Green Building Law Update

Environmental Law and Sustainability for Business

Reverse Greenwashing: The Battle Over ExxonMobil’s Recycling

By Stuart Kaplow on Posted in Climate Change, Green Washing, greenwashing

In the devolving discourse on the role of businesses in climate change responsibility, we are witnessing an unusual, but likely positive phenomenon, “reverse greenwashing.” Traditionally, greenwashing refers to businesses exaggerating or fabricating their environmental initiatives to appear more sustainable. Reverse greenwashing, however, occurs when environmental groups and public officials unjustly discredit legitimate business sustainability efforts, potentially for political or competitive reasons.

A high profile example of this is the recent lawsuit filed by ExxonMobil against California Attorney General Rob Bonta and several environmental organizations, including the Sierra Club, Surfrider Foundation, Heal the Bay Baykeeper, and the Intergenerational Environment Justice Fund Ltd. ExxonMobil alleges that these parties engaged in a deliberate campaign to discredit its advanced plastic recycling initiatives, spreading misinformation and defamation to undermine the company’s sustainability efforts.

The crux of the 40 page complaint is the averment, “with apparently no appreciation for the irony of their claim, Mr. Bonta and his cohorts are now engaging in reverse greenwashing; while posing under the banner of environmentalism, they do damage to genuine recycling programs and to meaningful innovation.”

Background of the Lawsuit

ExxonMobil, one of the world’s largest producers of plastic, has been investing heavily including in advanced recycling technologies aimed at converting hard to recycle plastics into reusable materials. This technology, if successful, could revolutionize plastic waste management by reducing landfill contributions and creating circular economies in the many industries that use plastic.

However, according to ExxonMobil’s complaint, Attorney General Bonta and various environmental groups have labeled these initiatives, including in a lawsuit brought last September by Mr. Bonta against ExxonMobil, as a “sham” and “myth,” casting doubt on the legitimacy of ExxonMobil’s recycling efforts including by disparaging this one business by blaming it for “the fact that the U.S. recycling rate has never exceeded 9%.” The company argues that this is not just criticism but an orchestrated attempt to harm its reputation and business interests.

Allegations of Reverse Greenwashing

ExxonMobil’s lawsuit highlights three core allegations:

1. Defamation and False Statements. The lawsuit claims that the defendants have knowingly spread falsehoods about ExxonMobil’s recycling efforts, accusing the company of misleading the public when, in fact, it has made substantial investments in legitimate sustainability solutions.

2. Coordinated Smear Campaign. The complaint alleges that Bonta and the environmental organizations have strategically reversed their stance on recycling, choosing to attack ExxonMobil’s initiatives despite previously advocating for similar technologies. This alleged shift was a “deliberate smear campaign” in Bonta’s “personal capacity to drive up donations and publicity for his political campaign.”

3. Foreign Influence. ExxonMobil further claims that IEJF, an Australian charity with financial ties to competing businesses, including through its relationship with ExxonMobil business competitor Fortescue Metals Group Ltd, has influenced U.S. based organizations to engage in this campaign. The company asserts that foreign actors may be attempting to manipulate the U.S. regulatory landscape to hinder ExxonMobil’s competitive edge in the global energy sector.

The Legal Battle and Its Implications

Filed in federal court in Beaumont, Texas, ExxonMobil’s lawsuit seeks compensatory and punitive damages, as well as injunctive relief to prevent further dissemination of false and defamatory claims. The outcome of this ‘turnabout is fair play’ case could set a significant precedent in how corporate sustainability efforts are assessed and challenged in the public sphere.

It should be lost on no one that late last year, in a first of its kind victory for a business, a New York state judge ordered the Greenwashing Lawsuit Alleging Plastic Pollution by PepsiCo is Dismissed. In your face responses by businesses are a positive change.

The Bigger Picture: When Environmental Advocacy Becomes Political

At a time when many in the environmental industrial complex are focused on the Executive Orders of the new Trump organization, there is also important action in the judicial branch. This case raises key questions about the intersection of environmental activism, politics, and corporate responsibility. Are companies genuinely attempting to improve sustainability being unfairly vilified for political or financial gain? And how should business respond?

While skepticism toward environmental claims by businesses and governments is at times warranted, we are now in a time when ‘fatalism is out and localism is in’, so dismissing legitimate innovations without due diligence may not only hinder progress in addressing global environmental and sustainability challenges but expose one to jeopardy. The ExxonMobil case underscores the need for a balanced approach, one that encourages both good practices by a business and a fair discourse on sustainability initiatives.

As this legal battle unfolds in what is a very different political time from when the defendants originally disparaged ExxonMobil, it will be crucial for businesses large and small to watch how courts navigate the complexities of reverse greenwashing, corporate responsibility, and the influence of political and foreign interests, in shaping environmental narratives.

The complaint should be required reading. It is at ExxonMobil_v_Bonta.pdf

Anatomy of an Executive Order: Stopping the Wind

By Stuart Kaplow on Posted in Climate Change, Federal, Paris Accord, wind turbine

Executive Orders are a vital mechanism for the President of the United States to manage the operations of the federal government. Since George Washington issued the first eight Executive Orders, more than 1,400 have been recorded. Every American President has issued at least one. Codified under Title 3 of the Code of Federal Regulations, Executive Orders carry the force of law, providing a direct and impactful way for the President to address key issues.

President Donald Trump’s Executive Order, issued on January 20, 2025, titled “Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects,” exemplifies how such orders can reflect a leader’s vision while addressing critical national concerns. This directive not only honors a campaign promise but also underscores the administration’s commitment to re-evaluating energy policies with a focus on innovation, security, and sustainability.

Understanding Executive Orders

An Executive Order is a signed, written, and published directive from the President. Unlike legislation, Executive Orders do not require Congressional approval, making them a powerful tool for immediate action. However, Congress retains the ability to influence their implementation through legislation or funding adjustments. Only a sitting President can revoke or amend an existing Executive Order by issuing a new one.

Key Provisions of the Executive Order

President Trump’s Executive Order on offshore wind leasing includes several critical provisions designed to ensure a thorough evaluation of current practices and their impacts:

Withdrawal from Offshore Wind Leasing

  • Effective January 21, 2025, all areas within the Outer Continental Shelf are withdrawn from consideration for wind energy leasing. (Note, the ocean between 3 and 200 miles off the Atlantic coast is actually not the Outer Continental Shelf, but rather is the Exclusive Economic Zone.)
  • This withdrawal will remain in effect until explicitly revoked by a future Executive Order.
  • Existing leases are not immediately affected, but the Secretary of the Interior is tasked with reviewing those leases to assess their ecological, economic, and environmental implications. This review could lead to amendments or terminations where necessary.

