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The Year in Review

Environment, Energy, and Resources Law: The Year in Review 2022

Climate Change, Sustainable Development, and Ecosystems Committee Report


  • The Climate Change, Sustainable Development, and Ecosystems Committee Report for YIR 2022.
  • Summarizes significant judicial and administrative legal developments in 2022 in the areas of climate change, sustainable development, and ecosystems.
Climate Change, Sustainable Development, and Ecosystems Committee Report
Ashley Cooper via Getty Images

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International Activities

A. United Nations

1. United Nations Framework Convention on Climate Change (UNFCCC)

The Twenty-Seventh Session of the Conference of the Parties (COP27) to the UNFCCC took place in Sharm el-Sheikh, Egypt, in November 2022. At COP27, parties to the UNFCCC agreed to establish “new funding arrangements” to assist developing countries that are “particularly vulnerable” to climate change to respond “to economic and non-economic loss and damage associated with [its] adverse effects,” including a dedicated loss and damage fund. Details regarding operation of the new loss and damage fund were not agreed . Instead, the parties established a “transitional committee” to make recommendations on fund operation, including “[i]dentifying and expanding sources of funding.”

COP27 also served as the Fourth Meeting of the Parties to the Paris Agreement. Article 4(2) of the Paris Agreement directs parties to “prepare, communicate and maintain successive nationally determined contributions” (NDC). As of September 23, 2022, 182 parties submitted new or updated NDCs. After reviewing the new and updated NDCs, the UNFCCC Secretariate published an NDC Synthesis Report on October 26, 2022. The report found that “[m]ost of the parties that submitted new or updated NDCs have strengthened their commitment to reducing [greenhouse gas (GHG)] emissions by 2025 and/or 2030, demonstrating increased ambition in addressing climate change.” It also found that if all countries fully achieve their latest NDCs, 2030 emissions will be “10.6 percent higher than in 2010 and 0.3 percent lower than in 2019 . . . , indicating the possibility of global emissions peaking before 2030.” That is still insufficient to achieve the temperature goals set in the Paris Agreement. The report concludes that while “some progress” has been made, there is “an urgent need for either a significant increase in the level of ambition of NDCs between now and 2030 or a significant overachievement of the latest NDCs, or a combination of both.”

At COP27, the parties to the Paris Agreement adopted the Sharm el-Sheikh Implementation Plan, in which they “resolve[d] to pursue further efforts to limit the temperature increase to 1.5oC,” and recognized that this will “require[] rapid, deep and sustained reductions in global [GHG] emissions” before 2030. The Sharm el-Sheikh Implementation Plan reiterates the call in the Glasgow Climate Pact, adopted at COP26 in 2021, for parties to the Paris Agreement to:

accelerate the development, deployment and dissemination of technologies, and the adoption of policies, to transition towards low-emission energy systems, including by rapidly scaling up the deployment of clean power generation and energy efficiency measures, including accelerating efforts towards the phasedown of unabated coal power and phase-out of inefficient fossil fuel subsidies.

The Sharm el-Sheikh Implementation Plan “notes that the global transition to low emissions provides opportunities and challenges for sustainable development and poverty eradication,” and establishes a “work programme on just transition” to explore pathways for enhancing climate change action in the context of sustainable development.

The Sharm el-Sheikh Implementation Plan encourages Paris Agreement Parties to consider “ocean-based action” and other “nature-based solutions or ecosystem-based approaches . . . [for] mitigation and adaptation.” With respect to adaptation, the Sharm el-Sheikh Implementation Plan notes there is a “gap between current levels of adaptation and levels needed to respond to the adverse effect of climate change,” and encourages parties to enhance their “adaptive capacity.”

The Sharm el-Sheikh Implementation Plan also “[u]rges developed country Parties to provide enhanced support, including through financial resources, technology transfer, and capacity-building, to assist developing country Parties with respect to both mitigation and adaptation.” The plan notes, with “serious concern,” that developed countries have failed to meet the goal of mobilizing US$100 billion per year for climate change mitigation and adaptation in developing countries.

Several countries announced new contributions to the Adaptation Fund at COP27. In total, the Adaptation Fund received $243 million from donors, including first-time contributions from Japan ($12 million), Portugal ($1 million), the Republic of Korea ($844,000), and Iceland ($400,000). Other countries making significant contributions to the Adaptation Fund included Germany ($59.8 million), Spain ($19.9 million), and Sweden ($16.4 million). The U.S. pledged $50 million to the Adaptation Fund, doubling the pledge it made at COP26 in 2021, and announced an additional $150 million in funding to support adaptation projects in Africa, including the development of early warning systems. The U.S. and twenty-eight other countries also agreed to provide a combined $5.33 billion to the Global Environment Facility (GEF) through June 2026, representing a 30% increase in funding for the GEF compared to the previous four years.

B. International Climate Change Litigation

Litigation against both the government and corporate entities related to climate change continues with claims involving alleged government violations of the Public Trust Doctrine, Constitutional, fundamental, or human rights claims, and violations of international agreements and conventions. Claims against corporations ranged from compensation for climate change-related damages, reductions in carbon dioxide (CO2), and financial contributions for adaptation.

In Sustaining the Wild Coast NPC and Others v. Minister of Mineral Resources and Energy and Others, seven environmental and human rights organizations filed seven applications in the High Court of South Africa requesting an interdict for the government from approving and Shell from proceeding with a seismic survey off the eastern coast of South Africa to determine if there were energy reserves below the sea floor, arguing it would promote extraction of fossil fuel without assessing climate change impacts in violation of their constitutional rights. On December 28, 2021, the High Court of South Africa issued an interim order preventing respondents from undertaking seismic survey operations. Respondents filed a request for leave to appeal, which was denied. The High Court of South Africa held a hearing on May 30, 2022, and issued a decision on September 1, 2022, setting aside the decisions granting exploration rights for the exploration of oil and gas as well as the decision to renew the exploration rights.

On June 30, 2021, in Marlene Lemme et al. v. State of Bayern, youth plaintiffs filed a petition against the state of Bavaria, arguing the adopted climate law was inadequate. Relying on the Paris Agreement and the German Constitution, plaintiffs demanded that the state legislature set a pathway to reducing GHG emissions that comply with the remaining CO2 budget to achieve carbon neutrality and to offset any remaining emissions from 2030 onwards. Consistent with the German court’s decision in Neubauer v. Germany, the national government adjusted its climate goals. Plaintiffs argue that codification is also required at the state level, as “states bear co-responsibility for protecting lives and civil liberties, including safeguarding the natural foundations of life for future generations, within their own sphere of competence.” On January 18, 2022, the German court dismissed the constitutional claims, but other claims are still pending.

In Luca Salis, et al., State of Sachsen and Emma Johanna Kiehm et al. v. State of Brandenburg,  youth plaintiffs filed constitutional claims against the state of Saxony-Anhalt and Brandenburg governments, respectively arguing they failed to adopt climate protection laws in violation of both fundamental and constitutional rights. In each case, the First Senate of the Federal Constitutional Court in Germany decided not to admit the complaints because state legislatures are not subject to the CO2 emission budget.

On March 7, 2022, Greenpeace appealed the Spanish Supreme Court ruling that Greenpeace v. Spain was ready for formal consideration. Greenpeace appealed, arguing that it be jointly considered and judged with Greenpeace vs. Spain II. The Supreme Court rejected Greenpeace’s appeal on March 31, 2022. A final decision has yet to be issued.

 National Activities

A. Treaties

1. Montreal Protocol Kigali Amendment

On October 27, 2022, President Biden signed an instrument ratifying the Kigali Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer after the Senate’s voted to give its advice and consent for ratification.

