By Lynn L. Bergeson and Carla N. Hutton
Bergeson & Campbell, P.C.’s (B&C®) October 11, 2022, webinar “Environmental, Social, and Governance Issues: A Business Imperative” is now available for on-demand viewing at https://attendee.gotowebinar.com/recording/4666338769766648838. During this one-hour webinar, experts from FTI Consulting, Christine DiBartolo, Senior Managing Director, Head of Americas Corporate Reputation, and Ken Ditzel, Senior Managing Director, explore the hows and whys of environmental, social, and governance (ESG) issues, clearing up what can be a confusing “alphabet soup” for newcomers and providing practical tips for embarking upon an ESG journey for entities beginning the process. In conversation with Lynn L. Bergeson, Managing Partner, B&C, panelists discussed how to conduct an ESG assessment, what makes an ESG program successful, and risks and opportunities that must be considered when undertaking this significant task. A well-designed ESG strategy can achieve meaningful improvements in corporate performance and provide real value to stakeholders through specific commitments to corporate responsibility, making it well worth the effort.
We encourage you to view the webinar, read about ESG and Sustainability, and subscribe to B&C’s informative blogs and newsletters and FTI Consulting’s ESG+ newsletter.
By Lynn L. Bergeson and Carla N. Hutton
On October 1, 2021, the U.S. Environmental Protection Agency (EPA) announced the availability of the Draft FY 2022-2026 EPA Strategic Plan. 86 Fed. Reg. 54448. The draft Strategic Plan communicates EPA’s priorities and provides the roadmap for achieving its mission to protect human health and the environment. The draft Strategic Plan outlines objectives within the following strategic goals:
- Goal 1: Tackle the Climate Crisis;
- Goal 2: Take Decisive Action to Advance Environmental Justice and Civil Rights;
- Goal 3: Enforce Environmental Laws and Ensure Compliance;
- Goal 4: Ensure Clean and Healthy Air for All Communities;
- Goal 5: Ensure Clean and Safe Water for All Communities;
- Goal 6: Safeguard and Revitalize Communities; and
- Goal 7: Ensure Safety of Chemicals for People and the Environment.
Goal 7 includes two objectives. Objective 7.1, “Ensure Chemical and Pesticide Safety,” is intended to protect the health of families, communities, and ecosystems from the risks posed by chemicals and pesticides. It includes the following long-term goals:
- By September 30, 2026, complete at least eight High Priority Substance (HPS) Toxic Substances Control Act (TSCA) risk evaluations annually within statutory timelines compared with the fiscal year (FY) 2020 baseline of one;
- By September 30, 2026, review 90 percent of risk mitigation requirements for TSCA new chemical substances compared to the FY 2021 baseline of none;
- By September 30, 2026, renew 40 percent of expiring lead-based paint Renovation, Repair, and Painting (RRP) firm certifications within 30 days compared to the FY 2021 baseline of 36 percent;
- By September 30, 2026, complete 78 pesticide registration review cases;
- By September 30, 2026, consider the effects determinations or protections of federally threatened and endangered species for new active ingredients in 90 percent of the risk assessments supporting pesticide registration decisions for new active ingredients compared to the FY 2020 baseline of 50 percent;
- By September 30, 2026, consider the effects determinations or protections of federally threatened and endangered species in 50 percent of the risk assessments supporting pesticide registration review decisions compared to the FY 2020 baseline of 25 percent; and
- By September 30, 2026, support Agricultural Worker Protection Standard (WPS) pesticide safety training for 20,000 farmworkers annually compared with the FY 2018-2020 annual average baseline of 11,000.
Objective 7.2, “Promote Pollution Prevention,” is intended to encourage the adoption of pollution prevention and other stewardship practices that conserve natural resources, mitigate climate change, and promote environmental sustainability. It includes the following long-term goals:
- By September 30, 2026, reduce a total of 1.5 million metric tons of carbon dioxide equivalent released attributed to EPA pollution prevention grants; and
- By September 30, 2026, EPA’s Safer Choice program will certify a total of 2,300 products compared to the FY 2021 baseline of 1,950 total certified products.
According to the notice, EPA is seeking comment from individual citizens, states, tribes, local governments, industry, the academic community, non-governmental organizations (NGO), and all other interested parties. Comments are due November 12, 2021. EPA states that it “anticipates the final Strategic Plan will be submitted to Congress in February 2022.”
By Lynn L. Bergeson
The Environmental Law Institute (ELI) recently released Environment 2021: What Comes Next?, a report that looks at the Trump Administration’s impact on environmental law and policy and what lies ahead. ELI states that the report is “a response to growing demand for analysis of how deregulatory initiatives by the Trump Administration will affect environmental protection, governance, and the rule of law with a focus on what might happen in a second Trump administration or a new administration.” According to ELI, the report:
- Assesses the Trump Administration’s steps to remake federal environmental regulation and redefine the relationships among state and federal environmental decisions;
- Identifies key categories of action affecting environmental regulation and examines some possible future outcomes; and
- Helps environmental practitioners, policymakers, and the public at large think about what lies ahead, looking particularly at the nation’s ability to address new problems and confront as yet unsolved challenges, such as environmental justice.
