On December 17, the Fifth Circuit’s stay of the Occupational Safety and Health Administration (OSHA) COVID-19 rule for employers with 100 or more employees was dissolved. While it is likely there will be petitions for the Sixth Circuit to rehear the case en banc, and there have been appeals filed in the U.S. Supreme Court, there is no stay currently in place.

OSHA had previously announced that it would “stand down” during the Fifth Circuit’s stay. The rule’s December 5th deadline to put a written vaccination or “mask and test” policy in place has already passed. The December 17th announcement read:

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the Emergency Temporary Standard (ETS). To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

OSHA is currently intending to enforce this standard commencing on January 10, 2022, barring another stay. In order to be in compliance with the standard on January 10th, some work toward developing a written policy will be needed to move forward.

Please contact Laura Riese or a Davis Graham Partner if you have any questions or if we can assist you with any legal needs.

On November 15, 2021, President Biden signed the Infrastructure Investment and Jobs Act, Public Law No: 117-58, a piece of bipartisan legislation known for months as the “Infrastructure Bill” (“Infrastructure Act”). The Infrastructure Act appropriates $1 trillion to improve and modernize the United States’ infrastructure. Among its many legislative priorities, the Infrastructure Act contains provisions relating to carbon capture, utilization, storage, and transportation infrastructure, conventional oil and gas development, critical minerals, and existing mining communities.

Carbon Capture, Utilization, Storage, and Transportation Infrastructure – Division D, Title III, Subtitle A

The Infrastructure Act includes numerous provisions related to carbon capture, utilization, storage, and transportation infrastructure; Division D, Title III, Subtitle A is entirely devoted to these issues.

In the Infrastructure Act, Congress makes several policy findings to support funding for carbon capture projects, including:

• “carbon capture and storage technologies are necessary to reduce hard-to-abate emissions from the industrial sector,” § 40301(2);
• “carbon removal and storage technologies, including direct air capture, must be deployed at large-scale in the coming decades to remove carbon dioxide directly from the atmosphere,” § 40301(3); and
• “carbon dioxide transport infrastructure and permanent geological storage are proven and safe technologies with existing Federal and State regulatory frameworks,” § 40301(6).

Congress also suggests that, with respect to new carbon dioxide transportation infrastructure, each state should consider treating the infrastructure as pollution control devices under state law and establishing a waiver of ad valorem and property taxes for the infrastructure for at least 10 years. §40301(8).

Class VI Permitting

Section 40306(b) authorizes appropriations of $5,000,000 per year from 2022-2026 for permitting of Class VI wells for the injection of carbon dioxide for the purpose of geologic sequestration in accordance with the requirements of the Safe Drinking Water Act. This section also establishes State permitting program grants to grant funding to States to “defray the expenses of the State related to the establishment and operation of a State underground injection control program.” § 40306(c)(2). A total of $50,000,000 per year from 2022-2026 is appropriated for the State grant program.

Geologic Carbon Sequestration on the Outer Continental Shelf

Section 40307 amends the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1337(p)(1), to authorize the Secretary of the Interior to grant a lease, easement, or right-of-way on the outer Continental Shelf for activities that “provide for, support, or are directly related to the injection of a carbon dioxide stream into sub-seabed geologic formations for the purpose of long-term carbon sequestration.” Section 40307 also amends OCSLA, 43 U.S.C. § 1331, to incorporate definitions of “carbon dioxide stream” and “carbon sequestration.”

Elsewhere in the Infrastructure Act, Section 40343 amends OCSLA, 43 U.S.C. 1337(p)(1)(C), to authorize the Secretary of the Interior to grant a lease, easement, or right-of-way on the Outer Continental Shelf for activities that produce or support “storage” of energy from sources other than oil and gas.

Section 40307(d) directs the Secretary of the Interior to develop regulations to implement the amendments to the OCSLA related to carbon sequestration.

Carbon Utilization Program

Section 40302 amends Section 969A of the Energy Policy Act of 2005 (“EPAct”), 42 U.S.C. § 16298a, and directs the Secretary of Energy to develop a program to provide grants to states, local governments, and public utilities and agencies to procure and use commercial or industrial products that (i) use or are derived from anthropogenic carbon oxides; and (ii) demonstrate significant net reductions in lifecycle greenhouse gas emissions compared to incumbent technologies, processes, and products.

Carbon Storage Validation and Testing

Section 40305 amends EPAct, 42 U.S.C. § 16293, to direct the Secretary of Energy to establish a large-scale carbon storage commercialization program. Under this program, the Secretary would provide funding for the development of new or expanded commercial large-scale carbon sequestration projects and associated carbon dioxide transport infrastructure, including funding for the feasibility, site characterization, permitting, and construction stages of project development.

The Secretary must establish an application process for projects at any stage of development to receive funding. In selecting projects for funding, the Secretary must give priority to projects with substantial carbon dioxide storage capacity or projects that will store carbon dioxide from multiple carbon capture facilities. Section 40305 appropriates $2.5 billion for this program.

Carbon Dioxide Transportation Infrastructure Finance and Innovation Program

Section 40304 amends EPAct, 42 U.S.C. § 16181 et seq., to establish the Carbon Dioxide Transportation Infrastructure Finance and Innovation program or “CIFIA program” under EPAct. § 40304(a). The Infrastructure Act directs the Secretary of Energy to establish a transportation infrastructure finance and innovation program to provide grants or federal credit instruments to private entities for pipelines, shipping, rail, or other infrastructure to transport carbon dioxide captured from anthropogenic sources or air.

Projects are eligible for financing under the CIFIA program if: (1) the entity planning a project submits a letter of interest prior to submission of its application; and (2) the project meets the statute’s criteria. § 40304 (§ 999B). The project proponent must be creditworthy and have a reasonable prospect of repaying any Federal credit instrument. § 40304 (§ 999B(b)(1)). A project is eligible to seek funding under this program if the eligible project costs are reasonably anticipated to equal or exceed $100 million. § 40304 (§ 999B(b)(4)). In addition, to be eligible under the CIFIA program, an applicant must show a “reasonable expectation that the contracting process for construction of the project can commence by not later than 90 days after the date on which the Federal credit instrument or grant is obligated for the project under the CIFIA program.” § 40304 (§ 999B(b)(8)). Further, financing is available only for projects that exclusively use iron, steel, and manufactured goods produced in the United States. § 40304 (§ 999B(e)).

The Secretary is directed to give priority in selecting projects to receive credit assistance to projects that: (A) are large-capacity, common carrier infrastructure, (B) have demonstrated demand for use of the infrastructure by associated projects that capture carbon dioxide; (C) enable geographic diversity in associated projects that capture carbon dioxide; and (D) are sited within, or are adjacent to, existing pipeline or other linear infrastructure corridors to minimize environmental disturbance and other siting concerns. § 40304 (§ 999B(c)(2)).

Federal credit assistance under the CIFIA program is only available for projects that received a decision or categorical exclusion under the National Environmental Policy Act (NEPA). § 40304 (§ 999B(d)(2)). Provision of credit assistance under the CIFIA program also does not relieve an applicant of any state and local legal requirements. § 40304 (§ 999F).

