Environment, Land & Resources

EU Commissioner for Climate Action and Energy Highlights Opportunities for Financing New Economy*

Posted in Air Quality and Climate Change, European Environmental and Public Law

Transparency regarding mitigation and financing rules likely to be key hurdles to overcome in achieving climate goals.

By Rosa Espin, Paul Davies, and Michael Green

The European Commissioner for Climate Action and Energy, Miguel Arias Cañete, recently commented on momentum in the European Union (EU) regarding climate change and the action that countries across the globe need to take to implement the Paris Agreement goals. The Commissioner addressed three main issues:

  • The Paris Agreement and its goals
  • How the EU has maintained the momentum at the recent COP23 UN Climate Change Conference (including establishing what COP24 participants intend to discuss at COP24 this year)
  • What the EU has done to implement the Paris Agreement targets (including the current status of the relevant legislation)

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China’s Ban on Waste Imports Upending Global Recycling Market

Posted in China, Contaminated Properties & Waste

China implements ban on imported waste, stimulating plastic waste-exporting nations to develop alternative manufacturing, consumer products, and recycling strategies.

By Paul Davies, Bridget Reineking, and Andrew Westgate

Following China’s notification to the World Trade Organisation (WTO) in 2017, the country is now phasing in a ban on certain types of waste imports. The new Chinese regulation banning the import of 24 types of waste, including plastics and unsorted paper, came into force on 1 January 2018 and will address major environmental and health issues in China. Continue Reading

German Coalition Talks Hint at Key Elements of German Environmental Policy 2018-2021

Posted in Air Quality and Climate Change, European Environmental and Public Law, Power, Oil, Gas and Minerals

A coalition government would likely focus on energy, transportation, and the automotive industry to meet Paris Agreement targets.

By Joern Kassow and Patrick Braasch


After the 2017 German parliamentary elections, the conservative Christian Democrats (CDU/CSU) and the Social Democrats (SPD) faced difficulties in forming a new government. However, the parties have now agreed on preliminary key terms for the government’s 2018-2021 policy in a 28-page memorandum. The key terms will serve as the basis of formal coalition negotiations, which the parties likely will conclude in February or March 2018. Whether the parties will form a new government at the end of these negotiations still remains to be decided, however, based on the current election results, a so-called “grand coalition” between the two largest parliamentary groups is the most probable outcome. Therefore, the key terms will likely form the cornerstones of the next government’s political agenda.

The memorandum provides insight into German environmental policy, which will have significant impact, particularly on the energy and automotive industries. This blog highlights two key terms of the memorandum, and considers the potential outcome for German energy and automotive industries. Continue Reading

France’s Prime Minister Further Advances New Regulation Simplification Policy

Posted in Environmental Litigation, European Environmental and Public Law

Government must prepare all sectorial bills in accordance with new simplification requirements by the second quarter of 2018.

By Paul Davies and Michael Green*

The French Prime Minister has further emphasised the importance of France’s new regulation simplification policy in an Administrative Circular Letter of January 12, 2018.

Citing the fact that the administrative burden weighing on businesses represents an annual €60 billion, or 3% of the country’s gross domestic product (GDP) alone, the Prime Minister directed that each central administration director (directeur d’administration centrale) draft simplification plans at the level of each ministerial department before the end of Q1 2018. From Q2 2018 onwards, the French government will have to prepare all sectorial bills in accordance with these simplification requirements. The newly created Inter-ministerial Directorate for the Transformation of the Public Sector will review all sectorial bills in close coordination with the General Secretariat of the Government (SGG). Continue Reading

Massachusetts Unveils Three Offshore Wind Farm Proposals

Posted in Power, Oil, Gas and Minerals, Project Siting and Approval

New England wind farms poised to lead the way in utilities converting from fossil fuel to wind generation.

By Tommy Beaudreau, Janice Schneider, and David Amerikaner

The race is on to build the first utility-scale offshore wind farm in the United States (US) on the federal Outer Continental Shelf. In December, three companies — Bay State Wind, Deepwater Wind, and Vineyard Wind — submitted bids in response to the Request for Proposal (RFP) issued by the Massachusetts Electric Distribution Companies (Distribution Companies), in coordination with the Massachusetts Department of Energy Resources, to enter into long-term contracts for offshore wind energy generation off of the coast of Massachusetts. The RFP was issued pursuant to Section 83C of Massachusetts’ Act to Promote Energy Diversity. Under the RFP, the Distribution Companies required developers to submit projects of at least 400 megawatts (MW) of offshore wind power generation, while also considering projects generating up to 800 MW. This initial solicitation is part of a staggered procurement plan, in accordance with Section 83C, to acquire approximately 1,600 MW of aggregate offshore wind nameplate capacity by June 30, 2027.

Each of the submitting wind farm ventures holds a federal lease from the Bureau of Ocean and Energy Management (BOEM) for areas in federal waters 15 to 25 miles offshore. All three bids propose wind farms south of the island of Martha’s Vineyard that would provide 400 MW of power, though some bids include alternate proposals on smaller or larger scales. Each bid also includes storage and transmission proposals, as the RFP required. Continue Reading

Trump Administration Mandates Critical Minerals Development Strategy

Posted in Power, Oil, Gas and Minerals

Interior Department agencies to take immediate steps to jumpstart a plan for promoting US critical mineral production.

