The Treasury Department and Department of Energy announced new guidance Wednesday for a 30% tax credit available under the Internal Revenue Code’s section 48C for the construction of facilities that focus on clean energy manufacturing and recycling, industrial decarbonization and critical minerals processing.
The 48C credit and related credit 45X are “very substantial,” Moss Adams partner and certified public accountant Peter Henderson said in an interview, but “a lot of companies just aren’t aware” of the two incentives.
While 48C is a competitive investment tax credit that can only be claimed once, with total payouts capped at $10 billion, the 45X manufacturing production tax credit is not capped and can be claimed per each unit — for instance, a $3 credit per kilogram of solar-grade polysilicon produced in the U.S.
By the end of this year, the EPA will issue a notice of proposed rulemaking for emissions standards related to municipal solid waste incinerators under the terms of a draft consent decree reached with environmental groups. The decree was submitted to the U.S. District Court for the District of Columbia on May 23.
Groups, including Earthjustice, the Sierra Club, East Yard Communities for Environmental Justice and Ironbound Community Corp., sued the EPA in January 2022 over its alleged failure under the Clean Air Act to revisit the rules every five years. The decree would require EPA to finalize a new rule by November 30, 2024.
Environmental groups hope the draft decree could tighten federal emissions standards for 68 MSW incinerators, leading to tighter regulations for nine pollutants, including sulfur dioxide, dioxins and nitrous oxides. The suit is part of a broader effort by environmental groups who say the EPA is behind the times in regulating several categories of waste incinerators, including MSW and medical waste.
Along with pattern, texture and the annual color-of-the-year reveals, evolving legislation is a hot topic for textile suppliers this year, specifically the rollout of restrictions on PFAS chemicals in performance fabrics.
PFAS (per- and polyfluoroakyl substances) are used in a variety of products to prevent stains including carpets and textiles, including some performance fabrics, and are described as a class of chemicals that don’t naturally break down.
Currently, Maine, New York, California, and Colorado are the first states to enact legislation restricting the use of “intentionally added or regulated” PFAS in textiles, and as the industry and legislative representatives work to further define the exact parameters for compliance on eliminating PFAS from performance fabrics, textile companies that provide product to furniture manufacturers are developing strategies to address the issue.
The EU – and Germany in particular – has caused some consternation in the data center industry with plans to reduce the continent’s environmental impact.
The union has set renewable energy targets across numerous industries to be achieved by 2035, which includes making the heating and cooling sectors carbon neutral by reusing waste heat from data centers to keep cities warm.
Germany wants to go a step further by introducing targets for energy reuse, and whilst data center firms are happy for their byproduct to be recycled, they are worried that it will place a financial burden upon them to achieve.
Do-it-yourselfers and repair shops are celebrating a victory in Minnesota with the enactment of a new law that requires many manufacturers to share parts and information with tinkerers and small businesses.
The so-called right to repair law will allow equipment owners and independent shops to more easily fix devices like phones, laptops, appliances and other equipment.
Minnesota is the latest state to approve such a law, following Colorado earlier this year and New York last year. Massachusetts’ law covering vehicles was enacted in 2020. Do-it-yourselfers, farmers, handyman companies and small repair shops argue that without such laws, big tech companies make it almost impossible to get manufacturers’ parts and instructions.
Manufacturers, however, argue that broadening access could pose dangers to would-be repairers and the equipment as well as compromise the safety and security of devices.
As the bills make their way through the states, tech firms have successfully lobbied to exempt some types of equipment or allow other exceptions such as allowing manufacturers to provide only full assemblies of parts, rather than individual parts such as a chip, for what the manufacturers say is safety or security reasons.
The U.S. Supreme Court has ruled in Sackett v. EPA that federal protection of wetlands encompasses only those wetlands that directly adjoin rivers, lakes and other bodies of water. This is an extremely narrow interpretation of the Clean Water Act that could expose many wetlands across the U.S. to filling and development.
Under this keystone environmental law, federal agencies take the lead in regulating water pollution, while state and local governments regulate land use. Wetlands are areas where land is wet for all or part of the year, so they straddle this division of authority.
