On November 8, 2021, New York Governor Kathy Hochul signed a new electronic monitoring law (S2628) requiring New York businesses that monitor or intercept employees’ e-mails, telephone calls, or internet usage to notify employees in writing of these practices.  The new law amends the state’s civil rights law and takes effect on May 7, 2022.

According to the memorandum submitted by the New York State legislature in support of the bill, one reason for the notice requirement is to “protect[] employee privacy by making sure that [employees] understand the consequences of inappropriate internet activity.”  The statute also purports to support businesses by permitting them to “retain the right to monitor computer usage, simply with the stipulation that employees are informed of surveillance practices. This knowledge will increase transparency within the organization and help to avoid lawsuits and litigation regarding invasion of privacy.”

A summary of the key provisions and requirements is below.

Who is covered?

All employers—regardless of size—with a place of business in New York are covered. The statute defines employers to include any individual, corporation, partnership, firm, or association, but does not include state entities.  The law applies to any employer who “monitors or otherwise intercepts telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or by an employee by any electronic device or system.”

What must covered employers do?

Employers covered by this law must provide prior written notice upon hire to all employees who are subject to electronic monitoring and obtain employees’ acknowledgment of the notice in writing or electronically. Employers are not expressly required to distribute the notice to current employees.  A notice of electronic monitoring must also be posted “in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.”

What should the notice say?

The written notice must advise employees that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.”

Who should receive the notice?

Because the notice requirement is not limited to only employees who use company-issued computers or devices, any employees who use a personal device to transmit e-mail or other communications through a company server should receive the notice as well. However, the statute does not address which types of workers are considered “employees” and whether remote workers who do not live in New York are entitled to receive the notice.

What processes are not covered by this law?

Significantly, the notice requirement does not apply to “processes that are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage, that are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual, and that are performed solely for the purpose of computer system maintenance and/or protection.” In other words, electronic monitoring practices that do not target any individual and are conducted solely for system maintenance or protection purposes (such as general monitoring for malicious software) are not covered by this law.

Who can enforce the law and what are the potential penalties?

The New York State Attorney General has exclusive authority to enforce the law and may penalize businesses that fail to comply with the law by imposing a maximum civil penalty of $500 for a first offense, $1,000 for a second offense, and $3,000 for each subsequent offense. The law does not include a private right of action.

When does the law take effect and what must covered employers do?

Once the law takes effect on May 7, 2022, businesses should inform employees of electronic monitoring by distributing a notice and acknowledgment form or by adding such a notice to any existing employee handbook, receipt of which should be acknowledged by each employee. Moreover, businesses will need to post the notice of electronic monitoring so that it can be viewed by employees.

The new government’s roadmap foresees reforms in the healthcare and life sciences sector that will have a significant impact in particular on pharmaceutical and medical device companies but also healthcare providers and technology companies focusing on the healthcare and life sciences sector.

The coalition agreement has an own chapter for the healthcare and life sciences sector that among other things envisages changes to the regulation of pharmaceuticals and medical devices. In particular, there will be far-reaching cost-containment measures by amending the drug pricing and drug reimbursement rules. The new government also plans legislative changes in the areas of supply of medicines, vaccines and medical devices. Moreover, the enhanced digitalization of healthcare is a particular goal of the new coalition. With respect to digitalization, Germany generally and especially its healthcare sector starts from a rather low development stage (e.g., still widespread use of fax machines) so that significant investments will be needed.

It is also important that the new Ministry of Health will be a politician from the Social Democratic Party. This Ministry was led by a politician from the Christian Democratic Union for the last 8 years.

The new government also intends to enact changes to other areas of the broader life sciences industry, such as food advertising and the regulation of cannabis, alcohol and tobacco. The responsible ministries of Environment/Consumer and Agriculture/Food will be led by a politician from the Green Party.