Carbon Removal

Section 40308 amends EPAct, 42 U.S.C. § 16298d, to direct the Secretary of Energy to establish a program to fund direct air capture projects that will contribute to the development of four “regional direct air capture hubs.” Such hubs will be networks of direct air capture projects, potential carbon dioxide utilization off-takers, connective carbon dioxide transport infrastructure, subsurface resources, and sequestration infrastructure located within a region, which have capacity to capture and sequester, utilize, or sequester and utilize at least 1 million metric tons of carbon dioxide from the atmosphere annually.

The Secretary will select projects in regions with existing or recently retired “carbon-intensive fuel production or industrial capacity.” Two regional direct air capture hubs must be located in “economically distressed communities in the regions of the United States with high levels of coal, oil, or natural gas resources.” Priority will be given to projects that are likely to create opportunities for skilled training and long-term employment to the greatest number of residents of the region.

Within 180 days of enactment of the Infrastructure Act, the Secretary of Energy must solicit applications for funding of eligible direct air capture projects and must make selections based on these applications within three years. The Secretary may make grants, or enter into cooperative agreements or contracts, with selected projects to accelerate commercialization of, and demonstrate the removal, processing, transport, sequestration, and utilization of, carbon dioxide captured from the atmosphere.

Carbon Capture Technology Program

Section 40303 amends Section 962 of EPAct, 42 U.S.C. § 16292, to expand a carbon capture technology program to include a “front-end engineering and design program for carbon dioxide transport infrastructure necessary to enable deployment of carbon capture, utilization, and storage technologies.” Congress allocated $100,000,000 for 2022-2026 to fund this program.

Conventional Oil and Gas Development

The Infrastructure Act establishes a categorical exclusion under NEPA for gathering lines on federal and Indian lands. The Infrastructure Act also prioritizes the plugging and abandonment of orphaned oil and gas wells on both federal and nonfederal lands. Further, it calls for a study of the impacts on President Biden’s decision to revoke the permit for the Keystone XL Pipeline.

Statutory Categorical Exclusion for Gathering Lines on Federal and Indian Lands – Division A, Title I, Subtitle C

Section 11318 creates a categorical exclusion under NEPA for certain gathering lines on federal or Indian land. This categorical exclusion is aimed at reducing flaring of natural gas from oil and gas wells on federal and Indian lands resulting from lack of infrastructure.

Section 11318 provides that issuance of a sundry notice or right-of-way for a gathering line located on federal or Indian land and services oil or gas wells may be considered “to be an action that is categorically excluded . . . for the purposes of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).” § 11318(b)(1). Notably, Section 11318 defines “federal land” as any land owned by the United States but that is not part of the National Park System, the National Wildlife Refuge System, the National Wilderness Preservation System, or a wilderness study area within the National Forest System or Indian land. § 11318(1).

A gathering line must meet certain criteria to be eligible for the categorical exclusion. First, the gathering line and associated field compression or pumping unit must be located within federal or Indian land for which an approved land us plan or environmental document prepared pursuant to NEPA “analyzed transportation of oil, natural gas, or produced water from 1 or more oil or gas wells” in that land as a reasonably foreseeable activity. § 11318(b)(1)(A). Second, the gathering line must be located near or within an existing corridor for a right-of-way or existing disturbed area. § 11318(b)(1)(B). Finally, the gathering line must reduce the amount of methane flared, vented, or unintentionally emitted from the land or reduce the vehicle traffic that would otherwise service the land. § 11318(b)(1)(C).

Orphaned and Idled Wells on Federal, Tribal, State, and Private Lands – Division D, Title VI

The Infrastructure Act amends the current program for orphaned well site plugging, remediation, and restoration in Section 349 of EPAct, 42 U.S.C. § 15907. Compared to EPAct, Section 40601 expands this program’s responsibilities and addresses environmental and public health concerns related to orphaned wells. Congress views this program as part of methane reduction efforts.

Section 40601 defines an “orphaned well” on federal or Tribal land as a well (1) “that is not used for an authorized purpose, such as production, injection, or monitoring” and (2) for which an operator cannot be located, the operator is unable to plug the well and to remediate and reclaim the well site, or that is within the National Petroleum Reserve—Alaska. On state or private lands, an “orphaned well” has the meaning defined by the particular state or whatever term the state uses to describe a well eligible for plugging, remediation, and reclamation.

Section 40601 calls for the establishment of a federal program to address orphaned wells on lands managed by the Department of the Interior and Forest Service. Section 40601 directs the Secretary of the Interior to establish a program to plug, remediate and reclaim orphaned wells on federal lands within 60 days of the Infrastructure Act’s enactment date. The program must:

• Institute a method for identifying orphaned wells and associated pipelines, facilities, and infrastructure on federal land, § 40601(b)(2)(A)(i);
• Rank those wells for priority based on public health and safety, potential environmental harm, and other subsurface impacts, § 40601(b)(2)(A)(ii);
• Distribute funding for plugging, remediating, and reclaiming the orphaned wells, associated facilities, and surrounding environment, § 40601(b)(2)(B);
• Attempt to identify persons responsible for the orphaned well and obtain reimbursement for the associated remediation and reclamation, § 40601(b)(2)(D);
• Measure, estimate, and track the emissions of methane and contamination of groundwater or surface water associated with the orphaned wells, § 40601(b)(2)(E); and
• Address the disproportionate burden of adverse health or environmental effects of orphaned wells on communities of color, low-income communities, and Tribal and indigenous communities, § 40601 (b)(2)(F).

Similarly, Section 40601 requires the Secretary of Interior to establish a program to allocate grants to Indian Tribes for plugging, remediating, and reclaiming orphaned wells on Tribal land. § 40601(d)(1). Alternatively, a Tribe may request that the Secretary administer and carry out plugging, remediation, and reclamation activities in lieu of a grant. § 40601(d)(1).

With respect to orphaned wells on state and private lands, Section 40601 directs the Secretary of Interior to offer states grants as large as $5 million to fund plugging, remediation, and reclamation of orphaned wells. § 40601(c)(1) and (c)(3). These grants may be used to track methane emissions and contaminated ground or surface water associated with the orphaned wells, remediate and restore the surrounding habitat, address any adverse health or environmental effects of orphaned wells, and publish information related to the state’s use of the funds on a public website. § 40601(c)(2)(A). States have one year from the date of receipt to use such funds. § 40601(c)(3)(C).

Importantly, Section 40601 does not absolve the owner or operator of an orphaned well of any potential liability. Sec. 40601(g)(3).

Finally, Section 40601 directs the Secretary of Interior to submit a report annually to select Committees at the Senate and the House of Representatives describing the inventory of orphaned wells and wells at risk of being orphaned on Federal, Tribal, and State land, the methane and other gasses emitted from orphaned wells, and the emissions reduced as a result of plugging and reclaiming the wells. § 40601(f). The report shall include the number of jobs created and saved due to this Section and the acreage of land restored. § 40601(f).