The Kigali Amendment expands the Montreal Protocol to not only protect the ozone layer but also limit the parties’ use and production of hydrofluorocarbons (HFCs), a substance with a high global warming potential. HFCs have been used in air conditioners, refrigerators, and foam insulation as an alternative to the chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs) targeted by the original Montreal Protocol and its subsequent amendments.

The Kigali Amendment provides separate phasedown schedules for parties in several groups, providing additional flexibility for party states with high-ambient temperatures to take additional time to find alternative refrigerants with neither the ozone-depleting nor warming potential of gas phased out by the Montreal Protocol or HFCs. Although the Environmental Protection Agency (EPA) had begun rulemaking to phase out HFCs, and Congress passed the American Innovation and Manufacturing Act of 2020, codifying a goal of reducing HFC consumption by 85% by 2036, the Senate’s bipartisan support for the amendment builds on the Montreal Protocol’s history of wide acceptance and sets a precedent for future Senate action to ratify international climate change measures.

B. Statutes and Bills

1. Inflation Reduction Act (IRA) of 2022

The IRA included several changes to federal law that will impact the U.S. response to climate change. The IRA allocates over $60 billion to drive investments into disadvantaged communities, including $3 billion each to Environmental and Climate Justice Block Grants, Neighborhood Access and Equity Grants, Grants to Reduce Air Pollution at Ports, and Clean Heavy-Duty Vehicles. Environmental justice is also a focus of certain “clean energy” tax credits and allocation incentives for solar and wind facilities in the IRA. Special rules for solar and wind facilities connected to low-income communities directly address environmental justice concerns.

The IRA “proposes a Methane Emissions Reduction Program (MERP), amending the Clean Air Act (CAA) to reduce methane emissions from the production and distribution of oil and natural gas. The program provides for funding and imposes fees intended to serve as incentives to improve monitoring and mitigation of methane leaks and is intended to complement” EPA’s forthcoming oil and gas methane standards. For 2024, the fee is set at $900 per ton, increasing to $1,200 in 2025 and $1,500 in 2026.

The IRA includes meaningful changes to federal onshore and offshore oil and gas leasing and development. It eliminates non-competitive leasing if leases fail at auction to receive competitive bids, and increases the royalties, rents, and fees collected by the federal government from oil and gas extracted from federal lands, and mandates that the Department of the Interior move forward on certain offshore lease auctions in Alaska and the Gulf of Mexico. Additionally, future solar and wind resource development on federal lands is tied to future federal lease sales for oil and gas extraction for a period of ten years.

The IRA includes nearly $3 billion in funding aimed at incentivizing increased electric transmission development across the U.S., including $2 billion for direct loans for certain transmission projects located in a National Interest Electric Transmission Corridor (NIETC). However, accessing this funding may be challenging, as DOE has yet to designate a single NIETC, though it has had such authority since 2005. The IRA also allocates funding to facilitate the siting of certain transmission line projects to convene stakeholders and conduct analyses relating to interregional transmission development and the development of transmission for offshore wind energy.

The IRA includes several tax incentives for the development and expansion of low carbon technologies. It extends the availability of investment tax credits (ITC) and production tax credits (PTC) for the construction and operation of renewable energy generation facilities. The ITC for solar projects was returned to its former maximum rate of 30% or eligible costs, and wind projects are eligible for full PTCs for ten years after they are placed in service, replacing the former time-based phasedown of PTC eligibility. The IRA also makes ITCs available for the construction of certain energy storage facilities, biogas power generation, and microgrid projects. The IRA also extends the tax credit program for carbon sequestration to apply to projects that commence construction by the end of 2032; it increases the value of credits and expands eligibility to smaller projects. The IRA provides new tax credits for the manufacture of “clean hydrogen” fuels and sustainable aviation fuels, and extends tax credits for biodiesel, renewable diesel, and alternative fuels projects through the end of 2024. The IRA makes notable changes to the federal tax credit program for the purchase of EVs, including: (1) lifting the cap on the total number of tax credits available to each automaker; (2) broadening eligibility beyond “plug-in” vehicles to include fuel-cell vehicles, and (3) adding a tax credit for the purchase of heavy-duty EVs.

2. CHIPS and Science Act of 2022

On August 9, 2022, President Biden signed the CHIPS and Science Act of 2022 into law. While best known for supporting domestic semiconductor research, development, and manufacturing, the law also bolsters federal support for climate change research and development of new technologies aimed at reducing GHG emissions. For example, DOE is authorized to: (1) establish “regional clean energy innovation programs” in conjunction with the states; (2) establish a new program to develop low-emissions steel manufacturing technology, including a focus on certain emerging technologies: heat generation, carbon capture, smart manufacturing, resource efficiency, alternative materials, and high-performance computing; and (3) spend up to $20 billion to support basic energy sciences research and the further development of the nuclear fusion energy research program. In addition, the CHIPS and Science Act authorizes spending for federal research programs in the fields of climate change, GHG measurement, and ocean acidification.

C. Regulatory Activities: Mitigation

1. United States Department of Energy

a. Energy Efficiency and Conservation Standards

DOE sets standards for certain appliances and equipment under the Energy Policy and Conservation Act (EPCA). In 2022, DOE published final and proposed rules on efficiency and conservation standards for a variety of products and appliances, including light bulbs, pool heaters, furnaces, and air conditioners. In each, DOE assesses the climate benefits of the new standards, finding the standards would provide millions or even billions of dollars in climate benefits due to reductions of GHG emissions.

b. Implementation of the Infrastructure Investment and Jobs Act

On February 10, 2022, DOE published a notice seeking information on how to implement the $6 billion Civil Nuclear Credit Program. The IIJA directed DOE to establish this program with the goal of preventing carbon-free nuclear facilities from closing due to economic factors and allocating credits to selected certified nuclear reactors. Selected facilities must demonstrate that the reactor is projected to cease operations due to economic factors and that the incremental air pollutants that would result from the closure would increase, among other requirements. DOE published guidanceon the program implementation on April 19, 2022, and on November 21, 2022, announced the selection of the Diablo Canyon Power Plant to receive $1.1 billion credits. A second round of funding was published on September 30, 2022.

On February 16, 2022, DOE published a Request for Information on how to implement the IIJA’s $8 billion Clean Hydrogen Manufacturing Initiative. The program aims to facilitate the creation of regional networks to expedite hydrogen adoption. It announcedthe first funding opportunity for the program on June 6, 2022.

In December, DOE additionally announced programs for carbon capture and removal, distributing $3.7 billion for investments in the carbon removal industry, and a Notice of Intent to provide $6.3 billion to support “transformational technologies necessary to decarbonize the industrial sector.”

2. United States Environmental Protection Agency

a. Oil and Gas Rule

The EPA issued a supplemental proposal to update, strengthen, and expand the proposed methane standards for new and existing oil and gas operations under CAA section 111(b) and (d), which was initially issued in November 2021. These regulations aim to reduce fugitive and flared methane emissions from oil and natural gas production, processing, transportation, and storage. The proposed rules include significant monitoring and well closure requirements. A final rule is expected in 2023.

b. Control of Air Pollution from Aircraft Engines Rule

In late 2021, the EPA issued the first ever GHG emissions standards for airplanes used in commercial aviation and for large business jets under section 231(a)(2)(A) of the CAA. This action aligned U.S. standards with international carbon dioxide emissions standards set by the International Civil Aviation Organization in 2017. These standards, which apply to aircraft that are designed after 2020 or in production by 2028, are not expected to significantly reduce emissions from the sector. As a result, California, a group of twelve states, and a group of three environmental organizations sued the Biden Administration, arguing that the CAA impelled EPA to set more stringent standards. Oral argument was held on October 6, 2022. The court has not issued a decision as of the writing of this chapter. EPA has stated it is “evaluating what opportunities for greater regulatory ambition exist through the commonsense exercise of . . . [CAA] authority.” In addition, the Biden Administration announced a goal of reducing aviation emissions 20% by 2030.

c. Mobile Source Standards

Multiple vehicle fuel economy standards have been finalized this year and are currently being challenged. After the Biden Administration undertook efforts to unwind and replace Trump-era standards and rules with more stringent standards, various parties now argue the new standards go too far, or not far enough, towards curbing emissions.

