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DuPont Resolves PFAS Claims with Delaware

By Stuart Kaplow on Posted in Environmental, Federal
The State of Delaware and E. I. du Pont de Nemours and Company, The Chemours Company, DuPont de Nemours, Inc. and Corteva, Inc. (all “DuPont” related companies), businesses having operated in the State for more than 200 years, announced a sweeping settlement agreement last week. Under the settlement agreement, the DuPont agreed to pay $50 … Continue Reading

EPA and Army Announce Intent to Revise “Water of the United States” Rule

By Stuart Kaplow on Posted in Environmental, Federal
Last week the Environmental Protect Agency and Department of the Army announced the agencies’ intent to initiate new rulemaking that restores the Obama era waters of the United States rule that was in place pre-2015, and before the current Trump era rule. This proposed rule will impact large swaths of America not only those directing … Continue Reading

Revoking the Migratory Bird Treaty Act Incidental Take Rule, Once Again

By Stuart Kaplow on Posted in Codes and Regulations, Environmental, Federal
Last week, the U.S. Fish and Wildlife Service announced a proposed rule to restore criminal penalties for accidental killing of migratory birds, revoking the January 7, 2021, final regulation that limited the enforcement of the 1918 Migratory Bird Treaty Act. “The Migratory Bird Treaty Act is a bedrock environmental law that is critical to protecting … Continue Reading

SEC to Update Required Climate Related Disclosures

By Stuart Kaplow on Posted in Climate Change, ESG, Federal
On February 24, acting chair of the U.S. Securities and Exchange Commission Allison Herren Lee, offered insight into the future direction of mandatory climate change disclosures and new ESG regulation, when she directed the Division of Corporation Finance to enhance its focus on climate related disclosure in public company filings. The Commission provided guidance in … Continue Reading

EPA 2020 Enforcement Offers Insight

By Stuart Kaplow on Posted in Codes and Regulations, Environmental, Federal
The Environmental Protection Agency’s has released the results of its 2020 enforcement and compliance efforts and those results offer significant insight that business can benefit from. In the first 5 months of fiscal year 2020, EPA was on track to significantly exceed traditional numeric metrics in many categories with more compliance monitoring activities in the … Continue Reading

45L Energy Efficient Home Tax Credit Extended for 2021 by Covid Relief Bill

By Stuart Kaplow on Posted in Energy, Federal, Green Building, Green Globes, IgCC, LEED
The Consolidated Appropriations Act, 2021, H.R. 133, signed into law by President Trump on December 27th, extended the 45L energy efficient home $2,000 tax credit, which had been scheduled to expire last year, to cover qualified new energy efficient homes sold or leased through 2021. And yes, regular readers of this blog will notice that … Continue Reading

179D Tax Deduction Made Permanent by Covid Relief Bill

By Stuart Kaplow on Posted in Federal, Green Building, Green Globes, LEED
On page 4,872 of the Consolidated Appropriations Act, 2021, H.R. 133, which passed both houses of Congress on December 21st and was signed into law by President Trump on December 27th, the 179D energy efficient commercial buildings federal tax deduction, which had been scheduled to expire at year end, was instead made permanent. At a … Continue Reading

The Birds: Migratory Bird Treaty Act redux without Tippi Hedren

By Stuart Kaplow on Posted in Federal, LEED, Solar Panel, wind turbine
Three weeks ago the U.S. Fish and Wildlife Service proposed a regulation to finally resolve and codify the legal principal that an incidental bird take resulting from an otherwise lawful activity, for example a sparrows flies into a solar panel, is not prohibited under the Migratory Bird Treaty Act. The Fish and Wildlife Service is … Continue Reading

EPA Proposes First Greenhouse Gas Emissions Limits for Aircraft

By Stuart Kaplow on Posted in Climate Change, Environmental, Federal
Last Wednesday the Environmental Protection Agency proposed greenhouse gas emissions standards for airplanes used in commercial aviation and large business jets. “This standard is the first time the U.S. has ever proposed regulating greenhouse gas emissions from aircraft,” according to EPA Administrator Andrew Wheeler. And as much as I have railed against more and regressive environmental … Continue Reading