Among other things, the roadmap of the coalition parties includes in particular the following plans with respect to the life sciences sector: Continue Reading New German Government plans significant changes with Impact on the Healthcare, Life Sciences and Food Sectorkoy

The Background

In 1998, the UK and The Republic of Ireland signed the Good Friday Agreement (GFA) bringing to an end 30 years of conflict in N Ireland.  The GFA was possible at least in part because both the UK and Ireland were Member States of the EU, meaning there were no external borders to the EU or the UK in Ireland and enabling EU Law to provide a legal framework.

The GFA, strongly supported by the US and the EU, relied at its core, on mutual acceptance – S Ireland and Irish Nationalists accepted that N. Ireland was part of the UK and the UK agreed to remove physical security infrastructure on the N/S Ireland Border.

The issue of borders is at once problematic and emblematic, with the Unionist community feeling strongly that N. Ireland is part of the UK and the Nationalist community objecting to a N/S Ireland border as a physical barrier to their long-terms hopes of Irish reunification. The GFA accordingly struck a careful crafted and very delicate balance between the two communities.

Brexit…

Brexit upset that delicate balance.  The Nationalist community largely voted Remain, whilst the Unionist community largely voted Leave.  N. Ireland overall voted to remain in the EU.  The UK’s departure from the EU meant that the N/S Ireland border became not only the border between Ireland and the UK, but the only land border between the mainland UK and the EU.

To preserve the benefits of the GFA whilst protecting the EU’s Single Market, the UK and the EU agreed the Northern Ireland Protocol (NIP), which preserved the Common Travel Area between the UK and Ireland and left N. Ireland in the UK’s Customs Union, but the EU’s Single Market – effectively placing the UK/EU border for Customs Controls in the N Sea between GB and N. Ireland for goods ‘at risk’ of entering the EU via N. Ireland. This arrangement avoided a ‘hard border’ between N and S Ireland and meant that N. Ireland was the only part of the UK to benefit from being in both Unions at the same time.

What has happened since January 2020?

The immediate consequences both of Brexit itself and the NIP are an increase in trade between N. and S. Ireland and a reduction in trade between Ireland and the UK as EU produce (inbound and outbound) has increasingly been dispatched by sea direct from S. Ireland to the European Mainland, by-passing the UK which had been used as a land-bridge for Irish exports whilst the UK was in the EU.

These two changes have raised concerns amongst the Unionist community that the longer-term impact of Brexit and of the NIP is to increase the chances of a United Ireland (the GFA allowed for the possibility of a Border Poll should communities so wish). This concern, added to the number of checks on GB/N Ireland exports, has led to a deterioration in security in N Ireland.  It is against this complicated backdrop that the EU and the UK are seeking to tweak the NIP to facilitate trade between GB and N. Ireland and reduce the number of customs checks carried out on that border.

Article 16….

Buried in the midst of the NIP is the now infamous Article 16 which states at paragraph 1 “If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade… [one side]… may unilaterally take appropriate safeguard measures”.  Paragraph 2 notes “If a safeguard measure taken…. in accordance with paragraph 1 creates an imbalance between the rights and obligations under this Protocol, the [other side] may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance.”

UK Complaints

The UK is concerned that the application of the NIP has imposed significant new customs formalities on GB-N. Ireland exporters, resulting in extra costs and discouraging trade.  Under the NIP, after a series of grace periods, the UK was supposed to gradually bring in checks on a broadening range of goods and products exported from GB to N. Ireland.  However, as the impact of those checks became clear, the UK took the decision to unilaterally suspend them.

Of particular concern to the UK government are: Continue Reading The EU, The UK and The Northern Ireland Protocol (again!)

On November 26, 2021, the Court of Justice of the EU (“CJEU”) held in Case C-102/20 that the display of advertising messages in an electronic inbox in a form similar to that of an actual email constitutes direct marketing, and therefore is subject to EU Member States’ rules on direct marketing (see press release here).  In this case, the advertisement in question was shown in the inbox list of a user’s private emails, resembling the appearance of an email, although it was labelled “advertisement”.

The CJEU emphasized in its decision that this form of advertisement is distinguishable from advertising banners or pop-up windows that appear at the outer edge of private messages or separately from them.  According to the CJEU, the advertisement here was subject to direct marketing rules because it resembled an electronic communication (i.e., an email).