On July 15, 2016, Environmental Leader published "What Does the Loss of 'Green Chemistry' Provision from Amended TSCA Mean for Biochemicals?," featuring comments by Lynn L. Bergeson, Managing Partner of Biobased and Renewable Products Advocacy Group (BRAG®) affiliate Bergeson & Campbell, P.C. (B&C®). Ms. Bergeson expanded on a previous blog post titled "Inside EPA Reports On Loss Of Green Chemistry Provision From TSCA Reform," stating:
"While regrettable, the absence of the green chemistry provisions in the amended Toxic Substances Control Act (TSCA) is a setback, not a deal breaker," Bergeson told Environmental Leader. "The green chemistry provisions in Section 24 of H.R. 2576 were taken from Senator Chris Coons' (D-DE) Sustainable Chemistry Research and Development Act. Section 24 was eliminated reportedly because its inclusion would have been subject to review by the House Science, Space, and Technology Committee, a different House Committee from the House Energy and Commerce Committee that had primary jurisdiction over TSCA reform, potentially complicating and delaying an already complicated and time-sensitive Congressional review process. The decision to forego this review and eliminate the green chemistry provisions is disappointing, but a failed TSCA reform effort would have been more so."
Bergeson notes that the provision's absence in the updated chemical safety law eliminates -- for now -- the development of and funding for a green chemistry strategy at the federal level. Senator Coons is expected to introduce a similar bill next year.
Senators Coons, Susan Collins (R-ME), and Ed Markey (D-MA) have asked the U.S. Government Accountability Office (GAO) for a technology review of sustainable chemistry. "The report, expected to be complete in the spring of 2017, can help illuminate the options available to the federal government to promote green chemistry whether by instigating new legislation or by serving as a resource which existing legal authorities can use to support this field that is so vital to economic competitiveness and/or use to diminish the less positive impacts of chemistry throughout our economy," Bergeson stated.
On June 15, 2016, H.R. 5489, Agriculture Environmental Stewardship Act of 2016, was introduced to the House Ways and Means Committee on Science, Space, and Technology. The bill would add additional biogas applications to the list of technologies that qualify for the federal Section 45 energy investment tax credit, increasing acceptable biogas technologies from only biogas-based electricity projects to "qualified biogas property" defined as:
property comprising a system which--
(i) uses anaerobic digesters, or other biological, chemical, thermal, or mechanical processes (alone or in combination), to convert biomass (as defined in section 45K(c)(3)) into a gas which consists of not less than 52 percent methane, and
(ii) captures such gas for use as a fuel.
Qualified biogas properties, as well as qualified manure resource recovery properties, will be eligible for a 30 percent tax credit under this bill. H.R. 5489 was introduced with bipartisan support by Representatives Tom Reed (R-NY) and Ron Kind (D-WI), and signed by 12 other House members. A similar bill is expected to be introduced in the Senate,
On February 29, 2016, the U.S. Environmental Protection Agency (EPA) announced eight small business contracts through the Small Business Innovation Research (SBIR) Program. The eight Phase II contracts provide the companies with $300,000 each to develop and commercialize innovative products that address environmental and public health issues. Phase II funding is typically made available to companies that have already been granted Phase I funding through the SBIR Program. This round of funding included two biobased businesses, Environmental Fuel Research, LLC, a company that is developing a system to produce biofuel from grease trap waste, and Sustainable Bioproducts, LLC, a company that is developing a low-cost, simple, and scalable microbial process for the conversion of organic municipal solid waste to fuels using fungus. The SBIR Program is open to for-profit U.S. businesses with fewer than 500 employees. Open solicitations for applicants are listed on the SBIR website, but applications for this specific program are currently closed.
The U.S. Air Force (USAF) Research Laboratory has developed a Draft Environmental Assessment and a Draft Finding of No Significant Impact (FONSI) for the development of the Red Rock Biofuels facility in Lake County, Oregon. The proposed facility is one of three projects awarded a contract under the U.S. Department of Defense’s (DOD) Protection Act to produce drop-in biofuels for military and private-sector transportation needs. Even though the facility will be located in a floodplain, and has the potential to impact up to 54 acres within the floodplain, USAF consulted with the U.S. Army Corps of Engineers regarding this issue and was able to develop the Draft FONSI. Written comments on the plan are due by February 5, 2016, and should be directed to Messrs. James Neely or Warren Assink at AFRL/RXME, Building 653, Rm 215, WPAFB Ohio 45433.
The Federal Trade Commission (FTC) announced in a September 14, 2015, press release, "FTC Sends Warning Letters about Green Certification Seals," that it sent warning letters to five providers of environmental certification seals and 32 businesses using those seals, "alerting them to the agency's concerns that the seals could be considered deceptive and may not comply with the FTC's environmental marketing guidelines." FTC states that environmental certification seals are intended to help consumers tell whether a product has the environmental attributes it claims. FTC cautions that environmental seals "can inadvertently deceive consumers by conveying more than a marketer intends." FTC's Guides for the Use of Environmental Marketing Claims (Green Guides) include guidance intended to help marketers avoid this issue. More information regarding the press release is available in Bergeson & Campbell, P.C.'s (B&C®) memorandum FTC Green Guides: FTC Sends Warning Letters Concerning Environmental Certification Seals.
EPA's Office of Chemical Safety and Pollution Prevention (OCSPP)
plans to expand its Design
for the Environment (DfE) Safer Chemical Ingredients List (SCIL),
and invites chemical manufacturers to provide information on their safer
chemicals to EPA for review and listing on the SCIL. EPA plans to expand the
categories and functional classes of the SCIL. Interested companies can review EPA's "Steps to SCIL
Listing" to learn more about the process.