Review of Federal Wind Leasing and Permitting Practices

  • A temporary halt is placed on issuing new or renewed approvals, rights of way, permits, leases, or loans for both onshore and offshore wind projects.
  • The Secretary of the Interior, in collaboration with other federal agencies, will conduct a comprehensive assessment of current wind leasing and permitting practices. This evaluation will address: Environmental impacts on wildlife, including birds and marine mammals; Navigational safety and transportation concerns; and, Effects on national security and commercial interests.

More than Just a “Day One” Campaign Promise

It should be no surprise that this Executive Order was issued on day one. Candidate Trump said at a rally in New Jersey last May that he intended to sign an Executive Order on day one that would halt “horrible” offshore windmill projects. We counted at least 10 times he repeated that pledge. In recent weeks the media widely reported then President Elect Trump asked New Jersey Congressman Jeff Van Drew to draft an order after the Congressman lobbied to have the campaign promise fulfilled.

President Trump’s Executive Order reflects a thoughtful approach to energy policy, prioritizing a comprehensive review of current practices to ensure they align with broader national interests. His opposition to offshore wind projects, often criticized for their reliance on subsidies (.. Federal tax credits cover 50% of the cost of building offshore wind) and potential environmental and aesthetic impacts, has been consistent and well documented. By pausing new leasing and permitting, this directive creates an opportunity to:

  • Reassess the economic viability of wind energy projects in the context of federal subsidies.
  • Address potential environmental concerns, particularly the impact on marine ecosystems and wildlife.
  • Consider the broader implications for national security and navigational safety.

Positive Impacts on Energy Policy

This Executive Order aligns with the administration’s broader energy “drill, baby, drill” (.. curiously, which slogan was first used by Maryland Lieutenant Governor Michael Steel in 2008) strategy, which emphasizes energy independence, economic efficiency, and the reduction of regulatory burdens. By encouraging a more balanced and sustainable approach to energy development, this policy provides a pathway to:

  • Strengthen the role of natural gas and maybe even nuclear and hydrogen energy sources.
  • Minimize reliance on taxpayer funded subsidies for renewable energy projects.
  • Protect critical ecosystems and maintain navigational and national security priorities.

Industry Impacts and Future Opportunities

The environmental industrial complex, while facing immediate challenges due to this policy change, now has an opportunity to innovate and adapt.

This is much more than a pause in new off shore wind leasing. By way of example, the single surviving planned Maryland offshore wind project was described last week by a regulator as, “at best a Zombie enterprise,” when state public officials have not yet admitted publicly “.. it only exists as a living dead” attempt to catch the wind. With appeals of the federal Bureau of Energy Management permits pending that a Trump Administration will now be called upon to defend, the permitting cannot end well. And the Delaware rejection of that wind project’s substation building permit application further damns the Maryland project. That offshore wind had been key to the Maryland Governor’s climate plan. The fastest adapters and quickest disrupters are already prioritizing innovation in technological and environmental change in Maryland.

Denmark’s Ørsted, the world’s largest off shore wind turbine business, whose stock dropped 13% on January 20 and on that day said it would take an impairment charge of approximately $1.68 Billion for projects off the coasts of Maryland, Delaware, and New Jersey, for instance, may lead the way in rethinking project designs and locations to align with evolving U.S. policies.

On a different but related environmental matter, the President signed an Executive Order triggering the United States’ withdrawal from the Paris Agreement under the United Nations Framework Convention on Climate Change.

Conclusion

President Trump’s Executive Order “Stopping the Wind” is a decisive step toward reshaping America’s energy landscape. By pausing offshore wind leasing and permitting, the administration has created an opportunity to reassess and refine energy policies in a way that prioritizes innovation, sustainability, and national interests. This move not only fulfills a campaign promise but also reflects a commitment to responsible governance and forward thinking energy strategies.

As stakeholders across industries and government collaborate to navigate these changes, the potential for innovation and progress is strong. We would be pleased to talk with you about it.

For a comprehensive list of Executive Orders issued by the Trump Administration, visit The White House Presidential Actions.

Maryland Governor Proposes to Ration Electricity

By Stuart Kaplow on Posted in Climate Change, Codes and Regulations, Energy, GHG, greenhouse gas

The hearing on HB 49 in the House is on February 12 at 1:00 pm and the cross filed SB 256 in the Senate on February 13 at 1:00 pm.

In an unprecedented move, the Governor of Maryland has proposed legislation that would make Maryland the first state in the U.S. to ration energy use in existing buildings. House Bill 49, titled Environment – Building Energy Performance Standards – Compliance and Reporting, seeks to reduce greenhouse gas emissions by imposing caps on energy consumption for buildings based on their Energy Use Intensity (EUI).

While the proposal’s goal aligns with the Governor’s efforts to combat global warming, it has sparked significant controversy due to its impact on residents, businesses, and the broader State economy.

Understanding EUI

EUI measures how much energy (e.g., from grid electricity, natural gas consumption, and even solar panels on site) a building uses per unit of area. It’s calculated by dividing the total energy used by a building, over a year, by its total floor area, resulting in a unit like “kBtu/ft²/year” (thousand British thermal units per square foot per year), expressed as a number.

It is actually not that hard. By way of example, the U.S. EPA advises a bank branch has a median EUI of “88.3,” a pre K thru 12 school 48.5, and a hospital 234.3.

By way of interpretation, a lower EUI value indicates a more energy efficient building. The concept of EUI is attributed to the Lawrence Livermore Lab which developed the metric to compare the energy performance of GSA buildings.

However Maryland proposes to misuse the federal government diagnostic tool to establish numeric caps, setting a maximum EUI for particular uses from multifamily residential to hospitals and more, in an attempt to force a reduction in energy consumption in buildings, rationing power used by each building and penalizing those who fail.

The Controversy Around Energy Rationing

Despite its ostensibly innocuous name, HB 49 has faced criticism for introducing energy rationing, a term that conjures images of scarcity during wartime and odd and even day gasoline purchases during the 1973 Arab oil embargo. While the bill avoids using the word “rationing,” it proposes restricting energy use in existing and new buildings over 35,000 square feet.

Understand, rationing allows each person to have only a fixed amount of a particular commodity, like power, usually during times of scarcity, such as during a war, and we know of no instance rationing has been used by a state government as proposed in Maryland.

A Legislative Workaround?

The bill also does not mention that similar efforts last year to put caps on EUI were halted by the Maryland General Assembly’s Joint Committee on Administrative, Executive, and Legislative Review (AELR). Lawmakers expressed concerns that the EUI provisions of the then proposed Maryland’s Building Energy Performance Standards (BEPS) regulations overstepped the authority granted by the legislature in the 2002 Climate Solutions Now Act.

Additionally, funding for EUI target development was frozen in the 2024 state budget pending detailed reports from the Maryland Department of the Environment. Some legislators argue that HB 49 is an “end around” these legislative actions, pushing through a controversial policy without addressing prior concerns.