Section 40601 also directs the Secretary of the Interior to periodically review all idled wells on federal land and to reduce the inventory of idled wells on federal land. § 40601(b)(3)(B). Notably, Section 40601 defines “idled well” as a well “that has been nonoperational for not fewer than four years” and “for which there is no anticipated beneficial future use.” With this definition, Congress escalated the timeframe in which a well is considered “idled.” In EPAct, Congress had defined an idled well as one that has been nonoperational for at least seven years. See 42 U.S.C. § 15907(e)(1) (2020).

Keystone XL Pipeline – Division D, Title IV, Subtitle C

Section 40434 addresses the impacts of President Biden’s decision in Executive Order No. 13,990 (Jan. 20, 2021) to revoke the Keystone XL Pipeline permit. Section 40434 directs the Secretary of Energy to conduct a study to review the total number of jobs lost, and the impact on consumer energy costs projected to result, as a direct or indirect result of Executive Order No. 13990 . This study shall address the projected impacts over a ten-year period, beginning on January 20, 2021 (the date the Executive Order was issued). § 40434. The Secretary of Energy is required to submit the results of this study to Congress no later than 90 days after the date of enactment of the Infrastructure Act. § 40434.

Critical Minerals and Mining Community Resilience

The Infrastructure Act includes provisions related to critical minerals and the mining sector in general, as well as the rehabilitation of abandoned mine lands and the use of former mining sites to promote renewable energy development. The Infrastructure Act adds new provisions to various statutes that govern energy and mining, as well as public lands and public lands agencies, reflecting the United States’ growing understanding of the importance and intersectionality of issues related to economic opportunity for historic mining communities, the energy transition and securing critical mineral supply chains, which broadly implicate national security.

The bulk of the provisions of the Infrastructure Act concerning minerals or mining reside in Division D – Energy, with the most notable provisions found in in Title II (Supply Chains for Clean Energy Technologies), Title III (Fuels and Technology Infrastructure Investments), and Title VII (Abandoned Mine Land Reclamation). Corresponding funding appropriations are in Division J – Appropriations.

Critical Minerals and Supply Chains

The Infrastructure Act contains a number of provisions aimed at increasing domestic production of rare earth elements and critical minerals to promote domestic supply chains and to alleviate the economic and national security concerns associated with the United States’ dependence on foreign suppliers.

On the technical side, Section 40201 allocates $320 million to the U.S. Geological Survey (USGS) for the Earth Mapping Resources Initiative (Earth MRI), a program designed to support above- and underground mapping of mineral resources across the United States, including the identification of abandoned mine land and mine waste, which is thought to be an important potential source of critical minerals. The results of Earth MRI will be made available to the public.

Section 40205 allocates an additional $167 million to USGS to establish an Energy and Minerals Research Facility in partnership with an academic institution. Funding of $140 million has been allocated to support the design, construction, and build-out of a Rare Earth Demonstration Facility, which will endeavor to demonstrate the commercial feasibility of extracting rare earth elements from acid mine drainage, mine waste, and “other deleterious material,” which could theoretically include coal ash.

Additionally, Sections 40207 and 40208 contain provisions designed to support the development of a domestic battery supply chain by allocating: $3 billion to fund grants for advanced battery material processing demonstration and production projects; $3 billion to fund grants for advanced battery manufacturing and recycling projects; $125 million to fund federal, state, and retail seller grants to support recycling and critical mineral recovery from smaller rechargeable (less than 5 kg) and non-rechargeable (less than 2 kg) batteries; and $200 million to fund grants related to recycling and finding “second use” applications for electric vehicle batteries. Section 40210 also creates grant programs within the National Science Foundation to support basic research on domestic critical minerals mining and recycling, with an “end to end” life cycle approach, examining the entire production and supply chain for critical minerals.

On the policy side, Section 40210(c) establishes a Critical Minerals Subcommittee of the National Science and Technology Council to advise the federal government on appropriate policies and procedures, and identify opportunities, relating to the exploration for, and production and recycling of, critical minerals, emphasizing solutions that can be implemented domestically or in cooperation with allies and trading partners. The Critical Minerals Subcommittee will also examine workforce issues associated with the critical minerals supply chain.

Other provisions of the Infrastructure Act aim to address obstacles to the development of U.S. critical mineral supply chains by improving the federal permitting process for mining projects on federal public lands. Earlier this year, large scale mining was added as an eligible sector for the FAST-41 permit streamlining program, but given the administration’s policy positions toward major mining projects to date, it is questionable whether any mining projects will actually be granted access to the FAST-41 program. In addition, because most critical minerals are co-located with, or byproducts of, more major mineral commodities, FAST-41 is perhaps too blunt of an instrument to try to prioritize critical minerals projects specifically.

Section 40206 embodies many of the same principles as FAST-41, mandating the Bureau of Land Management (BLM) and the U.S. Forest Service (USFS) to conduct a thorough self-assessment of their minerals permitting procedures; engage in more timely collaboration with government, tribal, and private stakeholders, with concurrent, rather than sequential, consultation processes; develop best practices for communication and dissemination of information to the public; and develop firmer timelines and quantifiable performance metrics to assess adherence to each agency’s performance goals. Within one year of the Infrastructure Act’s passing, the Secretary of the Interior and the Secretary of Agriculture must report to Congress on what additional measures would increase the timeliness of critical minerals project permitting, including, possibly, the institution of cost recovery paid by permit applicants as a means to offset the costs of additional training for personnel involved in the permitting process.

Promoting Renewable Energy Development and Resilient Mining Communities

Other sections of the Infrastructure Act are geared toward revitalizing mining communities and finding new uses for historic mine sites. Section 40701 allocates funding of nearly $11.3 billion for states and Indian tribes to reclaim abandoned coal mines through the Abandoned Mine Reclamation Fund. Priority will be given to programs that employ current and former employees of the coal industry. As a concession to the coal industry, the Abandoned Mine Reclamation Fee payable by miners on tons of coal produced has been reduced by 20%, while the authorization to continue collecting the fee has been extended to 2034. § 40702. Section 40704 establishes a new $3 billion fund to support reclamation of abandoned hardrock mining sites on federal, state, tribal, local, and private land. Funds awarded under the hardrock program cannot be used to satisfy obligations under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

Adding to efforts to address physical conditions at mine sites, and the impacts on surrounding communities, Section 40342 provides for the establishment of up to five “clean energy” demonstration projects on current and former coal and hardrock mining sites, two of which must be solar projects. “Clean energy” is defined broadly to include the following technologies: solar; micro-grids; geothermal; direct air capture; fossil-fueled electricity generation with carbon capture, utilization, and sequestration; energy storage, including pumped storage hydropower and compressed air storage; and advanced nuclear technologies. The primary factors to be considered in evaluating project candidates: are job creation at the project site (particularly in economically distressed areas and with respect to dislocated workers who were previously employed in manufacturing, coal power plants, or coal mining) and throughout the supply chain, reducing carbon intensity and greenhouse gas emissions, technological innovation and commercial deployment potential, reducing the cost of generated or stored energy, and reducing the project time from permitting to completion. $500 million has been allocated to support the demonstration projects.

