Insights

On January 20, 2025, President Trump issued an Executive Order directing the withdrawal of all areas on the Outer Continental Shelf —an expansive area of submerged land under federal control— from eligibility for offshore wind leasing. This Executive Order was one of several energy-related executive orders reportedly intended to increase oil and gas production and curtail the deployment of clean energy resources signed by Trump shortly following his inauguration. The Order is premised on stated concerns for meeting “the country’s growing demand for reliable energy,” maintaining a “robust fishing industry for future generations” and providing “low cost energy to [U.S.] citizens.”

The Department of Transportation’s Federal Highway Administration has issued final standards for the installation, operation, and maintenance of electric vehicle (EV) charging stations paid for with federal funds pursuant to the Infrastructure Investment and Jobs Act (IIJA) and other federal authorities. The standards, which go into effect on March 30, 2023, regulate the types of chargers that may be installed, as well as payment processing, labor, cybersecurity, and data privacy practices for EV charging infrastructure on federal highways.

On February 28, 2023, the Commerce Department released the first Notice of Funding Opportunity (“First NOFO”) under the recently enacted CHIPS and Science Act (CHIPS Act), P.L. 117-167. The First NOFO seeks applications for assistance—including direct funding, loans, and loan guarantees—for projects to construct, expand, or modernize commercial semiconductor facilities.  

If past is prologue, then energy companies may again find themselves targets of congressional investigations. The new Republican majority in the House of Representatives has outlined plans to investigate the Biden Administration’s climate change policies and the clean energy and transportation companies that receive government money under the Infrastructure Investment and Jobs Act (“IIJA”) and the Inflation Reduction Act (“IRA”). This is a replay of when the GOP took control of the House in 2010 and congressional committees investigated implementation of the American Recovery and Reinvestment Act of 2009, focusing in part on exposing what they believed to be spending abuses by the Department of Energy’s (“DOE”) Loan Programs Office. Most famously, congressional Republicans targeted Solyndra, a California-based solar panel manufacturer that eventually went bankrupt after receiving the first loan guarantee issued by DOE under Title 17 of the Energy Policy Act of 2005.

As the Biden Administration enters its third year, now with a party split in Congress, it seems likely that the Administration will redouble its focus on executive branch regulatory tools that can be used to achieve energy-related policy objectives, including with respect to energy efficiency and reducing carbon emissions. For manufacturers and importers of appliances and certain other consumer, lighting, plumbing and commercial and industrial products, that means the potential for additional scrutiny of their products’ compliance with the Department of Energy’s (DOE) conservation standards for energy and water efficiency. It also likely means a commensurate increase in DOE enforcement activity for non-compliance with the applicable efficiency standards or the associated test procedures required to demonstrate compliance, as well as registration and labeling requirements. Given the magnitude of the penalties associated with violating efficiency standards, currently $503 per violation, which can quickly run into multiple millions of dollars across noncompliant units, manufacturers and importers should consider refamiliarizing themselves with DOE’s conservation standards regime.

The EPA has issued new guidance on environmental justice that urges regulators to incorporate EJ concerns and communities into the permitting process earlier on, make changes to the process that enable EJ communities to participate more fully, and use existing legal authorities to require would-be permittees to fully address EJ issues.

On December 29, 2022, the IRS released new guidance on whether vehicles qualify for tax credits under the clean vehicle provisions of the Inflation Reduction Act (the “IRA”). At the same time, Treasury released a much-anticipated White Paper describing the Administration’s planned approach to assessing whether vehicles meet the critical mineral content and battery processing requirements of the IRA.

On February 2, 2015, President Obama released his proposed $8.6 billion budget for the U.S. Environmental Protection Agency ("EPA" or "the Agency") for fiscal year 2016 (October 1, 2015 through September 30, 2016). Seeking a $452 million increase in funding above 2015 levels, the budget allocates significant resources to the Agency's top-priority climate change and air quality initiatives. With key members of Congress already expressing opposition to the funding request, approval of EPA's proposed budget is not likely. Nevertheless, EPA's budget signals the Agency's regulatory and enforcement priorities and how it intends to spend its resources, however limited, in the coming years. Below, we outline the top five takeaways from EPA's budget.

Owners of the Big Brown coal-fired power plant in Texas have agreed to forego an award of $6.4 million in attorney's fees they obtained against Sierra Club in a Clean Air Act (CAA) citizen suit last summer in exchange for the environmental group's agreement not to pursue certain CAA claims against other facilities, to release all claims against the companies to date, and to withdraw a Freedom of Information Act (FOIA) request to the U.S. Environmental Protection Agency (EPA). With this settlement, the companies traded a laudable but uncertain fee award―which was on appeal and may have been in jeopardy because fees are not normally assessed against public interest groups—for much broader (and assured) benefits, including (i) avoiding millions of dollars in future litigation fees and expenses and (ii) foreclosing the risk posed by pending and threatened litigation.

On November 26, EPA Administrator Gina McCarthy signed a proposed rule to revise national ambient air quality standards (NAAQS) for ozone. The current ozone standard, finalized in 2008, is 75 parts per billion (ppb) and the standard applies to both health-based (primary) NAAQS and welfare-based (secondary) NAAQS. EPA is proposing to revise the primary standard to 65 to 70 ppb and to revise the secondary standard, either by setting the level consistent with the primary standard, or by establishing a separate secondary standard based on a different metric than the primary standard.

The Environmental Protection Agency published notice in the Federal Register on July 31, 2014, that it is considering significant revisions to its Risk Management Plan (RMP) rule, 40 C.F.R. pt. 68. EPA's announcement comes as a request for information entitled "Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7)." An RFI often signals a federal agency's intent to pursue notice-and-comment rulemaking.

An administrative law judge ("ALJ") at the Federal Mine Safety and Health Review Commission held that a production-operator's responsibility for reporting a temporary employee's injury to MSHA on Form 7000-1 pursuant to 30 CFR § 50.20 was not discharged even though the injured miner's employer (the temp agency) had itself already reported the injury. The case is Dickenson-Russell Coal, VA 2009-430, decided January 16, 2013.

In Sierra Club v. Korleski, No. 10-3269 (6th Cir. May 25, 2012), the U.S. Court of Appeals for the Sixth Circuit ruled, in a 2-1 decision, that the Clean Air Act's citizen suit provision (42 U.S.C. § 7604(a)(1)) does not provide for suits against State officials based on an alleged failure to enforce federal air quality regulations. In so holding, the court reversed a lower court's injunction ordering the State of Ohio to administer the particular federal regulation at issue. As explained below, the Sixth Circuit finds no room for citizen enforcement litigants in the Clean Air Act's cooperative federalism scheme.