Understanding the Legal Landscape for the Transition Ahead
No single federal policy, statute or body of case law defines the legal contours of “climate change” and “sustainability.” Instead, a mosaic of statutes, regulations, policy initiatives and judge-made law provides a developing framework for corporate governance on matters of climate change and sustainability. Like it or not, thought-leaders at all levels of government and business are devising a mix of creative and sometimes far-reaching legal and policy tools for reducing carbon emissions and mitigating the impacts of climate change. Ignoring the implications of such initiatives will not make them go away; failing to assess and make plans may put your company at a competitive disadvantage. Foley’s Climate Change and Environmental, Social, and Governance, (ESG) attorneys help you navigate some of the most complex challenges facing companies of every size and business segment today.
Foley’s multi-disciplinary team of Climate Change and ESG attorneys have decades of experience representing industries that generate or consume energy, finding themselves on either side of the carbon-emitting & energy-consuming regulatory equation. We help you analyze the legislative, regulatory, litigation and reputational risks facing your business in this rapidly evolving global environment. We advise on industry-specific legal initiatives, ESG metrics and corporate governance. We are your “go-to” counsellors for the growing “transition industries,” including Renewable Energy and Biofuels.
- International Treaties; U.S. Federal, Regional and State Legislation:Foley attorneys have expansive government relations and environmental capabilities at the federal level, as well as in many of the states and localities where overlapping and conflicting energy, climate and environmental policies are legislated and litigated, including in Washington, D.C., Wisconsin, Texas, Florida, Illinois and California. We advise you on the structure and potential business impact of international treaties and proposed bills in the U.S. Congress and State legislatures, including proposals for cap and trade programs, carbon pricing, incentives, energy efficiency and greenhouse gas (GHG) permitting.
- Federal and State Regulations and Permitting: Many of our attorneys have served in legal and senior management capacities at the U.S. Environmental Protection Agency and in State environmental agencies and offices of Attorney Generals. We monitor and navigate the rulemaking process and advocate for reasonable rulemaking outcomes for you. We also use our regulatory knowledge to counsel you on the intricacies of industry-specific implementation requirements and, if the need arises, enforcement defense.
- We have analyzed rules, including the proposed Affordable Clean Energy Rule and its 2015 predecessor, the Clean Power Plan – directly regulating the electric utility sector, and indirectly affecting the U.S. economy – and continue to advise on the impact the rules can have on your business.
- For our chemical and manufacturing industry clients, we submitted comments during rule development, and continue to advise on the implementation, of EPA’s GHG Reporting and NSR permitting rules, as well as rules addressing GHG emissions from industrial refrigerants and biomass.
- For our oil and gas clients, we advised on the information gathering, rulemaking, implementation, litigation and roll-back of the federal rules aimed at methane control and energy conservation, including the Quad O, Quad Oa and Bureau of Land Management (BLM) leak detection & green completion rules. We negotiated consent decrees limiting methane emissions and successfully mitigated obligations in the transfer of producing properties subject to consent decree requirements.
- For clients with electric generating units, we have successfully negotiated GHG Best Available Control Technology permit emissions limits.
- State and Regional Programs and Local Initiatives: While the U.S. government weighs the pros and cons of enacting comprehensive legislative programs to reduce GHG emissions, many state and local governments are leveraging their experience with successful state and regional air emissions control programs to develop new systems for reducing GHG emissions within their jurisdictions. Foley attorneys actively monitor and advise on these developments. For example, we have counselled on California’s GHG cap-and-trade program, the California Low Carbon Fuel Standard for mobile source manufacturers, including heavy duty diesel engine manufacturers, and Texas’ GHG industrial permitting and methane leak requirements.
- Litigation: Since the U.S. Supreme Court’s decision in Massachusetts vs. EPA in 2007, Foley & Lardner attorneys have closely monitored, and in some cases participated on behalf of clients in legal challenges to regulations addressing GHG emissions control issues. In addition, our attorneys actively monitor and advise on significant developments in the proliferating state and federal lawsuits addressing climate damage under tort law and public trust theories.
Corporate Environmental, Social and Governance (ESG) Metrics
Foley’s multi-disciplinary team of Climate Change and ESG attorneys help corporate clients and investors assess the rapidly evolving approaches and risks associated with sustainable business operations and transparent reporting. We can help you develop practical strategies that make sense for your company as well as your investors and stakeholders. Our recent experience includes: helping publically-traded clients navigate SEC requirements for climate risk and ESG disclosures; assisting in the preparation of defensible voluntary sustainability reports for greenhouse gases, through the Climate Disclosure Project; advising on the implications of voluntary, and not-so-voluntary, ESG metrics reporting and program implementation in the United States and Europe; and supporting clients involved in the proxy-season engagement process with investors and activist shareholders on ESG issues; and implementing ESG elements and reporting regimes for corporate supply chains.
Foley’s cross-functional Energy Industry Team, including Environmental lawyers, has substantial experience advising clients that are heavily invested in financing or operating alternative energy, including renewables and biofuel industry projects. Our experience spans the breadth of these complicated transactions, including financial and environmental due diligence, site and project planning, permitting, corporate securities and project finance.