On November 2, 2021, the Environmental Protection Agency (“EPA”) proposed a suite of New Source Performance Standard (“NSPS”) program rules that, if adopted, will have a significant impact on the upstream and midstream oil and gas sectors, reversing some Trump administration rules that had reversed Obama administration rules regulating volatile organic compound (“VOC”) and methane emissions from the sector.

EPA’s broad proposal is comprised of three distinct pieces. First, the proposal will update the existing NSPS Subpart OOOOa (“Quad Oa”) rules to address a June 30, 2021 Congressional Joint Resolution adopted under the Congressional Review Act, which disapproving the Trump administration’s 2020 Policy Rule. The Trump-era Policy Rule rescinded VOC and methane emission standards for transmission and storage sectors and rescinded methane emission standards for the production and processing sectors. With passage of the resolution and EPA’s proposed revisions, it is as though the 2020 Policy Rule never took effect. The methane standards adopted prior to the 2020 Policy Rule will be reinstated. Ultimately, the Quad O/Oa proposals are expected to include the original 2016 methane standards for applicable production and processing oil and gas segments.

Second, EPA proposed a new subpart, Subpart OOOOb (“Quad Ob”), that will impact new, modified, and/or reconstructed sources in the oil and natural gas sector. The applicability date of the rules for these sources will be determined by the publication of the final rule in the Federal Register. NSPS Quad Ob will create several new requirements at applicable sites, including:

• Storage Vessels: EPA’s proposal changes the NSPS applicability for a storage vessel to depend on the VOC emissions from the storage tank battery. For new, modified, and reconstructed storage tanks or tank batteries with a PTE of 6 or more tons of VOC per year, owners and operators would be required to reduce VOC and methane emissions by 95 percent. This proposal will likely expand the number of storage vessels subject to NSPS applicability and requirements.
• OGI Inspections: EPA’s proposal would require more frequent optical gas imaging (“OGI”) inspections to find and fix fugitive emissions at applicable facilities. EPA’s proposal would require quarterly OGI inspections at facilities with methane emissions greater than 8 tons per year and semi-annual OGI inspections at facilities with methane emissions greater than 3 tons per year. That said, EPA has requested comment to evaluate whether it should shift from the proposed quarterly OGI monitoring to a monitoring program using alternative measurement technologies.
• Well Liquids Unloading: EPA’s proposal also includes an increase in well liquids unloading control and best management practices. The proposal would require that well liquids unloading activities result in zero emissions, unless technically infeasible or unsafe. If an operator can demonstrate technical infeasibility or safety issues, the well liquids unloading activities would be subject to the use of best management practices. Importantly, although included in Quad Ob (as applicable to new, modified and/or reconstrued facilities), EPA notes that any instance of an existing facility conducting a well unloading activity would be considered a modification. Accordingly, from the date of that unloading activity, an existing facility would be subject to these proposed requirements.
• Pneumatic Controllers: EPA’s proposal also targets pneumatic controllers, requiring new and existing sources to use “zero-emission” pneumatic controllers.
• Flaring Requirements: EPA’s proposal prohibits flaring of natural gas unless the operator shows that a gas sales line is not accessible. EPA does not clearly define what determines whether a sales line is “accessible,” but it solicits comment on this question.

Third, EPA has proposed NSPS Subpart OOOOc (“Quad Oc”), which would create emission guidelines that target existing oil and natural gas sources. These emission guidelines are intended to inform state regulators regarding the development, submittal, and implementation of state specific plans that meet or exceed emission reduction standards for oil and natural gas facilities. The Quad Oc requirements largely mirror the Quad Ob proposal, with different applicability thresholds. EPA’s Quad Oc proposal includes:

• Storage Vessels: For existing storage tanks or tank batteries with a PTE of 20 or more tons of methane per year, owners and operators would be required to reduce VOC and methane emissions by 95 percent.
• OGI Inspections: EPA’s proposal would require more frequent optical gas imaging (“OGI”) inspections to find and fix fugitive emissions at existing facilities. For well sites, EPA creates three tiers of inspection frequencies. For well sites with less than 3 TPY, EPA’s proposal would require verification of the facility’s actual emissions. For well sites greater than 3 TPY, EPA proposed two alternatives. The first would require quarterly inspections at all facilities greater than 3 TPY. Alternatively, EPA proposed semi-annual inspection frequency for facilities with PTE between 3 and 8 TPY, while requiring quarterly inspections at all facilities with PTE greater than 8 TPY. The proposal would also require quarterly inspections at compressor stations.
• Well Liquids Unloading: As noted above, any single instance of a well unload will subject any existing facility to the Quad Ob requirements.
• Pneumatic Controllers: Similar to Quad Ob, Quad Oc also targets pneumatic controllers, requiring the use “zero-emission” pneumatic controllers at existing facilities.
• Flaring Requirements: Once again similar to Quad Ob, QuadOc prohibits flaring of natural gas unless the operator shows that a gas sales line is not accessible.

Following the finalization of the Quad Oc emission guidelines, each state must create regulations that meet EPA’s proposal. Following the promulgation of the final Quad Oc regulation, states are expected to take several years to develop and submit their plans. Following submittal, EPA will then review and potentially approve the plan. This process will likely extend to 2025 or beyond.

In addition to the sources and regulations described above, EPA is soliciting comment on several other potential emission sources that may be included in a supplemental rule. EPA is evaluating several different emissions sources, including:

• Financial assurance and fugitive emissions monitoring at plugged and abandoned wells.
• Reducing the frequency of pigging events, eliminating or reducing the volume of gas vented during pigging blowdowns, and/or using add-on controls that are applied to blowdown emissions during pigging.
• Require emission controls during truck loadout operations.
• Additional avenues to ensure control devices are operating functionally, including additional flare monitoring or testing.

The precise timing and next steps of Quad Ob and Quad Oc remain unclear. EPA did not propose rule language or create firm deadlines for its requests for additional comments. However, EPA has scheduled training sessions to discuss these proposals in the coming weeks. Stakeholders can reasonably expect that EPA will publish its proposal and rule language in the Federal Register in the first half of 2022. Following that publication, stakeholders will have 60 days to comment on the proposed rule, including specific items for which EPA has requested feedback. After the 60-day comment period, EPA will evaluate these comments before publishing the final rule. Quad Ob will likely be final and effective in late 2022. However, state regulations addressing EPA’s Quad Oc emission guidelines may not be promulgated until 2025 or later.

Lastly, recent developments in the U.S. Supreme Court may have additional implications for the oil and gas sector. On October 29, 2021, the U.S. Supreme Court agreed to review the D.C. Circuit’s decision striking down the Trump administration’s rollback of Obama-era greenhouse gas (“GHG”) emissions standards for existing power plants in four separate cases. In its review of these cases, the Supreme Court will review the scope of EPA’s authority to regulate GHGs under Section 111(d) of the Clean Air Act. And while the Supreme Court’s ruling in these cases will be specific to the power sector, it could also have legal implications for other existing sources of GHGs, like those in the oil and natural gas sector affected by the proposed regulations in Quad Ob and Oc, and EPA’s future development of Control Technique Guidelines following the adoption of those additional NSPS subparts.