By Janice M. Schneider, Tommy Beaudreau, Sara K. Orr, and James D. Friedland

miningUS Interior Department agencies are developing a strategic framework that will advance US critical mineral production. These efforts come on the heels of Executive Order No. 13817, “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals,” which directs the development of a strategy aimed at reducing reliance on foreign sources for critical minerals, such as rare-earth elements, and promoting policies to increase US critical mineral development.

President Trump signed the Executive Order on December 20, 2017, after the release of a new US Geological Survey (USGS) study. The Executive Order finds that “the United States is heavily reliant on imports of certain mineral commodities that are vital to the Nation’s security and economic prosperity” and that this dependence on foreign sources “creates a strategic vulnerability for both [the United States’] economy and military to adverse foreign government action, natural disaster, and other events that can disrupt the supply of these key minerals.” The Executive Order also finds that “despite the presence of significant deposits of some of these minerals across the United States,” the domestic mining industry is hindered by the lack of accessible geological and geophysical data, permitting delays, and the potential for protracted litigation.

The day after the Executive Order was announced, Secretary of the Interior Ryan Zinke issued Secretarial Order No. 3359, “Critical Mineral Independence and Security,” to implement the presidential directive. The Secretarial Order directed Interior Department agencies to take the following actions. Continue Reading

France Bans Research and Exploitation of Fossil Fuels

Posted in Environmental Litigation, European Environmental and Public Law, Power, Oil, Gas and Minerals

France announces voluntary adoption of a new law amending the Mining Code to meet Paris Agreement commitments.

By Paul Davies and Michael Green*


After lengthy legislative debates, the amended Mining Code (MC) now provides that, as a matter of principle, the research and exploitation of coal, and of all liquid or gaseous hydrocarbons, shall be gradually phased out and then banned (Art. L.111-6§1). If liquid or gaseous hydrocarbons are “related” to deposits of substances not affected by the ban, then the title holder cannot exploit these either and must leave them untouched (Art. L.111-6§2). One exception to the ban is “mine gases” (i.e., gases located in formerly exploited coal seams for which recovery requires only necessary intervention to maintain mining cavities under low pressure for suctioning such gases) (Art. L.111-5).

To assist with the phase out and ban, the government has introduced measures to help title holders transition to an alternative use. As such, four years prior to the expiration of their permits, affected title holders may also apply to convert their permits to allow the exploitation of other substances or other uses of the sub-soil. In order to qualify for permit conversion, title holders must demonstrate both that: (i) the new substance or new use is “related” to the hydrocarbons present in the deposit; and (ii) the pursuit of the exploitation of such deposit is necessary to secure its profitability (Art. L.111-7). Continue Reading

European Commission Releases a New Plastics Strategy

Posted in Air Quality and Climate Change, Contaminated Properties & Waste, European Environmental and Public Law

The ambitious proposal aims to ensure all plastic packaging is reusable or recyclable by 2030.

By Paul Davies, Michael Green and Betta Righini


Amid increasing scrutiny of plastic waste, the European Commission (the Commission) has released a for plastics in a circular economy (the Strategy). The Strategy builds upon the European Union’s (the EU’s) prior measures to reduce plastic waste, such as the Plastic Bags Directive, which has significantly reduced plastic bag use throughout several Member States. However, in order to support the Commission’s “vision for Europe’s new plastics economy,” the Strategy sets a number of more far-reaching and ambitious goals. Continue Reading

Interior Department Excludes Incidental Take Liability Under the Migratory Bird Treaty Act

Posted in Power, Oil, Gas and Minerals, Project Siting and Approval

By Janice Schneider, Sara Orr, Jennifer Roy and James Erselius

Reversing a long-standing federal legal position, the US Interior Department recently stated that the Migratory Bird Treaty Act (MBTA) does not impose liability for the incidental take of protected birds. The 41-page Solicitor’s Opinion (number M-37050) withdraws and replaces a prior Solicitor’s Opinion (number M-37041), issued during the Obama administration. The prior Solicitor’s Opinion had interpreted the MBTA to prohibit “incidental take,” and concluded that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental take and killing.” The new legal position means that the Trump administration will not consider the non-directed and unintentional death of birds by energy companies and other businesses in the course of their otherwise lawful activities to be a crime under the MBTA.

The MBTA, enacted in 1918, prohibits the take of over 1,000 species of birds, and the take of any migratory bird’s parts, nest, or eggs without a permit. The regulations define take as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect” or to attempt any of these acts. Violations of the MBTA are criminal offenses, and courts have held that the MBTA imposes strict liability, regardless of intent. Courts have debated, however, whether the scope of strict liability under the MBTA extends to the incidental take of migratory birds resulting from otherwise lawful activities. As discussed in a previous post, the Fifth Circuit joined courts in the Eighth and Ninth Circuits in ruling that the MBTA does not prohibit incidental take. In contrast, other circuits, such as the Second and Tenth, have extended liability under the MBTA to incidental take in at least some instances. Continue Reading