The initiative has the potential to significantly extend liability for certain Swiss companies in relation to abuses of human and environmental rights.

By Paul A. Davies and Michael D. Green

Since 1891, Swiss citizens have been able to request changes to the Swiss constitution through popular initiatives. Currently, if an initiative is put forward by a group of at least seven citizens, and subsequently wins the support of 100,000 signatories within 18 months, a nationwide referendum is potentially triggered. However, before the referendum takes place, Swiss legislators may propose a compromise position to the initiative. This compromise proposal will become law if the initiative’s sponsors agree to it; otherwise, the original initiative is submitted for a national referendum.

The Responsible Business Initiative (KVI), put forth in 2016, is one such popular initiative. As currently worded, the KVI sets out due diligence requirements for Swiss-based companies with respect to environmental and human rights, both in Switzerland and abroad. Notably, it also proposes that Swiss-based companies be held liable for environmental and human rights harms caused anywhere within their global supply chain.

Do European Commission ambitions signal a new, more sustainable direction of travel for the EU and globally?

By Paul Davies and Michael Green

On 27 May 2020, the European Commission (the Commission) announced a €750 billion stimulus fund aimed at helping the economies of the EU member states recover from the shock sustained as a result of the COVID-19 pandemic. Through this fund, officially titled Next Generation EU, the Commission hopes to “build back better”, through channels that contribute to a greener, more sustainable and resilient society. When combined with the proposed €1.1 trillion EU budget for the next seven years, the Commission’s wider recovery plan comes to a total of €1.85 trillion.

The plan follows the Commission’s Green Deal, which was announced in December 2019. The Green Deal was proposed as a framework of legislation from which the bloc could achieve its goal of net-zero greenhouse gas emissions by 2050. To decarbonise the economy, the Green Deal envisages government spending and public initiatives worth €100 billion per year, according to the Commission’s European Green Deal Investment Plan. Discussions surrounding the Green Deal had gained traction prior to the COVID-19 pandemic, as well as considerations on how best to tackle the social and economic issues raised by the transition to a carbon-free economy.

A recent federal court decision in Utah renews the question of whether defeat device and tampering prohibitions constitute “an emission standard or limitation”.

By Arthur F. Foerster

A non-profit citizen group, Utah Physicians for a Healthy Environment, is seeking nearly US$1.5 million in costs and attorneys’ fees after successfully prosecuting a citizen action in Utah federal court for violations of the defeat device and tampering provisions of the Clean Air Act (CAA, or the Act).[i] Section 304 of the CAA authorizes persons to enforce compliance with “an emission standard or limitation” or an “order” issued by the US Environmental Protection Agency (EPA) or a state with respect thereto, after notice is provided and so long as the EPA or state is not already litigating an action to require compliance with the standard, limitation, or order.[ii]

Economic operators are facing a number of practical and legal questions as EU and national authorities work to facilitate the supply of biocidal products.

By Cesare Milani and Federica Rizzo

The COVID-19 crisis has increased demand for disinfectants, hand cleaners, and other biocidal products, resulting in general shortages across most EU Member States. Many companies are currently working to increase the supply of such products and are considering shifting production.

EU companies and non-EU economic operators (through their EU importers) and regulatory authorities are striving to make fast-track procedures fully available via derogation to the lengthy pre-market authorisation procedures established under the EU Biocidal Products Regulation (BPR) and other relevant regulations. In this respect, many questions have arisen surrounding: (i) which legislation applies; (ii) what is the competent regulatory body; and (iii) how to deal in practice with the legal and technical requirements in a timely and cost-effective manner.

Decision concludes a permit is required if such discharges are the “functional equivalent” of a direct discharge to navigable waters.

By Janice Schneider, Maria Hoye, and Ethan Prall

On April 23, 2020, the Supreme Court of the United States issued an opinion in County of Maui, Hawai’i v. Hawai’i Wildlife Fund, holding that the Clean Water Act (CWA) requires a permit for certain discharges through groundwater. Specifically, a permit is required if there is a “direct discharge” from a point source to navigable waters, or if a given discharge is the “functional equivalent” of a direct discharge when that discharge passes through groundwater before reaching navigable waters.[1]

In establishing this new functional equivalence test, the Court rejected both the argument that allowing any regulation of discharges through groundwater would expand the CWA’s scope without warrant, and the contrary argument that every discharge that is “fairly traceable” from a point of discharge to navigable waters must be regulated under the CWA. When applying the test, the Court explained that several factors — most centrally, time and distance — are relevant to determining whether a discharge through groundwater is the functional equivalent of a direct discharge.

The EU Commission aims to enshrine into law the 2050 climate-neutrality target and has taken further steps to establish a unified EU “green” classification system.

By Paul A. Davies, Michael D. Green, and Federica Rizzo

The European Green Deal, presented on 11 December 2019, provides a roadmap with actions aimed at boosting the efficient use of resources and the circular economy, decarbonising the energy sector, and investing in environmentally friendly technologies.

On 4 March 2020, the EU Commission (the Commission) published its Proposal for a Regulation of the European Parliament and of the Council establishing the framework for achieving climate neutrality and amending Regulation (EU) 2018/1999 (the proposed European Climate Law). This year, the Commission will also present measures to increase the EU’s greenhouse gas emission reduction target for 2030, which will require additional investments of €260 billion a year by 2030, and to promote a climate-neutral EU by 2050.