Don’t Say Climate Change

As Florida’s “Don’t say gay” bill  (SB 1834) occupies the front pages of many media outlets today, one is reminded of an earlier (2012) state legislative exercise in prohibiting engagement with reality: North Carolina’s “Don’t say climate change” bill (H819).Unhappy with the perceived prospect of dampened economic development resulting from the state’s Coastal Resources Commission estimating that the sea level would rise by 39 inches in the next century, the state legislature chose to bury the state’s head in the sand. It passed a bill prohibiting the state’s coastal management and environmental agencies from defining the rate of sea level rise for regulatory purposes for the next four years. (“The Coastal Resources Commission and the Division of Coastal Management of the Department of Environment and Natural Resources shall not define rates of sea-level change for regulatory purposes prior to July 1, 2016.”) 

Well, the climate didn’t care. Based on a 5-year report newly released by NOAA (full NOAA report), the estimate generated by NC’s Coastal Resources Commission has proven to be very much on target. The NOAA report is enlightening, if one wishes to get into the seaweed and look at empirical data and methods for projecting forward. But an easier read can be found in the NC section of the website published by SeaLevelRise.org (here). Among the information presented is a simple graph showing the actual (not projected) increases and decreases in sea level, by year, in Wilmington, NC, measured using tidal gauges. Between 2012, when the NC legislature put the kibosh on defining the rate of sea level rise, and 2016, when doing so was again permitted, the sea level in Wilmington rose by about 4.5 inches (from 6.83 to 11.27 inches higher than the 1950 baseline measurement). The simplest of math tells us that this rate of increase exceeded one inch per year.

A 30 year mortgage loan on a Wilmington, NC or Long Beach Island, NJ shore property purchased today will not be paid off until after 2050, when NOAA is projecting that the East Coast sea level will be 10 to 14 inches higher than it is today. Legislators in many states may not yet be listening, but mortgage lenders surely must be. Maybe even erstwhile buyers, however much they may have been dreaming about a house at the beach.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discuss your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, Nanette Heide, Seth Cooley, David Amerikaner, Jolie-Anne Ansley, Hari Kumar or the attorney in the firm with whom you are regularly in contact.

ESG: – New York City Council Passes a Natural Gas Ban for New Buildings

Last week, New York City’s city council approved a ban on natural gas as a fuel source in newly constructed buildings.

Per reporting from NPR, nearly 40% of carbon emissions in the country — and more than 50% of New York City’s emissions — come from buildings.

The new natural gas ban in newly constructed buildings, by a vote of 40-7, applies to buildings that are up to 7-stories in height by the end of 2023; buildings that are taller than 7-stories have until 2027 to comply.

The bill contains several exceptions, including hospitals, laundromats and crematoriums.

As noted by NPR, the legislation also requires that the Mayor’s Office of Long-Term Planning and Sustainability conduct 2 long term studies. The first will examine the use of heat pump technology and the second is a study on the impact of the new bill on the city’s electrical grid.

Not surprising there has been massive pushback from the natural gas industry against these type of natural gas bans. This pushback, however, has not stopped cities around the country from proceeding with various types of natural gas ban efforts. By way of example, at least 42 cities in California have acted to limit natural gas in new buildings, and Salt Lake City, Utah and Denver, Colorado have also made plans to move toward required electrification in buildings.

Moreover, in Ithaca, New York, the city committed to ending the use of natural gas in all buildings — not just new ones.

Passing this type of natural gas ban for new buildings in New York City, the largest city in the country, marks a significant move for other cities trying to move similar legislation to attempt to cut down carbon emissions in the fight against climate change, joining cities like San Jose and San Francisco that have made similar commitments to reduce emissions.

The efforts to ban natural gas in new buildings in New York City is also being considered on a state wide basis in the New York Senate and House. Senator Brian Kavanagh (D) and Assembly Member Emily Gallagher (D) are working on legislation that would require any buildings constructed in New York after 2023 to be entirely powered by electricity. If their legislation passes, New York would become the first state to ban natural gas in new buildings on a state-wide level.

Triple Bottom Line – By passing this type of natural gas ban in new buildings, focusing on buildings as one of the largest emitters of green house gases,  New York has provided other cities with a leader to attempt to follow if they are so inclined.  As noted, California has been attempting this type of ban on a city by city basis and has passed 42 such bans throughout the state.  If New York state follows the NYC lead it will become the first state to enact such a ban and would mark a bit of a watershed moment in the fight against greenhouse gas emissions showing that buildings can indeed be constructed in this manner if reduced emissions are one of the  key goals attempting to be achieved by the builder/owner or the legislature.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, Nanette Heide, Seth Cooley, David Amerikaner, Jolie-Anne Ansley, Hari Kumar or the attorney in the firm with whom you are regularly in contact.

