Insights

Washington – August 17, 2023: The 2024 edition of The Best Lawyers in America® has recognized 47 firm lawyers as "Best Lawyers" and 41 lawyers as “Ones to Watch.”

Washington – August 18, 2022: The 2023 edition of The Best Lawyers in America® has recognized 54 firm lawyers as "Best Lawyers" and 32 lawyers as “Ones to Watch.”

On March 6, 2024, the U.S. Securities and Exchange Commission (SEC) voted to finalize a rule that requires regulated issuers to disclose information regarding their greenhouse gas (GHG) emissions and other climate-related information. First proposed in 2022, the final rule has been scaled back in some significant ways from what was initially proposed. Notably, the final rule requires only large accelerated filers and non-exempted accelerated filers to disclose direct and energy-related (Scope 1 and 2)[1] GHGs—and only if such emissions are material to the business strategy, results of operations, or financial condition of a registrant—with no Scope 3 requirement to report on other indirect emissions (Scope 3). By comparison, the proposed rule would also have required Scope 1 and 2 emissions disclosures for all types of regulated entities regardless of materiality, and Scope 3 disclosures required of certain filers if material. The final rule reflects a heightened focus on materiality regarding disclosures of climate-related risks, and adjusts assurance requirements. It also extends the timing of GHG reporting, when required, to at least 2026 (for FY 2025 data) and phases in the assurance requirements. As soon as the SEC voted to finalize the rule, ten states (West Virginia, Georgia, Alabama, Alaska, Indiana, New Hampshire, Oklahoma, South Carolina, Virginia, and Wyoming) filed a petition for review in the Eleventh Circuit challenging the final rule.

Europe’s biggest online fashion retailer, Zalando, recently agreed to dramatically and rapidly overhaul its sustainability marketing in the face of pressure by the European Commission. This is yet another example of why companies need to be extremely careful when making environmental claims in their advertising. Such claims are facing increasing regulatory scrutiny and activist litigation in the European Union, the United Kingdom, the United States and elsewhere around the globe.

Front of mind for many federal contractors is the proposed FAR rule that would make federal contract awards contingent upon meeting mandatory greenhouse gas (GHG) emissions requirements. But a provision in the recently enacted National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2024 scales back the reach of that potential rule on Department of Defense (DoD) contracts.

When it comes to environmental laws and regulations, the only question is when—not if—the courts will be asked to resolve contentious issues. Such is the case with a rule proposed by the Environmental Protection Agency, under the Clean Air Act, to limit the greenhouse gas emissions of fossil fuel-fired power plants.

ESG is a major challenge for insurers. All businesses are being called upon to reevaluate their products and purpose, including their role as employers of diverse, engaged workforces. Plaintiffs’ counsel have already begun to take advantage of changing regulatory and consumer expectations, and ESG-related claims are being pursued in the courts over a wide range of issues. Not only are insurers figuring out how to help others manage these risks, they’re also trying to determine the many ways ESG affects them. 

Counsel Ellie Dawson will be speaking as part of a panel at the American Bar Association’s “The Future of Carbon Credit Markets.” This webinar will discuss the carbon credit market and the intensifying frenzy that is currently playing out against a backdrop of inconsistent regulatory compliance and voluntary market regimes, with divergent carbon credit qualification standards. The panel will explore questions such as: What are the greatest challenges in establishing a mature carbon market akin to other commodities and securities markets? How can we bring greater transparency, scale, and consistency to the carbon markets? Who are the critical actors to drive the needed changes? What regulatory and legal challenges lay ahead? Who are the key stakeholders driving greater effectiveness, transparency, and consistency in the voluntary markets? What actions and commitments are needed from these players? How should the legal community interface with the scientific community to optimize outcomes? 

Businesses are under increasing pressure to measure, improve, and disclose their environmental performance to investors, to consumers, and to regulators. And their efforts are reaching into every area of their operations, as are the risks and opportunities that follow. 

This special edition of the Fastest 5 Minutes podcast covers recent developments related to the Infrastructure Bill and Inflation Reduction Act, and key areas to watch in 2023. The podcast features a cross practice team of Crowell partners, so we offer perspectives from tax, energy, labor and employment, government contracts, ESG, environmental, and government affairs. Crowell & Moring's "Fastest 5 Minutes" is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.