Economic and Environmental Implications

HB 49 fails to address what one legislator has described as “that this proposal may ration power for as many as 40% of the State’s residents, from low and moderate income families in apartment buildings in Baltimore City to senior citizens residing in condominium buildings in Montgomery County.” Moreover, “.. a multi family building landlord telling a resident they must turn off their stove or their heat to have the building comply with this law is a nonstarter.” And a western Maryland legislator said, “while MDE is keeping the EUI values a secret [they are not in the bill], there is no one number for multifamily residential that makes sense in an Ocean City condo and a Frostburg garden apartment building.” Additionally, a business group has estimated that more than 70% of Maryland’s businesses are tenants in covered buildings and will be subject to rationing.

But be clear, this new law will not apply to energy used in the vast majority of government buildings that will be exempt from EUI rationing.

Why would the Maryland Governor propose Maryland be the first state to ration energy use and why now with the shift in national sentiment and new U.S. Presidential and Congress? Those in the know explain the driver for this bill is not global warming but because Maryland consumes about 40% more electricity than it generates, and that amount is increasing. Maryland needs to produce more electricity to meet its needs but there is no meaningful plan to do that (.. the Don Quixote dream of power from windmills in the ocean off the coast of Ocean City, Maryland is certain to fail).

Last year all of the new solar and other renewable energy sources that came online in Maryland did not even equal the State’s electricity load growth; so the State will need to import a larger percentage of its energy this year than last and into the future. Or, with this bill the Governor can legislate that less electricity can be used in the future; really?

Maybe too much inside baseball for a blog post, but of great import, the Governor’s bill to regulate “site” EUI as opposed to “source” EUI is simply wrong if, the goal is truly reducing GHG emissions because Maryland is and will remain a net importer of electricity (.. but, as proposed, this new EUI law will burden Maryland covered building owners but does nothing about the emissions from an electric generating plants in Tennessee that supply Maryland buildings?).

The government agency that is supposed to do energy planning, the Maryland Energy Administration has been coopted from being “the chief energy authority in the State” when that energy office in Maryland government was created in 1973 to, under the current Governor appointed Director, being the climate change office seeking to improve the environment, “power plants, transmission lines, substations, pipelines for natural gas and petroleum, and storage facilities” be damned.

State Budget Deficit

While some public officials claim none of this has anything to do with filling the State budget deficit, there are purportedly outsized penalties for failure to comply, termed an “alternative compliance fee” for “the building’s failure to meet energy use intensity targets.” The penalty will be later announced by the Maryland Department of the Environment after the bill is law.

In addition, the bill provides all covered buildings will be assessed a new yearly fee (i.e., a new real property tax) to fund the program including the annual reporting by building owners; also in an amount to be announced later. So, building owners will have to pay for the sword of Damocles over their heads.

The Bigger Picture

Proponents argue that the Maryland Governor’s bold initiative is necessary to combat global warming. However, others warn that rationing is wrong and will lead to unintended consequences, including economic inequities and a backlash against government overreach.

With all of that observed, it is difficult to conceive of any scenario where a court will not find this regulation of EUI is preempted by federal law and as such void and unenforceable.

Balancing the need for sustainable practices with the realities of Maryland’s energy infrastructure and economy is a complex challenge. As the Maryland General Assembly debates this controversial bill, a broader question remains: Can the state achieve its ambitious greenhouse gas reduction goals (.. and should it?) without unfairly burdening its residents and businesses?

Only time, and perhaps the legislature, will tell.

In any event, reading HB 49 is a good education in legislating.

Citizens and Businesses Join Suing Maryland to Halt BEPS

By Stuart Kaplow on Posted in Climate Change, Codes and Regulations, GHG, greenhouse gas

Earlier today citizen groups representing the interests of thousands of residents and business associations with thousands of members filed suit in the U.S. District Court against the Secretary of the Maryland Department of the Environment challenging the Maryland Building Energy Performance Standards (BEPS) program as preempted by Federal statute and unenforceable as a matter of law.

The BEPS regulations, which program’s goal is for buildings to ​achieve zero net direct greenhouse gas emissions by 2040, are in effect as of December 23, 2024, requiring building owners to report GHG emission benchmarking data in 2025; hence this lawsuit was filed within 30 days of that effective date.

The BEPS regulations purport to implement the Climate Solutions Now Act of 2022, but the Maryland Department of the Environment has gone far beyond that statute with the now effective September 6, 2024 version of the revised second BEPS regulations.

The diverse plaintiffs in case no. 1:25-cv-00113-JRR range from the Maryland Building Industry Association, Inc., The Building Owners and Managers Association of Greater Baltimore, Inc., NAIOP Maryland, Inc., NAIOP DC | MD, Inc., and Maryland Multi-Housing Association, Inc., to Washington Gas Light Company, and includes the Leisure World Community Corporation,  The Elizabeth Condominium Association, Inc. the Promenade Towers Mutual Housing Corporation and The Willoughby of Chevy Chase Condominium Council of Unit Owners, Inc.  That the biggest real estate trade association and largest residential condominium are aligned as plaintiffs in and of itself makes clear the great harm and damage that Maryland BEPS will do.

Specifically, the lawsuit seeks “a permanent injunction enjoining Defendant from enforcing or attempting to enforce the Maryland BEPS” and for “a declaratory judgment, ..  that the Maryland BEPS are preempted by federal law because they concern the energy use of appliances covered by the federal Energy Policy and Conservation Act (EPCA) and are therefore void and unenforceable.”

The 26 page Complaint describes that the federal “EPCA regulates the energy use and efficiency of many gas appliances and expressly and broadly preempts state and local laws on that subject.” The Maryland BEPS regulations “fall within the heartland of EPCA’s express preemption provision because they too purport to regulate and restrict the energy use and efficiency of these appliances. As such, the Maryland BEPS are preempted by EPCA and unenforceable as a matter of law.”

This is not a matter of party politics. The federal EPCA was proposed by President Nixon and ultimately enacted by Congress and signed by President Ford. But be assured frolic and detours exceeding federal energy policy (.. while encouraged under the Biden administration) will all but certainly not be tolerated under a Trump administration.

The Complaint is substantially similar as the litigation commenced to have two Colorado BEPS laws determined to be preempted by the federal EPCA.

And the Complaint explains “the Ninth Circuit’s recent invalidation of the City of Berkeley’s prohibition on gas piping in new buildings illustrates how EPCA preemption operates to prohibit attempts to regulate the energy use or efficiency of gas appliances.”

Some have suggested a BEPS program could exist pendent to EPCA, but not only is Maryland BEPS not such a standard, but it is far more burdensome than any other similar enactment in the country and clearly made void and unenforceable by the Supremacy Clause of the U.S. Constitution.

Those who see this Maryland case as a “not my chicken” moment are not correct; this is not someone else’s problem. This lawsuit is part of a groundswell from Berkeley, California to Denver, Colorado to Washington, D.C., and now Maryland, in dramatic legal confrontations over wrongheaded environmental regulation and illegal energy policy by governments behaving badly in the name of climate change.