Understand How EPA Does Not Expect to Seek Penalties during COVID-19 Pandemic

By Stuart Kaplow on Posted in Codes and Regulations, Environmental, Federal, Legal Developments
The U.S. Environmental Protection Agency announced last Thursday retroactively beginning March 13, 2020, a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. EPA’s admittedly unprecedented temporary “enforcement discretion policy” applies to civil violations during the COVID-19 outbreak as a response to the deleterious effect on a wide variety of businesses. … Continue Reading

Phase l Assessments for Tenants are the Hottest Environmental Issue in 2020

By Stuart Kaplow on Posted in Environmental, Federal
The hottest environmental topic for business in 2020, as a result of an amendment to the Superfund law for the first time making clear that tenants can qualify as bona fide prospective purchasers, protected from cleanup costs from the presence of hazardous substances on a property, is prospective tenants are now ordering Phase l Environmental … Continue Reading

179D Tax Deduction Brought Back to Life thru 2020

By Stuart Kaplow on Posted in Federal, Green Building, LEED
This past Friday night while aboard Air Force One the President signed legislation reviving the 179D energy efficient commercial buildings tax deduction, providing an enormous and much needed boost to domestic green building. Almost as compelling as the fictional undead being created through reanimation of a corpse, except here there were no zombies involved; it … Continue Reading

What You Can Say about RECs is Regulated by the FTC

By Stuart Kaplow on Posted in Energy, Federal, Solar Panel
Businesses who generate renewable energy, say, by using solar panels, but sell the Renewable Energy Credits (RECs) for the renewable energy they generate shouldn’t claim they “use” renewable energy. The Federal Trade Commissions has advised that such a claim would be deceptive. The guidance from the FTC is not new, but as renewable energy becomes … Continue Reading

An HREC is Not a REC in a Phase I Environmental Site Assessment

By Stuart Kaplow on Posted in Environmental, Federal
I review a large number of Phase I environmental site assessments, and year in, year out, the largest number of questions I field are about Historical Recognized Environmental Conditions. The environmental professionals who perform those assessment generally do not take heed of Eduardo Galeano’s quote, “History never really says goodbye. History says, ‘see you later.’” … Continue Reading

FTC Finds Truly Organic is Not

By Stuart Kaplow on Posted in Environmental, Federal, Green Washing
By way of a federal court order that became final last month, Truly Organic Inc. and its founder will pay $1.76 million to settle a Federal Trade Commission greenwashing complaint alleging that their nationally marketed bath and beauty products are neither “certified organic” nor “vegan” as falsely claimed. According to the FTC’s complaint, in this … Continue Reading

ESG Disclosure Simplification Act Passes Committee But Will Fail

By Stuart Kaplow on Posted in Environmental, Federal, Sustainability
On September 20, 2019, the Financial Services Committee in the U.S. House of Representatives passed H.R. 4329, the ESG Disclosure Simplification Act of 2019. The bill would require all public companies to disclose “environmental, social, and governance [ESG] metrics” as material information about the company. Although there is little if any chance that the bill … Continue Reading

Cannabis Manufacturer Charged with RCRA but No CDS Violations

By Stuart Kaplow on Posted in Environmental, Federal
In a criminal case that says significantly more about the prosecution than the indictment on its face, the Federal government is prosecuting a leading cannabis industry manufacturer and distributor for criminal transportation of hazardous waste. The Resource Conservation and Recovery Act (“RCRA”) was enacted in 1976 to ensure that all hazardous waste generated in the … Continue Reading

Brownfield Laws can Save Green Building and the Planet

By Stuart Kaplow on Posted in Federal, Green Building, LEED
It is widely accepted that the greenest building is one already built. So, why then on the 20th anniversary of many state brownfield programs, is there so little correlation between green buildings and brownfields? Green building ratings systems, standards and codes expend a great deal of verbiage on aims reducing embodied carbon, including the currently … Continue Reading
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