Notably, the advertisement in this case was shown only to users who had opted for a “free” version of the email service – paying subscribers did not receive this same advertisement.  Unfortunately, the CJEU declined to clarify whether consent for direct marketing could be tied with the provision of an email service, a common practice in some industry sectors, such as online media and news websites (a position which was supported in a decision of the Austrian Data Protection Authority in 2018, as discussed in our prior blog post here).  The CJEU remanded the case to the German court that originally referred it to the CJEU, to decide whether the consent obtained in this scenario meets the standard of the GDPR.

Last Tuesday, GAO released its Fiscal Year 2021 protest statistics, which as always contains a wealth of interesting information about GAO’s protest system.

  • Protest filings dropped by 12% from FY20.  After remaining fairly steady in FY19 and FY20, filings dropped in FY21, with the lowest number of cases filed since FY08.  It seems likely, however, that at least part of the drop is attributable to the pandemic, which may have slowed the pace of federal procurement in the spring and summer of 2020, leading to a smaller than usual wave of protests in the first quarter of FY21.
  • The sustain rate remained steady at 15%.  The sustain rate considers only the subset of cases that go all the way to a decision on the merits, and measures the percentage of those decisions that sustained the protest.  In FY21, GAO issued 581 merits decisions, and 85 of those were sustains, resulting in a sustain rate of 15% — solidly within GAO’s historical range of sustain rates.  The four most prevalent reasons for sustaining protests were (1) unreasonable technical evaluation; (2) flawed discussions; (3) unreasonable cost or price evaluation; and (4) unequal treatment.

But the more indicative statistic for favorable outcomes in a bid protest is the effectiveness rate, and . . .

  • The effectiveness rate remained high at 48%.  That figure is the second-highest effectiveness rate ever recorded by GAO (the all-time high of 51% occurred last year).  The effectiveness rate measures the percentage of all protests filed in which the protestor obtains “some form of relief from the agency . . . either as a result of voluntary agency corrective action or [GAO] sustaining the protest.”  So in nearly half of all protests in FY21, the protestors obtained some relief, confirming that protests can be worthwhile for disappointed offerors who have legitimate concerns about a procurement.
  • The number of hearings remained steady at 1%.  Hearings remain rare, especially as compared to a decade ago when 8-10% of fully-developed cases received a hearing.

GAO’s annual bid protest report is always an exciting event, and this year’s edition shows that GAO’s process has continued to run smoothly throughout an unprecedented time.

As the United Nations Climate Change Conference of the Parties (“COP”) in Glasgow has drawn to a close, with seemingly mixed messages and a somewhat ambiguous conclusion, it is worth reflecting on the overall trajectory of the climate issue, societal expectations, and the accomplishments that — with time — Glasgow is likely to represent.  COP26 highlighted the fragility of the planet, as well as the fragility of the global consensus-based United Nations approach to protecting it.  It highlighted the sweep of global climate-induced challenges and the scale of transformation needed to address them.  With rising temperatures has come a rising global focus on climate and a far greater set of emerging societal expectations for meaningful responses by government and the private sector.  Despite the risk that the global agreement forged in Glasgow is seen by climate activists as all talk and no action — what they referred to as “blah, blah, blah” — I believe that a number of features will endure as important accomplishments.

Representatives from 197 nations, businesses, hundreds of civil society organizations, scientists, educators, media, and climate activists — you name it — all converged on Glasgow to shine a global spotlight on the climate crisis.  The Conference had some 40,000 registered participants.  With just a few thousand of those involved in the negotiations themselves, the rest converged around elevating climate understanding, climate solutions, and climate action. And still tens of thousands of others converged to protest and lend their voices to the climate debate. Expectations were heightened by the delay of the COP for a year due to Covid-19, as well as the return of the United States to the Paris climate process. Yet all of those expectations focused on a UN negotiating process that depends on achieving unanimity for each of its outcomes.

