Environmental Law ReSource : Environmental Lawyer & Attorney : Reed Smith Law Firm : Climate Change, Sustainability

This post was written by Alun Jones and John Feldman. The original post can be found on Adlaw by Request.

On January 6, 2010, the UK's advertising watchdog, the Advertising Standards Authority (the ASA), issued a decision upholding complaints it received against a poster that promoted the Finnish airline, Finnair. The poster featured an image of an Airbus flying above Finland's coastline and stated, "Be eco-smart. Choose Finnair's brand new fleet."

Finnair supported its statement on the basis that it had a new fleet of planes and it structured its flight routes with an eye toward increasing fuel efficiency. The ASA did not find that support very compelling. ASA decided that readers were likely to interpret "eco-smart" as analogous to "environmentally friendly," implying that flying Finnair would have little or no detrimental effect on the environment. Furthermore, the ASA required robust substantiation for the fuel efficiency claims beyond Finnair's emissions data. ASA even questioned whether the ad was clear enough in defining the nature of the comparison: Was Finnair comparing its old fleet with its new fleet, or its new fleet with other airlines?
 

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This post was written by Larry Demase and Jennifer Smokelin.

In this article published in The National Law Journal, Reed Smith attorneys and Copenhagen attendees Larry Demase and Jennifer Smokelin discuss outcomes from the United Nations' climate change conference while focusing on what may happen to the domestic energy sector. They emphasize that, despite the questions surrounding international climate negotiations, the Obama administration will continue to push to reinvent the domestic energy sector, if for no reason other than economic stimulus. This push is reinforced by the recent proliferation of "energy security" and "green jobs" bills proposed in Congress. As for changes, they also explain that, during the next 10 to 20 years, we can expect a threefold increase in supply from renewables such as wind and solar. They also look for coal-supplied electricity to trickle off during the next 40 years but, assuming a viable carbon capture and storage program, in the near term significant production of electricity from coal will remain.

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This post was written by Larry Demase, Jennifer Smokelin and David Wagner.

January 31, 2010 marked the official deadline for parties to the Copenhagen Accord to submit their respective plans for reducing greenhouse gas emissions. However, this was not considered a “hard deadline” by the UNFCCC Secretariat and thus responses still trickle in. To date, 95 countries have officially agreed to “associate” with the Accord, with certain emitters (arguably key emitters) also including emission reduction actions in their statement to the UNFCCC. Some big global emitters have signed on to the Accord – the US Climate Action Network (USCAN) indicated that as of the date of this posting, countries representing 80.8% of global emissions are in accord with the Copenhagen Accord. 

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This post was written by  David Mittelman, Eulalia Mack, Todd Maiden, Lou Naugle, Jennifer Smokelin and J. Todd Arkebauer.

A week after the Securities and Exchange Commission (the "SEC") voted to adopt interpretive guidance addressing public company disclosure standards in connection with climate change, they made it official. On February 2, 2010, the SEC issued the interpretive guidance. The guidance reflects an effort by the SEC to provide companies with greater clarity about existing obligations under the federal securities laws that relate to climate change and its consequences. Reed Smith updated its client bulletin to provide some more information on the key disclosure areas.
 

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This post was written by Amanda Tao and David Wagner.

In the past month, China's Ministry of Environmental Protection has released two directories of substances requiring additional certifications and permitting for import and export. The directories address 154 chemicals and 16 ozone depleting substances. The Chemicals Directory for which Import and Export are Strictly Controlled updates a previous list to include nine more chemicals than the previous directory of 2008. The additional chemicals are Tributyltin-oxide, Tributyltin fluoride, Chlorotributylstannane Tributyltin chloride, Tri-n-butyltinmethacrylate, Tributyltin benzoate, Tributyltin linoleate and Tributyltin naphthenate. Companies importing or exporting any chemicals on the list must apply to the ministry for an environmental management certificate.