Swamps, bogs, marshes and other wetlands provide valuable ecological services, such as filtering pollutants and soaking up floodwaters. Landowners must obtain permits to discharge dredged or fill material, such as dirt, sand or rock, in a protected wetland.
This can be time-consuming and expensive, which is why the Supreme Court’s ruling on May 25, 2023, will be of keen interest to developers, farmers and ranchers, along with conservationists and the agencies that administer the Clean Water Act – namely, the Environmental Protection Agency and the U.S. Army Corps of Engineers.
For the last 45 years – and under eight different presidential administrations – the EPA and the Corps have required discharge permits in wetlands “adjacent” to water bodies, even if a dune, levee or other barrier separated the two. The Sackett decision upends that approach, leaving tens of millions of acres of wetlands at risk.
The U.S. has lost more than half of its original wetlands, mainly due to development and pollution.
The Sackett case
Idaho residents Chantell and Mike Sackett own a parcel of land located 300 feet from Priest Lake, one of the state’s largest lakes. The parcel once was part of a large wetland complex. Today, even after the Sacketts cleared the lot, it still has some wetland characteristics, such as saturation and ponding in areas where soil was removed. Indeed, it is still hydrologically connected to the lake and neighboring wetlands by water that flows at a shallow depth underground.
In preparation to build a house, the Sacketts had fill material placed on the site without obtaining a Clean Water Act permit. The EPA issued an order in 2007 stating that the land contained wetlands subject to the law and requiring the Sacketts to restore the site. The Sacketts sued, arguing that their property was not a wetland.
In 2012, the Supreme Court held that the Sacketts had the right to challenge EPA’s order and sent the case back to the lower courts. After losing below on the merits, they returned to the Supreme Court with a suit asserting that their property was not federally protected. This claim in turn raised a broader question: What is the scope of federal regulatory authority under the Clean Water Act?
The Supreme Court has previously recognized that the “waters of the United States” include not only navigable rivers and lakes, but also wetlands and waterways that are connected to navigable bodies of water. But many wetlands are not wet year-round, or are not connected at the surface to larger water systems. Still, they can have important ecological connections to larger water bodies.
In 2006, when the court last took up this issue, no majority was able to agree on how to define “waters of the United States.” Writing for a plurality of four justices in U.S. v. Rapanos, Justice Antonin Scalia defined the term narrowly to include only relatively permanent, standing or continuously flowing bodies of water such as streams, oceans, rivers and lakes. Waters of the U.S., he contended, should not include “ordinarily dry channels through which water occasionally or intermittently flows.”
Acknowledging that wetlands present a tricky line-drawing problem, Scalia proposed that the Clean Water Act should reach “only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right.”
In a concurring opinion, Justice Anthony Kennedy took a very different approach. “Waters of the U.S.,” he wrote, should be interpreted in light of the Clean Water Act’s objective of “restoring and maintaining the chemical, physical, and biological integrity of the Nation’s waters.”
Accordingly, Kennedy argued, the Clean Water Act should cover wetlands that have a “significant nexus” with navigable waters – “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”
Neither Scalia’s nor Kennedy’s opinion attracted a majority, so lower courts were left to sort out which approach to follow. Most applied Kennedy’s significant nexus standard, while a few held that the Clean Water Act applies if either Kennedy’s standard or Scalia’s is satisfied.
The Biden administration responded with its own rule defining waters of the United States in terms of the presence of either a significant nexus or continuous surface connection. However, this rule was promptly embroiled in litigation and will require reconsideration in light of Sackett v. EPA.
The Sackett decision and its ramifications
The Sackett decision adopts Scalia’s approach from the 2006 Rapanos case. Writing for a five-justice majority, Justice Samuel Alito declared that “waters of the United States” includes only relatively permanent, standing or continuously flowing bodies of water, such as streams, oceans, rivers, lakes – and wetlands that have a continuous surface connection with and are indistinguishably part of such water bodies.
None of the nine justices adopted Kennedy’s 2006 “significant nexus” standard. However, Justice Brett Kavanaugh and the three liberal justices disagreed with the majority’s “continuous surface connection” test. That test, Kavanaugh wrote in a concurrence, is inconsistent with the text of the Clean Water Act, which extends coverage to “adjacent” wetlands – including those that are near or close to larger water bodies.