Despite the challenges posed by gathering under the cloud of Covid and the large numbers of attendees, the COP was in some ways better organized than ever before.  It has become less exclusively an international negotiation and much more of a communications mechanism to rally world opinion around the need for ambitious climate action. The UN proceedings kicked off with a Global Leaders Summit with 120 heads of state. It featured inspiring statements from governmental and societal leaders, such as Sir David Attenborough.  The Summit then flowed into the overall COP, which had a thematic organization for each day of the conference, by which it highlighted actions or the sweep and scale of climate impacts in a more coherent fashion than ever before — spanning from energy, finance, transport, cities and the built environment, science and innovation, nature, gender, youth, and adaptation to and loss and damage from climate change.  And the overall gathering encapsulated a heightened global focus on climate as a defining generational issue in a way that has never happened before.  

The World Rallied Around the Urgency Shown By the Evolving Climate Science 

The defining element of the Glasgow considerations was the acceptance of a far sharper sense of climate science findings around the scale and urgency of emissions reductions needed to stabilize the earth’s climate and prevent catastrophic consequences.  Every aspect of the discussions was judged by the context the new climate science shows. Continue Reading Report from Glasgow COP26: Assessing the United Nations Climate Conference

The African Growth and Opportunity Act (AGOA) has served as the cornerstone of the U.S.-Africa commercial relationship for more than two decades but it is set to expire on September 30, 2025. While the legislation’s unilateral trade preferences have provided economic benefits for countries across sub-Saharan Africa, AGOA as a whole remains underutilized. To ensure continuity in U.S-African trade ties, the United States must grapple with the legislation’s potential reauthorization now, with a particular focus on how the utilization of AGOA might be improved.

Just a renewal of AGOA won’t be enough to achieve this ambitious vision, though. Instead, the Biden administration should double-down on its partnership with AGOA beneficiaries and ensure that each country makes greater use of the program, including through National AGOA Strategies, in a manner that promotes regional and continental value chains.

This analysis includes Ethiopia, Guinea, and Mali, which are set to lose their AGOA benefits on January 1, 2022 because, as the Biden administration determined in a statement to Congress, they are no longer in compliance with the legislation’s eligibility requirements.

AGOA has been successful, but remains underutilized

In assessing the program’s future, it is important to acknowledge where AGOA has achieved success. When excluding exports of crude oil under AGOA, the data shows that the program has substantially improved the export competitiveness of certain African products, especially apparel. For instance, from 2010 to 2020, textile/apparel exports under AGOA grew by approximately 64 percent. Moreover, apparel exports from Lesotho, Ethiopia, Mauritius, Madagascar, and Kenya have not only led to the creation of tens of thousands of jobs but these countries have become reliable producers for the U.S. market and American consumers.  Lesotho and Kenya in particular have enjoyed the highest AGOA utilization rates: between 2010 and 2020, apparel products from Kenya accounted for 88 percent of the country’s total exports to the United States under AGOA ($3.6 billion in value); apparel products from Lesotho accounted for 99 percent of the same ($3.2 billion). The utilization rate is the percentage of U.S. imports under AGOA from a beneficiary country as a share of total U.S. imports from that country.

Heavy manufacturing has also seen some success under AGOA. South Africa’s auto exports to the U.S. under AGOA have created several hundred thousand jobs, directly and indirectly, in South Africa and in the auto supply chain within neighboring countries. Overall, light and heavy manufactured imports under AGOA accounted for 87 percent of all imports under AGOA from 2010 to 2020 (see Figure 1).

Figure 1: U.S. Imports under AGOA (2010-2020)

Note: This data set excludes exports of crude oil.

Source: USITC Data Web.

At the same time, not enough African countries have benefited from AGOA on a level that is sufficient to truly tip the scales when it comes to economic development, growth of commercial opportunities, and job creation. As Ambassador Tai noted during the recent AGOA Ministerial, this trend is due in part because utilization of the program remains low for many beneficiaries. In an effort to address this deficit, Congress called for—but did not require—participating countries to develop and publish national “utilization strategies” during the 2015 reauthorization of the legislation.