The lawsuits aver that these bans on fossil fuel are more than just poorly executed public policy; they are part of a broader trend that plaintiffs allege is an overreach of state and local governmental power. With similar lawsuits pending in Montgomery County, Maryland, and Washington, DC, and nationwide people are rallying around what they see as a pattern of unconstitutional and unlawful environmental local government action that violates the longstanding precept of a single federal national energy policy.

While the attorneys we have consulted, to the one, suggest the outcome of this Maryland lawsuit is all but certain, the breadth of any final judicial redress may well have lasting impacts across the country on state and local governments’ abilities to establish regulatory schemes to further with climate goals, especially as some still push for all electric buildings.

Supporters of government net zero mandates argue that direct action, now, is justified to reduce carbon emissions and combat climate change while opponents are concerned over denigrating the current way of doing things before there is a replacement.

Some Marylanders would support the aims of the Climate Solutions Now Act of 2022 but believe these BEPS regulations are the wrong way to go about it. It is clear that the Maryland BEPS regulations “are preempted by federal law because they concern the energy use of appliances covered by the federal Energy Policy and Conservation Act and are therefore void and unenforceable.”

The Change in Administration will be “the” Environmental Issue of 2025

By Stuart Kaplow on Posted in Codes and Regulations, Environmental, greenhouse gas, Paris Accord

It will surprise no one that U.S. environmental and energy public policy will change dramatically in 2025. Donald Trump was Time magazine’s Man of the Year in 2024, even before his inauguration as the 47th President. This is much more than only shrinking the EPA and restoring American energy dominance, the trajectory of federal environmental practices is about to undergo a seismic transformation.

In a recent webinar for our clients and friends, I identified more than 125 expected environmental rule changes in President Trump’s second term representing a realignment of government priorities and opportunities.

A Legacy of Deregulation

If the past is prologue, and I believe history is always a good place to start, the first Trump Administration reversed, revoked, and otherwise rolled back more than 100 environmental rules. But it is widely believed this Administration will be much more than that, ..

Our commercial real estate clients are exhilarated because a real estate developer will be the President of the United States. And the glee extends to almost every sector of the economy because the President will be a businessman who understands the issues that drive making a profit (.. as opposed to President Biden who spent his entire working life in government (sans 6 months in 1968 when he worked as a law clerk at a law firm).

Key Changes in Environmental Policy

We can learn much from President Trump’s own words: Only second to his priority of beginning deportations of criminal immigrants, the President elect’s priority “on day one” is the issue poll after poll showed was the most important issue to voters, the economy and his plan to attack it by rolling back clean energy and environmental regulations.

That is the 47th President’s message of “drill, baby drill” is carrying through with his second priority “to defeat inflation and to bring down consumer prices rapidly down.” .. “If you make doughnuts, if you make cars, whatever you make, energy is a big deal, and .. it’s my ambition to get your energy bill within 12 months down 50%.”

Trump said at more than one of his rallies, “On day one of the Trump administration, I will terminate Kamala’s insane electric vehicle mandate, and we will end the green new scam once and for all. The green new scam will end.” (Of course, “green new deal” legislation never passed Congress, but those environmental policies were included in the Biden Inflation Reduction Act.)

Certain regulatory repeals will take longer than one day, like the plan to undo California’s waiver allowing it to set a stricter standard than the federal government’s electric vehicle mandate. Revoking the waiver will also roll back Maryland and four other states’ adoption of that California zero emission mandate (.. that will also have the effect of continuing to allow motorhome sales in those states).

Moreover, with respect to EVs, it is all but certain that the EPA will revoke its electric vehicle mandate which would have resulted in automakers shifting at least 54% of production to EVs.

Pendant to those actions will be new mandates for states that exceed national standards, like going beyond the International Energy Conservation Code will not be eligible for funds from related federal agencies; literally, the opposite practices of the Biden administration that entered into secret funding deals including with Maryland to go beyond energy codes standards.

The other shoe will drop on EV vehicles when federal subsidies on EV sales, not to mention sales of other ‘green’ equipment from solar panels to heat pumps, are rolled back (.. yes, apparently even Elon Musk supports this).

And then there are the uncertain details about tariffs on goods from China, but that will all but certainly include EV batteries and battery materials. Beyond EVs, the U.S. becoming reliant on Chinese computer chips, drones, and solar panels will all but certainly mean more tariffs and trade restrictions.

Trump also said at a rally in New Jersey that he intended to sign an executive order on day one that would halt “horrible” offshore windmill projects.

The President Elect has repeatedly said he will have the U.S. withdraw from the Paris Climate Accords, as he did by Executive Order in his first term. Of note, it would take a year for that move to take effect under the terms of the pact that require prior notice to the U.N. Secretary General, but it is expected that will be a first step.

Other obvious day one actions are a freeze and then a recission of all pending regulations, a stay of rule making litigation (for example, the Biden proposed SEC climate disclosures, etc.), and the undoing of most Biden executive orders that will be replaced with new executive orders (for example, Dept. of Labor required consideration of ESG in retirement investing, etc.).

But it is much more rolling back prior government acts and shrinking the EPA that grew by thousands of workers and more thousands of contractors under the Biden Administration, it is returning the EPA to its historic role and purpose. The Heritage Foundation’s Project 2025 Presidential Transition project, with the chapter on EPA edited by Mandy Gunasekara, chief of staff at the agency for the last half of the first Trump presidency, recommends the correct role for the government is, “Creating a better environmental tomorrow with clean air, safe water, healthy soil, and thriving communities.”

The Broader Implications

Recall during Trump 45, progressives were heard to complain of the politicization of science at EPA which after Biden hiring of thousands, including, at the more than 1,500 person EPA Office of Research and Development, to expedite the distribution of billions of dollars in incentives, now sounds like more than the pot calling the kettle Black; it was the height of hypocrisy.

There is also much known about Lee Zeldin, the nominee for EPA Administrator. He has gotten a bit of a bad rap from progressive environmentalists, including the League of Conservation Voters, which gave him a lifetime score of 14%, but that is a badge of honor among many, no doubt including his new boss. Critics are also heard to complain that his only prior interest in environmental matters was PFOS regulation, but the prior New York Congressman has been a consistent conservative voice for less government. Also, key will be Doug Burgum, who is being nominated for Secretary of the Interior and also as an energy czar, and also Chris Wright who is being nominated as Secretary of Energy.

Courts will Play and Outsized Role

Incident to all of this many expect much more litigation of environmental matters. Maryland has already hired attorneys to sue the new Trump administration before it even knows what for, as have other Blue states. The Environmental Defense Council launched a satellite to measure methane which one can expect that data to be key in future global warming litigation that the organization will commence as will other NGOs. Possibly most significant among this broad breadth of change will be federal court judicial challenges of Biden era laws against states and the federal government by businesses and citizens, for example pursuing claims that the 2024 Maryland BEPS regulations are preempted by longstanding federal law.

