Last year, Covington predicted an increased focus on environmental enforcement under the Biden Administration.  Recent statements by key environmental leadership have confirmed this, further sharpened Administration priorities, and track renewed focus by DOJ more broadly on combating corporate malfeasance.  In the coming year, regulated entities should prepare for increased criminal enforcement, including consideration of conduct within their supply chains.  They should also expect increased scrutiny of their environmental compliance programs, including the potential for corporate monitorship if DOJ deems a company’s compliance program to be inadequate.

On January 5, EPA added 1-bromopropane (1-BP), which is also called n-propyl bromide, to the list of Hazardous Air Pollutants (HAP) under the federal Clean Air Act. 1-BP is used as a substitute for other HAPs in dry cleaning and other industries. This marks the first addition to the list since it was established as part of the 1990 Clean Air Act Amendments. The addition was prompted by petitions to list 1-BP by the Halogenated Solvents Industry Alliance and the New York State Department of Environmental Conservation.

EPA is expected to issue additional guidance and regulation under the National Emission Standards for Hazardous Air Pollutants (NESHAP) that will further govern the emission of the 1-BP; in the interim, companies that emit 1-BP need to consider how the addition of 1-BP to the list of HAPs will affect their permitting, emissions reporting, and regulatory compliance.

By Benjamin J.Conley and Adam R. Young

Seyfarth Synopsis: The OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) will require unvaccinated employees to submit weekly COVID-19 testing results by February 9, 2022. New guidance from the Biden Administration could require employer health plans to reimburse the cost of at-home COVID testing in certain circumstances…

On December 22, 2021, Taylor Energy Company LLC (“Taylor Energy”), a Louisiana based oil and gas company, and the United States Department of Justice reached a settlement concerning Taylor Energy’s role in the longest running oil spill in United States history. The oil spill began in September 2004 when Hurricane Ivan crossed the northeastern Gulf…

Asset Management

The sustainable investing market is witnessing remarkable growth: since 2018, annual cash flows into sustainable funds have increased tenfold. Now, more than ever, investors and asset managers alike seek sustainable products and strategies offering robust financial returns. The field, however, has been haunted by greenwashing claims and a lack of consistency in identifying what, exactly, makes an investment “sustainable”.

Sustainability or “green” taxonomies developed by governments, international bodies and non-governmental organizations (NGOs) can help resolve these challenges and inconsistencies by identifying specific assets, activities or projects that meet defined thresholds and metrics that quantify sustainability. These systems can cover the full spectrum of sustainability topics, from achieving acceptable levels of greenhouse gas emissions to compliance with certain human rights standards. Among other benefits, sustainability taxonomies can:

  • assist investors, asset managers and asset owners in identifying sustainable investment opportunities and constructing sustainable portfolios that align with taxonomy criteria;
  • drive capital more efficiently toward priority sustainability projects;
  • help protect asset managers against claims of greenwashing by providing an independent benchmark for the sustainability performance of investments; and
  • guide future public policies and regulations targeting specific economic activities based on taxonomy criteria.

In this series of Blog Posts, we first provide a brief overview of some of the key existing and developing taxonomies around the world. We then set out our analysis of the ways asset managers are already leveraging taxonomies in their businesses based on a review of publicly available responsible investment reports.  Finally, we highlight certain challenges that asset managers may encounter as these systems develop and interest in sustainable investing continues to grow.

Continue reading this Part I for a better understanding of existing and developing taxonomies around the world. You can find Parts II and III here and here.

The Italian Legislative Decree 196/2021 (“Italian Decree”) implementing the Single-Use Plastic Directive (“SUPD”) will enter into force on January 14, 2022.  The Italian Decree diverges from the SUPD on significant aspects: it provides a more flexible definition of plastic; delays the entry into force of the ban on prohibited SUPs; and exempts from such ban specific biodegradable and compostable materials.  The Decree also imposes specific return obligations on waste plastic bottles.

While the Italian Decree provides companies with additional flexibilities to market their SUPs in Italy, companies should carefully assess the risks that may arise if EU Courts finally hold that the Decree is not compatible with EU law.

By Melissa A. Ortega, Bradley D. Doucette, Brent I. Clark, Benjamin D. Briggs, Adam R. Young, Patrick D. Joyce, A. Scott Hecker

Seyfarth Synopsis: In an unusual special session, on January 7, 2022, the U.S. Supreme Court heard oral arguments regarding OSHA’s Vaccination and Testing Emergency Temporary Standard…

Pesticides/Herbicides:  EPA Publishes 2021 Dicamba Report and Addresses 2020 Growing Season On December 21, 2021, the U.S. Environmental Protection Agency (EPA) published a report titled “Status of Over-the-Top Dicamba: Summary of 2021 Usage, Incidents and Consequences of Off-Target Movement, and Impacts of Stakeholder-Suggested Mitigations.”  The report is published to a “nonrulemaking docket” at…