Expert Analysis

• New US Waters Definition May Rock The Boat

  

  Federal agencies' latest attempt to define "waters of the United States" attempts to avoid previous rules' failings, though it will potentially increase administrative difficulties for regulated entities and also leaves ample ground for litigation, say Christopher Thomas and Andrea Driggs at Perkins Coie.

• Unpacking The Interim Guidance On New Stock Buyback Tax

  

  The U.S. Department of the Treasury and Internal Revenue Service's recent notice on applying the newly effective excise tax on stock repurchases provides much-needed clarity on the tax's scope, which is much broader than anticipated given its underlying policy rationale, say attorneys at Eversheds Sutherland.

• Legal Standing For Nature: The Road Not Taken

  

  Fifty years have passed since former U.S. Supreme Court Justice William O. Douglas asked whether natural objects like trees and rivers should have standing — and while the high court has since narrowed access to the courtroom for potential environmental plaintiffs, Douglas' vision is worth revisiting, says Ninth Circuit Judge Margaret McKeown.

• Where ESG And Director Fiduciary Duty Overlap

  

  Despite ideological arguments to the contrary, directors and officers' fiduciary duties do not preclude their consideration of environmental, social and governance principles in corporate decision making, say Luis Fortuño at Steptoe & Johnson and Evan Slavitt at Paper Excellence.

• Proposed FERC Backstop Siting Rule May Speed Grid Plans

  

  The Federal Energy Regulatory Commission's proposed rule to implement its legislatively reinvigorated backstop siting authority — which allows it to grant permits for electric transmission lines when states refuse to do so — could serve as a subtle warning to state commissions, and encourage approval of important grid infrastructure, say attorneys at Steptoe & Johnson.

• 10 Environmental And Energy Issues To Watch In 2023

  

  After a year of transformative changes in the environmental and energy space, 2023 promises more big developments — including greenwashing litigation, finalized environmental, social and governance regulations, further scrutiny of per- and polyfluoroalkyl substances, and an ongoing focus on environmental justice, say attorneys at ArentFox.

• What Maine Offshore Wind Road Map Will Mean For Industry

  

  Maine's offshore wind road map, expected to be released in early 2023, should offer valuable insights for the industry and other stakeholders into the opportunities and challenges that may arise as wind development advances in the Gulf of Maine, says Joshua Rosen at Foley Hoag.

• IRS Starts Clock On Energy Projects' Labor Rule Exemption

  

  A U.S. Department of the Treasury notice published this week started the 60-day clock for clean energy projects seeking to be grandfathered from having to meet new labor requirements to qualify for enhanced tax credits, and uncertainty about how the provisions will apply should be incentive for some investors to begin construction soon, say attorneys at Eversheds Sutherland.

• ESA Listing Change Shows Conservation Partnership Benefits

  

  The U.S. Fish and Wildlife Service's recent decision to narrow the range of the gopher tortoise’s Endangered Species Act status demonstrates that public-private voluntary conservation partnerships can help leverage landowners' knowledge of their working lands to the benefit of species, the ecosystem and the landowners, say attorneys at Crowell & Moring.

• State-Led Programs Can Speed Up Brownfield Development

  

  Too often, publicly funded brownfields programs are not optimized to achieve redevelopment in the near term, but policymakers can address this problem by directing additional resources toward state-level brownfields programs that offer thoughtfully designed tax incentives and liability protection, says Gerald Pouncey at Morris Manning.

• Outlook For Offshore Wind Development In The Gulf Of Mexico

  

  Jana Grauberger and Stephen Wiegand at Liskow & Lewis discuss the current status of wind development in the Gulf of Mexico and the qualification requirements for holding offshore wind leases, and look ahead to potential effects that the Inflation Reduction Act may have on the offshore wind leasing timeline.

• Cases Show Real-World Laws Likely Apply In Metaverse

  

  Although much has been written about the so-called unprecedented legal issues raised by the metaverse, recent federal cases demonstrate that companies can expect metaverse activities to be policed and enforced much like they would be in the physical world, say attorneys at Crowell & Moring.

• Permitting Reform: Electric Transmission Implications

  

  While Sen. Joe Manchin recently withdrew his energy infrastructure permitting reform proposal, it is likely that it will remain high on the congressional agenda — especially given its potential to transform authorizations and reviews for electric transmission projects, say attorneys at Steptoe & Johnson.