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The Year in Review

Environment, Energy, and Resources Law: The Year in Review 2023

Highlights of The Year in Review 2023

Erin Potter-Sullenger


  • Provides highlights of the publication Environment, Energy, and Resources Law: The Year in Review 2023, including Environmental Justice, PFAS regulation and litigation, climate disclosure laws and regulations, and more.
  • Shares interesting developments from many committee’s chapters, including artificial intelligence, nuclear power reactors, the Antiquities Act, offshore wind, WOTUS, and more.  
Highlights of The Year in Review 2023
Dani Serrano via Getty Images

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If you are on the hunt for a resource that can provide a snapshot of key developments in 2023 in the areas of environmental, energy, and resource law – look no further! You’ve arrived at the right place. Welcome to the 2023 Year in Review.

The ABA SEER’s Year in Review is organized into chapters that correspond with and are written by members in each of the SEER substantive committees, as well as three chapters that cover topics that transcend our committees, namely Constitutional Law, Environmental Justice, and Ethics. Each committee organizes and writes its chapter as an annual report, focusing on significant developments, events, cases, regulations, and other notable policy changes that occurred in the prior calendar year. It is not the intent of the committees, nor the Year in Review to capture all developments. This Highlights section offers a brief snapshot of a few of the topics discussed by more than one of the committees, as well as noting a handful of unique developments that may be of interest to all SEER members. Just like the Year in Review, the Highlights section is not a comprehensive summary and by no means captures all of the topics mentioned by multiple committees. Instead, it serves as a starting point for you, the reader, identifying a few hot topics and what chapters to explore for different discussions and perspectives on those topics.

Environmental Justice

While several committees highlight developments in the area of environmental justice, the 2023 Year in Review includes, for the first time, a stand-alone chapter on environmental justice. The Environmental Justice chapter examines developments at the federal and state levels, as well as action taken by the American Bar Association. These developments include the issuance of a comprehensive Presidential Executive Order on EJ; implementation of the EJ aspects of the Inflation Reduction Act; EPA’s issuance of guidance to distribute billions to support EJ; New York State’s adoption of a groundbreaking environmental justice law; New Jersey’s issuance of first-of-a-kind EJ regulations; judicial rejection of EJ-based claims; and the ABA’s issuance of a “Blueprint to Advance Environmental Justice.”

Ongoing developments related to PFAS regulation and litigation

For the past several years, the topic of per- and polyfluoroalkyl substances (PFAS) was a hot topic among the SEER committees, and the 2023 Year in Review is no different. Collectively, these committees provide a broad perspective of the legal developments around PFAS substances. The most thorough discussion is found in the Pesticides and Chemicals chapter. There, you can find updates ranging from EPA’s proposed Significant New Use Rule (SNUR) on the manufacture of PFAS, certain ongoing litigation related to PFAS, and a snapshot of state PFAS legislation. What could be considered a “must read” for all SEER members is the thorough review and discussion offered in the Transactions and Brownfields Redevelopment chapter. The committee walks readers through how PFAS impacts real estate due diligence, particularly when conducting a Phase I and Phase II Site Assessments. The International Law committee provides information concerning a proposal from the European Chemical Agency (ECHA) to restrict PFAS across Europe. The Science and Technology committee discusses developments in judicial challenges to the EPA’s PFAS health advisory. The Enforcement and Litigation committee kicks off its chapter with a discussion of PFAS developments in federal and state regulation and a discussion around the request for medical monitoring in most PFAS litigation. The committee also notes that “Addressing Exposure to PFAS” is listed in the EPA’s Office of Enforcement and Compliance Assurance’s (OECA) National Enforcement and Compliance Initiatives. Finally, the Food and Agriculture committee highlights several pieces of PFAS legislation in the states.

Climate disclosure laws and regulations

A growing clamor for improved corporate disclosures concerning climate risks, greenhouse gas emissions, and climate adaptation continued in 2023, with California’s climate disclosure laws garnering much attention. The Environmental, Social, Governance, and Sustainability committee provides a very nice summary and overview of California's laws around climate data accountability, financial risk disclosure, and carbon market disclosure. Additionally, the committee offers perspective on additional activity related to the Security and Exchange Commission’s (SEC) proposed rule for The Enhancement and Standardization of Climate-Related Disclosures for Investors. The SEC proposed rule is also discussed by the International Law and Food and Agriculture committees.

