Of note in January: Environmental justice, major projects, climate change, greenwashing, and more

This week we are tracking ESG topics related to environmental justice, major projects, climate change, greenwashing, and more.

1. EPA Issues Legal Guidance On Cumulative Impacts:  The US Environmental Protection Agency announced its latest efforts to identify and address how cumulative impacts from pollution may be considered in the agency’s work.  The cumulative impacts guidance was published as an addendum to the EPA’s revised Legal Tools to Advance Environmental Justice document, and is intended to provide examples of the agency's authorities under environmental and civil rights laws. The addendum also serves as a guide for attorneys and policymakers about how the agency’s powers may be used to address environmental justice concerns.

2. 5th Circ. Axes Challenge to South Texas LNG Project: The Fifth Circuit denied a challenge to prevent construction of a south Texas natural gas facility and pipeline brought by Shrimpers and Fisherman of the RGV, Sierra Club, and Save RGV. The three-judge panel ruled that the U.S. Army Corps of Engineers considered less environmentally-damaging alternatives and restoration options before the permit was issued. The panel further determined that the Corps performed the requisite due diligence and relied on the “least environmentally damaging practicable alternative.”

3. NY Says Climate No Excuse for Less Low-Income Lending: The New York Department of Financial Services issued proposed guidance for banks and independent mortgage companies to evaluate financial risks associated with increased natural disasters and other climate change-related events.  The 13-page proposed guidance recommends tools, such as regular scenario analyses, that banks and mortgage lenders should undertake to account for unknown future risks. Importantly, the proposed guidance also makes clear that regulated organizations must “manage climate-related financial risks prudently while continuing to ensure fair access to capital and credit”—specifically with respect to low- and moderate-income communities and communities of color that have been disproportionately harmed because of systemic racism and redlining.

4. FTC Wants Public Input on 'Green Guides' Updates: The Federal Trade Commission unanimously voted to allow a 60-day public comment period regarding updates to the commission’s “Green Guides.” The Green Guides include general principles that apply to all environmental marketing claims, and provide guidance for avoiding statements that may be considered unfair or deceptive environmental marketing claims in violation of Section 5 of the Federal Trade Commission Act. The Federal Trade Commission is asking for public input on a wide range of environmental issues, including but not limited to the continuation of the Green Guides, carbon offsets and climate change, compostability, recyclability, and energy efficiency.

5. Green Orgs Sue Over NY Power Plant's Sale to Crypto Co.:  The Clean Air Coalition of Western New York Inc. and the Sierra Club filed a lawsuit against the New York State Public Service Commission, alleging the Public Service Commission disregarded climate change laws by failing to consider the environmental and social impact of allowing Digihost International, Inc., a Canadian cryptocurrency company, to acquire a controlling interest in a New-York based 55-megawatt power plant. Digihost intends to increase operation of the power plant from approximately 25 days per year to continuous operation in order to power a crypto mining operation, which Plaintiffs allege will result in increased emissions and pollution. Plaintiffs allege that the increased environmental impact violates New York’s Climate Leadership and Community Protection Act, which requires state agencies to consider the impact of their decisions on greenhouse gas emissions and disadvantaged communities before approving any actions.

In Case You Missed It
In case you missed them, linked below are some recent articles and analysis from King & Spalding on particular ESG-related legal developments.

• EPA Releases a Cumulative Impacts Addendum to its Environmental Justice Tool Kit
• Germany Becomes the Latest Country to Adopt Mandatory Human Rights Due Diligence Legislation
• FTC Cracks Down on Non-Competes
• The EU Regulation on Foreign Subsidies is published – What does it target and what does it involve for companies?
• Beyond the Fenceline: Environmental Justice Updates – December 20, 2022
• States are riding the coattails of federal government environment policies
• King & Spalding is hosting an in-person roundtable discussion on the increasingly complex and important topic of environmental justice in Houston in late January. Our discussion will include a plenary session along with panels on the trends related to environmental justice considerations in litigation, permitting and transactions/project finance. For more information, please contact us here.