ESG – State Plastic Bag and Straw Bans – An Update


Earlier this year, Duane Morris Governmental Services published an Alert that discussed states and municipalities across the country banning plastic bags in force. In addition to putting prohibitions on plastic bags, states and localities have also been looking at plastic straw bans as advocates look to reduce plastic pollution as plastics are not biodegradable and cannot break down naturally. It is estimated that Americans use 500 million drinking straws every day. While some legislation only contains plastic straw bans, other legislation loops plastic straws in with other plastic prohibitions.

Connecticut:
Lawmakers in Connecticut introduced HB 6502 earlier this year to prohibit the automatic distribution of single-use plastic straws at certain eating establishments. Specifically, the bill would, effective January 1, 2022, prohibit full-service restaurants from providing customers with single-use plastic straws unless they request it or if the customer has a disability. The legislation defines a “full-service restaurant” as an establishment that primarily services food to be consumed on-site and where an employee does the following: (1) escorts and seats the customer, (2) takes the customer’s food and beverage order after the customer is seated, (3) delivers the order and any requested related items to the customer, and (4) brings the check for the order to the customer’s table.

Violations under the bill would result in a restaurant owner or operator receiving warnings for a first or second violation and a fine for a third violation. The fine would be $25 for each day of the violation, up to $300 in a single year. Enforcement power would belong to a municipal or district health department that has jurisdiction over the restaurant. The plastic straw ban bill additionally does not prohibit municipalities from adopting or implementing ordinances or rules that further restrict a full-service restaurant from providing customers single-use plastic straws, as long as the ordinance or rule does not prohibit a restaurant from providing a single-use plastic straw to someone with a disability.

HB 6502 additionally would phase out the use of particular polystyrene trays and food containers.

Maine:
In March 2021, Maine lawmakers introduced LD 602, which would prohibit the manufacture, sale, and distribution, at retail or wholesale, of single-use plastic straws, splash sticks, and beverage lid plugs made entirely or partly of plastic.

The legislation further prohibits food and eating establishments from providing such items to customers at a point of sale or making them available to customers otherwise. However, food and eating establishments are allowed to provide single-use drinking straws, splash sticks, or beverage lid plugs not made of plastic only upon a customer’s request. The establishment must further collect a fee from the customer of no less than $0.05 for each item provided.

Massachusetts:
Massachusetts lawmakers introduced H. 998 earlier this year to restrict the distribution of single-use plastic straws by prohibiting food establishments from providing such straws to customers unless requested by the customer. H. 998 defines a “food establishment” as an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption, including but not limited to any establishment requiring a permit to operate under the State Food Code.

The bill states that the straw ban shall not include a straw made from non-plastic materials, such as paper, pasta, sugar cane, wood, or bamboo.

In mid-June, lawmakers scheduled a virtual hearing to address the plastic straw ban legislation. However, the bill has not seen any action since.

Mississippi:
This past session, Mississippi lawmakers introduced Senate Bill 2071, which would have prohibited a food establishment from providing a single-use plastic straw unless a consumer requested such a straw.

The bill’s definition of a “food establishment” is comprehensive. The bill’s definition of a food establishment is as follows: all sales outlets, stores, shops, or other places of business located within the State of Mississippi that operate primarily to sell or convey food directly to the ultimate consumer, including any place where food is prepared, mixed, cooked, baked, smoked, preserved, bottled, packaged, handled, stored, manufactured and sold or offered for sale, including, but not limited to, any fixed or mobile restaurant, drive-in, coffee shop, cafeteria, short order cafe, delicatessen, luncheonette, grill, sandwich shop, soda fountain, tavern, bar, cocktail lounge, nightclub, roadside stand, prepared food take-out place, catering kitchen, commissary, grocery store, public food market, food stand or similar place in which food or drink is prepared for sale or for service on the premises or elsewhere, and any other establishment or operation where food is processed, prepared, stored, served or provided for the public for charge.

SB 2071 died in committee in February 2021.

New York:
Two companion bills in New York have been introduced this year related to plastic straws. A207 and S1505 would allow restaurants to only provide single-use plastic straws unless requested by a customer. The legislation otherwise prohibits restaurants from providing customers with single-use plastic straws or single-use plastic stirrers. Further, the bill specifies that restaurants providing compostable straws or stirrers to customers must have access to curbside food waste collection for composting.

