Industrials Regulatory News and Trends - November 8, 2024

Welcome to Industrials Regulatory News and Trends. In this regular bulletin, DLA Piper lawyers provide concise updates on key developments in the industrials sector to help you navigate the ever-changing business, legal, and regulatory landscape.

EPA awards $3B in Clean Ports Program grants. Speaking in Baltimore on October 30, President Joe Biden announced $3 billion in grants to improve, modernize, and electrify port infrastructure and cut carbon emissions. The grants, administered through the EPA’s Client Ports Program, will go to 55 sites in 27 states and territories, among them the Port of Los Angeles, Port of Cleveland, Port Authority of New York and New Jersey, the Detroit-Wayne County Port Authority, and the Maryland Port Administration. A third of the funding is intended for seven California ports, with the Port of Los Angeles – which has set a goal of achieving 100 percent zero-emission terminal operations by 2030 – receiving the nation’s single largest clean ports grant: $411 million to help the port shift away from diesel fuel. EPA Administrator Michael S. Regan said that funding though the Clean Ports program will ultimately cut emissions of more than 3 million metric tons of CO2 as well as other pollutants.

Federal Railroad Administration announces new $2.4 billion in railroad grants. On October 29, the Federal Railroad Administration announced more than $2.4 billion in funding through the Bipartisan Infrastructure Law funding for freight rail improvement projects across the country. Administered through FRA’s Consolidated Rail Infrastructure and Safety Improvements Program, the grants will support 122 projects in 41 states, particularly aiming to benefit rural communities. The funding addresses a broad range of rail safety and service improvements were eligible to receive funding, and the selected projects reflect that, addressing such needs as , including upgrading tracks, expanding rail connections at ports, adding modern locomotives to fleets, and replacing or rehabilitating aging bridges. The Federal Railroad Administration notes that the CRISI Program is “the only federal grant program prioritizing smaller, short line railroads vital to the American economy and regional supply chains.”

New FAA rule charts a path for deployment of air taxis, advanced mobility aircraft. The Federal Aviation Administration (FAA) has issued a long-awaited final rule providing new and amended regulations and standards to govern powered vertical-takeoff and landing, low-speed aircraft. The final regulations – the first for a new aircraft category in almost 80 years – are a significant milestone in the FAA’s ongoing efforts to integrate powered-lift and advanced air mobility operations into the national airspace system. Find out more in our alert.

Next step in Southwest Airline’s sustainability strategy. As part of its long-term sustainability strategy, Southwest Airlines is rolling out new items to replace many of the single-use plastic products it provides to its customers. The airline is particularly pointing to a stir stick made from 100 percent Forest Stewardship Council-certified birch and a new cold beverage cup, made from a pulp blend of 75 percent bamboo and 25 percent paper with a polyethylene lining. These changes, Southwest says, are projected to reduce its in-flight single-use plastic waste by more than 1.5 million pounds annually. In 2023, Southwest updated Nonstop to Net Zero, its sustainability strategy, setting a goal of achieving net zero carbon emissions by 2050. Under the strategy, the airline also working to reduce in-flight food waste, electrify ground equipment, and increase its use of sustainable aviation fuel.

Lithium extraction in the news. On October 31, several environmental and indigenous groups filed a lawsuit challenging the US Interior Department's approval of Ioneer’s proposed Rhyolite Ridge Lithium-Boron Project, a mine in Nevada. The approval, announced on October 24, has been seen as a major step in the development of domestic sources for this critical metal. This is the first US lithium mine to be approved by the Biden Administration. In the lawsuit, filed in the US District Court for the District of Nevada, groups including the Center for Biological Diversity argued that Interior approved the mine without ensuring that it would not jeopardize the environment, in violation of the National Environmental Policy Act, the Federal Lands Policy and Management Act, and the Endangered Species Act. Meanwhile in Arkansas, a new study by the US Geological Survey and the Arkansas Office of the State Geologist has concluded that enough lithium could potentially be extracted from underground brine deposits in the state’s Smackover Formation to meet nine times the global demand by 2030. Katherine Knierim, Hydrologist and principal researcher for the study, said, “We estimate there is enough dissolved lithium present in that region to replace U.S. imports of lithium and more.” Energy producers have been exploring means of extracting lithium from brine, which has been found at dozens of sites around the world. However, direct lithium extraction technologies required to effectively extract lithium from these brines are still in their infancy.

Biden Administration issues “first ever” national security memorandum on AI. Reflecting the Biden Administration’s whole-of-government approach, the White House has released what it calls the “first ever” National Security Memorandum (NSM) on artificial intelligence, directing the Pentagon and other US national security agencies to increase their adoption of AI technologies in a safe and responsible, but expedited, manner. The NSM formally designates the AI Safety Institute as “US industry’s primary port of contact” in the government. See our alert.

FDA responds to objections over phthalates in food packaging. The FDA has affirmed its 2022 Final Rule to remove 25 plasticizers in various food contact applications, as well as its denial of a consumer group petition to amend or revoke regulations for the food contact use of 28 phthalates. While FDA’s announcement preserves the status quo for the moment, phthalates in food contact applications are on FDA’s list for continued assessment, it is accepting comments through December 6 on the proposed factors it will consider to ensure its assessments are fit for purpose. Find out more in our alert.

Direct air capture breakthrough. Direct air capture (DAC) has long been the dream of scientists striving for an efficient, effective technology to remove CO2 from the atmosphere and slow climate change. Existing carbon capture technologies are often impractical, and are typically expensive, energy intensive, and unsuitable for extended use outdoors. In a study published in the journal Nature in October, a team of University of California, Berkley chemists say they have synthesized a porous, crystalline covalent organic framework, which they dub COF-999, that holds significant promise for both scalability and economic viability. Omar Yaghi, the James and Neeltje Tretter Professor of Chemistry at UC Berkeley and senior author of the paper, said, “This COF has a strong chemically and thermally stable backbone, it requires less energy, and we have shown it can withstand 100 cycles with no loss of capacity…. It’s basically the best material out there for direct air capture.” Yaghi says he is optimistic that artificial intelligence can help speed up the design of even better carbon capture materials by identifying the chemical conditions required to synthesize their crystalline structures.