The Directory on Ozone Depleting Substances for which Import and Export are Strictly Controlled, released on January 6, 2010, requires companies seeking to import or export a listed substance to apply for the approval from the National Administration on Import/Export of Ozone Depleting Substances, and then apply for an import/export permit from licensing organizations authorized by the Ministry of Commerce and then present the permit to clear customs.
 

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This post was written by Todd Maiden and David Wagner.

On January 13, 2010, the European Chemicals Agency added 14 substances to its Candidate List of “Substances of Very High Concern” under REACH, nearly doubling the original list of 16. The determination to include new substances on the Candidate List was based on their hazardous properties, the volumes used and the likelihood of exposure to humans or the environment.

A chemical’s placement on the candidate list may lead to the phase out or restriction of that substance. Fifteen chemicals were placed on the Candidate List in October 2008 and, of those, seven were proposed for phase out or restriction in June 2009. The European Commission has not yet adopted a decision banning or restricting any of the substances.

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This post was written by Nicolle Snyder Bagnell.

Pennsylvania Department of Environmental Protection's Secretary John Hanger announced today that the Department plans to open a new office of its Oil and Gas Management division in Scranton, Lackawanna County, Pennsylvania. Although the exact location has not yet been decided, the purpose of the office will be to decrease travel time and locate regulators closer to the oil and gas wells they regulate, particularly the new Marcellus Shale wells planned in that part of the state. You can find the Department's press release here.

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This post was written by Nicolle Snyder Bagnell.

On January 8, 2010, West Virginia's Department of Environmental Protection (WVDEP) finalized its industry guidance for oil and gas drilling in the Marcellus Shale. The guidance focuses on large water volume fracture treatments and addresses the use and disposal of frac fluids. As discussed in the guidance, horizontal drilling, coupled with large volume hydraulic fracture treatments, is becoming a common exploration technique. Large amounts of water mixed with sand and other additives are pumped into the shale formation under high pressure to fracture the rock around the well to create a permeability conduit to the well bore. Water used in the hydraulic fracturing process, often referred to as “frac fluid,” must be processed in one of three ways. It can be injected in permitted disposal wells, treated to remove generated pollutants then disposed of properly, or reused.

The WVDEP also added a "Well Work Permit Application Addendum" as part of its natural gas drilling permit application requirements.

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This post was written by Nicolle Snyder Bagnell.

Last week the U.S. Environmental Protection Agency (USEPA) launched its new "Eyes on Drilling" tipline. The toll free number and email address were created by USEPA to help address growing public concern about oil and natural gas drilling in the Marcellus Shale. In particular, they are asking citizens to report illegal disposal of wastes or other suspicious activity related to oil and gas drilling. Information about the tipline, as well as what the agency is asking citizens to include in their report, can be found here.

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 This post was written by David Mittelman, Eulalia Mack, Todd Maiden, Lou Naugle, Jennifer Smokelin and J. Todd Arkebauer.

On January 27, 2010, the Securities and Exchange Commission ("SEC") voted to adopt interpretive guidance addressing public company disclosure standards in connection with climate change. While this interpretive guidance is not intended to impose new standards, it does serve as an important reminder for public companies, potentially as part of their disclosure controls and procedures, to assess whether climate change may have a material impact upon their business and financial condition. For details, go to Reed Smith's client bulletin that discusses this development.

Among the disclosure areas the forthcoming interpretive guidance will address, according to the SEC press release, are the following:

• Impact of legislation and regulation. When assessing potential disclosure obligations, a company should consider whether the impact of certain existing laws and regulations regarding climate change is material.
• Impact of international accords. A company should consider, and disclose when material, the risks or effects on its business of international accords and treaties relating to climate change.
• Indirect consequences of regulation or business trends. A company should consider, for disclosure purposes, the actual or potential indirect consequences it may face because of climate change-related regulatory or business trends.
• Physical impacts of climate change. Companies should also evaluate for disclosure purposes the actual and potential material impacts of environmental matters on their business.

Given the SEC's high-profile stamp of authority on this topic, public companies should expect a greater focus by the SEC staff and third-party observers in reviewing and evaluating disclosure practices about the material impact of climate change.

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