On June 6, 2022, President Biden declared a national emergency (the “Declaration”) in relation to energy resources and temporarily extended the time of duty-free importation of solar panels and parts from Malaysia, Cambodia, Thailand, and Vietnam. This declaration comes in response to industry concerns over the implications, for ongoing solar energy projects, of the anti-circumvention inquiry by the U.S. Department of Commerce that was initiated on April 1, 2022. The Declaration permits the Secretary of Commerce to waive the collection of duties and other estimated duties on imported solar cells and modules from Thailand, Vietnam, Malaysia, and Cambodia for the next twenty-four months, regardless of the outcome of the anti-circumvention inquiry.

On May 26, 2022, the U.S. Food and Drug Administration (FDA) issued Warning Letters to four companies[1] concerning the illegal sale of unapproved animal drugs containing cannabidiol (CBD) intended for use in food-producing animals. These Warning Letters demonstrate the first time the FDA chose to focus on marketing CBD-containing products for use in food-producing animals, as opposed to pets, and the specific concerns related to such use. Food-producing animals, as defined by the FDA, include cattle (veal calves, beef cattle, and dairy cattle), swine, chickens, turkeys, and others (such as lambs).

Earlier this month, the U.S. Food and Drug Administration (“FDA”) completed guidance to help companies remove violative products from the market in a swift and effective manner. The guidance describes the precautionary steps companies should take to develop recall policies and procedures that include training, planning, and recordkeeping to reduce the amount of time a recalled product is exposed to the public.

On December 7, 2021, the U.S. Environmental Protection Agency (“EPA”) released its proposed 2020, 2021, and 2022 Renewable Volume Obligations (“RVOs”). RVOs determine the amount of renewable fuel (typically, ethanol) certain fuel refiners and others involved in the transportation fuel supply chain (“Obligated Parties”) are required to blend into their own fuel production during a given year. Obligated Parties failing to meet their RVOs for any year must buy Renewable Identification Numbers (“RINs”) or other credits, or risk default under the Renewable Fuel Standard (“RFS”).

The meat processing sector has been in the crosshairs of the federal government over that last several years due to increased consumer prices for meat products and complaints from farmers and ranchers. These complaints have rallied the Biden Administration to review and consider addressing these issues which are perceived to be caused by consolidation among meatpackers. Specifically, the Department of Justice (DOJ) and the U.S. Department of Agriculture (USDA) announced on January 3, 2022 their shared principles and commitments to use the Packers and Stockyards Act (P&S Act) and federal competition laws to address complaints regarding alleged anti-competitive behavior within the meatpacking industry. This announcement is in response to  President Biden’s July 9, 2021 Executive Order on Promoting Competition in the American Economy, particularly in the meat and poultry processing sector, as well as USDA’s announcement in July 2021 to begin work to strengthen enforcement of the Packers and Stockyards Act (P&S Act).

Pursuant to the Renewable Fuel Standard (“RFS”), the U.S. Environmental Protection Agency (“U.S. EPA”) issues annual renewable volume obligations (“RVOs”), which set the minimum aggregate volume of renewable fuel that refiners must blend with transportation fuel for the following calendar year.

Refineries producing transportation fuel meet their RVOs by blending the required volume of renewable fuel into gasoline or diesel fuel or by acquiring credits (called renewable identification numbers, or “RINs”). The RFS permits “small” refineries – those producing fewer than 75,000 barrels of fuel per day – to claim an exemption by showing that meeting their RVOs would cause them “disproportionate economic hardship.”

The American Society for Testing and Materials (“ASTM”) is expected to release a revised international standard for Phase I Environmental Site Assessments (“ESAs”) in December of 2021 that will clarify a number of key components of the standard and elevate the importance of per/poly-fluoroalkyl substances (“PFAS”).

Phase I ESAs are conducted by many parties when they become involved in the sale, acquisition, development, or financing of a piece of land, including developers, owners, and parties who provide loans for or serve as tax equity investors on renewable energy projects.  The Phase I ESAs allow those parties to get a glimpse into the environmental condition of the land and identify any potential contamination on-site.  Some of those parties – by acquiring an ownership or leasehold interest in the land, or by becoming an operator of the site – take on potential environmental liability if there have been releases on-site, including liability under the strict liability scheme of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  A defense to CERCLA liability is available if the party conducted certain diligence that complies with the United States Environmental Protection Agency’s All Appropriate Inquiries (“AAI”) standard, and if the party exercises appropriate care with respect to issues identified.  Environmental consultants prepare those Phase I ESAs and use the current ASTM standard as a guideline to prepare a thorough report and comply with AAI.

As the cold weather season approaches, the Federal Energy Regulatory Commission (FERC) and the North American Electric Reliability Corporation (NERC) are taking action to prevent a repeat of the devastating electric power outages that rocked Texas and the Midwest at the beginning of this year.

In February 2021, electric power generators and millions of customers…

Companies with ESG policies – including financing parties investing in renewable energy projects – should assess the impact of Texas Senate Bill 19 on their government contracting opportunities, and should expect and prepare for heightened state regulation of corporate firearm policies in the future.

Effective September 1, 2021, Texas Senate Bill 19 prohibits government entities from contracting with companies that have policies that restrict business with the firearms industry. The bill specifically targets banks and other financial institutions that have at least ten employees and are seeking government contracts of at least $100,000. Under the bill, such institutions are required to provide written verification that they do not have practices, policies, guidance, or directives that “discriminate” against a firearm entity or firearm trade association.