If you have any questions regarding the proposed NSPS revisions or would like to discuss whether to prepare comments on the proposed revisions, please contact Randy Dann or John Jacus.

On September 29, 2021, the U.S. Fish and Wildlife Service (USFWS) released a final rule (“Final Rule”) that revoked a prior rule, finalized only in January 2021, that had interpreted the Migratory Bird Treaty Act (MBTA) as not prohibiting incidental take of migratory birds. Incidental take is defined as take that results from, but is not the purpose of, an action.

USFWS also released an advance notice of proposed rulemaking (ANPR) to develop regulations to authorize incidental take of migratory birds under certain circumstances or conditions. These regulatory changes will affect conventional and renewable energy development on federal and nonfederal lands, as well as other land uses that present a risk of incidental take of migratory birds. Presently, the Final Rule and ANPR have not yet been published in the Federal Register.

Final Rule Revoking USFWS’s Prior Interpretation of the MBTA

The Final Rule revoked a January 7, 2021 rule (“January 2021 Rule”) that was released in the waning days of the Trump administration and had taken effect on March 8, 2021. The January 2021 Rule expressly stated that the MBTA does not prohibit incidental take of migratory birds.

USFWS had based the January 2021 Rule on a 2017 legal opinion of the Solicitor of the Department of the Interior, Solicitor’s Opinion M‒37050. A federal court vacated this opinion last year, Natural Res. Defense Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020), and the Deputy Solicitor of the Interior withdrew this opinion in March 2021.

By revoking the January 2021 Rule, USFWS reinstates its prior interpretation that the MBTA prohibits incidental take of migratory birds. Notably, USFWS did not replace the January 2021 Rule with an alternative regulation but stated in the preamble to the Final Rule that it plans to introduce “a proposed regulation codifying an interpretation of the MBTA that prohibits incidental take.”

With the Final Rule, USFWS also released Director’s Order No. 225 providing guidance to the agency on how to implement the agency’s current interpretation of the MBTA.

Most significant, the Director’s Order prioritizes enforcement of incidental take in the following circumstances:

• Incidental take that:
  • results from activities by a public- or private-sector entity that are otherwise legal;
  • is foreseeable; and
  • occurs where known general or activity-specific beneficial practices were not implemented; or
• Incidental take that is the result of an otherwise illegal activity.

By contrast, the Director’s Order identifies incidental take resulting from the following activities as not an enforcement priority:

• A member of the general public conducting otherwise legal activities that incidentally take migratory birds;
• A federal agency conducting activities in accordance with a signed memorandum of understanding with the Service developed under Executive Order 13186 for the conservation of migratory birds; or
• A public- or private-sector entity conducting activities in accordance with applicable beneficial practices for avoiding and minimizing incidental take.

The Director’s Order also revokes and replaces an April 11, 2018 Director’s memorandum titled “Guidance on the Recent M-Opinion Affecting the Migratory Bird Treaty Act.”

ANPR for Regulations Authorizing Incidental Take of Migratory Birds

The ANPR announced USFWS’s intent to develop regulations to authorize incidental take of migratory birds under certain circumstances or conditions. USFWS is accepting public comment response to the ANPR for 60 days after its publication in the Federal Register.

USFWS is considering three mechanisms to authorize incidental take: (1) categorical exceptions to the incidental take prohibition; (2) general permits; and (3) specific or incidental permits.

With respect to exceptions, USFWS explained it is considering developing exceptions for two general types of activities: first, noncommercial activities, such as homeowner activities that take migratory birds, and second, “certain activities where activity-specific beneficial practices or technologies sufficiently avoid and minimize incidental take.” USFWS would codify any exceptions in a regulation.

With respect to general permits, USFWS explained that it is considering developing general permit regulations for the following activities that are “common sources of bird mortality”:

• Communication towers,
• Electric transmission and distribution infrastructure,
• Onshore wind power generation facilities,
• Offshore wind power generation facilities,
• Solar power generation facilities,
• Methane and other gas burner pipes,
• Oil, gas, and wastewater disposal pits,
• Marine fishery bycatch,
• Transportation infrastructure construction and maintenance, and
• Government agency activities.

USFWS envisions that general permits would be authorized through a registration system. An entity would register, pay a fee, and agree to adhere to activity-specific conditions and implement beneficial practices. General permits would include reporting requirements.

Finally, USFWS anticipates that activities that do not qualify for an exemption or general permit would be eligible to obtain an individual permit authorizing incidental take. USFWS will develop eligibility criteria and permitting procedures.

Notably, USFWS also explained that it is considering offsets associated with general and/or individual permits. Specifically, USFWS is considering whether to adopt a compensatory mitigation approach, where mitigation is developed and implemented specific to a given project or activity, or a general conservation fee structure, where fees go to a specific, dedicated fund.

USFWS is seeking a wealth of information and data to inform its rulemaking process, including information regarding:

• Human-caused migratory bird death and injury from onshore and offshore wind power generation facilities, solar power generation facilities, methane and other gas burner pipes, and oil, gas, and wastewater disposal pits.
• Beneficial practices to avoid and minimize migratory bird death and injury;
• Activity-specific beneficial practices that should be considered as conditions of the authorization;
• Criteria (such as infrastructure design, beneficial practices, geographic features, etc.) to qualify as excepted from a permit, for general permit registration, or to apply for a specific permit;
• Economic costs and benefits of implementing beneficial practices that require retrofitting existing infrastructure;
• Economic costs and benefits of implementing beneficial practices in new construction instead of current designs;
• Economic costs and benefits of implementing beneficial practices that do not affect infrastructure;
• Other economic information useful for setting required compensatory mitigation or a conservation fee; economic information on the benefits of migratory birds, such as ecosystem services, recreation, and other benefits; and
• Any potential effects on small entities, such as small businesses, small non-profit organizations or small governmental entities with a population under 50,000.

USFWS will release draft regulations for public comment before issuing any final regulations. Additionally, USFWS will prepare environmental analysis under the National Environmental Policy Act before issuing any final regulations.

These regulations are critical to the Biden administration achieving its renewable energy goals. USFWS’s reinstated interpretation of the MBTA presents considerable uncertainty for both renewable and conventional energy projects that carry risk of incidental take of migratory birds. For this reason, the Obama administration had taken initial steps toward a permitting program, which was never finalized.

USFWS explained that it seeks to provide “regulatory clarification and certainty” with permitting regulations. Currently, land users lack formal assurances that they will not be subject to enforcement if their activities cause incidental take. Further, these regulations could produce efficiencies for land users by establishing uniform criteria for projects seeking incidental take authorizations.

These regulations will likely attract considerable attention and public comment. Land users who may utilize this program should submit comments in response to USFWS’s requests for information.

If you have any questions regarding the Migratory Bird Treaty Act, please contact Katie Schroder.

Did You Agree to Share Your Home Wi-Fi Network?

