Front of mind for many federal contractors is the proposed FAR rule that would make federal contract awards contingent upon meeting mandatory greenhouse gas (GHG) emissions requirements. But a provision in the recently enacted National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2024 scales back the reach of that potential rule on Department of Defense (DoD) contracts.Continue Reading FY 2024 NDAA Pumps the Brakes on Mandatory GHG Emissions Disclosure Requirements for DoD Contracts
Paul Freeman is a partner in Crowell & Moring’s New York office and a member of the firm’s Environment & Natural Resources and Government Contracts groups. He brings two decades of diverse experience advising clients in the energy, maritime, and aerospace and defense industries on a range of issues, with a primary emphasis on matters involving enforcement defense, litigation, and risk management.
Paul routinely advises clients in response to investigations by, or inquiries from, a range of regulators, primarily the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ), and also including the U.S. Securities and Exchange Commission, the Internal Revenue Service, the U.S. Department of Defense Inspector General, the Federal Bureau of Investigation, the U.S. Commodity Futures Trading Commission, and state attorneys general.
On September 21, 2023, the White House directed federal agencies to incorporate interim Social Cost of Greenhouse Gases (SC-GHG) estimates into a wide range of federal agency actions, including each agency’s procurement function. This most recent direction builds upon the Administration’s ongoing and wide-reaching effort (examples discussed here and here) to leverage federal procurement spending in pursuit of climate change and sustainability policy objectives. The hallmark of that effort to date had been a proposed rule that would, if finalized, require thousands of federal contractors to inventory, publicly disclose, and, in some cases, seek reductions in GHG emissions (see our prior discussion here). However, the White House’s incorporation of SC-GHG into the federal procurement process has the potential to be just as significant to the contracting community by providing a cost metric (in dollars) needed for contracting agencies to evaluate and confer a preference on bids and contractors with lower GHG emission profiles.Continue Reading Biden Administration Moves Closer to Establishing Framework for Giving Preference to Bids and Contractors with Lower GHG Emissions
On March 8, 2023, the Biden Administration announced a further opportunity for companies to take advantage of significant federal funding intended to promote clean manufacturing and reduce greenhouse gas emissions in federal procurement. In line with the Biden Administration’s push to implement a clean energy economy (as we have previously covered, for example, here and …
On December 23, 2022, the Department of Defense (“DoD”), General Services Administration (“GSA”), and National Aeronautics and Space Administration (“NASA”) extended the comment period on the proposed rule, “Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk,” from January 13, 2023 to February 13, 2023. As we summarized previously, the proposed rule would, if…
In a major and largely unprecedented development for federal contractors, the White House announced on November 10, 2022 that the FAR Council will publish early next week a proposed rule that would, if finalized, require many federal contractors receiving more than $7.5 million in annual federal contracts to inventory and publicly disclose Scope 1 and Scope 2 greenhouse gas (GHG) emissions on an annual basis. Contractors deemed “major”—those that receive annual federal contracts in excess of $50 million—would be further required to disclose annually their Scope 3 GHG emissions and climate-related financial risk assessment process. Beyond disclosures, and perhaps more significantly, major contractors would also be required to set emission-reduction targets to meet the goals of the Paris Agreement, and have those targets validated by the Science Based Targets Initiative (SBTi). This last element of the proposal is a notable departure—and escalation—from similar pending proposals from the U.S. Securities and Exchange Commission, which only propose to require GHG disclosures from regulated companies and funds, not substantive goals or changes. Continue Reading Your Climate Disclosures or Your Contracts? Federal Contractors Face Unprecedented Proposed Rule for Mandatory Climate Disclosures
On October 4, 2022, the General Services Administration (“GSA”) published a Request for Information (“RFI”), seeking information “about the availability of domestically manufactured, locally sourced low-carbon construction materials” for governmentwide construction procurement. Significantly, the results of the RFI are expected to help inform how the GSA will spend the $2.15 billion appropriated through Section 60503…
On August 31, 2022, the White House Council on Environmental Quality (“CEQ”) released instructions to federal agencies for implementing Executive Order (“EO”) 14057 Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability. As we have covered previously, EO 14057 identified ambitious sustainability goals for federal agencies, including:
- 100 percent carbon-free electricity by 2030;
- 100 percent zero-emission vehicle fleet by 2035;
- net-zero emissions building portfolio by 2045;
- 65 percent reduction in Greenhouse Gas (“GHG”) Scope 1 and 2 emissions from Federal operations; and
- net-zero emissions from federal procurement, including a “Buy Clean” policy to promote use of construction materials with lower embodied emissions.
On July 7, 2022, the General Services Administration (“GSA”) published an Advance Notice of Proposed Rulemaking (“ANPR”) seeking public comment on revising GSA policies and procedures to reduce single-use plastics in purchased products and their packing and shipping materials. GSA is acting in furtherance of the directives set forth in Executive Order 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability (discussed here), which, among other things, directed GSA to use federal procurement policy as a way to support a recycled content market. Thus, for purchases under the Federal Supply Schedule program, as well as GSA’s construction, concession, and facility maintenance contracts, GSA seeks to reduce reliance on single-use plastics and move toward what the Administration considers to be “environmentally preferable” materials. Continue Reading GSA Exploring New Regulations to Reduce Single-Use Plastic in Federal Procurement
On June 6, 2022, President Biden issued a White House Fact Sheet (“Fact Sheet”) outlining President Biden’s “Bold Executive Action to Spur Domestic Clean Energy Manufacturing” along with five related Defense Production Act (“DPA”) Presidential Determinations (“Presidential Determinations”) and a Declaration of Emergency and Authorization for Temporary Extensions of Time and Duty-Free Importation of Solar Cells and Module from Southeast Asia (the “Declaration”). The Fact Sheet states the President is (1) authorizing use of the DPA to accelerate domestic production of clean energy technologies; (2) encouraging domestic solar manufacturing capacity through the use of master supply agreements with enhanced domestic preferences; and (3) creating a two-year trade regulation bridge as domestic manufacturing for solar products scales up. The White House stated that these actions are being taken to lower energy costs, reduce risks to the power grid, and mitigate climate change. The Department of Energy (“DOE”) also released a statement on June 6 about the DPA Presidential Determinations which describes DOE’s concerns with regard to each material or technology for which a determination was issued. The statements made by the White House and DOE also make clear that these actions to employ the DPA are part of the Administration’s broader “all of government” approach to addressing Environmental Justice, with the intention to “strongly encourage projects with environmental justice outcomes that empower the clean energy transition in low income communities historically overburdened by legacy pollution.”Continue Reading President Biden Employs Defense Production Act and Tariff Act in Domestic Clean Energy Manufacturing Push
On March 30, 2022, the General Services Administration (“GSA”) announced the first-ever national standards for “clean” concrete and asphalt that apply to all new GSA-funded projects using more than 10 cubic yards of concrete or asphalt. Acting in furtherance of the directives set forth in Executive Order 14057, Catalyzing Clean Energy Industries and Jobs Through…