“Natural barriers such as berms and dunes do not block all water flow and are in fact evidence of a regular connection between a water and a wetland,” Kavanaugh explained. “By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
Kavanaugh's reasoning in Sackett is compelling. Court's supposed textualists/literalists have rewritten "adjacent" to mean "adjoining" and thus created even more regulatory headaches. Wetlands along the Mississippi have been cut off by levees. Are we leaving them unprotected? pic.twitter.com/00fJcSvL1Z
The majority’s ruling leaves little room for the EPA or the Army Corps of Engineers to issue new regulations that could protect wetlands more broadly.
The court’s requirement of a continuous surface connection means that federal protection may no longer apply to many areas that critically affect the water quality of U.S. rivers, lakes and oceans – including seasonal streams and wetlands that are near or intermittently connected to larger water bodies. It might also mean that construction of a road, levee or other barrier separating a wetland from other nearby waters could remove an area from federal protection.
Congress could amend the Clean Water Act to expressly provide that “waters of the United States” includes wetlands that the court has now stripped of federal protection. However, past efforts to legislate a definition have fizzled, and today’s closely divided Congress is unlikely to fare any better.
Whether states will fill the breach is questionable. Many states have not adopted regulatory protections for waters that are outside the scope of “waters of the United States.” In many instances, new legislation – and perhaps entirely new regulatory programs – will be needed.
Finally, a concurring opinion by Justice Clarence Thomas hints at potential future targets for the court’s conservative supermajority. Joined by Justice Neil Gorsuch, Thomas suggested that the Clean Water Act, as well as other federal environmental statutes, lies beyond Congress’ authority to regulate activities that affect interstate commerce, and could be vulnerable to constitutional challenges. In my view, Sackett v. EPA might be just one step toward the teardown of federal environmental law.
This is an update of an article originally published on Sept. 26, 2022.
At issue was the reach of the landmark, 51-year-old Clean Water Act and how courts should determine what count as “waters of the United States” under protection of the law. Nearly two decades ago, the court ruled that wetlands are protected by the Clean Water Act if they have a “significant nexus” to regulated waters. Property rights and business groups wanted to narrow regulations to wetlands and other areas directly connected to “navigable waters” such as rivers and lakes.
A Federal Trade Commission workshop in Washington, D.C., about updating guidance regarding environmental marketing claims — including those often made on packaging — highlighted a lack of consensus on hot-button topics such as the role of chemical recycling and whether to pursue rulemaking to provide more nationalized policy.
Tuesday’s “Talking Trash” workshop featured panels with experts from industry associations, NGOs, states and municipalities. The half-day event covered the current landscape of the recycling market and recycling-related advertising claims, consumer perception of such claims and the future of the Green Guides — specifically the need for any updates or changes related to such claims. “We want to be influenced,” the FTC’s associate director of the enforcement division, Jim Kohm, said at the outset.
The Northeast Waste Management Officials’ Association (NEWMOA) has written draft model legislation aimed at reducing and eliminating the use of PFAS in products.
The draft legislation offers a “menu of options” for legislators to consider, including a ban on products and packaging with intentionally-added PFAS. Manufacturers could apply for an exemption if they can prove the product has an “unavoidable use,” but they would be required to establish an extended producer responsibility organization to take back the items.
The draft bill contains other recommended provisions meant to label PFAS-containing items, educate the public on PFAS issues and set requirements so downstream operators know manufacturers are complying with regulations. The group is seeking public comment on the draft through June 29.
A horizon-scan of chemical pollution research needs in Antarctica has called for Antarctic Treaty consultative parties to extend their national chemical monitoring programs to their Antarctic research stations and Territories.
Published in The Lancet Planetary Health, the ‘Personal View’ paper led by Griffith University’s Professor Susan Bengtson Nash from the Centre for Planetary Health and Food Security, highlights that chemical pollution monitoring frameworks were lacking in the Antarctic and Southern Ocean region, which acts as barometers for planetary health.
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