On June 6, 2021, Amazon launched, and automatically enrolled users with compatible devices into, “Sidewalk,” its new internet-sharing wireless mesh network. Sidewalk crowdsources data and bandwidth from home Wi-Fi connections via Amazon Echo smart speakers and smart displays, Ring devices, and Tile trackers. If you have these devices in your home, your internet bandwidth is likely now being shared to help other Sidewalk devices that are in range—like a neighbor’s Echo—connect to the internet.

Amazon is following the path forged by Comcast’s Xfinity unit with “xfinitywifi.” Since 2014, Xfinity customers have had access to a widespread public Wi-Fi SSID outside of their home. This public Wi-Fi network, named “xfinitywifi,” is made possible by customers accessing routers that other Xfinity customers lease from Comcast.

Despite criticism of the potential security and privacy concerns,[1] customers are automatically enrolled in these programs without a separate contract. Most customers don’t realize they are sharing their Wi-Fi, much less of the need to opt out of it.[2]

Automatic Opt-In Contracts

Amazon binds users of Echo, Ring, and other devices to Sidewalk’s terms with a “sign-in-wrap” agreement when they log into their account. That the consent is buried in their device contracts would surprise most users, not to mention their automatic opt-in to Wi-Fi sharing just by continuing to use their device. Similarly, many Xfinity customers are likely unaware they are sharing the Wi-Fi generated by their leased modem via the public “xfinitywifi” channel.

There is widespread concern about, and proposed legislative limitations on, automatic opt-ins that may affect the privacy of consumers’ personal information.[3] However, there is much less discussion about whether automatic opt-in to unrelated terms in connection with an online purchase of goods or services is (or should be) enforceable.

Most online purchases of goods or services are just as legal and enforceable as traditional paper-and-ink contracts, thanks to the federal Electronic Signatures in Global and National Commerce Act (ESIGN).[4] In addition, most states have adopted either the Uniform Electronics Transactions Act (UETA) or their own e-signature laws that confirm the legal validity of electronic signatures and contracts. (see, e.g., Colo. Rev. Stat. § 24-71.3-103). Online consumers nowadays consent to contractual terms with an electronic signature or, most commonly, by clicking an “I accept” button. Neither UETA nor ESIGN, however, provide specific guidance on the limitations of passive consent and automatic opt-ins so it is left to the courts, applying traditional contractual principles, to determine their validity and enforceability in specific situations.

Courts generally focus on whether the user had reasonable notice of the terms, actual or constructive, and the extent to which there was express assent.[5] Some courts put the responsibility on the consumer to read and understand the terms, and accept the notion that clicking “I agree” or continuing to use the platform is binding acceptance of the terms, whether read or not.[6] Other courts have found it unreasonable to bind a consumer to terms they were never prompted to read or, in some cases, required to read.[7]

In Berkson v. Gogo LLC,[8] when the user “signed up,” Gogo automatically enrolled them in a recurring service, rather than for a single month as the plaintiff alleged. The federal district court in Berkson concluded that Gogo’s website and sign-in screen, which requested the user’s username and password, and underneath the text: “By clicking ‘Sign in’ I agree to the terms of use and privacy policy,” did not give the user sufficient notice of the terms. Forced to apply a confusing combination of New York, California, and Illinois contracts law, the Berkson
court used a four-part test (1) Is there “substantial evidence” that a user understood they were agreeing to actual terms and conditions? (2) Does the website’s design make the terms clearly available to the user? (3) Does the website’s design encourage the user to review the binding terms, as opposed to minimizing their importance? (4) Does the contract clearly draw the user’s attention to material terms?

In Kemenosh v. Uber Techs., Inc.,[9] Uber’s rider registration screens, as viewable from the iPhone application, were not “inconspicuous but rather failed to adequately communicate” the website’s terms:

It is generally understood that Uber offers transportation in exchange for money. Therefore, the words “by creating an Uber account you are agreeing to the Terms of Service and Privacy Policy” convey that by creating an Uber account one is agreeing to pay money in exchange for transportation, and to the terms of a privacy policy. They do not convey an offer to arbitrate or notify the user in any way that the offered Terms of Service contain a waiver of jury trial and an arbitration clause.

The Kemenosh court suggested that, if Uber had required the user to check a box, “I read and agree to the Terms of Service,” or even included a pop-up message, “Please read the Terms of Service before continuing,” then that might have been sufficient to form a contract with an iPhone enrollee that included the disputed terms.

Conclusion

Without statutory guidance on the enforceability of passive consent and automatic opt-in terms, courts are left to their own devices (pun intended) in determining whether a buried term causing automatic opt-in to an ancillary service like Sidewalk or xfinitywifi should be enforceable. Companies seeking to create valid and enforceable agreements for meaningful but unnecessary issues or for ancillary services are well advised to require the online consumer to expressly confirm review of such terms, or even to visit the terms page before allowing such consent. Notwithstanding such steps, however, online businesses should not assume the effectiveness of consumer consent to entirely distinct matters from the subject of the contract, like Sidewalk services in a Ring or Echo agreement. An enforceable agreement to such collateral terms may require a specific consent focused on those terms.

By contrast, for important but not necessarily assumed terms, like mandatory arbitration, waiver of jury trial, and limitations on damages, it seems likely that consumer confirmation of having read and accepted the terms will be sufficient in most circumstances. Online businesses should appreciate, however, that evaluating the reasonableness of such consent may consider everything from the hyperlink’s color and placement, the design elements elsewhere on the screen, the size of the print, and the language used to draw the user’s attention. In the absence of federal or uniform legislative action, these subjective standards may continue to foster inconsistency and uncertainty for businesses and consumers as to the binding effect of nonessential contractual terms in online transactions.

[1] Even the Washington Post, owned by Amazon Chairman and Founder Jeff Bezos, has expressed alarm about the privacy and security issues inherent in Sidewalk. https://www.washingtonpost.com/technology/2021/06/07/amazon-sidewalk-network/.

[2] Instructions to disable Sidewalk on Echo devices, https://www.amazon.com/gp/help/customer/display.html?nodeId=GZ4VSNFMBDHLRJUK, and Ring devices, https://support.ring.com/hc/en-us/articles/360032524592-Opting-In-and-Out-of-Sidewalk. Instructions for disabling xfinitywifi sharing, https://www.xfinity.com/support/articles/disable-xfinity-wifi-home-hotspot?view=app.

[3] See, e.g., https://arstechnica.com/tech-policy/2021/05/privacy-bill-would-force-big-tech-to-offer-tracking-opt-out-breach-notices/.

[4] 15 U.S.C.S. § 7001 et seq.

[5] Cullinane v. Uber Techs., Inc., 893 F.3d 53 (1st Cir. 2018) (does the online agreement provide “reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms”); Schnabel v. Trilegiant Corp., 697 F.3d 110, 120 (2d Cir. 2012) (“where the purported assent is largely passive, the contract-formation question will often turn on whether a reasonably prudent offeree would be on notice of the term at issue”); Specht v. Netscape Communs. Corp., 306 F.3d 17, 29-30 (2d Cir. 2002) (“clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms”).

