Dorothy Watson Discusses Proposal to Incorporate Climate Impact in Penalty Considerations

Foley & Lardner LLP partner Dorothy Watson is quoted in the E&E News article, “Biden admin floats idea of adding climate impacts to fines, penalties,” commenting on a proposal from a recent White House directive highlighting the social cost of greenhouse gases and the prospect of that calculation being an input for federal agencies when levying penalties upon non-compliant entities.

“I think there’s probably still a pretty big question mark on exactly how that would play out in terms of enforcement penalties,” Watson said. She noted that the “gravity component,” or the harm done by a particular violation, “isn’t necessarily a dollar figure-type calculation.”

“And so, it’s hard to envision specifically how the agency would play that out,” she explained.

Watson also suggested that an agency might opt for a fine on the higher end of an established penalty range because it judged that a particular violation had resulted in substantial harm, including climate harms determined by the social cost of greenhouse gases, though she said the monetized penalties for statutes like the Clean Air Act are set annually based on inputs like inflation.

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