Opportunities Amidst Change

The deregulatory approach represents a sharp pivot; it also opens new avenues for businesses. Yet, navigating this rapidly evolving landscape will require strategic planning and an understanding of the new regulatory and legal environment.

The certainty that the rollback of environmental regulation will be “the” environmental issue of 2025 is more than a Magic 8 Ball prediction, although we regularly consult the 1960s era plastic sphere I keep on my desk. Lee Zeldin has not said much publicly since his nomination was announced, but there are reports circulating about the transition ‘landing team’ initial meetings with EPA staff. There is insight to be gleaned from the team around Zeldin as he meets with Senators and prepares for his confirmation hearing. And there are undoubtedly many very good ideas about what will be forthcoming from the Project 2025 Presidential Transition project although the policy agenda was published in April 2023 (.. light years ago in modern politics).

Preparing for the Future

The environmental and energy policy changes ushered in by the Trump administration will be among the most consequential issues of 2025. Businesses should remain vigilant, adaptive, and proactive in responding to this deregulatory focus. Whether your company sees these changes as challenges or opportunities, one thing is clear; the landscape is evolving, and the decisions made in Washington will ripple across every sector of the economy, if not society itself.

We are here to help you navigate this transformation and identify opportunities in this new regulatory environment.
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Join us for the next in our “carbon based life forms” webinar series, “How to Order a Phase I Environmental Site Assessment” on Tuesday, January 14 from 9 – 9:30 am. The webinar is complimentary, but you must register here.

Top 10 (or 12!) List of Environmental Blog Posts

By Stuart Kaplow on Posted in Climate Change, Environmental, LEED

As 2024 draws to a close, it’s time to reflect on the environmental matters that dominated the year, those that captured attention, sparked debate, and influenced the trajectory of environmental policy and innovation. In the spirit of David Letterman’s iconic countdowns, we present a Top 10 List (with a bonus two for good measure!) of our most read blog posts this year.

This retrospective provides more than a glance back; it’s a lens into the priorities and passions of 2024, a year shaped by technology, legal battles, and a pivotal U.S. presidential election. Our readers gravitated toward posts exploring bold policies and their implications, none more so than Maryland’s ambitious and controversial plans to ration electricity in the name of making the state “a leader in clean energy and the greenest state in the country.”

As we prepare for 2025, let’s revisit the blog posts that defined environmental change in 2024:

12. Transforming the Built Environment: LEED Green Building Hits 29 Billion Square Feet
A milestone in green building, this post celebrated the explosion of the LEED certified built environment, underscoring the importance of sustainable construction when Americans spend nearly 90% of their time indoors.

11. Greenwashing Lawsuit Alleging Plastic Pollution by PepsiCo is Dismissed
This post explored the dramatic dismissal of a government brought greenwashing lawsuit, highlighting the complexities of corporate sustainability claims and the role of the courts as the final arbiter in environmental matters.

10. SEC Climate Disclosure Rule Stay and Venue Now in the 8th Circuit
The legal twists and turns surrounding the SEC’s proposed climate disclosure rule captivated readers interested in corporate transparency and regulatory hurdles in what, for a time, was the biggest environmental story of the day.

9. Does Federal EPCA Trump Colorado Building Energy Performance Standards (BEPS)?
This analysis examined express federal preemption of state and local energy regulation relying on recent federal court decisions from California, providing a great case study for a review of the evolving checkerboard of BEPS regulations.

8. Environmental Justice at Risk After Louisiana Ruling
A court ruling in Louisiana raises significant questions about the future or lack thereof, of environmental justice initiatives across the country, sparking heated discussions on the federal role in enforcing equity through environmental policy.

7. Maryland Offshore Wind Project Faces Legal Storm from Coastal Communities
The President elect has vowed to kill “horrible” off shore wind turbines on day one, so the Ocean City, Maryland and Fenwick, Delaware coastal communities will ultimately prevail in this judicial review of federal permitting and otherwise stopping these offshore wind turbine projects.

6. Maryland’s War on Fossil Fuel Appliances: Criminalizing Plumbers?
This provocative post delved into Maryland’s efforts to ban fossil fuel appliances by Executive Order, going further than authorizing laws and adopted codes, including the consequences of these proposed Clean Heat and Zero Emission Heating Equipment standards.

5. Legal Showdown in DC: Lawsuit Challenges Gas Appliance Ban as Preempted
The local government push for decarbonizing buildings by making them all electric and banning natural gas is not only wrongheaded but preempted by Federal law and as such not enforceable.

4. Gas Stoves Saved: Washington Voters Reject All Electric Building Mandates
A major voter decision in progressive Washington state reflected resistance to the mandated electrification of buildings and underscored the ongoing debate over energy policy and consumer choice.

3. EPA Takes Action: PFOA and PFOS Now Hazardous Substances Under Superfund Law
The EPA’s landmark decision to classify “forever chemicals” as hazardous substances signaled a turning point in toxic contamination and public health, but this may be bad environmental public policy.

2. Maryland 2024 BEPS Regulations: A Critical Analysis of Legal and Economic Risks
Readers were drawn to this critical examination of Maryland’s Building Energy Performance Standards (BEPS) proposed regulations, revealing potential pitfalls in the outsized dollar costs for compliance and that this space is preempted by federal law, that as of December 23, 2024, have been adopted, and will phase in “energy use intensity” rationing of power. Watch for more activity about BEPS.

1. Maryland Needs to Produce More Electricity
Our most read post tackled Maryland’s ambitious clean energy policies and the stark reality of electricity shortages in a state that already imports more than 40% of its electricity. It resonated with readers grappling with dramatically increasing electricity costs and lessening reliability in the state’s electric grid.

Awaiting us in 2025

This list is more than a “year in review,” it’s a roadmap to understanding the environmental challenges and opportunities awaiting us in 2025. As we prepare for new policies and technological breakthroughs, it’s clear that the choices we make today will shape our environmental future.

And when we said “one eye on the future” above, sadly we were not referring to Procol Harum’s masterpiece 2008 album, but rather to the early English quote inspiring us to learn from the past and look forward to the future.

Next week, we’ll dive into what we believe will be the defining environmental issue of 2025. Until then, Happy New Year, and thank you for being part of our journey this year!
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Join us for the first in the new year of our “carbon based life forms” webinar series, “How to Order a Phase I Environmental Site Assessment” on Tuesday, January 14 from 9 – 9:30 am. The webinar is complimentary, but you must register here.

Net Zero with GBI: A Path to Verified Sustainability

By Stuart Kaplow on Posted in GHG, Green Globes, greenhouse gas

There is a good option for business and building owners pursuing Net Zero, the Green Building Initiative’s Green Globes Journey to Net Zero.

We have blogged much in recent years about Net Zero including the perils of making Net Zero claims and we have been consistent that the best strategy, bar none, for mitigating the reputational risk and legal liability of greenwashing claims, and the like from environmentalists, government and stakeholders is a third party certification of that Net Zero claim. And this is a good one. It is robust and streamlined ..