The bills define a restaurant as any diner or other eating or beverage establishment that offers food or beverages for sale to the public, guests, members, or patrons, whether consumption occurs on or off the premises.

Neither bill has advanced this session.

Rhode Island:
In July, Governor Daniel McKee signed House Bill 5131/ Senate Bill 155 into law. The new law prohibits a food service establishment from providing a single-use plastic straw to a consumer unless the consumer requests it. The bill will take effect January 1, 2022, and tasks the director of health with promulgating and adopting rules and regulations to enforce the new plastic straw ban.

Rhode Island’s new plastic straw ban defines a “single-use plastic straw” as a single-use, disposable tube made predominantly of plastic derived from either petroleum or a biologically based polymer, such as corn or other plant sources, used to transfer a beverage from a container to the mouth of the person drinking the beverage. Single-use straws, under the bill, do not include a straw made from non-plastic materials, including, but not limited to, paper, pasta, sugar cane, wood, or bamboo.

The bill further defines a “food service establishment” as any fixed or mobile restaurant, coffee shop, cafeteria, short-order cafe, luncheonette, grill, tearoom, sandwich shop, soda fountain, tavern; bar, cocktail lounge, night club, roadside stand, industrial feeding establishment, cultural heritage education facility, private, public or nonprofit organization or institution routinely serving food, catering kitchen, commissary or similar place in which food or drink is prepared for sale or for service on the premises or elsewhere, and any other eating or drinking establishment or operation where food is served or provided for the public with or without charge.

New Jersey:

On Nov. 4, 2020, Governor Murphy signed into law P.L. 2020, c117, which prohibits the use of single-use plastic carryout bags in all stores and food service businesses statewide and single-use paper carryout bags in grocery stores that occupy at least 2,500 square feet beginning May 4, 2022.

Beginning May 4, 2022, New Jersey businesses may not sell or provide single-use plastic carryout bags to their customers. Those businesses that decide to sell or provide reusable carryout bags must ensure that the bags meet the requirements as defined in the law.

The law defines reusable bags as ones that:

  • Are made of polypropylene fabric, PET non-woven fabric, nylon, cloth, hemp product, or other washable fabric; and
  • Have stitched handles; and
  • Are designed and manufactured for multiple reuses.

Under the new law, polystyrene foam food service products and foods sold or provided in polystyrene foam food service products will also be banned as of May 4, 2022, and food service businesses will only be allowed to provide single-use plastic straws by request starting Nov. 4, 2021.

However, the following products will be exempt for an additional two years, until May 4, 2024:

  • Disposable, long-handled polystyrene foam soda spoons when required and used for thick drinks;
  • Portion cups of two ounces or less, if used for hot foods or foods requiring lids;
  • Meat and fish trays for raw or butchered meat, including poultry, or fish that is sold from a refrigerator or similar retail appliance;
  • Any food product pre-packaged by the manufacturer with a polystyrene foam food service product; and
  • Any other polystyrene foam food service product as determined necessary by the DEP.

Triple Bottom Line – While it is often inconvenient to not be in a position to carry goods from a store or restaurant in a plastic bag or to drink from a plastic straw, as more states focus on the burgeoning problem of plastic waste entering the water supply and creating land fill capacity concerns, it is very likely that more and more states will continue to enact some level of plastic bag and plastic straw bans as a means to begin to combat this issue.  Recycling of plastic would also start to begin to address the issue but has not become an economic reality as of yet given the cost to build facilities that could gather and recycle the applicable plastic in bags and straws and similar materials.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Ryan Stevens, the author or Brad A. Molotsky, Nanette Heide, Seth Cooley, David Amerikaner, Jolie-Anne Ansley, Hari Kumar, or the attorney in the firm with whom you are regularly in contact.

ESG – EPA Announces National Recycling Strategy

Earlier this month, the Environmental Protection Agency (EPA) released its National Recycling Strategy.  Interestingly, as they have not always been aligned on issues in the past, the American Chemistry Council’s (ACC) Plastics Division issued the following statement …“America’s Plastic Makers® today welcomed EPA’s National Recycling Strategy, which will help the U.S. achieve its goal of recycling 50% of post-use materials by 2030. EPA’s Strategy also recognizes the potential of advanced (chemical) recycling technology to transform plastic recycling rates in the United States. Advanced recycling is critical for achieving a more circular economy for plastics. Since 2017, 65 advanced recycling projects have been announced that have the potential to divert more than 5 million metric tons of waste annually from landfills.”