In December 2021, EPA released the Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions Standards. This rule was challenged on February 28, 2022, by groups arguing that the standards are too stringent. These challenges were consolidated and are being led by Texas and a group of fourteen other states. This case is currently before the D.C. Circuit, where final briefs are due on March 30, 2023. Several amici have already weighed in, mostly from various industry groups opposing the rule.

On December 20, 2022, the EPA adopted a final rule for trucks, entitled Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards. This rule will apply to heavy-duty vehicles and engines beginning with model year 2027. The rule will make emissions standards more stringent and require these standards to be met for a longer period during operations. EPA remarked that this rule is “the first step in the Clean Trucks Plan” that was announced on August 5, 2021.

d. Restoration of California’s Clean Air Act Waiver

The Biden Administration reinstated California’s waiver to regulate emissions under the CAA. The waiver, which allows California to set more stringent standards than the federal government for the regulation of vehicles, enables California to set its own GHG emissions standards and to mandate zero emissions vehicle sales under California’s Advanced Clean Car (ACC) program. The Trump Administration’s repeal of California’s waiver, which was a key part of its Safer Affordable Fuel-Efficient (SAFE) Rule, stalled in litigation. Now, several states, in Ohio v. EPA, are challenging California’s waiver, arguing that Section 209(b)(1) of the CAA violates the constitutional principle that the states have equal sovereignty. Final briefs are due on March 20, 2023; oral argument is scheduled for September 2023. Notwithstanding this challenge, California finalized the next phase of these standards on November 30, 2022, for model years 2026 through 2035, known as ACC II, which will require all new passenger cars and trucks sold in California to be zero emissions by 2035.

e. Renewable Fuel Standards (RFS)

On June 3, 2022, EPA released its modified biofuel volume targets for the 2020-2022 RFS program, which requires a certain volume of renewable fuel to replace or reduce the quantity of petroleum-based fuels. Beyond setting volumetric targets for its previous categories of fuels, EPA established a new “supplemental obligation” of 250 million gallons in response to the D.C. Circuit’s decision in Americans for Clean Energy v. EPA. EPA also stated its intent to add another 250 million gallons in 2023.

The Center for Biological Diversity (Center) challenged the 2020-2022 RFS rule contending that EPA failed to consult with regulators about the potential impacts of the rule on endangered species. The Center argues that the RFS harms endangered species because it encourages the conversion of habitat to farmland for ethanol production, which threatens habitat viability and leads to the application of pesticides and fertilizers. In September, the Center asked the court to vacate the rule in its entirety.

Regulated parties also challenged the 2020-2022 RFS rule, alleging various Administrative Procedure Act (APA) violations. These cases are consolidated as Sinclair Wyoming Refining Co. LLC v. EPA. This consolidated case includes challenges from renewable fuels manufacturers who want increased volumes and refineries who are opposed to the expansion of RFS.

On December 1, 2022, EPA also announced its proposed targets for 2023-2025, raising the targets for each category and following through on its 250 million gallon supplemental standard for 2023.

3. United States Federal Energy Regulatory Commission (FERC) Draft GHG Policy Statement

On February 17, 2022, FERC issued a draft policy statement on Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews (GHG Policy Statement) under both the National Environmental Policy Act (NEPA) and the Natural Gas Act (NGA). The Commission simultaneously issued a draft Updated Policy Statement on Certification of New Interstate Natural Gas Facilities explaining more fully how it would assess whether new interstate pipelines were required by the public convenience and necessity, including how it would consider environmental impacts. The GHG Policy Statement explains how the Commission will quantify the GHG emissions and assess the climate impacts associated with a new natural gas infrastructure project seeking a certificate of public convenience and necessity. The GHG Policy Statement provides guidance for both interstate natural gas pipelines seeking a certificate under section 7 of the NGA and LNG terminals seeking a certificate under section 3 of the NGA. In March, the Commission issued an order clarifying that both policy statements were a draft, and it would apply only prospectively to applications submitted after the issuance of a final policy statement. A final rule has not been issued.

4. United States Department of Interior

a. Bureau of Land Management (BLM) Venting and Flaring Rule

The BLM issued its Waste, Prevention, Production Subject to Royalties, and Resource Conservation Rule (Venting and Flaring Rule) on November 18, 2016, and on September 28, 2018, rescinded several provisions of the Venting and Flaring Rule. Generally, the Rule “aimed to reduce waste of natural gas from venting, flaring, and leaks during oil and natural gas production activities on onshore federal and Indian” lands. The ABA Year in Review has analyzed the Venting and Flaring Rule’s administrative and litigation history since 2016. The appeal of the Wyoming District Court decision vacating all but two provisions of the 2016 Venting and Flaring Rule is ongoing in the U.S. Court of Appeals for the Tenth Circuit.

On November 30, 2022, BLM issued a new proposed rule that “aims to reduce the waste of natural gas from oil and gas leases administered by the BLM.” To that end, the proposed rule sets out “reasonable steps that operators . . . must take to avoid the waste of natural gas” and requires royalty payments on gas that is “unavoidably” wasted.

b. Bureau of Land Management Guidance for Carbon Sequestration on Public Lands

On June 8, 2022, BLM issued an Instructional Memorandum (IM) on geologic carbon sequestration on public lands. The IM clarifies that BLM may authorize geologic carbon sequestration projects on public lands via rights-of-way (ROWs) issued under Title V of the Federal Land Policy and Management Act. ROWs can be used to authorize all activities relating to sequestration projects, “including for necessary physical infrastructure and for use and occupancy of [federal] pore space” during and after carbon dioxide injection operations. The IM provides that ROWs for sequestration projects should ordinarily be issued for a minimum 30-year renewable term and require the holder to comply with other applicable federal and state laws, such as the Safe Drinking Water Act and NEPA, and avoid interference with other authorized uses of public lands, e.g., for mineral development.

c. Bureau of Ocean Energy Management (BOEM) Offshore Oil Leases

Executive Order 14008 directed the Department of the Interior to “pause new oil and natural gas leases on public lands or in offshore waters,” and conduct a “comprehensive review” of leasing practices given the “potential climate and other impacts associated with oil and gas activities.” Following a challenge from several states, on August 18, 2022, the U.S. District Court for the Western District of Louisiana issued a permanent injunction preventing the Department of the Interior from pausing lease sales. The court found that, in ordering the pause, President Biden had exceeded his authority and violated the APA, the Mineral Leasing Act, and the Outer Continental Shelf Lands Act (OCSLA). On appeal, the Fifth Circuit Court of Appeals vacated the injunction, finding that it lacked the specificity required by Federal Rule of Civil Procedure 65(d).

