We are pleased to share our latest edition of “frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In the December edition, we summarise 29 developments in the environmental, safety and health sector. Top stories this month include:
California
State Senator Scott Wiener (D–San Francisco) has introduced Senate Bill 50, the
More Housing Opportunity, Mobility, Equity, and Stability (“HOMES”) Act, which establishes
the “equitable communities incentive.” This incentive would allow developers to
bypass certain local zoning restrictions when building multi-family units that
are near transit or employment opportunities in exchange for allocating a
Nine Northeast and Mid-Atlantic states and the District of Columbia announced this week a new regional initiative to cap and reduce greenhouse gas pollution from the transportation sector. Much remains to be decided before the program takes effect, however.
Connecticut, Delaware, Maryland, Massachusetts, New Jersey, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington D.C.[1] aim to cap carbon emissions from combustion of transportation fuels, and invest the proceeds into low-emission and improved transportation infrastructure, including by aiding electric vehicle adoption, and increasing public transit and biking opportunities.
Carbon pricing is seen by many as an effective means of reducing carbon dioxide (CO2) emissions from electricity generation. California and several Eastern states have enacted “cap and trade” emission allowance programs, which have forced generators in those states to pay a price for their CO2 emissions. With the Obama Administration’s Clean Power Plan not being implemented, there is currently no federal policy in place that would result in carbon pricing for electricity. In a singular proposal, acting without any state or congressional mandate, but with the support of State regulatory agencies, the New York Independent System Operator (NYISO) proposes to require carbon pricing for all power sold in New York State through the NYISO wholesale electricity market. For the first time, the Federal Energy Regulatory Commission (FERC) will be called upon to decide whether and how carbon pricing may be incorporated into wholesale electricity market tariffs solely under the authority of the Federal Power Act.
The NYISO carbon pricing proposal must be fully developed and vetted through a stakeholder process that could take one to two years to reach consensus on a tariff amendment that would be submitted to FERC for review and approval. This stakeholder process and the subsequent FERC proceeding will grapple with complex issues of electricity market design and novel jurisdictional and policy issues. The outcome of this process could lead to a push for the adoption of carbon pricing in other FERC-regulated organized regional electricity markets throughout the nation.
On December 11, 2018, the Environmental Protection Agency (“EPA”) and the Department of the Army (“DOA”) (“Agencies”) released their much-anticipated Notice of Proposed Rulemaking (“Proposed Rule”), which if adopted would scale back the jurisdictional reach of the Clean Water Act (“CWA”) by narrowing the definition of “Waters of the United States” (“WOTUS”) to include only those waters that are oceans, rivers, streams, lakes, ponds, and wetlands, and their “naturally occurring surface water channels.” The practical implications for project proponents of the Proposed Rule are that ephemeral streams and many ponds and ditches used in agricultural, industrial and construction activities would no longer be within the jurisdictional reach of the CWA, alleviating the requirement for and uncertainty surrounding permitting requirements and related mitigation measures. The next step in the Proposed Rule’s process is publication in the Federal Register, after which the Agencies will accept public comments on the proposal until 60 days after Federal Register publication.
Effective October 1, 2018, the US Occupational Safety and Health Administration (OSHA) updated its National Emphasis Program (NEP) on Trenching and Excavation, with the intent of describing “policies and procedures . . . to identify and to reduce hazards which are causing or likely to cause serious injuries and fatalities during trenching and excavation operations.” The updated NEP replaces the original 1985 CPL 02-00-069 – Special Emphasis: Trenching and Excavation and, among other things, establishes a requirement for each Area Office/Region to develop and implement outreach programs in support of the emphasis program, including the provision of compliance assistance materials for employers, permitting and other municipal organizations, industry associations, equipment rental organizations, water works supply companies, and plumbing companies (“stakeholders”).
Recent caselaw demonstrates that regulators are prepared to prosecute landlords as a direct result of their tenants’ unlawful waste operations. Landlords should consider this possibility when negotiating with prospective tenants and put in place reasonable safeguards to protect themselves. However, victims of fly-tipping may potentially face a similar risk of prosecution against which such safeguards will not be available.
In Smith v. Robinson, La. S. Ct., Dkt. No. 2018-CA-0728 (Dec. 5, 2018), the Louisiana Supreme Court held that the Texas franchise tax (also known as the “Texas margins tax”) was an income tax for purposes of Louisiana’s credit for tax paid to another state and held that a 2015 law that limited
On November 13, 2018, the U.S. Environmental Protection Agency (EPA) launched its Cleaner Trucks Initiative (CTI), which will decrease nitrogen oxide (NOx) emissions by updating the existing NOx standard for heavy-duty trucks. EPA’s announcement comes just as the California Air Resources Board (CARB) updated its Heavy-Duty On-board Diagnostic (HD OBD) requirements and prepares to implement its own Phase 2 GHG regulation for heavy-duty vehicles and trailers.
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