Insights

With the coming of the new presidential administration, state antitrust enforcement is poised to intensify. We expect both Republican and Democratic Attorneys General (AGs) to actively pursue antitrust investigations and litigation. They will fill in where the U.S. Department of Justice and Federal Trade Commission reduce focus but are also sure to work, including on a bipartisan basis, with their federal counterparts. Below, we explore how state AGs are likely to shape the antitrust landscape in the coming four years, and the areas where we anticipate significant enforcement activity.

After a somewhat turbulent adoption process, on 25 July 2024 the Corporate Sustainability Due Diligence Directive (“CS3D”)[1] finally entered into force.  The CS3D requires certain companies operating in the EU/EEA, to identify and address adverse impacts on human rights and the environment as regards their actions both inside and outside of Europe. This includes obligations for companies to issue publicly available annual statements on human rights and environmental issues, and to adopt and put into effect transition plans for climate change mitigation.

EU member states must transpose the directive into national law within two years of its entry into force.  Compliance with the Directive will be introduced in stages, as follows:

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 October 26, 2016, a New York state judge ordered PriceWaterhouseCoopers LLP (PwC) to produce documents related to an ongoing New York Attorney General (NYAG) investigation into whether Exxon Mobil Corporation (Exxon) committed financial fraud by failing to disclose the financial and operational impacts of known climate change-related risks to the business. The court order, if it withstands appeal, is further indication that public companies need to begin managing climate risk as an enterprise level concern, even though significant uncertainty remains regarding the level of public disclosure required. Out of an abundance of caution, companies should also not expect any internal climate risk projections, audits and assessments to remain private.

Last week, in North Dakota v. Heydinger, No. 14-2156, (8th Cir. June 15, 2016), the U.S. Court of Appeals for the Eighth Circuit, affirming a lower court decision, struck down a Minnesota state law limiting the carbon intensity of the state’s utility grid by proscribing out-of-state imports or long-term power contracts with “new large energy facilit[ies] that would [increase] statewide power sector carbon dioxide emissions.” The decision comes at a time when EPA’s Clean Power Plan to reduce CO2 emissions from the power sector is on hold pending judicial review, leaving the states essentially on their own with regard to greenhouse gas (GHG) reductions initiatives. The Heydinger decision potentially raises several questions on the constitutional viability and design of state GHG mitigation programs affecting the electric energy sector.

Today, the Department of Defense (DoD), General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) (collectively, the "FAR Council") proposed amendments and revisions to the Federal Acquisition Regulation (FAR) that would require some government contractors to indicate whether they publicly disclose greenhouse gas (GHG) emissions and/or quantify corporate GHG reduction goals. Comments are due by July 25, 2016.

Corporate disclosure of climate change-related risks, impacts, and opportunities (collectively "Climate Risk(s)") is an increasingly important consideration for investors. In the past few weeks, both the U.S. Securities & Exchange Commission (SEC) and the G20 Financial Stability Board’s (FSB) Climate Change Risk Task Force have asked for public comment on what reforms may be necessary to (i) establish and clarify reportable Climate Risk metrics, and (ii) enhance the utility of Climate Risk disclosure to investors.

On Tuesday, in a blow to the Obama Administration's climate change policy platform, the U.S. Supreme Court granted several applications for a stay of the U.S. Environmental Protection Agency's (EPA) Clean Power Plan, the "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units," 80 Fed. Reg. 64,662 (Oct. 23, 2015). Five justices voted to grant the application – Chief Justice Roberts along with Justices Scalia, Thomas, Alito, and Kennedy – while Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application.

On January 14, 2016, the U.S. Department of Defense (DoD) issued Directive 4715.21 to organize comprehensive agency-wide action to address and mitigate the risks of climate change on U.S. military assets and operations. The Directive implements for DoD Executive Order 13653 (Preparing the United States for the Impacts of Climate Change), which directed each federal agency to develop and institute policies designed to improve climate resilience. It also follows several DoD reports and assessments of the military's 7,000 bases, installations and facilities, which found that climate change poses a present security threat. 

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.

Earlier this week, the United States and China announced a landmark bilateral agreement to increase cooperation on climate change matters. The centerpiece of the agreement is each country's preliminary post-2020 greenhouse gas (GHG) emissions reduction goal, which may help galvanize action and frame 2015 multilateral climate negotiations in Paris. 

On August 7, 2014, the White House Council on Environmental Quality (CEQ) denied a petition by several environmental groups to update its National Environmental Policy Act (NEPA) regulations to explicitly require climate change analyses to be included in federal agencies' environmental review documents. Among other things, CEQ concluded that existing NEPA regulations "already encompass consideration of climate effects," setting the stage for a likely legal challenge to CEQ's decision.

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.