have been used to allow the take of listed species incidental to private development activities through a Habitat Conservation Plan (HCP), which involves the project proponent committing to certain conservation activities.

modern-slavery

In what marks its latest move to tackle modern slavery, on 10 February 2023, the UK Government published its new guide for commercial and procurement professionals, entitled “Tackling Modern Slavery in Government Supply Chains” (the “Guidance”). The Guidance is aimed at helping procurement and commercial practitioners at all levels who are operating in government comply with their statutory obligations in respect of modern slavery. It builds on the UK Government’s “Slavery and human trafficking in supply chains: guidance for businesses” and its modern slavery statement Progress Report.

Products

The Pensions Regulator has launched a campaign to ensure that trustees are meeting their ESG and climate change reporting obligations.

Trustees of occupational pension schemes with 100+ members are required to prepare:

  • A statement of investment principles (“SIP”) which, among other things, must include the trustees’ policy in relation to financially material ESG and climate change considerations.
  • An annual implementation statement setting out how certain aspects of the SIP have been followed during the scheme year.

Both documents must be published on a website that is accessible free of charge by the general public. Trustees must report on compliance with this obligation in the scheme return.

A court recently found that UK authorities did not fetter their discretion by not investigating general cotton imports potentially produced by the forced labour of Uyghur people in China.

By Stuart Alford KC, Clare Nida, Nathan Seltzer, Paul Davies, Michael Green, James Bee, and Esha Marwaha

On 20 January 2023, the High Court ruled against human rights campaigners who argued that UK authorities were improperly allowing the import of cotton textiles made in Xinjiang, a region of China associated with alleged human rights abuses against the Uyghur people. Approximately 85% of Chinese cotton is grown in the Xinjiang Uyghur Autonomous Region (XUAR), with the “vast majority” of cotton alleged to have been produced in facilities under conditions of “detention and prison labour”.[1]

On February 21, 2023, the Federal Highway Administration (“FHWA”) published a Notice of Waiver for Buy America requirements related to Electric Vehicle (“EV”) Chargers, 88 Fed. Reg. 10619.  This waiver notice follows the Notice of Proposed Waiver published by FHWA on August 31, 2022.  See 87 Fed. Reg. 53539.  In response to a robust response from industry, the final waiver is narrower and more streamlined than the proposed waiver, bringing the number of phases from four to two, and simplifying the definition of an EV charger.  The waiver applies starting March 23, 2023.

The Maine Department of Environmental Protection (DEP) recently released a long anticipated proposed rule that would implement the procedures for Maine’s 2021 law[1] requiring manufacturers to submit notifications to DEP for products and product components containing intentionally added per- and polyfluoroalkyl substances (PFAS) sold in the state. Stakeholders will have until May 19, 2023, to provide comments on the proposal.

While Maine’s notification requirements went into effect on January 1, 2023, the proposed rule provides critical details on the applicability and procedures for notifications. Many manufacturers who received extensions from the January 1, 2023 notification deadline will be interested in reviewing the details of this proposal. The proposed rule provides important clarifications about the notification requirements, including:

sunset above the windmills on the field

The Internal Revenue Service issued Notice 2023-17 providing guidance on the Low-Income Communities Bonus Credit Program established under Internal Revenue Code Section 48(e) including environmental justice solar and wind capacity limitations for qualified solar and wind facilities eligible for the Investment Tax Credit (ITC). Notice 2023-17 provides initial guidance on the overall program design, the…