Section 18 of the OCSLA requires the Secretary of the Interior to “prepare and periodically revise” a program for oil and gas lease sales on the outer continental shelf (OCS). On January 9, 2018, BOEM issued a draft proposed leasing program for 2019 through 2024, proposing to “make more than 98% of the OCS available . . . for oil and gas leasing.” The draft program included a schedule of forty-seven lease sales: nineteen in the Alaska Region, twelve in the Gulf of Mexico Region, nine in the Atlantic Region, and seven in the Pacific Region. BOEM received over two million comments on the draft proposed program. After considering the comments, on July 1, 2022, BOEM issued a revised proposed leasing program for 2023-2028, which includes significantly fewer lease sales. Under the proposed program, only ten lease sales would be held in the Gulf of Mexico Region, and one in the Alaska Region. BOEM has not finalized the proposed leasing program at the time of writing.

d. Bureau of Ocean Energy Management Offshore Wind Leases

On March 29, 2021, the Biden Administration announced a goal of deploying 30 gigawatts (GW) of offshore wind by 2030 and hopes of 110 GW by 2050. The Administration stated that the goal would be largely met by deploying fixed offshore wind turbines (i.e., attached to the seafloor) in areas of shallow water off the East Coast and in the Gulf of Mexico. However, approximately two-thirds of U.S. offshore wind energy potential is located in areas of deep water, where fixed turbines cannot be used. Recognizing this, on September 15, 2022, the Biden Administration announced several measures to advance the development and deployment of floating offshore wind turbines. Among other things, the Administration set a goal of deploying 15 GW of floating offshore wind capacity by 2035 and launched a Floating Offshore Wind Shot to spur advances in the design and manufacturing of floating offshore wind technologies, with a goal of reducing costs by 70% by 2035 to $45 per megawatt hour.

On October 13, 2021, BOEM announced plans to “hold up to seven new offshore [wind] lease sales by 2025 in the Gulf of Maine, New York Bight, Central Atlantic, and Gulf of Mexico, as well as offshore the Carolinas, California, and Oregon.” BOEM stated that, for each location, it will identify preferred Wind Energy Areas (WEAs) that are best suited to offshore wind development. In March 2021, BOEM designed WEAs covering nearly 800,000 acres in the New York Bight, and on February 23, 2022, it auctioned six lease areas within those WEAs. On October 31, 2022 , BOEM designated WEAs covering nearly 700,000 acres in the Gulf of Mexico. BOEM proposed WEAs covering around 1.7 million acres in the Central Atlantic on November 16, 2022, but had not been finalized at the time of writing. On December 6, 2022, BOEM auctioned five wind energy leases covering 373,268 acres off California’s coast.

Provisions enacted as part of the IRA tie BOEM’s ability to issue offshore wind energy leases to its offering of leases for oil and gas development. For the ten years following enactment of the IRA, BOEM cannot issue an offshore wind lease unless it has held one or more oil and gas lease sales in the previous twelve months and, through that sale(s), offered at least 60 million acres of offshore land for oil and gas development.

5. United States Department of Transportation (DOT)

a. Federal Highway Administration (FHWA) National Electric Vehicle Infrastructure Formula

The IIJA established the National Electric Vehicle Infrastructure (NEVI) Formula Infrastructure Program, which provides funding (approximately $1 billion for each fiscal year 2022-2026) “to states to strategically deploy EV charging infrastructure.” States can receive funding for up to 80% of eligible project costs, including: the acquisition, installation, and network connection of EV charging stations to facilitate data collection, access, and reliability; proper operation and maintenance of EV charging stations; and long-term EV charging station data sharing. FHWA must distribute the funds made available each year so that each state receives an amount equal to the statutory state FHWA funding formula. FHWA issued guidance to the states in February 2022. FHWA announced the approval of all FY 2022/23 state plans on September 27, 2022.

b. Federal Highway Administration Carbon Reduction Program Guidance

The IIJA established the Carbon Reduction Program, which provides funding for projects that will reduce emissions from on-road highway sources. The FHWA will distribute$6.4 billion in funding to states and localities for these projects. FHWA published guidanceon how it would implement the program in April 2022.

c. National Highway Transportation Safety Authority (NHTSA) Corporate Average Fuel Economy (CAFE) Standards

On May 2, 2022, NHTSA finalized revised fuel economy standards for Model Year 2024-26 light-duty vehicles under the CAFE program. These standards replaced and strengthened the standards issued by the Trump Administration as part of the SAFE Vehicles Rule Part Two, which was a rollback of the Obama-era Clean Cars Standards. The final standards issued by NHTSA require an 8% increase in average fleetwide fuel economy for Model Years 2024 and 2025, and a 10% increase for Model Year 2026—a significant improvement compared to the 1.5% year-over-year increase in the Trump-era SAFE rule, and an approximate return to the levels that would have been required under the original Obama-era standards issued in 2012. NHTSA estimated that its new standards would reduce GHG emissions by more than 2.2 billion tons and produce 112 billion dollars in net societal benefits as compared to the Trump-era standards.

NHTSA also repealed its earlier Trump-era interpretation that California was preempted from setting its own tailpipe emission standards by EPCA. In December 2021NHTSA finalized the Preemption Rule, which formally reconsidered its legal interpretation and repealed the SAFE Part One rule in its entirety.

NHTSA’s revised CAFE standards for Model Year 2024-26 are currently being challenged in the D.C. Circuit. Challengers have raised arguments relating to EPCA preemption, the Major Questions Doctrine, and various APA arguments involving NHTSA’s regulatory analysis. Oral argument will be held in September 2023. Notably, the case will be argued before the same panel and on the same day as the challenge to EPA’s final emission standards.

D. Regulatory Activities: Adaptation

1. United States Department of the Army Climate Strategy

In February 2022, the Army released its Climate Strategy, noting that climate change risks are “broad, significant, and urgent” and “will impact the Army at all levels: from how and where units operate and train, to how the service as a whole equips and sustains Soldiers to fight in multi-domain operations.” The strategy emphasizes proactively reducing risks through resilience activities, but also highlights that decreasing operational energy demand and other actions can reduce greenhouse gas emissions. The Climate Strategy’s goals include (1) a 50% reduction in net GHG pollution by 2030; (2) attaining net zero GHG emissions by 2050; and “proactively consider[ing] the security implications of climate change in strategy, planning, acquisitions, supply chain, and programming documents and processes.”

On October 5, 2022, the Army released its Climate Strategy Implementation Plan, which “responds to threats from climate that affect installation and unit sustainability, readiness, and resilience.” It is the “blueprint for the Army’s enterprise-wide climate change adaptation and mitigation measures” through 2027.

2. United States Department of Energy

a. Weatherization Assistance Program (WAP)

The IIJA also included an increase in funding for WAP, appropriating over $3 billion for fiscal year 2022. WAP is DOE’s largest residential energy retrofit program, designed to “address the ‘whole home’” from insulation, heating and cooling system and appliance upgrades, and other actions that reduce energy usage and utility bills. On March 30, 2022, DOE opened the application period for grants under this program. On July 8, 2022, DOE announced $40 million of awards using WAP funds to organizations and state agencies through the Enhancement and Innovation Program and Sustainable Energy Resources for Consumers Program.

b. Grid Resilience and Innovation Partnerships (GRIP) Program

The IIJA charged DOE with distributing $10.5 billion in competitive grants for three different types of projects: Grid Resilience and Industry Grants; Smart Grid Grants; and Grid Innovation Grants. DOE’s GRIP Program is responsible for implementing this funding for projects that will enhance electric grid resilience, flexibility, and reliability. In September, DOE released a Request for Information and Funding Opportunity Announcement seeking input on how to implement the grant program. Grid Resilience Grants will fund transmission and distribution solutions for mitigating hazards that cause disruption to the power system. DOE began accepting concept papers for funding on November 18, 2022.