Countries with national AGOA strategies have increased AGOA utilization

These strategies are prepared by governments in sub-Saharan Africa as part of their planning to enhance the use of AGOA. In developing these strategies, beneficiary countries determine how their comparative advantage can enhance a country’s own competitiveness, which will also benefit regional trade. The idea behind such plans was that they would position beneficiary countries to take fuller advantage of their preferential access to the U.S. market. A review of trade data suggests that creating AGOA strategies is positively associated with increasing AGOA utilization rates.

To date, only 18 out of the 39 beneficiary countries have developed a national utilization strategy for AGOA. These countries include: Botswana, Eswatini, Ethiopia, Ghana, Kenya, Lesotho, Madagascar, Malawi, Mali, Mauritius, Mozambique, Namibia, Rwanda, Senegal, Sierra Leone, Tanzania, Togo, and Zambia.

Out of the 16 countries reporting data since the publication of a national AGOA utilization strategy, 14 have seen an increase in non-crude exports under AGOA. These increases in exports range from 2 percent to more than 3,000 percent. In particular, Mali, Mozambique, Togo, and Zambia, who had very low utilization rates, experienced an increase in exports of over 90 percent following establishment of a utilization strategy. Below are relevant examples:

  • Kenya published a utilization strategy in 2012. Kenya’s exports to the United States under AGOA subsequently doubled between 2012 to 2020. The largest source of exports during this period were apparel products.
  • Ghana published a utilization strategy in 2016. Ghana’s non-oil exports, which include yuca plant root, apparel products, and travel goods rose by 91 percent from 2017 to 2020.
  • Madagascar published a utilization strategy in 2015. Madagascar’s exports to the United States under AGOA subsequently saw a 390 percent increase from 2015 to 2020. Major exports during this period include apparel products, chocolate, and basket-weaving materials.
  • Mali published a utilization strategy in June of 2016. Mali’s exports to the United States under AGOA increased by 397 percent from 2016 to 2018. Agricultural and manufactured goods, including buckwheat, travel goods, and musical instruments, made up the largest portion of total exports during this period.
  • Mozambique published a utilization strategy in May of 2018. Exports from Mozambique under AGOA saw an 813 percent increase from 2018 to 2020. Agricultural products, such as sugar, nuts, and tobacco, made up the majority of exports over the period.
  • Togo published a utilization strategy in August of 2017. Exports from Togo under AGOA saw a 91 percent increase between 2017 and 2020. Agricultural products, including wheat, legumes, and fruit juices, were the largest source of exports during the period.
  • Zambia published a utilization strategy in March of 2016. Exports from Zambia under AGOA saw over a 3,000 percent increase by 2019. Semi-precious stones, pearls, and copper accounted for the largest portion of exports over the period.

Unfortunately, less than half of AGOA beneficiaries have developed national AGOA strategies. With four years left under the existing legislation, there is still time for beneficiary countries to achieve greater results under AGOA. Moreover, a renewal of AGOA for another 10 years would provide even more time to make national strategies as beneficial as possible while further deepening U.S.-Africa commercial ties.

This article first appeared on Brookings and can also be found on CovAfrica, the firm’s blog on legal, regulatory, political and economic developments in Africa.

 

I.  Introduction: the Scottish Government’s Draft Hydrogen Action Plan

On the 10th of November 2021, the Scottish Government published its Draft Hydrogen Action Plan (the “Plan”), as a companion document to its December 2020 Hydrogen Policy Statement.

The Plan sets out the Scottish Government’s detailed proposals for the Hydrogen industry in Scotland across the next five years. The aim is for Scotland to have capacity to produce 5GW of Hydrogen by 2030 and 25GW of Hydrogen by 2045. This blog sets out the key takeaways from the Plan.

A. Context

Scotland’s goal is to achieve net zero greenhouse gas emissions by 2045, with a 75% reduction against the 1990 baseline by 2030. Acknowledging the urgent need for change, the Scottish Government states that to reach these climate change targets, it will need to move at an unprecedented pace.