[6] See, e.g., Vernon v. Qwest Commc’ns Int’l, Inc., 925 F. Supp. 2d 1185, 1191 (D. Colo. 2013) (users chose to agree to the conditions, even without reading them and must “accept the consequences” of being bound); Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 839-40 (S.D.N.Y. 2012) (user had ample opportunity to review via provided hyperlink and thus assented to terms by clicking “sign in” button); Swift v. Zynga Game Network, Inc., 805 F. Supp. 2d 904, 911-12 (N.D. Cal. 2011) (user with opportunity to review terms, chose not to, and clicked “I agree” anyway had sufficient notice).

[7] See, e.g., Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171, 1179 (9th Cir. 2014) (contract unenforceable because consumers cannot be expected to look for hyperlinks with binding terms and conditions they may never be prompted to review); Specht, 306 F.3d at 20 (screen requiring user to follow links to more than one webpage not reasonable notice of terms to “reasonably prudent Internet user”); Berkson v. Gogo, 97 F. Supp. 3d 359, 399 (the text “By clicking ‘Sign In’ I agree to the terms of use and privacy policy” provided insufficient notice, because website did not draw user’s attention to terms with any signifiers of importance, and did not require user to click on terms).

[8] 97 F. Supp. 3d 359 (E.D.N.Y. 2015).

[9] No. 181102703, 2020 WL 254634 (Pa. Ct. Common Pl. Jan. 3, 2020).

On June 24, 2021, Governor Polis signed into law a bill to advance the state’s goal to reduce greenhouse gas (“GHG”) emissions from gas distribution utilities. Senate Bill 21-264 requires gas distribution utilities (“GDUs”) to implement clean heat plans which demonstrate the GDU’s strategy to meet specified clean heat targets.

The bill defines a GDU as a gas public utility with over 90,000 retail customers. Each GDU must file a clean heat plan with the Colorado Public Utilities Commission (“PUC”) that explains their proposal to reduce carbon dioxide and methane emission levels by 4% in 2025 (only 1% can be from recovered methane) and 22% in 2030 (only 5% can be from recovered methane). The calculation for baseline and projected emissions must include (1) leaked methane from the transportation and delivery of gas, (2) carbon dioxide emissions resulting from gas combustion, and (3) leaked methane emissions from gas delivery to local distributors. Each GDU’s clean heat plan must address the following scenarios:

1. The GDU will use the maximum practicable clean heat resources, comply with the cost cap (determined by the PUC), list leak reductions, and may or may not meet the clean heat targets, but demonstrates overall reductions in methane emissions; and
2. The GDU will meet the clean heat targets, using only clean heat resources, but will not meet the cost cap.

The GDU has discretion to include additional scenarios and the PUC may also request supplementary scenarios. Colorado’s largest GDU (determined by volume of gas sold) must submit a clean heat plan by August 1, 2023. All other GDUs must submit their plans by January 1, 2024.

The new legislation also provides clean heat plan requirements for municipal GDUs (a municipally owned utility that provides gas services to over 90,000 customers) and small GDUs (a public utility providing gas services to 90,000 customers or less). A municipal GDU must implement a clean heat plan by February 1, 2023 that demonstrates compliance with the 4% reduction of GHG emissions by 2025 and 22% reduction by 2030 and the plan must be approved by the entity’s governing body. A small GDU may file a clean heat plan pursuant to the same requirements as a GDU or it may submit a plan that proposes its own reduction targets, subject to the cost cap.

Colorado GDUs are encouraged to use already available tools, including energy efficiency, biomethane, hydrogen, recovered methane, beneficial electrification of customer end uses, and cost-effective leak reductions on the utility’s distribution systems to achieve GHG emission reductions. Additionally, where practicable, GDUs are requested to use their own employees to implement clean heat plan projects. For projects that require competitive solicitation, the GDU must inquire about the use of Colorado-based and out-of-state labor.

When approving a clean heat plan, the PUC must consider a cost test that includes the social cost of carbon and methane. Moreover, the PUC must ensure the clean heat plan advances the public interest, by analyzing the use of clean heat resources, the air quality, environmental and health benefits of the plan, the reliability and cost of the plan, and whether investments in the plan prioritize communities historically impacted by pollution.

Senate Bill 21-264 also requires the PUC to propose rules establishing recovered methane protocols by September 1, 2022. Further, the PUC must evaluate requisite resources for the effective regulation of GHG sequestration and report its findings by December 1, 2021.

Similarly, in Governor Polis’ 2021 GHG Pollution Reduction Roadmap,[1] the state government announced its plan to form a task force on carbon capture, use, and sequestration to research policies and action plans that align with Colorado’s GHG emission reduction goals. As the state government’s role in carbon sequestration policy grows, it is important for inquiries into sequestration regulation to address pore space ownership, the balance between carbon sequestration and advancing reductions in pollution, public incentives, and economic development related to carbon capture.

The purpose of Senate Bill 21-264 is to equitably and reasonably reduce Colorado’s greenhouse gas emissions and transition to a decarbonized economy. Implementation of these clean heat plans, along with support from the PUC, will promote Colorado’s overall goals to reduce GHG emissions to slow global warming and protect our environment.

If you have further questions, please contact John Jacus or Kelsey Johnson.

[1] https://drive.google.com/file/d/1jzLvFcrDryhhs9ZkT_UXkQM_0LiiYZfq/view

Welcome to another edition of the Davis Graham Privacy & Data Security Legal Update! The goal is to keep you apprised of the latest developments in privacy and data security law. If you have any comments, questions, suggestions, or feedback, please reach out to the author,Camila Tobón.

In this edition, we focus on privacy bills at the U.S. state and federal levels. The states have been the most active, with nearly half the states considering some form of comprehensive privacy legislation. A few bills have also been introduced at the federal level. It’s possible that another one or two states will join California and Virginia with a privacy law. But a federal privacy law still seems far off.

U.S. Developments

Comprehensive privacy legislation pending in several U.S. states

On March 19, 2021, Colorado Senators Rodriguez and Lundeen introduced a bill providing additional protections for the personal data of Colorado residents called the Colorado Privacy Act (SB21-190). To read more about this bill, read our March update here. The bill came up for hearing before the Senate Business, Labor & Technology Committee on May 5, 2021. The Committee approved amendments to the bill, including:

• Clarifications to the definitions of “sale” and “targeted advertising”;
• Narrowing the right to opt-out to targeted advertising, sale, or profiling;
• Shifting sensitive data processing from an opt-in basis to notice and opt-out;
• Adding a notice and 60-day period to cure before an enforcement action can be initiated.

The bill now moves to the Senate Appropriations Committee.

In our prior editions we also covered bills introduced in Alabama, Florida, Minnesota, New York, Oklahoma, Utah, Virginia, and Washington. The Virginia bill has now become law, when it was signed by the governor on March 2, 2021. The Virginia Consumer Data Protection Act (VCDPA) will apply to personal information collected on or after January 1, 2022 and takes effect on January 1, 2023. The law follows a different model than the California Consumer Privacy Act (CCPA). To read more on it, please see our prior update here.