“There is significant alignment in what America’s Plastic Makers are calling for in our 5 Actions for Sustainable Change and what EPA has laid out in its National Recycling Strategy. This is particularly evident in the Strategy’s support of increasing domestic markets for recycled material, creating national recycling standards to reduce contamination and measure results more effectively, and enhancing recycling infrastructure.

Further to this end, the ACC called on Congress to further help the EPA implement its strategy and achieve its recycling goals by enacting policies such as a national standard requiring plastic packaging to contain 30% recycled plastic by 2030 and an American-designed producer responsibility system to improve recycling access and collection of all materials.  While some might view this as enlightened self-interest given the 70% no- recycled plastic, this author prefers to focus on the positive attribute of having a 30% recycled content requirement and the positive progress this will represent on this front.

Per the ACC, “consumers want packaging with more recycled plastics material, more than 400 brands have committed to increasing the amount of recycled material in their packaging, and America’s Plastic Makers have set a goal to have 100% of plastic packaging to be reused, recycled, or recovered in the U.S. by 2040. EPA’s Strategy lays the groundwork to make much of this possible.”

Triple Bottom Line – While it is sometimes easy to be cynical about alliances and partnerships in the ESG and sustainability space, in this instance it is nice to see the alignment of the EPA and the ACC regarding increasing recycled content and setting industry wide standards with the ultimate goal to create a 100% goal for recycled, reused or recovered for particular materials.  N

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, Nanette Heide, Jolie-Anne S. Ansley, David Amerikaner,  Seth Cooley, Vijay Bange, Stephen Nichol, or the attorney in the firm with whom you are regularly in contact.

ESG – NJ Single Use Plastic Ban becomes effective as of November 4, 2021

Beginning this coming week, on Thursday, November 4th, restaurants, convenience stores and other food-service businesses are required to comply with a new NJ state law that prohibits them from providing customers with single-use plastic drinking straws unless the customer has specifically requested one.

The new restriction does not impact the sale of beverages that are prepackaged with a plastic drinking straw, such as juice boxes, nor does it apply to the sale of boxes of straws in food stores.

Per NJBIZ, the by-request-only restriction on plastic single-use drinking straws applies to all food-service businesses, including restaurants, convenience stores and fast-food establishments.

Additional restrictions, which take effect May 4, 2022, include bans on single-use plastic carryout bags, single-use paper carryout bags at grocery stores of 2,500 square feet or more, and polystyrene foam food-service products.

For additional information, the state has created a new website at www.nj.gov/dep/plastic-ban-law which includes information on who are “regulated entities”, a Frequently Asked Questions page, a list of establishments and how the law impacts them, and more.

Additionally, the NJ Business Action Center has created a clearinghouse at https://business.nj.gov/bags/vendorclearinghouse to aid businesses in identifying vendors and manufacturers who sell reusable carryout bags permitted by the new law.

Triple Bottom Line – New Jersey joins a growing list of cities, counties and other states who are clamping down on single use plastics as a source of pollution which is exacerbating a growing issue within our sea life as plastics find their way to streams, rivers and oceans, break down and are ingested by the fish we often eat.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, Nanette Heide, Jolie-Anne S. Ansley, David Amerikaner,  Seth Cooley, Vijay Bange, Stephen Nichol, or the attorney in the firm with whom you are regularly in contact.

ESG – NJ BPU awards 165 MW of Community Solar in Yr 2 of Pilot Program

Earlier this week, on October 28, 2021, the New Jersey Board of Public Utilities (“BPU”) approved 105 applications under New Jersey’s Community Solar Energy Pilot Program.  The applications and awards will create 165 megawatts of clean energy – enough energy to power approximately 33,000 homes – available to low-to-moderate income and historically underserved communities. Year 2 of the pilot program represented a significant increase in the amount of power generated (i.e., from 78 MW to 165 MW) and the number of applications seeking to install community solar.

According to Governor Murphy, “our Community Solar Pilot Program is a national model for clean energy equity and environmental justice, This program not only makes solar available to those in historically underserved communities, but also will spur economic growth and create career opportunities for a diverse, more inclusive workforce. Community solar is a key pillar in our commitment to transition New Jersey away from harmful emissions and towards 100% clean energy by 2050.”

A community solar project is a solar array whose output is divided between multiple homes or businesses that want to use renewable energy but don’t have a solar array on-site.

Community solar programs aim to create a more equitable solar market.