3. Department of the Navy 2030 Action Plan

In May, the Navy published its Climate Action 2030 Report. The strategy both commits the Navy to a net-zero GHG emissions goal by 2050 and recognizes that climate change requires the Navy and Marine Corps to “adapt to meet new operational requirements, respond to increasingly common humanitarian response missions, promote regional stability, and address risks to installations and defense communities.” The plan seeks to establish a climate-ready force, which includes having resilient installations and infrastructure and incorporating climate impacts and considerations into decision-making. The report has two goals: build climate resilience and reduce climate threat; and specific targets for emissions reductions, nature-based resilience, and energy resilience.

4. Federal Energy Regulatory Commission Extreme Weather-Related Rulemakings

On June 16, 2022, FERC issued two notices of proposed rulemaking related to the electric system and extreme weather. First, the “One Time Informational Reports on Extreme Weather Vulnerability Assessments, Climate Change, Extreme Weather, and Electric System Reliability” rulemaking directs transmission providers to submit a one-time informational report that explains the providers “current or planned policies and processes for conducting extreme weather vulnerability assessments and developing solutions for mitigating identified extreme weather risks.” FERC defines an “extreme weather vulnerability assessment” as an analysis that identifies where and under what conditions jurisdictional transmission assets and operations are at risk extreme weather impacts, how those risks will manifest themselves, and what the consequences will be for transmission system operations.

Second, the “Transmission System Planning Performance Requirements for Extreme Weather” rulemaking directs the North American Electric Reliability Corporation (NERC) to modify its reliability standard, TPL-001-5.1 (Transmission System Planning Performance Requirements), to “address concerns pertaining to transmission system planning for extreme heat and cold weather events that impact the reliability operations of the Bulk-Power System.”

E. Climate-Related Financial Risk

1. Banking Guidance on Climate-Related Financial Risk

At the end of last year, the Office of the Comptroller of the Currency (OCC) announced draft principles to support the identification and management of climate-related financial risks for banks with more than $100 billion in total consolidated assets and requested comment. The principles aim to support bank efforts to manage key aspects of climate-related financial risk and provide a high-level OCC-aligned framework for climate-related financial risk management.

The General Principles focus on six key areas: (1) having an effective risk governance framework that is understood across the bank’s board and management with ongoing monitoring, clear communication with staff, and incorporation of responsibility and accountability; (2) incorporating climate-related risks into policies, procedures, and limits with detailed guidance on the bank’s approach and ongoing modification as needed; (3) ensuring the consideration of material climate-related financial risk exposures in strategic plans, risk assessments, and operations plans; (4) developing and implementing comprehensive climate-related financial risk identification and management; (5) ensuring proper data, risk management, and reporting by incorporating climate-related risk information into the bank’s internal processes to facilitate timely and sound decision-making across the bank; and (6) utilizing scenario analysis, forward-looking assessments of potential bank impacts that could be caused by changes in the economy, financial systems, or physical hazards resulting from climate-related risks. The principles call on banks to manage three risk areas: credit risk, liquidity risk, and other financial risk that may see greater volatility or less predictability due to climate.

The Federal Deposit Insurance Corporation (FDIC) requested comment on similar draft principles on March 30, 2022, and the Federal Reserve System Board of Governors followed on December 8, 2022, noting that the agencies seek consistency in their climate-related risk management principles and guidance.

2. Department of Agriculture (USDA) Climate Smart Commodities

In February 2022, USDA launched the Partnerships for Climate-Smart Commodities program, which has since resulted in investments totaling over $3.1 billion for 141 projects. The program supports farmers, ranchers, and private forest landowners through expanding markets for U.S. climate-smart commodities, leveraging climate-smart commodity production, and providing benefits to the agricultural sector, including for small and underserved producers. USDA expects these projects to reach more than 60,000 farms, encompass more than 25 million acres of working land, sequester more than 60 million metric tons of carbon dioxide equivalent, and involve nearly 100 universities, with a commitment to involve over forty minority-serving institutions, including eleven projects with a Historically Black College or University (HBCU) as the lead and over thirty-five projects with HBCUs as major partners, six project with a Hispanic Serving Institution (HSI) as the lead and nearly twenty projects with HSIs as major partners, and over twenty tribes and tribal groups leading and partnering on projects.

3. Securities and Exchange Commission (SEC)

a. The Enhancement and Standardization of Climate-Related Disclosures for Investors

On March 21, 2022, the United States Securities and Exchange Commission (SEC) released a proposal on climate-related disclosures that would require both domestic and foreign registrants to include climate-related information in registration statements and periodic reports, such as form 10-K. The disclosures are similar to those companies provide under the Task Force on Climate-Related Financial Disclosures and the Greenhouse Gas Protocol. They include: climate-related risks and impacts on the registrant’s business, strategy, and outlook; governance of climate-related risks and risk management processes; direct GHG emissions (Scope 1), indirect GHG emissions from purchased electricity and other forms of energy (Scope 2), and, if material, indirect emissions from upstream and downstream activities in a registrant’s value chain (Scope 3), not including offsets and in terms of intensity, subject to assurance for certain filers and emissions; climate-related targets, goals, and transition plan, if any, and progress toward meeting targets and goals; information about carbon offsets or renewable energy certificates if used as part of plans to achieve targets or goals: whether the registrant uses an internal carbon price and, if so, what it is and how it is set; and certain climate-related financial statements and related disclosures in a note to audited financial statements.

The original comment period ending May 20, 2022 was extended to June 17, 2022 to allow additional time for comments, then was reopened with a new comment period ending November 1, 2022 due to a technical glitch in the comment platform and the high level of interest in the proposal. In addition to thousands of comments received, the SEC must also consider the Supreme Court’s Decision in West Virginia v. EPA, which may further complicate finalizing the rules.

b. Amendments to the Names Rule

On May 25, 2022, the SEC announced amendments to the Investment Company Act of 1940 Rule 35d-1, the fund “Names Rule,” to protect investors from fund names that are likely to mislead investors about a fund’s investments and risks. The proposal improves and expands requirements for certain funds to adopt a policy to invest at least 80% of assets in alignment with the investment focus the fund’s name suggests (e.g., an indication that the fund’s investment decisions incorporate one or more ESG factors). The SEC has provided a “green energy fund” as an example of a fund that would invest 80% of its assets in clean energy technology, such as wind power, solar power, or electric batteries.

c. ESG Disclosure Rule

On May 25, 2022, the SEC proposed amendments to rules and disclosure forms that aim to meet investor needs for consistent, comparable, and reliable information concerning funds and advisors’ incorporation of ESG factors. The proposed amendments followed a settled enforcement action against a mutual fund adviser for misleading ESG disclosures, resulting in a $1.5 million penalty and a complaint filed against a Brazilian mining company for misleading investors about safety prior to a deadly dam collapse. The proposed amendments would apply to registered investment companies, business development companies, registered investment advisers, and certain unregistered advisers. The proposed changes would add specific disclosure requirements regarding ESG strategies in fund prospectuses, annual reports, and advisor brochures; implement a disclosure approach to allow investors to compare ESG funds at a glance; and require certain environmentally-focused funds to disclose GHG emissions associated with their portfolio investments, including the carbon footprint and weighted average carbon intensity of their portfolio. The proposal requires funds that consider ESG factors in their investment process to disclose additional information, with the amount of required disclosure corresponding to how central ESG factors are to the fund’s strategy. Three types of ESG funds are described: (1) Integration Funds that integrate ESG and non-ESG factors in investment decisions; (2) ESG-Focused Funds in which ESG factors are a significant consideration; and (3) Impact Funds that seek to achieve a particular ESG impact.