The Scottish Government is keen to ensure that those employed in existing (hydrocarbon) sectors will be reskilled and offered opportunities in the renewable sector and that renewable energy is affordably priced. The Scottish Hydrogen sector will play an important role in supporting this transition and the Plan commits the Scottish Government to assessing how to create a long term ‘skills guarantee’ for workers in carbon-intensive sectors. The Plan also highlights Scotland’s potential to become a low-cost producer of Hydrogen in Europe. The Scottish Government will set out in more detail its approach in its 2022 Energy Strategy and Just Transition Plan.

B. Funding

The Plan commits £100m to the Scottish Hydrogen industry over the next five years as part of the Scottish Government’s £180m Emerging Energy Technologies Fund (“EETF”). This money will fund FEED studies for large-scale renewable Hydrogen production projects with a view to making full investment decisions later in the decade.

The Scottish Government wants to use the £100m fund as a means to accelerate as many projects as possible from pilot stage to large scale commercial and has hypothecated £10m to prioritise innovation and research through the creation of the Scottish Hydrogen Innovation Fund, which will be launched early in 2022.

The remaining £80m of the EETF will fund the development of carbon capture, utilization and storage technologies – suggesting that the Scottish Government views blue Hydrogen as an important element of its Hydrogen revolution.

C. Timeline

The Plan sets out detailed action points until the end of 2026. By 2026, the Scottish Government expects large scale Hydrogen production infrastructure to be in place, with links to large-scale CS and onshore and offshore wind developments.

The Plan also sets out the proposed ‘Hydrogen Economy Route Map’ to 2045. Scotland aims to operate on 100% renewable electricity by 2035, with Hydrogen exports to the rest of the UK and Europe being increased at around the same time. In the 2040s, the Scottish Government aims to have capacity to produce 25 GW of Hydrogen and to be established as an enduring and reliable exporter of Hydrogen to Europe.

D. Underlying Themes

Strategic Scotland – the Plan stresses Scotland’s ideal position – due to its location, infrastructure, skilled workforce and natural resources – to grow its Hydrogen industry and become a world-leader in the Hydrogen sector.

Private Sector Diversification – the Plan notes the opportunity that Hydrogen offers for existing energy companies not only to diversify their offer, but also to reduce their carbon emissions.

Regional Approach – the Plan reinforces the importance of Scotland’s key regional hubs, in particular Orkney and Shetland, for potential growth in the Hydrogen industry. Aberdeen City is already deemed to be a Hydrogen hub in this regard, and the aim is for the initial public investment in these hubs to facilitate more significant private investment.

Collaboration – the Plan sets out a collaborative approach to developing Scottish Hydrogen for export, particularly with Germany and other Northern European nations.

E. Relationship between Hydrogen and other renewable energy sources

Although the Plan is not explicit on this point, it acknowledges that initial low-carbon Hydrogen infrastructure will pave the way for establishing the transportation and storage infrastructure to support a green Hydrogen economy in Scotland.

The Plan acknowledges that a strong renewables sector is essential to the development of Hydrogen projects. The Plan notes the importance of the onshore wind sector in supporting small and large renewable Hydrogen projects, but acknowledges the sector requires further investment.

The offshore wind sector is more advanced. Successful bidders in the July 2021 leasing round will be announced in early 2022 and August 2021’s leasing round had the specific objective of constructing offshore wind farms to decarbonise oil and gas infrastructure operations, support oil and gas-field decommissioning, and to use excess generation to create Hydrogen.

F.  Key Goals
The Plan set out six key goals:
  1. Drive Scotland’s Hydrogen production capability to meet an ambition of 5GW of renewable and low-carbon Hydrogen by 2030 and 25GW by 2045.
  2. Address current barriers to the uptake of green and low-carbon Hydrogen, including high production costs.
  3. Support the growth of Regional Hydrogen Energy Hubs.
  4. Encourage demand for Hydrogen by supporting Hydrogen use and developing supply chain capability and export potential.
  5. Secure broad economic benefit from public sector and private sector support for development of regional Hydrogen production and use.
  6. Encourage the development of a strong Hydrogen sector in Scotland which supports a just transition to net zero.
II. Action Plan

The Plan sets out six key challenges to be overcome during the next five years.