According to NJ BIZ, the projects will each allocate a minimum of 51% of their capacity to low- and moderate-income participants and will all be located on landfills, brownfields or rooftops.

Though 105 projects were approved, the NJBPU received 412 applications, representing almost 804 MW, for the second year of the pilot program.

In the pilot program’s first year, the BPU received a total of 252 applications representing more than 650 MW of total capacity, and approved 45 applications providing almost 78 MW in solar energy capacity.

Earlier this month, the BPU announced that it will be moving forward to make the Community Solar Pilot Program permanent.

Triple Bottom Line – New Jersey continues to be a factor in the US solar market place.  Making the community solar pilot program a permanent program will continue to position the state as a leader in solar deployment and per capita renewable energy use.  The power creation represented by the program will likely solidify existing solar jobs  and create new ones to service the demand for installations and service.  Low and Moderate income families will benefit by the cheaper cost of energy given the renewable nature of the deployment.  As the program moves to a permanent status we will continue to keep an eye on the regulations and report back with our findings.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, Nanette Heide, Jolie-Anne S. Ansley, David Amerikaner,  Seth Cooley, Vijay Bange, Stephen Nichol, or the attorney in the firm with whom you are regularly in contact.

 

Governor Murphy Selects 20 Member NJ Council on the Green Economy

Early today, February 25, 2021, Governor Phil Murphy announced his 20 picks to the newly created NJ Council on the Green Economy (“NJCOGE“). 

This Council on the Green Economy and the umbrella organization of the Office of Climate Action and the Green Economy are focused on “building a roadmap for transitioning the workforce into high-quality, family-sustaining clean energy jobs that will provide opportunities for all New Jerseyans” per Governor Murphy.

As announced in the 2021 budget discussions, various state leaders believe that NJ’s recovery from the pandemic will be partly driven by the clean energy economy – one centered around clean power sources and offshore wind and on shore solar.

Governor Murphy’s $44.8 billion plan discussed in his Budget Address on February 23rd calls for $200 million to be invested in an “offshore wind port” in Camden County along the Delaware River. This wind port is intended to serve as a staging area for supply chains related to the growing wind industry and provide a place to ship wind turbines across the country.

Separately, NJ is enjoying a bit of a renaissance in the solar installation arena given its current TREC program.

The 20-members of the NJ COGE are:

Honorary Chair: First Lady Tammy Murphy
Executive Director: Jane Cohen, executive director, Office of Climate Action and the Green Economy
Co-Chair: Shawn LaTourette, acting commissioner, New Jersey Department of Environmental Protection
Co-Chair: Robert Asaro-Angelo, commissioner, New Jersey Department of Labor and Workforce Development
Co-Chair: Joseph Fiordaliso, president, New Jersey Board of Public Utilities
Donnel Baird, founder, BlocPower
Tom Churchelow, president, New Jersey Utilities Association
Francisco Cortes, president, NJ State Veterans Chamber of Commerce and Corporate Advisory Board Member of the Statewide Hispanic Chamber of Commerce New Jersey
Dave Daly, president, PSE&G
Kim Gaddy, environmental justice organizer, Clean Water Action
Aisha Glover, vice president of urban innovation, Audible
Lisa Jackson, former Environmental Protection Agency administrator and vice president of environment, policy, and social initiatives, Apple
Sean Jackson, chief executive officer, Isles
Andrea Jung, president and chief executive officer, Grameen America
John Kennedy, chief executive officer, New Jersey Manufacturing Extension Program
Kevin Lyons, associate professor of supply chain archaeology, Rutgers University
Debra Coyle McFadden, executive director, New Jersey Work Environment Council
Bill Mullen, president, New Jersey Building and Construction Trades Council
Alli Gold Roberts, director of state policy, Ceres
Charlie Wowkanech, president, AFL-CIO

The goal of the NJ COGE will be to provide sustainable energy career options for thousands of NJ workers.

Just this past September, Governor Murphy signed a first of its kind “environmental justice” bill which will focus resources and attention environmentally on many lower-income, minority neighborhoods long plagued by some of the worst pollution in the state according to NJ BIZ.

That measure requires large-scale projects – whether new construction or an expansion to an existing building – that produces heavy pollution in lower-income, typically African American and Latino communities, to report on and consider the local impact.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space.  We would be happy to discussion your proposed project with you.  Contact your Duane Morris attorney for more information.

If you have any questions about this post, please contact Brad A. Molotsky,  (bamolotsky@duanemorris.com), Seth Cooley, Lori Mills, David Amerikaner or the attorney in the firm with whom you are regularly in contact.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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