Environmental Law Explored: A Podcast SEERies

The National Environmental Policy Act (NEPA) landscape is shifting fast. With major developments like Eagle County, Marin Audubon, Section 5 of President Trump's Unleashing American Energy Executive Order, and several critical cases on the horizon, the way NEPA is applied and interpreted is set for a major transformation. Join Susan Jane Brown (Silvix Resources) in a thought-provoking discussion with Ted Boling (Perkins Coie Partner, former member of the Council on Environmental Quality) and Dinah Bear (former General Counsel of the Council on Environmental Quality). Together, they'll break down these pivotal changes, what they mean for environmental policy, and how NEPA's role may evolve in the years ahead. Don't miss this essential conversation for legal professionals, policymakers, and anyone invested in the future of environmental law.

In the second episode of the Mill Closures and Workforce Shortages in the West series, Andrew Kihn returns, joined by Travis Joseph, President and CEO of the American Forest Resource Council. Together, they delve into the role of land management policies in addressing workforce challenges from the perspective of the timber trade association. Building on the foundation laid in the first episode, this discussion highlights how policy solutions can mitigate the workforce shortages tied to the ongoing closures of lumber mills in the American West. Travis Joseph provides insights into how these closures impact both the timber industry and the broader regional economy, offering actionable approaches to support sustainable forest management and workforce retention.

This podcast featuring Susan L. Stephens (Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.), Kim Diana Connolly (University at Buffalo School of Law, State University of New York), and Sarah P. Jarboe (English, Lucas, Priest & Owsley, LLP) provides a succinct summary of the history of federal regulation of wetlands under section 404 of the Clean Water Act, outlining the seminal Supreme Court decisions that steered the agency rulemaking and set the stage for the Sackett decision. The speakers delve into the Rapanos case and subsequent rulemaking, explaining how these developments informed the Supreme Court, led to multiple lawsuits across multiple states, and culminated in the Court's strongly-worded opinion in U.S. v. Sackett that virtually everyone agrees served to narrow the scope of federal jurisdiction over wetlands. Importantly, listeners will hear the latest updates in the litigation challenging the most recent agency rulemaking, how federal courts are interpreting Sackett across the country, and how federal agencies are handling requests for jurisdictional determinations under the regulatory regime that Sackett left in its wake. Tune in to hear their predictions on what comes next. For the latest jurisdictional announcements, visit https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/juris_info/. For more content from these speakers, get their book Wetlands Law and Policy: Understanding Section 404, Second Edition.

In this podcast Steven Ferrey (Suffolk University Law School) and Steve Weissman (Center for Law, Energy & the Environment), two experts in environmental/energy/land use law analyzing what became a legal Rubik's Cube with many different moving pieces to be realigned by attorneys and clients. New policy is changing electric power to move most of the U.S. economy rapidly to utilize electric power in lieu of conventional direct use of fossil fuels for heating, vehicles, and industry. This fundamental transformation occurs amid demands for much more electric power for artificial intelligence, data centers, and cryptocurrency mining, with the Supreme Court in West Virginia v. EPA declaring that "The electric power sector is among the largest in the U.S. economy, with links to every other sector." This podcast identifies multiple resulting new challenges and provides legal "workarounds" regardless of who sits in the White House. French President Macron warned the U.S. Congress: "We're killing our planet. Let us face it. There is no Planet B." As the United States now rapidly responds to move to clean energy to power our future, in mid-2024 the Supreme Court fundamentally altered legal options: Creating a new major questions doctrine fundamentally reducing presidential power particularly related to energy, clean air, and climate; Critically "overruling" the most cited Supreme Court decision in the last 50 years, which also involves the environment Eliminating the ability of certain federal agencies enforcing laws to impose civil fines; and Extending dramatically the statute of limitations to challenge federal regulations affecting environment/energy/land-use (renewable electricity is less dense and requires five to ten times as much land as conventional generation of electricity) This podcast provides a user-friendly road map through this fast-realigning legal maze, and for those interested this podcast is backed up by a new ABA book (Powering the Future: A Lawyer's Guide to Clean Energy) containing all precedent and providing state-by-state charts analyzing barriers, legal differences, and how lawyers may take advantage of achievable workarounds region-by-region.