4. Environmental and Social Responsibility in Supply Chains for Critical Minerals for the Energy Transition

On February 7, 2022, the White House published Executive Order on America’s Supply Chains: A Year of Action and Progress, reporting on progress implementing Executive Order 14,017 on America’s Supply Chains. This report included an update on securing supply chains for critical minerals and materials for the energy transition, including electric vehicles, and an ongoing commitment to “promote sustainable production with strong environmental, social, and labor standards.”

The U.S. commitment to environmental and social responsibility in supply chains for critical minerals is reflected not only in laws like the IRA, but also in the objectives of new U.S. government-to-government partnerships established in 2022. The Minerals Security Partnership (with Australia, Canada, Finland, France, Germany, Japan, the Republic of Korea, Sweden, the United Kingdom, the U.S., and the European Commission) aims to bolster critical mineral supply chains and adhere to ESG standards. The Sustainable Critical Minerals Alliance (with Canada, Australia, France, Germany, Japan, the United Kingdom, and the U.S.) aims to increase responsible mining, processing and recycling practices and responsible supply chains.

F. U.S. Climate-Related Litigation

1. State and Local Government Climate Cases Against Fossil Fuel Companies

In 2022, the First, Fourth, Ninth, and Tenth Circuit Courts of Appeals again affirmed remand orders in cases brought by state and local governments against fossil fuel companies to hold them liable for the impacts of climate change. The plaintiffs assert state common law and statutory claims. The appellate courts—which issued their decisions after the Supreme Court ruled in 2021 that appellate courts could consider grounds for removal other than federal officer removal jurisdiction—rejected arguments that there was federal jurisdiction because the claims were necessarily federal or because a substantial federal issue was a necessary element of the state law claims. The courts also rejected other grounds for federal jurisdiction, including federal officer removal jurisdiction, complete preemption, the Outer Continental Shelf Lands Act, federal enclave jurisdiction, and admiralty jurisdiction. The Third Circuit Court of Appeals also affirmed remand orders in cases brought by the City of Hoboken and the State of Delaware, and the Ninth Circuit affirmed remand orders in cases brought by the City and County of Honolulu and County of Maui. In addition, there were two district court decisions remanding cases brought by the City of Annapolis, Anne Arundel County, and the District of Columbia. Fossil fuel companies filed petitions for writ of certiorari in the Supreme Court that focused on the question of whether federal law necessarily and exclusively governs the claims. In October, the Court invited the Solicitor General to submit the U.S.’s views on the certiorari petition in the case brought by the City of Boulder and Boulder and San Miguel Counties.

2. NEPA Challenge to Revocation of Federal Coal Program Moratorium

The federal district court for the District of Montana reinstated the federal coal leasing program moratorium instituted by former Secretary of the Interior Sally Jewell. The court was reviewing the environmental assessment (EA) and finding of no significant impact prepared after the court previously ruled that former Secretary of the Interior Ryan Zinke’s 2017 order that terminated the moratorium constituted major federal action requiring NEPA review. The court found that the EA was improperly limited to the impacts of only four leases deemed traceable to the Zinke order, and even that limited analysis was inadequate under NEPA. The court said BLM should have instead used a status quo of a moratorium on coal leasing as its baseline alternative.

3. NEPA Challenges to Oil and Gas Leasing

In three lawsuits brought by conservation groups to challenge oil and gas leases on federal land in Colorado, Montana, New Mexico, Utah, and Wyoming, the federal district court for the District of Columbia granted the conservation groups’ motions for voluntary dismissal with prejudice after the groups and the federal defendants reached agreements to settle the three cases. BLM will conduct additional NEPA analysis, consistent with the court’s earlier decisions that found flaws in BLM’s analysis of oil and gas leasing’s impacts on climate change. The court found that industry defendant-intervenors did not establish that voluntary dismissal would result in clear legal prejudice to them.

4. NEPA Challenge to Coal Mine Expansion

In a split opinion, the Ninth Circuit ruled that federal defendants violated NEPA by failing to articulate “science-based criteria” for the determination that the impacts of a coal mine’s expansion on greenhouse gas emissions would be insignificant. The court separately found that the EA understated emissions because it did not account for coal combustion emissions overseas. The Ninth Circuit concluded, however, that the defendants were not required to use the Social Cost of Carbon metric to quantify the environmental harms of the project’s greenhouse gas emissions.

5. Challenges to Biden Administration Social Cost of Greenhouse Gas

Both the Fifth and Eighth Circuit Courts of Appeals issued rulings indicating that states did not have standing to challenge President Biden’s directive that federal agencies use the Interagency Working Group on Social Cost of Greenhouse Gases’ estimates of the social costs of greenhouse gas emissions to analyze the costs and benefits of agency actions. The Fifth Circuit vacated a preliminary injunction granted by a district court in a lawsuit brought by Louisiana and nine other states. The Eighth Circuit affirmed a district court’s ruling that Missouri and other states did not have standing.

6. Climate Adaptation Cases

In 2022, there were developments in citizen suits brought by Conservation Law Foundation (CLF) in federal courts in New England states asserting that the owners and operators of bulk storage and fuel terminals failed to prepare their facilities for the impacts of climate change in violation of the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA). In Connecticut, a court allowed CWA and RCRA’s claim to proceed in a case related to a New Haven terminal, finding that CLF had standing and alleged facts sufficient to assert the claims. In a second lawsuit concerning a Gulf Oil facility in New Haven, the court found that CLF failed to allege an injury sufficient to establish standing because the complaint did not allege a connection between climate change impacts and imminent discharges of pollutants. In a suit concerning a Shell terminal in Providence, Rhode Island, discovery was underway, and the parties disputed whether the defendants had to respond to CLF’s requests for documents concerning other Shell facilities and Shell’s knowledge of climate change; the court directed the parties to take a “more measured approach” to discovery. The court also declined to dismiss claims against non-owner/operator defendants. In a Massachusetts case concerning a terminal in Everett, the court stayed discovery in October, following the defendants’ notice that they had stopped using the property for storage and sale of petroleum products.

III. State and Local Activities

A. Mitigation Activities

1. Regional and Multi-State Activities

States are continuing to work together on regional and multi-state climate policy and emissions reduction programs as well. The Regional Greenhouse Gas Initiative (RGGI), a carbon budget trading program across eleven Northeastern and Mid-Atlantic states, is currently undertaking its third comprehensive program review, in which participating states will evaluate the design of the program, its effect on carbon emissions, and potential program changes that can be made to better reduce emissions and advance other program goals. Both Pennsylvania and North Carolina are in the process of joining RGGI and implementing program provisions. However, an injunction in July 2022 paused the regulatory process in Pennsylvania that would have allowed the state’s RGGI program to take effect, and the state’s court of appeals recently heard oral arguments in two cases related to Pennsylvania’s entrance into the program.

At the same time, Virginia Governor Youngkin announced his intention to withdraw the Commonwealth from the program, and in December 2022, the Virginia Air Pollution Control Board voted in favor of a proposed regulation to repeal regulations governing Virginia’s participation in the program. The next step in the withdrawal process includes the approval of the proposed regulation by the executive branch and Governor Youngkin, followed by a public comment period.

States are also working together to reduce emissions within the transportation sector. As of this year, twenty-two states and the District of Columbia have adopted California’s stricter Low-Emission Vehicle (LEV) criteria pollutant and GHG emission regulations, and sixteen states and D.C. have adopted its Zero-Emission Vehicle (ZEV) regulations. New Mexico became the most recent state to join, and Colorado’s ZEV and LEV standards took effect this year. In August 2022, CARB achieved a significant milestone by adopting the Advanced Clean Cars II (ACC II) rule, which sets ZEV standards for model years 2026-2035, reaching a 100% ZEV sales requirement in 2035. Other states that have begun the process of adopting the ACC II program, including VermontOregonWashingtonMassachusetts, and New York; Virginia also has statutory requirements to adopt California’s vehicle rules.

