On 19 October, alongside a number of other important strategy documents (over 2,000 pages in total), the UK Government published its ‘Net-Zero Strategy’ (NZS) which will help achieve the UK’s interim five yearly carbon targets leading up to net-zero by 2050.

The guidance offers clarification on key aspects of the TCFD’s recommendations on climate reporting.

By Paul A. Davies, Michael D. Green, and James Bee

On 14 October 2021, the Task Force on Climate-related Financial Disclosures (TCFD) released a new guidance document on climate-related metrics, targets, and transition plans (the Guidance). The Guidance seeks to support organisations that make TCFD-aligned disclosures in preparing decision-useful metrics, targets, and transition plan information and linking that information to estimates of financial impact. The Guidance builds on a consultation paper on the same topic that the TCFD released in June 2021.

Governance

“… we renew our call on all governments to develop, implement, and enforce mandatory human rights and environmental due diligence requirements for businesses headquartered or operating within their own jurisdictions or, where appropriate, to further strengthen these regulatory regimes where they already exist.” – a statement from 94 investors representing over $6.3 trillion in AUM

On 7 October 2021, 94 investors representing over $6.3 trillion in assets under management and advisement, sent a statement to European Commissioners and the European Parliament, voicing their support for mandated human rights and environmental due diligence (mHREDD) (the “Statement“). The Statement was sent in light of the upcoming European Commission legislative proposal on Sustainable Corporate Governance. The proposal would require companies to consider their human rights and environmental impacts, allowing them to better manage sustainability related matters in their value chains and overall operations.

In a 53-page published opinion filed October 8, 2021, the Fourth District Court of Appeal mostly affirmed, but reversed in part, a judgment in a CEQA action challenging two sets of projects of the City of San Diego to underground overhead utility wires in several neighborhoods.  McCann v. City of San Diego (2021) 70 Cal.App.5th 51.  The opinion addressed and resolved a number of significant and interesting CEQA claims and issues involving the exhaustion doctrine; procedures for administratively appealing CEQA exemption determinations (and related due process notice issues); piecemealing; project description; aesthetics; and proper methodology for determining the significance of GHG emissions impacts through assessing a project’s consistency with a local Climate Action Plan (CAP).

Bisphenol A is a chemical product which is considered an endocrine disruptor and, for that reason, has been banned from the food industry since 2015 by the French Food Safety Agency (FSA).  Bisphenol A is, however, still legally used in other countries (including the UK and other EU Member States).

The French Competition Authority (FCA) has issued last week a Statement of Objections (SO, which is effectively a “charge sheet” against suspected cartel participants) to over a hundred companies and trade associations for alleged collusion regarding the unlawful and continued use of Bisphenol A in food packaging.  The FCA’s allegations are that these companies colluded in not informing their respective customers of the presence of this banned chemical in food packaging pre-2015.

Since President Joe Biden issued his “Path Out of the Pandemic” memorandum and Executive Order 14042 on September 9, 2021, employers have had to navigate piecemeal instructions on vaccine mandates.  For example, federal contractors and subcontractors received vaccine mandate guidance from the Safer Federal Workforce Task Force on September 24, 2021.  However, employers should not grow too comfortable with the current status of pandemic regulations, which continue to change in various jurisdictions and will again on a federal level soon.

OSHA’s Emergency Temporary Standard

In his “Path Out of the Pandemic” memorandum, President Biden specifically tasked the Occupational Safety and Health Administration (OSHA) with developing a rule to encourage vaccinations among the workforce – the Emergency Temporary Standard (ETS).  The ETS will require employers with over 100 employees to do the following:

  • either (a) ensure all employees are fully vaccinated, or (b) require any employees who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work; and
  • provide paid time off for any time to get vaccinated and/or to recover if they are ill post-vaccination.

    • State plans will be required to implement equally protective rules within 30 days.  Though not yet available for review, the status of the pending ETS remains under review by the White House Office of Management and Budget.

    On October 18, 2021, the U.S. Environmental Protection Agency (EPA) announced a per- and polyfluoroalkyl substances (PFAS) Strategic Roadmap (the Roadmap) detailing steps that the EPA plans to take to address PFAS contamination. PFAS are largely unregulated, but studies linking certain PFAS to health issues and their persistence in the environment and human body are driving the push for increased regulation. Currently, the EPA has established only a non-enforceable health advisory level for two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Additionally, some states have been moving forward at different speeds to establish state-specific PFAS regulations, including drinking water standards and cleanup levels for soil and groundwater remediation. However, the EPA’s Roadmap suggests increased federal regulation looms.

    The EPA’s approach under the Roadmap considers the lifecycle of PFAS, focusing not only on remediating PFAS-contaminated sites and regulating PFAS discharges or emissions, but also regulating PFAS at the upstream level where they are produced and incorporated into products. Other areas of focus called out in the Roadmap include (1) an emphasis on enforcement actions at PFAS-contaminated sites and placing responsibilities for limiting exposure on manufacturers, processors, distributors, and similar users; (2) research into PFAS over health effects and remediation technologies; and (3) an environmental justice focus on prioritization of PFAS effects on disadvantaged communities.