A.  Scaling up Hydrogen production in Scotland

To unlock Scotland’s potential to meet its ambitious targets for Hydrogen production, barriers such as regulation, planning laws or infrastructure constraints will need to be addressed. The Plan therefore commits the Scottish Government to a review of existing legislation, regulation and standards, to identify and remove potential barriers to the growth of the Hydrogen industry.

In order to improve understanding of the likely role to be played by Hydrogen in the domestic and global markets, the Scottish Government aims to establish the expected cost-trajectory for renewable Hydrogen up to 2045.

The Scottish Government will work with its counterpart in Whitehall to establish a UK Hydrogen Standard, and until this is established, the Scottish Government will only grant funding to Hydrogen projects with capture rates of at least 90%. Funding will not be awarded to new Hydrogen sites where CO2 emissions are unabated.

B. Facilitating the development of a domestic market

To facilitate the growth of the domestic Scottish Hydrogen market, economies of scale and technological progress are key. Transport and industry are seen as the sectors with the likely highest Hydrogen demand.

The Scottish Government will invite energy-intensive manufacturers to apply for grants under the Scottish Industrial Energy Transformation Fund to support deeper decarbonisation projects. New industrial developments with unabated carbon emissions will not be eligible for Scottish Government funding schemes. In the transport sector, the Scottish Government will establish a consortium for implementation of the Plan.

In the heating sector, the Scottish Government will support SGN (formerly known as Scotia Gas Networks), in converting elements of its network to Hydrogen, but only where doing so is consistent with keeping options open and limiting consumer costs.

Finally, the Scottish Government notes the urgency of amendments to existing UK-wide regulations to support the role of Hydrogen in the gas grid, to support Hydrogen blending and to maximize the volumes of renewable Hydrogen available in the energy system as quickly as possible.

C.  Maximising the benefits of integrating Hydrogen into the Scottish energy system

The Plan notes that converting renewable energy into Hydrogen provides new routes to market and may well change the investment proposition for new and existing renewables investors.

The Scottish Government believes that a key way to maximize the benefits of Hydrogen integration is to work with the UK government, Ofgem and the energy network sector to ensure that regulation rewards Hydrogen projects appropriately. A key action point is the establishment of a Hydrogen transportation and distribution infrastructure to support Scotland’s Hydrogen export ambitions.

D. Enabling the growth and transition of Scotland’s supply chain and workforce

The Plan places significant value on the existence of a skilled workforce within Scotland with expertise in the energy sector and its corresponding supporting infrastructure. Emphasis is placed in the Plan on investment in skills, including upskilling and reskilling workers into the Hydrogen sector. The Hydrogen Business Development service will aim to facilitate collaboration between industry and academic research.

E. Establishing and strengthening international partnerships and markets

The Plan notes Scotland’s potential to produce quantities of Hydrogen far in excess of its own domestic needs, and thus the potential of export and the importance of securing global supply chains. The Enterprise Agencies will, in particular, support the Scot2Ger project, aiming to deliver renewable Hydrogen produced in Scotland to German consumers by 2024. The Plan notes the importance of ensuring there are no legislative or regulatory hurdles to the international export of Hydrogen from Scotland, nor barriers to international inward investment in the Scottish Hydrogen industry.

The Scottish Development International outreach programme will actively engage with 280 international companies identified as potential targets for Foreign Direct Investment in the Scottish Hydrogen industry. Key collaborations on renewable Hydrogen development will be sought with Germany, Belgium, the Netherlands, Denmark, Canada, Australia, Japan and France.

F. Strengthening innovation and research

The Plan notes the funding set aside to create the Scottish Hydrogen Innovation Fund. A new Scottish Hydrogen Innovation Network will facilitate increased collaboration between Scotland’s Hydrogen innovation assets and avoid duplication of research. The Scottish Government will support Scottish participation in applications for EU funding through the Clean Hydrogen for Europe Partnership and will launch a £150k research call to support collaboration between academics and applied research institutes in Scotland and Germany.