Yes, the luster is off the rose of Net Zero, but in 2025 there are still large numbers of organizations that will pursue a future that is sustainable.

Following a pilot with nearly 180 buildings, GBI’s Green Globes Journey to Net Zero program methodology has been refined, and registration is now live at www.thegbi.org.

GBI’s follows principles from the GHG protocols and has been informed by the work of many, including the U.S. Department of Energy’s new definition of zero emissions buildings. GBI’s program simplifies the process, reducing if not all but eliminating the need for scores of consultants in the recognition of Net Zero achievements through two protocols:

  • Green Globes Journey to Net Zero Energy (JNZE) is focused on significantly reducing energy requirements in building operations and promoting the use of renewable energy sources. Its goal is to achieve a balance between the energy consumed by building operations and the energy generated from low to zero emission sources like solar, hydro, geothermal, and wind.
  • Green Globes Journey to Net Zero Carbon (JNZC) for emissions reduction measures and facilitates efforts to minimize and substantially reduce greenhouse gas emissions through strategies that leverage low to zero emissions energy sources and other strategies that support life cycle thinking.

All new buildings, major renovations, tenant spaces, existing buildings, and portfolios may participate in the program. For those that meet minimum energy efficiency requirements and minimum renewable energy usage, two levels of recognition are available (.. which is huge because today there are few Net Zero buildings, and at a time of increased scrutiny of sustainability claims, this third party certification allows a building owner to communicate intermediate achievements to third parties).

  • Recognized (50-99% reduction in site EUI and/or carbon emissions as compared to baseline) Buildings demonstrate substantial progress toward net zero goals and are eligible for formal recognition items to communicate progress in reductions to tenants, stakeholders, and the public.
  • Certified (100% reduction in site EUI and/or carbon emissions) Projects that have achieved 100% reduction in site EUI and/or carbon emissions are formally certified and receive formal recognition.

Buildings that have not achieved the minimum program requirements (.. to be Recognized) are able to publicly describe they are participating in the program on “the Onramp.”

Some have asked, why two protocols? Jurisdictions and reporting schemes vary around the world. In some cases, there’s a need to demonstrate progress in site energy reduction specifically, such as for those municipalities with building energy performance standards (BEPS) requiring EUI reductions. In others, the focus is solely on emissions reductions. Through this program, buildings will receive third party review on their progress toward both energy and carbon objectives.

Of note, this program aligns with the Biden White House’s Zero Emission Buildings definition at the Certified level by requiring significant achievements in energy efficiency and a 100% reduction in the carbon emissions footprint through the application of renewable energy.

The Green Globes Net Zero Calculator provides holistic evaluations, as well as component percentage reduction breakdowns, in key areas:

  • Energy reduction from onsite operations.
  • Total carbon emissions reduction from baseline.
  • Carbon emissions reductions through RECs, offsets, and other sources (i.e., negative carbon).
  • Embodied carbon emissions reductions.

The web based calculator supports simplicity, transparency, and continuous feedback. Once an assessment has been ordered and data uploaded to the calculator, GBI will assign a third party Green Globes Assessor to confidentially review and confirm building data and to conduct a detailed assessment of the building using the calculator data. And owner can provide permission for the Assessor to access data and arrange to share relevant documents, such as access to a building’s data in ENERGY STAR Portfolio Manager.

GBI has done some other neat stuff in this program. The Baseline Translator provided by GBI enables building owners to convert a baseline from earlier versions of ASHRAE 90.1 and IECC into their required 2019 and 2021 versions respectively, utilizing crosswalk calculations provided by the Pacific Northwest National Laboratory.

Buildings and portfolios awarded Recognized or Certified under the program must be recertified after three years.

An owner can get started today. Registration for the Green Globes Journey to Net Zero is now live at www.thegbi.org. Concomitantly, members of the public are invited to submit input through January 9, 2025, in what is the third public input period using available forms. You should explore the program, familiarize yourself with the requirements, and comment.

Relying on third party verifications like GBI’s Green Globes Journey to Net Zero is not just a strategic move to mitigate risks but also a powerful statement for those building owners who believe in sustainability. GBI offers a credible and transparent pathway to Net Zero energy and carbon certification, setting a standard for what’s possible in sustainable building design and operation.

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Join us for the next in our “carbon based life forms” webinar series, “How to Order a Phase I Environmental Site Assessment” on Tuesday, January 14 from 9 – 9:30 am. The webinar is complimentary, but you must register here.

Heat Pump Shipments Are Declining Precipitously

By Stuart Kaplow on Posted in Climate Change, Environmental

Despite generous incentives from the Biden administration residential heat pump shipments are down this year. A leading daily American newspaper reported in a front page story “heat pump sales, critical to the transition to clean energy, have slowed in the U.S. and stalled in Europe.”

Leaving alone the controversial and questionable efficacy of switching to all electric buildings to reduce global warming for other blog posts, the data here is a little wonky because there are large numbers of installers of electric air source heat pumps (.. the vast majority of which are manufactured and imported from China) so the best numbers, despite some time lag in reporting, are actual shipments to American customers. According to data released by the Air-Conditioning, Heating, and Refrigeration Institute, the trade association representing manufacturers of air conditioning, heating, commercial refrigeration, and water heating equipment, U.S. shipments of air source heat pumps totaled 435,589 units in December 2023, down 29.3% from 616,201 units shipped in December 2022.

According to another source, Cooling Post, the leading online resource covering the latest news and developments in the cooling industry, following another fall in air source heat pump shipments in October, total year to date U.S., heat pump shipments are down. And yet another source, Homepros, a digital media and news company covering the business of the HVAC industry, heat pump shipments dropped. Questionably, some have claimed sales in 2024 increased and while that may be statistically correct it is factually inaccurate because sales in 2023 were so low, down more than 29% such that even a 4% increase (from that low number) still results in shipments more than 20% below 2022 shipments (and certainly not growing despite all the exaggerated excitement).

In the U.S. some have suggested heat pump sales are decreasing because of “lags in construction, high interest rates, and general belt tightening from inflation.” But that is not correct because shipments of central air conditioners and gas warm air furnaces are both up.

The reality is that despite lavish federal and state incentives that promise thousands of dollars for each China manufactured heat pump, using Inflation Reduction Act funds, as well as the Biden administration invoking the emergency Defense Production Act to accelerate domestic electric heat pump manufacturing, the American people are not so inclined.

Despite the recent federal government and blue state munificent promotion of electric heat pumps as the energy efficient salvation, skeptical consumers are aware that heat pumps don’t actually generate heat but instead move heat that already exists in the environment. The same mechanism can be used to cool a space by transferring heat outside. So, it is a misnomer to say heat pumps are ‘energy efficient’ because they are primarily moving heat rather than generating heat.