In this podcast, David Rieser (K&L Gates) and Amy Edwards (Holland & Knight) will discuss the challenges and uncertainties of incorporating PFAS compounds into Phase I environmental assessments, including how to detect their presence and manage associated risks in real estate transactions. Now that EPA has identified two PFAS compounds as hazardous substances, ASTM's most recent Phase I methodology (ASTM E-1527-21) allows environmental professionals to include those PFAS compounds as part of their Phase I assessment. Yet it's not clear how they determine whether PFAS are present or likely present at a property, let alone whether that presence is the result of a past or threatened release. On the one hand, PFAS can be associated with certain locations, such as airports which used firefighting foam and certain industries such as manufacturers producing non-stick material and products. At the same time, PFAS have been found in surprising places with no clearly identifiable sources, such as Antarctica. While Phase Is are always more art than science, the level of uncertainty around PFAS makes the process especially fraught. Buyers and sellers will have to decide whether this is an issue they want addressed and consultants will be concerned about their risks of addressing or not addressing PFAS. These choices may affect the ability of the buyer to assert an innocent landowner or bona fide purchaser defense to a CERCLA claim regarding the costs to address PFAS. Unscrupulous parties may look to take advantage of the uncertainty to obtain favorable leverage and unscrupulous consultants may use the uncertainty to sell unnecessary services. In short, this is a good time to hear from experts in Phase I requirements and nuances. Amy Edwards has participated in the ASTM Phase I process from the beginning, has a wealth of environmental transactional experience and has read more Phase Is than she cares to admit. David Rieser is an experienced environmental attorney and has written extensively on transactional issues. Together they intend to talk through the PFAS issues in Phase Is in the hope of finding useful approaches to deal with these thorny issues.

Heightened political and investor scrutiny; increasing regulations, lawsuits and government investigations; and numerous employee interests regarding a wide range of ESG issues — all of it amounts to considerable pressure on corporate boards and management to balance the implementation of ESG-related objectives while managing ESG-related risks. As one example, the SEC's new Climate-Related Disclosure Rules (if they withstand pending legal challenges) will require disclosure about a registrant's climate-related goals that materially affect the registrant's business; meanwhile, companies setting such goals may find themselves the target of political attacks, lawsuits or government investigations. How can boards and management navigate these often diverging objectives while staying on course with their fiduciary duties? Delving into the governance risks and opportunities covered in the new ABA book "Environmental, Social, Governance: The Professional's Guide to the Law and Practice of ESG", this podcast will explore governance aspects in the ever-evolving area of ESG, including the SEC's recent Climate-Related Disclosure Rules and the challenges created by overlapping and potentially conflicting disclosure regimes (e.g., in California and the EU) and other regulators' expectations (e.g., the banking agencies); balancing the often competing and impassioned ESG-related expectations of various stakeholders; the intersection between ESG and other emerging issues, like Artificial Intelligence; and best practices for incorporating ESG into a company's operations. Get your copy of Environmental, Social, Governance: The Professional's Guide to the Law and Practice of ESG here: Environmental, Social, Governance: The Professional's Guide to the Law and Practice of ESG (americanbar.org)

Explore the implications of FERC Order 1920, a pivotal regulation set to reshape the landscape of energy transmission in the United States. This episode will discuss implications of the Order, focusing on enhanced long-term planning and transparency mandates, the integration of state entities in cost allocation processes, and the requirement for transmission providers to consider grid-enhancing technologies. It will also delve into the challenges and opportunities presented by these changes, including how they aim to bolster grid reliability, accommodate future energy needs, and drive the transition to a more resilient and sustainable energy infrastructure. Whether you're an industry insider, policy maker, or simply passionate about the future of energy, this podcast offers valuable insights into one of the most significant regulatory developments in recent years.