Covington has a well-established and growing Hydrogen practice and our mixed policy, regulatory and legal teams are well-placed to help and advise clients moving into this increasingly important sector.  We would welcome the chance to discuss these opportunities with you.

 

On November 1, 2021, the Supreme Court denied a petition for a writ of certiorari in American Civil Liberties Union v. United States. In its petition, the American Civil Liberties Union (ACLU) sought the Supreme Court’s review of the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review’s (FISCR) decisions declining to release court records to the ACLU.

Beginning in 2013, the ACLU filed a series of motions with the FISC arguing that the First Amendment provides a qualified right of public access to its opinions. Both the FISC and the FISCR later rejected the ACLU’s request for records, asserting in turn that each court lacked the authority to consider the merits of the ACLU’s argument. In the case underlying this cert petition, FISC Judge Boasberg concluded that exercising jurisdiction over the ACLU’s motion would be inconsistent with an April 24, 2020 FISCR ruling on a prior ACLU motion seeking access to records, which held that the ACLU’s petition for review did not “fall[] within the class of cases carefully delineated by the [Foreign Intelligence Surveillance Act] as within [the FISCR’s appellate jurisdiction].” Per Judge Boasberg, the FISCR ruling established that Congress has not given either court the authority to review “freestanding” constitutional claims, nor has it granted entities like the ACLU statutory authorization to seek FISCR review.

On appeal to the Supreme Court, the government argued in response to the ACLU’s petition for review that the FISC and FISCR’s decisions were correct, and the Supreme Court did not have jurisdiction to review the lower courts’ rulings.

Justice Gorsuch, in an opinion joined by Justice Sotomayor, dissented from the Supreme Court’s decision to deny cert. “On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts,” Justice Gorsuch wrote, “this case involves a governmental challenge to the power of this court to review the work of Article III judges in a subordinate court. If these matters are not worthy of our time, what is?”

As reflected in Justice Gorsuch’s dissent, the Supreme Court’s decision to deny the ACLU’s petition resurfaces long-standing questions about judicial oversight over the U.S. government’s surveillance programs.

According to a leaked draft, on November 4, 2021, the Council of the European Union (“Council”) and the European Parliament (“Parliament”) agreed a number of amendments to the following three chapters of the draft ePrivacy Regulation, which will replace the ePrivacy Directive 2002/58/EC and has been pending since January 2017):

  • Chapter III (End-Users’ Rights to Control Electronic Communications) – this chapter is expected to regulate: (i) the presentation of calling and connected line identification (g., whether the device’s screen identifies the number of the incoming call); (ii) the blocking of unwanted malicious or nuisance calls; (iii) the inclusion of information, including personal data, in publicly available directories; and (iv) unsolicited direct marketing communications (e.g., spam email and SMS texts).
  • Chapter V (Remedies, Liability and Penalties) – this chapter is expected to regulate: (i) remedies; (ii) right to compensation and liability; (iii) general conditions for imposing administrative fines; and (iv) penalties.
  • Chapter VI (Final Provisions) – this chapter is expected to regulate the entry into force of the draft Regulation and the subsequent monitoring of its implementation by the European Commission.

However, the Council and Parliament still disagree on a number of significant issues.  For example, the Council and Parliament have not yet agreed on a definition of “unwanted calls”.  They also disagree on the scope of the prohibition for sending direct marketing communications without the recipient’s consent:  the Council intends to apply this prohibition only to communications sent to “natural persons”, while Parliamentarians want the prohibition to apply to sending communications to legal persons (e.g., companies) as well.  The Parliament also seeks to extend the traditional definition of direct marketing (which includes automated calling machines, telefaxes, and e-mails, including SMS messages) to various other types of advertisements, such as “pop-up windows or email-like advertisements” (e.g., push notifications), something not currently endorsed by the Council.

The Council and Parliament plan to hold a second trilogue on November 18, 2021 with the aim of closing the above three chapters, to the extent possible, and moving on to the other chapters of the draft ePrivacy Regulation.  We will continue to monitor and report on the developments in future blog posts on Inside Privacy.