And despite all of the attention in the last few years, heat pumps are not new. They were invented by Peter von Rittinger, an Austrian engineer and physicist, in 1855 or so. He is credited with the first successful design and implementation of a heat pump for practical use, using the Second Law of Thermodynamics to dry salt for kitchen use. Rittinger’s design utilized heat pumps to concentrate salt brine, demonstrating the process of transferring heat from a cooler space to a warmer one, which remains the fundamental principle of heat pumps. Over time, his invention was refined and became the basis for the modern heating, ventilation, and air conditioning unit.

Some suggest that it will take decades to see any meaningful shift. The typical useful life of a residential heating and air conditioning system is between 15 and 20 years, though this can vary depending on the type of system, maintenance practices, and climate conditions; with furnaces potentially lasting up to 30 years with reasonable care. So consumers are not likely to spend their money to remove a perfectly good working system to replace it with something newly manufactured in China (.. and how green would that be?).

But most damning is a survey conducted by an electric public utility of its customers that were HVAC purchasers in the last 12 months, residential customers responded with 5 key reasons they did not want to install a heat pump: (1) Compared to traditional heating systems, the first costs of purchase and installation of a heat pump system can be dramatically higher; (2) Heat pumps are generally installed outdoors and do not necessarily easily fit in the same space (i.e., duct work, power source, etc.) as the system being replaced; (3) Air source heat pumps can produce noticeable noise due to their fans and compressors; (4) Due to their complex design, heat pumps will require more and more expensive maintenance compared to simpler heating systems; and (5) While efficient in moderate climates, new high efficiency heat pumps that are much more expensive are the better option for areas with cold winters, but cold outdoor temperatures can require them to work harder using more electricity than advertised.

Also, disconcerting is that the term “heat pump” has been characterized as an “environmental claim that may mislead consumers” in contravention of the FTC Green Guides and in violation of state consumer protection laws because it implies that the device is actively creating heat, when in reality it is simply transferring existing heat from one place to another, not generating any new heat itself; therefore, the name could be determined by a consumer as inaccurate. That is, more than one state Attorney General’s office has written that “heat pump” may be considered misleading to a consumer when, unlike a furnace, a heat pump doesn’t burn fuel to generate heat; it simply moves existing heat from a cooler area (like outside air) to a warmer area (inside a home). That observed, the word “pump” might be okay in the context of a heat pump, because it means transferring heat from one place to another.

There are other wide spread concerns about real world performance versus federal government testing (.. did government really put its thumb on the scale with testing conditions to make heat pumps appear better?) and advertised efficiency of heat pumps when residential heat pumps are typically installed outdoors and, as a result, jacket losses ( not to mention matters of installation quality and retrofitted system designs) can be a significant source of energy loss; something not generally reported in controlled laboratory tested heating and cooling claims today.

The majority of people are not interested in all electric buildings nor electric heat pumps. Despite government pushing and pulling the domestic market (.. something that will all but certainly slow down if not come to a complete halt after January 20, 2025), the fact is that heat pump shipments are down.

There is a role for heat pumps in some new construction residential properties (.. maybe geothermal but not air source?), however, Americans should think twice before removing the perfectly good heating and air conditioning equipment in their home to replace it with an imported heat pump manufactured halfway around the world. To that end, it is all but certain that heat pump shipments will see a further decline in 2025.
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Join us for the next in our “carbon based life forms” webinar series, “Administration Change Drives Environmental Change” this Tuesday, December 17 from 9 – 9:30 am. The webinar is complimentary, but you must register here.

Key Considerations Before Installing an EV Charging Station

By Stuart Kaplow on Posted in Energy, Environmental

As electric vehicles (EVs) became increasingly popular in some locales, irrespective of the all but certain slowdown in the EVs market with the incoming Trump administration, some property owners continue exploring the installation of EV charging stations to attract tenants and visitors. EV charging station vendors often propose deals that seem too good to pass up, commonly utilizing government incentives to offer the installation of charging stations at no upfront cost.

Some context is useful: The 2024 International Energy Conservation Code (some version of which is adopted in 48 states) does not mandate the installation of EV charging infrastructure. And while legislation was proposed this year mandating infrastructure, and in some instances even charging stations themselves, from Maryland to Washington none of those statewide mandates were enacted. Legislation creating such mandates will be even less favored next year due to the current political climate.

So, an EV charging station is an amenity of choice. In recent years, some commercial property owners have perceived benefits from reallocating 9 feet wide by 18 feet long of real estate that is an existing parking space, often at a prime location in a parking lot, for use as an EV charging station.

Here is a due diligence checklist of key considerations including tactics to mitigate risks, for commercial property owners before moving forward with publicly available EV charging station installations:

1. Structural Integrity and Weight of EVs

EVs are significantly heavier than traditional vehicles due to their large batteries. For example, the battery of an electric GMC Hummer weighs about 2,900 pounds, almost the weight of an entire Honda Civic. This raises concerns about the structural soundness of older parking garages that weren’t designed to accommodate such loads. Property owners should:

  • Evaluate the structural capacity of their parking facilities.
  • Consider restricting EVs to surface lots or areas specifically reinforced to handle heavier vehicles.

We blogged in detail about this earlier this year, Banning EVs in Older Garages: Legislative Intent vs. Structural Reality.

2. Fire Risks

Lithium-ion battery fires in EVs can burn at extremely high temperatures and are difficult to extinguish. In confined spaces like parking garages, these fires pose serious safety hazards and even surface parking lot fires in EVs can spread easily. To mitigate risks:

  • Ensure charging stations are equipped with robust fire safety measures.
  • Limit EV charging and parking to open or surface areas away from buildings where possible.
  • Verify that vendors maintain appropriate insurance coverage for fire incidents.

3. Vandalism and Theft

EV charging stations have increasingly become targets for vandalism and theft, particularly for the valuable copper wiring they contain. Damaged or inoperable stations can frustrate tenants and visitors. Property owners should:

  • Install security features such as cameras and lighting around charging stations.
  • Choose vendors that include anti-vandalism measures in their equipment designs.

4. Public Access and Legal Compliance

Some jurisdictions require charging stations to be publicly accessible, including if funded by government or public utility incentives. Property owners intending to reserve access for tenants must:

  • Review local regulations including offstreet parking requirements in zoning regulations and incentive requirements.
  • Consumer protection laws may require signage to make clear if the charger is free, pay as you go, or tied to a subscription when costs for a full charge in Maryland range from $11 to $50.
  • Clearly define access rules and enforce them to prevent conflicts.

5. Usage Monitoring and Tenant Satisfaction

Given that many charging stations are marketed as tenant amenities, it has become clear that they require fair usage policies. Issues like cars parked long after charging is complete can create dissatisfaction. But so can non EV operators having to drive past an empty off street parking space with a charging station to park in a space further from the front door. Solutions include:

  • Implementing time limits for charging.
  • Using apps or systems that notify users when charging is complete.
  • Establishing guidelines and penalties for misuse.