Additionally, many states are working collaboratively to advance medium- and heavy-duty (MHD) ZEVs. In March, Nevada signed onto the Multi-State Medium- and Heavy-Duty Zero-Emission Vehicle Memorandum of Understanding (MOU)—joining sixteen other states, D.C., and Quebec—to work together across borders to electrify these types of vehicles. In July 2022, MHD ZEV MOU signatories released a comprehensive action plan containing sixty-five strategies to help rapidly and equitably accelerate electric truck and bus adoption, the product of a process facilitated by the Northeast States for Coordinated Air Use Management. Additionally, states in the Northeast and Mid-Atlantic are currently exploring opportunities for regional electric vehicle charging infrastructure planning and for use of local air quality monitoring to inform climate change policy and strategies. States in other regions of the country have continued to work together on EV charging infrastructure planning and deployment, including through the Regional Electric Vehicle Plan for the WestWest Coast Electric HighwayRegional Electric Vehicle Midwest Coalition, and the Southeast Regional Electric Vehicle Information Exchange. In February 2022, the federal Joint Office of Energy and Transportation—established by the IIJA to coordinate federal agency action on electric vehicles and charging infrastructure—signed a memorandum of understanding with the American Association of State Highway and Transportation Officials (AASHTO) and the National Association of State Energy Officials (NASEO) to coordinate state deployment of EV charging infrastructure.

2. State Activities

Across the country, states are continuing to maintain leadership roles in climate mitigation efforts. California enacted significant climate legislation this year, with Governor Newsom signing forty climate-related bills into law within the first two weeks of September alone. Included among those bills is the Climate Crisis Act (AB 1279), which mandates that the state reach net-zero carbon emissions by no later than 2045 and requires several agency actions to be undertaken within the coming year to facilitate achieving that goal. As part of this, CARB also released its 2022 Scoping Plan for Achieving Carbon Neutrality, which outlines the steps communities, agency officials, and economic sectors can take to reduce GHG emissions. SB 905 directs CARB to develop a program for carbon capture and storage, prioritizing solutions in communities that have been historically overburdened by carbon pollution. SB 1137 addresses environmental justice and overburdened communities, prohibiting the expansion, retrofitting, or development of oil operations within a specific radius of homes, hospitals, schools, and other essential buildings.

New York has also passed a sweeping number of environmental and climate policies this year. Many of the bills that passed work to prioritize energy efficiency in new construction and development, consider environmental justice and the impacts that pollution has on overburdened and underserved communities, and finance environmental and climate health projects. S. 8830, passed in April and awaiting signature, requires environmental impact statements to assess whether siting a facility will cause or increase a disproportionate burden on disadvantaged communities. The state also passed a budget in 2022 that allocates a significant amount of funding to environmental projects and programs. Furthermore, on December 19, the New York Climate Action Council approved and adopted a final Scoping Plan containing recommended policies and actions to achieve the Climate Leadership and Community Protection Act’s goals.

Many other states are setting new decarbonization goals or strengthening existing ones. In North Carolina, the Governor issued E.O. 246, reaffirming the plan to reduce GHG emissions to a level at least 50% below 2005 levels by 2030, with the ultimate goal of achieving net-zero emissions by no later than 2050. Emphasizing overburdened communities, the E.O. directs relevant agencies to take environmental justice into account when advancing climate policy, resilience, and clean energy programs, mandating that each cabinet agency will develop a public participation plan to improve communication and transparency with the public in government decision-making, particularly with underserved communities. It also requires the state Department of Transportation to develop a Clean Transportation Plan, and the North Carolina Climate Change Interagency Council is required to undertake a “Deep Decarbonization Pathways Analysis” that will help to determine the path forward toward achieving the 2050 goal.

Maryland passed the Climate Solutions Now Act, which requires the state to reach net-zero emissions by 2045, with an interim goal of 60% reduction below 2006 levels by 2031. The bill requires that all of the state’s passenger fleet transition to zero emissions by 2031, establishes a new Building Energy Performance Standard, mandates that state agencies consider climate change and GHG emissions in agency action, and emphasizes that targeted benefits be prioritized in overburdened and underserved communities. In ConnecticutS.B. 10 requires the Connecticut Department of Energy and Environmental Protection to develop a plan to facilitate the achievement of this goal. S.B 176 expands existing renewable energy generation programs, providing credits primarily targeting low- to moderate-income households to support distributed renewables.

New Mexico established new methane emissions regulations that end routine venting and flaring. It requires frequent leak inspections and improved standards for methane well sites in areas close to schools, overburdened communities, and hospitals. Implementation of the new rule “reduce[es] emissions of ozone precursor pollutants – volatile organic compounds and oxides of nitrogen – by approximately 260 million pounds annually and will have the co-benefit of reducing methane emissions by over 851 million pounds annually.” Pennsylvania finalized a rule that limits the emissions of volatile organic compounds (VOCs) and methane from “conventional wells,” while requiring that industry operators use “reasonably available control technology” to reduce the rate of pollution. Oil drillers immediately responded with a threat of a lawsuit.

Many states are releasing plans to set them on the path toward achieving their climate goals. Louisiana released its first-ever Climate Action Plan in February. The plan “includes three priority policy pillars: renewable electricity generation, industrial electrification, and industrial fuel switching to low- and no-carbon hydrogen.” The ultimate goal is to achieve net-zero GHG emissions by 2050 through the development of an equitable, clean energy economy, decarbonizing the industrial sector, and accelerating the transition to EVs. In Wisconsin, the state’s Office of Sustainability and Clean Energy also released their state’s first-ever Clean Energy Plan in April. Created to outline how the state will cut GHG emissions in half by 2030 and reach 100% carbon-free electricity by 2050, the Plan encourages the installation and development of clean energy infrastructure, the development of cleaner, greener building codes, the phase-out of natural gas, and the transition to EVs.

Many states are acting on their emissions reduction plans and goals by instituting new clean energy goals, breaking ground on new projects, and investing in clean energy technology. In Massachusetts, Governor Charlie Baker signed into law an Act Driving Clean Energy and Offshore Wind in August, advancing several different environmental and climate policies and projects, including investing in the offshore wind industry, updating solar rules to make it easier for rural customers to install panels and offering new incentives, and investing in updating the state’s electric grid to better handle the transition to clean energy. It also directly bans the sale of gasoline-powered vehicles after 2035, expanding EV rebates, electrifying the public transportation bus system by 2040, and investing in EV infrastructure. Colorado bills relating to renewable energy also passed this year, including H.B. 22-1381 and S.B 22-118, to advance the state’s development and generation of geothermal energy. Rhode Island passed legislation in June requiring that the state achieve 100% renewable energy by 2033, supported by the addition of large offshore wind projects to the state’s renewable portfolio.

Other states are passing transportation-specific legislation and approving projects that will reduce GHG emissions from the highest polluting sector within the United States. In Washington, the “Move Ahead WA” transportation package is a nearly $17 billion revenue package that will go towards a variety of transportation projects, including to facilitate carbon reduction and “multimodal expansion,” for building four new hybrid-electric ferries, and for walking and biking infrastructure in underinvested communities. A significant portion of the funding will be coming from the carbon pricing program that was signed into law in 2021. Hawaii’s S.B. 2720 expands their EV rebate program to include the installation of single port charging stations and create more incentives for EVs, generally. Colorado passed transportation legislation at the very end of 2021 with S.B. 21-260, providing new transportation funding and requiring that future transportation projects that GHG emissions into account.