Several other states introduced privacy bills this legislative session. Below is a chart of the currently pending state bills.

State	Bill No.	Summary
Alabama	HB 216	This bill is similar to the CCPA. It is before the House Committee on Technology and Research.
Alaska	SB 116 and HB 159	These bills are a modified version of the CCPA and include provisions for a data broker registry. Both bills have been referred to Labor & Commerce.
Colorado	SB 190	This bill is like the new law in Virginia except that the opt-out applies to all personal data processing. It is pending before the Senate Appropriations Committee.
Connecticut	SB 893	This bill is like the new law in Virginia. A public hearing was held in late February and a substitute bill was then filed. The bill is now before the full Senate.
Illinois	HB 3910	This bill is like the CCPA. It is before the House Rules Committee.
Massachusetts	SD 1726	The Senate bill differs from the other bills because it creates duties of care, loyalty, and confidentiality and requires consent before personal information is collected and processed. It has been referred to the committee on Advanced Information Technology, the Internet and Cybersecurity.
Minnesota	HF 36 and HF 1492	HF 36 is like the CCPA while HF 1492 is like the new Virginia law. Both bills have been referred to the Commerce Finance and Policy Committee.
New Jersey	AB 3283 and AB 3255	AB 3283 is like the GDPR in that it requires a legal basis for processing personal information. AB 3255 is like the CCPA. Both bills are before the Science, Innovation and Technology Committee.
New York	S 567, A 6042 and A 680	SB 567 is like the CCPA. A6042 would require opt-in consent for processing personal information. A680 requires consent to use, process, and disclose, and imposes a fiduciary duty of care. These bills are pending in committee.
North Carolina	SB 569	This bill is like the VCDPA. It passed first reading in the Senate and has been referred to committee.
Pennsylvania	HB 1126	This bill is like the CCPA. It was referred to the Consumer Affairs Committee in the House.
Texas	HB 3741	This bill is different from the CCPA and Virginia law. It imposes restrictions on use of personal information, in addition to providing consumer rights. The bill is before the Business & Industry Committee.

Bills filed in Arizona, Florida, Kentucky, Maryland, Mississippi, North Dakota, Oklahoma, Utah, Washington, and West Virginia have died.

From this legislative activity it is clear that two distinct models are emerging – the CCPA model and the VCDPA model. Although both focus on transparency – where covered entities provide clear notice of their personal data handling practices – and control – where consumers are given specific rights with respect to their data – the requirements and implementation differ. As legislative sessions come to a close in the coming weeks, it will be interesting to see which states join California and Virginia and which model emerges as the leading standard.

Four federal privacy bills introduced in 2021

Rep. Suzan DelBene, D-WA, introduced the Information Transparency and Personal Data Control Act in March. The bill directs the Federal Trade Commission (FTC) to enact regulations governing the use of sensitive personal information (SPI), which broadly includes data typically associated with breach notification laws as well as information considered sensitive under the CCPA and VCDPA as well as the content of communications and personal call detail records. With regard to non-SPI, the bill establishes a right to opt out any personal information processing. No private right of action is provided. Instead, enforcement would be by the FTC and state attorneys general.

Sen. Brian Schatz, D-HI, introduced the Data Care Act in March. The bill requires online service providers to (1) reasonably secure individual-identifying data from unauthorized access, (2) refrain from using such data in a way that will result in reasonably foreseeable harm to the end user, and (3) not disclose such data to another party unless that party is also bound by the duties established in the bill. The bill authorizes the Federal Trade Commission and specified state officials to take enforcement actions with respect to breaches of such duties.

Sen. Ron Wyden, D-OR, introduced a bill to amend the FTC Act in late April. As of May 13, 2021, the bill text has not been received for S.1444. But a bill summary states that it establishes requirements and responsibilities for entities that use, store, or share personal information, to protect personal information, and for other purposes.

Sen. Jerry Moran, R-KS, introduced A bill to protect the privacy of consumers also in late April. As of May 13, 2021, text has not been received for S.1494.

The late April rally to introduce new legislation signals a continued interest in data privacy issues. However, it is unlikely that any of these bills will gain traction in the near term. The activity continues to be focused at the state level.

In January 2021, the Federal Permitting Improvement Steering Council (“FPISC” or “Council”) voted to include mining infrastructure projects as an eligible sector for coverage under the Fixing America’s Surface Transportation Act (“FAST-41” or “Act”). The purpose of the Act is to streamline the Federal environmental review process for large-scale infrastructure projects. Renewable energy projects have been eligible for FAST-41 review since 2015, when the Act was passed by Congress. Mining and renewable energy development are necessarily intertwined from a supply chain standpoint, and the addition of the mining sector to FAST-41 is an indicator that the federal government is conscious of the need to shore up related domestic industries if the U.S. is going to be able to reach its carbon reduction goals through mass deployment of renewable projects around the country.

FAST-41 established a program to improve the timeliness, predictability, and transparency of the analysis and permitting phases for infrastructure proposals. The Act enhances federal coordination by requiring all agencies relevant to a project’s review to develop a plan and schedule outlining the necessary steps for project authorization within 60 days of a project’s FAST-41 eligibility being established. FAST-41 limits an agency’s ability to revise their timeline within 30 days of the original posted deadline, and the FPISC acts to ensure each agency meets its deadline. To deter delays, FAST-41 requires the FPISC to report to Congress whenever a modification to the timeline results in a 150% delay of the original schedule.

The Act implemented the Permitting Dashboard, a public website displaying the actual and scheduled timeframes for current projects, allowing for increased transparency related to the permitting process. FAST-41 also set the statute of limitations to challenge a project’s authorization at two years, and established guidelines for judicial review and dispute resolution, all in an effort to minimize delays caused by litigation.

To be eligible for FAST-41 coverage, the project:

1. Must be located in the United States and require environmental review and authorization by a federal agency;
2. Must be subject to NEPA review;
3. Must be likely to require an investment of $200,000,000 or more; and
4. Must not qualify for any other abbreviated environmental review.

If a project sponsor believes their infrastructure proposal qualifies for FAST-41 coverage, they must submit a FAST-41 Initiation Notice to the Executive Director of the FPISC and the facilitating Federal agency. The FPISC will coordinate with the lead agency to determine eligibility, potential concerns and mitigation, and the first necessary steps in the permitting process. A decision regarding the project’s eligibility must be issued by the lead agency within 14 days. If the project is approved, the relevant agencies will create a Coordinated Project Plan and the project’s permitting process will immediately begin.

The federal environmental review process is often plagued with long delays and sluggish progress. At its induction, FAST-41 covered renewable and conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, and manufacturing. Since the Act’s passage, 23 renewable energy generation projects have been deemed eligible for streamlined permitting, and nine large-scale renewable projects have already been completed. In light of such a successful track record, the addition of mining as an eligible sector has drawn both praise and criticism, with some applauding the decision to expedite the permitting process (mining project review typically takes seven to ten years) and increased access to battery minerals and other mining products necessary for renewable energy production, while others oppose any acceleration of the development of the mining sector.

If you have further questions, please contact Almira Moronne or Kelsey Johnson.