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Climate Change Will Impact Your Legal Practice, Panel Says

If climate change is not already impacting an attorney’s legal practice it will inevitably do so in the future, affecting a wide range of legal areas from corporate disclosures to litigation over natural disasters and supply-chain disruption, a panel of experts said Thursday. The climate change law experts offered their insight during a virtual panel discussion at the American Bar Association’s annual meeting Thursday on how lawyers’ practices will be impacted by climate change. The panelists included Columbia Law School professor Michael Gerrard, Hogan Lovells partner Hilary Tompkins, Harvard Law School professor Hana Veselka Vizcarra and general counsel for General Electric’s Environment, Health and Safety operations Roger Martella. “Climate change will affect your practice,” Vizcarra said. “It’s already impacting how we live our lives and how companies do business and when that happens it impacts the law.” Vizcarra pointed to changes in corporate disclosure and risk management, with shifts in what corporations either voluntarily disclose to investors or must disclose to the U.S. Securities and Exchange Commission when it comes to issues like their environmental impact or climate change-related risks or liabilities they face. “It’s not just a way for values investors to make an impact and encourage companies to do good in the world, but it’s now really a part of what investors integrate into their analyses across the board,” she said. And, it’s not only relevant to securities law, she added, but climate change risks have also begun to impact how the financial sector evaluates assets and the condition of companies seeking financing.

WH Tweak To Enviro Review Rule May Bring New Headaches

The Trump administration gave its final rewrite of a rule on how agencies conduct environmental reviews a better chance of surviving legal challenges by backing away from clear language that may have been vulnerable to attack, but in doing so, it may have created new problems by leaving certain terms up to agencies to define. The White House on Wednesday stepped back from the proposed rule’s total ban on consideration of a project’s “indirect” effects on the environment during a National Environmental Policy Act review, while declining to completely spell out what types of projects are exempt from NEPA reviews. By avoiding hard-line positions that environmental groups and more liberal states could have challenged as arbitrary or capricious, the White House Council on Environmental Quality gave more protection to its final rule from one line of attack. Yet the choice to be less clear leaves blanks for federal agencies to fill — and that opens a Pandora’s box of potential litigation, experts say. “So much is going to depend on the way that this is implemented,” Caitlin McCoy, a staff attorney with the Environmental & Energy Law Program at Harvard Law School, said. “By opening up a lot of different elements of these regulations to interpretation in order to avoid taking hard positions that could be challenged as arbitrary, CEQ is just exposing all of the agencies to a huge round of litigation.” …That means while the rule might be more legally sound and helps fulfill the goal of narrowing the types of projects that require NEPA reviews — creating more certainty for project proponents and speeding up the process — there still will be lots of chances for opponents to thwart those aims at the agency level, McCoy said.

EPA Gives Utilities A Headache With Mercury Rule Revision

The U.S. Environmental Protection Agency opened a Pandora’s box for utilities with an about-face on the justification underpinning an Obama-era rule limiting coal-fired power plants’ mercury emissions, including the potential that ratepayers will try to claw back what they paid for utilities to comply with the rule. Experts say that at best, the EPA’s finalized cost-benefit analysis of its Mercury and Air Toxics Standards rule is an empty gesture to utilities. The EPA said it’s not “appropriate or necessary” to regulate hazardous air pollutants from coal and oil-fired plants under Section 112 of the Clean Air Act, but the rule remains in place and utilities have already spent billions to comply with it…EPA Administrator Andrew Wheeler said Thursday that the agency is prepared to defend in court its decision to keep the MATS rule — which was enacted in 2012 and required utilities to comply by 2015 — in place…Experts say the EPA could have really cut the legs out from under the MATS rule by also removing power plants from the list of pollution source categories subject to regulation under Section 112, but ultimately decided not to. “Although there is still some chance that the coal industry will challenge the standards on the grounds that the appropriate and necessary finding is gone, their prospects for success are dimmer now,” said Joseph Goffman, an Obama-era EPA official who is now the executive director of Harvard Law School’s Environmental and Energy Law Program.