Many of the bills mentioned above include environmental justice provisions, including programs that focus exclusively on overburdened, under-represented communities and just transitions to cleaner energy. In addition to this legislation, Vermont passed S.148—the state’s first Environmental Justice Law—in May, which will require that the state address environmental harms and lack of access to benefits coming from environmental policies in underserved communities. The bill mandates that individuals from frontline communities be given the opportunity to participate in the development, implementation, and enforcement of future legislation, and it also creates a new environmental justice mapping tool. In Colorado, the Fund Just Transition Community and Worker Supports Bill now allocates funding for economic development and worker training programs in coal communities throughout the state.

3. Local Activities

Local governments are passing legislation that complements and accelerates that transition. Many cities, large and small, are passing Climate Action plans for the first time, or are updating them with more stringent targets. In February 2022, the Town of Wellesley, Massachusetts, released its first Climate Action Plan, detailing how the community would reach its goal of 50% emissions reduction compared to 2007 levels by 2030, 75% reduction by 2040, and net-zero GHG emissions by 2050, in alignment with the overall state goal. Large cities like Chicago, Illinois, are also acting, releasing an updated climate action plan for the city in June 2022. The plan outlines the goal to reach GHG emissions reductions by 62% from 2017 levels by 2040 through a total of fifty-one actions and recommendations, most of which will be funded by the $188 million set aside by the mayor for climate initiatives.

Other cities are working in specific sectors to reduce emissions. The City Council of Los Angeles County, California, which contains the City of Los Angeles, voted to ban new oil and gas wells in the city, in addition to the eventual close of existing ones. In places like Montgomery County, Maryland, and the District of Columbia, policymakers have voted to ban fossil fuels in new building construction. D.C. also passed the Clean Energy DC Building Code Act, codifying these requirements and instructing that the D.C. government establish new building codes with net-zero energy requirements by no later than December 31, 2026. The Climate Commitment Act of 2022 accelerates D.C.’s climate goals to reach carbon neutrality by 2045, with an interim goal of 60% reduction (from 2006 levels) by 2030.

B. Adaptation Activities

1. State Activities

States and regional initiatives have continued to advance legislation to make their communities more resilient and sustainable. Louisiana’s Climate Action Plan outlines twenty-eight strategies and eighty-four actions that the state and its agencies can implement to reduce GHG emissions and facilitate community resilience, many of which emphasize the need to incorporate environmental equity, as well as land-use planning, the restoration of wetlands, and the creation or maintenance of natural buffers to protect Louisiana shorelines from increased extreme weather events. Parishes and municipalities across Louisiana are also working together to build resilience to flooding as part of the statewide Louisiana Watershed Initiative. In June, local partners in one watershed worked together to develop a regional vision that identifies ways in which communities can implement resilient policies and programs in different areas, such as affordable housing and flood mitigation. Additionally, in November, a cross-government collaboration released its assessment on the challenges and opportunities the state faces in the face of climate change.

In April, California also released an expansive updated adaptation strategy that outlines six integrated priorities and associated actions that will increase resilience at state, regional, and local levels. Included among these priorities are the strengthening of protections for climate-vulnerable communities, the building of a climate-resilience economy, and the integration and acceleration of solutions that are nature-based. The strategy also “introduces success metrics and timeframes for each action,” adding a new, transparent way to monitor adaptive progress within communities. California passed new climate adaptation bills into law, including A.B. 1384, which requires additional planning on behalf of the state with an emphasis on overburdened communities, and A.B 2108, which requires that regional water boards must conduct direct outreach with environmental justice communities to identify issues as early as possible.

Florida law requires the creation of a resiliency office that will work to address the impacts of sea-level rise and consequential flooding across the state. Regional groups within New Jersey released climate resilience action plans in advance of the tenth anniversary of Hurricane Sandy. The plans recommend taking steps to install green infrastructure that will address storm surges and flooding, encourage mixed-use development outside floodplains, and leverage private financing and investment to implement green, resilient projects throughout the represented communities.

In ColoradoS.B. 22-206 allocates $35 million in grant funding to support communities rebuilding after the recent wildfires in two programs: the Disaster Resilience Rebuilding Program, and the Sustainable Rebuilding Program. New funding sources will also be created to assist with the costs associated with “green building” upgrades in areas affected by wildfires or other natural disasters. The bill also creates the Office of Climate Preparedness, which will work with disaster recovery funds and efforts to prevent wildfires and other disaster events in the future. H.B. 22-1379, which uses COIVD relief funds for the purposes of community resilience, including for projects to restore, mitigate and protect watersheds from damage caused by wildfire-induced erosion and flooding, and to finance a fund that directly helps communities reduce their risk to wildfire by promoting local watershed resilience and natural resources management.

In November, New York voters approved the $4.2 billion Environmental Bond Act by a margin of 67.6% to 32.4%, which will help finance resilience projects throughout the state, and is the largest environmental bond act on any ballot in the nation. In Hawaii, a new, first-of-its-kind program in the U.S. will help to protect coral reefs against extreme weather damage from hurricanes and tropical storms. The Nature Conservancy, in collaboration with the state, purchased an insurance policy covering the reefs on Oahu, Maui, Hawaii, Lanai, and Molokai for up to $2 million in storm damage through 2034.

2. Local Activities

Many local communities across the country are developing, strengthening, and implementing climate resilience plans. In Fairfax County, Virginia, the Board of Supervisors adopted the county’s first-ever Climate Adaptation and Resilience Plan in November. Action items include pursuing green infrastructure projects that provide climate resilience benefits in communities, protecting those areas that already provide natural resilience benefits, implementing flood risk reduction planning for the County, and developing a network of resilience hubs.

In Long Beach, California, the City Council also approved its first-ever Climate Action Plan. Priority adaptation strategies include ensuring that Long Beach communities are resilient to the urban heat island effect and set up to deal with extreme heat, that neighborhoods have access to more diverse water supplies to better withstand droughts, and that the city itself takes actions to prepare for future flood risk. To fund these programs, the 2023 proposed budget includes $7 million in funding projects, with 80% of that money invested in frontline and low-income communities.

The Chicago, Illinois 2022 Climate Action Plan includes the goal of creating more resilient and sustainable communities across the city, emphasizing investing in climate equity and reducing the pollution burden in frontline communities.

Other communities are adopting plans specific to climate effects, like extreme temperatures. This summer, the District of Columbia released its Keep Cool D.C. plan, outlining the steps the District can take to better adapt to hotter days.

Any views or opinions expressed in this report are those of the authors in their personal capacities and do not represent the views of their organizations. This report was compiled, reviewed, and edited by: Melissa Hagan (Law Office of Melissa B. Hagan, PLLC) and Sarah Ladin (Federal Energy Regulatory Commission), with support from Committee Co- Chairs Shannon S. Broome (Hunton Andrews Kurth LLP) and Romany Webb (Sabin Center for Climate Change Law). The Climate Change, Sustainable Development and Ecosystems Committee thanks the following authors for their contributions of sections of this chapter: L. Margaret Barry (Arnold & Porter); Shannon Martin Dilley (California Air Resources Board (CARB)); Kristi Disney Bruckner (Sustainable Development Strategies Group); Andrew Eberle (Kirkland & Ellis); Emily Sanford Fisher (Edison Electric Institute); Aaron L. Flyer (Sidley Austin LLP); Michael Gerrard (Columbia Law School); Meredith Hankins (Institute for Policy Integrity at New York University Law School); Sarah Ladin (Federal Energy Regulatory Commission); Daniel Metzger (Southern Environmental Law Center); Drew Langan (Sidley Austin LLP); Katherine McCormick (Georgetown Climate Center (GCC)); and Romany Webb; Kathryn Zyla (GCC).