Infrastructure needs and development

In the wake of the Bipartisan Infrastructure Bill, several committees provided updates regarding infrastructure investment, assessments, and needs. The Climate Change committee discussed updates to the National Transmission Needs Study from the Department of Energy (DOE), as well as investments DOE is making in other energy infrastructures, such as hydrogen hubs. Many states are also keenly interested in ensuring the resilience of energy systems and took steps in 2023 to enact laws and implement policies with that as an end goal. The Energy committee also highlighted investment in tribal energy infrastructure and provides a thorough discussion of capital available for funding energy infrastructure projects through several pieces of congressional legislation. The Project Development committee gives updates concerning progress across the country in developing electric vehicle infrastructure. The Waste and Resource Recovery committee shares how funding from the Bipartisan Infrastructure Bill is going towards expanding the recycling and waste management infrastructure systems in an effort to build a circular economy.

Greenhouse gas emissions (GHG) legislative and regulatory developments

The Air committee discusses several proposed rules from the U.S. Environmental Protection Agency concerning GHG emissions from motor vehicles, as well as the proposed amendments to the Greenhouse Gas Reporting Rule and the proposed rule setting stricter new source performance standards for GHG emissions from new and modified fossil fuel power plants. The Climate Change committee outlined the proposed rule to implement the newly added section 136 of the Clean Air Act, creating a direct charge for methane emissions. This committee also summarized the Interim Guidance published by the Council on Environmental Quality on considering GHG emissions and climate change when conducting an environmental analysis under the National Environmental Policy Act (NEPA). The Oil and Gas committee discusses a new law in Colorado that sets the state on a path towards eliminating GHG emissions from electricity generation, gas utilities, and transportation. Additionally, the Forest Resources committee includes an update on a proposed rule from the U.S. Forest Service to allow carbon capture and sequestration projects on national forests and grasslands, furthering the Biden Administration’s goal to reduce GHG emissions.

The “Grab Bag” of other interesting developments

  • Artificial intelligence in the legal practice: The Ethics chapter in the 2023 Year in Review includes an interesting discussion on formal guidance issued by the California Bar’s Committee on Professional Responsibility and the use of artificial intelligence (AI) in the legal practice. California is the first state to issue this guidance.
  • Licenses for nuclear power reactors: The Nuclear Law committee provides an update on the developments in issuing new or renewal licenses for nuclear power reactors, noting there are ninety-three operating commercial nuclear power reactors in the U.S.
  • Successful corporate veil piercing: The Superfund committee includes a case on parent-corporation owner liability under CERCLA, in which a federal court found the plaintiff presented sufficient evidence to maintain a corporate veil piercing claim.
  • Presidential proclamations under the Antiquities Act: The Public Lands committee follows several cases from 2023 in which there was a challenge to several presidential proclamations in which President Biden expanded the acreage dedicated to different national monuments. The Indigenous Law committee also highlights one of these cases involving the Bears Ears National Monument and the Grand Staircase Escalante National Monument.
  • Challenges to offshore wind: The Biodiversity committee discusses several legal challenges to federal approvals granted for the development of offshore wind projects. Many of these challenges allege inadequate environmental assessments or consultations regarding the Endangered Species Act. The Oceans and Coasts committee offers additional insight into this topic as well, providing information on several judicial and administrative developments that impact offshore wind development.
  • Water rights and changes to Waters of the United States: In 2023, the U.S. Supreme Court issued a decision in Sackett v. EPA concerning the definition of “waters of the United States.” The Constitutional Law and Water Quality and Wetlands committees each provide a quick overview of the Court’s decision and how the decision was still somewhat divided among the Justices. The Water Quality and Wetlands committee also discusses the regulatory revisions undertaken by the U.S. EPA in response to the Sackett decision.
  • Ownership of Produced Water: In addition to a catalogue of water rights and water resource developments across the U.S., the Water Resources committee includes an interesting case out of Texas involving the first appellate decision in Texas involving the question of ownership of produced water between the owners of the surface estate and an oil and gas lessee.
  • Highlighting the importance of engaging with the regulators during the regulatory development process: Utilizing a case study around an issue that arose for nuclear power facilities, the In-House Counsel committee provides a thorough illustration of the importance of engaging with regulators and participating in the administrative rule-making process.
  • Interagency Working Group on Mining Laws, Regulations, and Permitting: The Mining committee updates SEER members on the release of a final report from the Department of Interior’s Interagency Working Group on Mining Laws, Regulations, and Permitting. The committee highlights some of the central recommendations from the final report.

We hope these highlights entice you to explore the 2023 Year in Review!

The author would like to acknowledge the superb editing job by the students at the University of Tulsa College of Law on this year’s publication.