6. Ongoing Maintenance and Service

While vendors may promise maintenance, some agreements lack clear timelines for repairs or adequate penalties for non-performance. A J.D. Power report widely distributed earlier this year that more than 20% of EV drivers using commercial charging stations experienced charging failures and equipment malfunctions that did not allow the vehicle to charge. To avoid operational issues:

  • Carefully review maintenance agreements.
  • Ensure regular inspections and prompt repairs are included in the vendor contract.
  • Prewriiten form agreements provided by vendors should be negotiated, including that some convey licenses if not easements to enter upon the land.

7. Data Privacy Concerns

Many EV charging stations collect user data, including sensitive information such as geolocation and financial details. Improper handling of this data can lead to privacy breaches. Property owners should:

  • Choose vendors with robust data privacy and security policies.
  • Include data protection clauses in agreements to safeguard tenant and user information.
  • Make certain software updates are made as scheduled.

We blogged about this in one of our most popular posts this year, EV Charger Data Apocalypse.

8. Final Checklist considerations

There are other risks for commercial property owners and while they are rare, an owner should evaluate if it wants the risks of hazards from burns, electrocutions, and shocks and those are to people and do not include damages to batteries and the systems of vehicles improperly charged.

Little, if nothing is known about the lifespan of EV charging stations and while the distributor of a popular level 3 charges advertises “a 10 to 15 year” expected lifespan, frequency of use and environmental conditions can no doubt shorten that and make matters of replacement real.

And an overarching issue should be, while location is a key factor, the fair market value of an offstreet parking space is $15,000 in Baltimore and $60,000 in Chicago, with that value being reduced when an EV charging station is installed limiting parking efficacy in the 320 square feet. A recent study found Uber/ Lyft rideshare ‘drop off areas’ were perceived as a much more valuable amenity by urban and suburban tenants and while intrinsic, making it something they are willing to pay for, and likely a better use of the real estate.

Conclusion

EVs are more than a fad but it is yet to be seen whether or not installing charging stations is a forward thinking commercial property amenity.

Beyond the obvious shift in national politics that certainly put government incentives for EVs and charger installation in serious jeopardy, EVs themselves are not gaining wide market acceptance, including dramatically as Consumer Reports described EVs “had 42% more problems than gas vehicles on average,” a damning statement about reliability that may impact uptake beyond early adopters.

Where property owners are considering moving forward with an installation, they should weigh the benefits against potential risks. By proactively addressing structural, safety, legal, and operational challenges, often through agreements with vendors, property owners can in many instances successfully integrate EV charging stations into surface parking lots with the hope of positioning their properties for success.

Only time will tell if there is a significant growing market for EV chargers in the United States, or more likely in some submarkets, given the negative factors including the current political climate, but the installation of new EV charging stations would today be characterized as a “sell” and not even a hold. Beyond declining fundamentals, commercial real estate owners must also take into account the negative externality of tenants and visitors who do not drive EVs, who will drive past an empty offstreet parking space reserved for EV charging to seek out a parking space.

And none of this takes into account the likelihood that President Trump will do as he has said and on day one “eliminate the electric vehicle mandate.” He is likely to seek to repeal a $7,500 tax credit for new EV purchases aw well as roll back Biden EPA rules to reduce GHG emissions and other pollutants from motor vehicles, making passenger and commercial vehicles, making EV chargers even more unappealing.

We have chosen to not install EV chargers at our suburban office building.
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Join us for the next in our “carbon based life forms” webinar series, “Administration Change Drives Environmental Change” on Tuesday, December 17 from 9 – 9:30 am. The webinar is complimentary, but you must register here.

Greenwashing Lawsuit Alleging Plastic Pollution by PepsiCo is Dismissed

By Stuart Kaplow on Posted in Environmental, Green Washing, greenwashing, recycling

After this blog was posted, on December 9, 2024, Letitia James, the Attorney General of the State of New York filed a Notice Of Appeal of her office’s loss described below, to the Supreme Court of the State of New York.

On October 31, PepsiCo won a victory obtaining the complete dismissal with prejudice of a suit by New York Attorney General Letitia James alleging that PepsiCo had created a “public nuisance” of plastic litter and marine plastic pollution in New York’s Buffalo River and surrounding environs.

At a time when greenwashing claims have become de rigueur, it is hugely significant that PepsiCo is the first company to win a dismissal on the merits of these types of claims.

Upon filing the complaint in 2023, the New York Attorney General ran a media blitz publicly chastising PepsiCo for misrepresenting its “recyclability” efforts to the public.

Attorney General James claimed her office conducted a survey of plastic pollution in 2022 and that “PepsiCo and its 23 brands, including Frito Lay’s plastic packaging far exceeded any other source of identifiable plastic waste, as it was three times more abundant than the next contributor, McDonald’s.”

But following briefing and oral argument, the Honorable Emilio Colaiacovo of the New York Supreme Court rejected the Attorney General’s claims in a forceful 19 page opinion. The court held that using the tort of public nuisance in this way “is nothing more than selective prosecution based on a naïve theory” and that “this theory has never been adopted by a court in this state or any other.” The court also noted the “great cost” the State had incurred in bringing the suit, even though the Attorney General knew that “imposing civil liability on a manufacturer for the acts of a third party seems contrary to every norm of established jurisprudence.”

The Court made clear, “It is important to note that regardless of Defendant’s aspirational goals, Pepsi/Frito Lay did not pollute the Buffalo River or any other local waterways. Other people did!”

The Court concluded its opinion with a strong rebuke to the Attorney General for overstepping her authority: “While I can think of no reasonable person who does not believe in the imperatives of recycling and being better stewards of our environment, this does not give rise to phantom assertions of liability that do nothing to solve the problem that exists. Plaintiff’s proposed use of the judicial system to punish select purported offenders for what she believes to be a righteous cause risks transforming the judiciary into an arm of the legislature, or at the very least a passive partner in expanding duties that strain the bedrock of well-established law for policy purposes.”

The results in this case are important. There are other similar cases pending, filed by activist government officials and by radical environmentalist groups, against consumer products companies. We blogged just days ago, Greenwashing? Court Says Coca-Cola’s Aspirational Statements May Mislead Consumers. And the day before this decision was issued, Los Angeles County announced a lawsuit against Coca Cola and PepsiCo on similar grounds alleging responsibility for plastic packaging littered in the California County. Of course, this New York decision is not binding on the California court, but it portends arguments that may be successful by businesses defending greenwashing claims in that case and others.

This decision should be interpreted as a major victory for business, not only for companies in the plastic supply chain, but all companies that look to mitigate their greenwashing reputational and legal risk.
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Join us for the next in our “carbon based life forms” webinar series, “Administration Change Drives Environmental Change” on Tuesday, December 17 from 9 – 9:30 am. The webinar is complimentary, but you must register here.

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