Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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Can the Majority and the Dissent Both Be Wrong? The Supreme Court Remands the MATS Rule

The short answer is, yes, though the majority is more wrong. In fact, the issue in Michigan v. EPA seems so simple that the MATS rule could have been affirmed in a two-page opinion. Judge Scalia notes that the word...more

6/30/2015 - Chevron Deference Clean Air Act EPA MATS Michigan v. EPA SCOTUS

Do Climate Change and Same-Sex Marriage Have Anything in Common?

Recent events have me pondering this question. Most notably, in two court decisions last week, courts ordered the State of Washington and the government of the Netherlands to take more aggressive action against climate...more

6/29/2015 - Climate Change Greenhouse Gas Emissions Nuisance Standing

FWS To Authorize Incidental Takes Under the Migratory Bird Treaty Act?

Late last month, the Fish & Wildlife Service issued a Notice of Intent to prepare a programmatic environmental impact statement to evaluate various options for authorizing incidental takes under the Migratory Bird Treaty Act....more

6/23/2015 - Environmental Impact Report Fish and Wildlife Service Migratory Bird Treaty Act Oil & Gas Wind Power

Environmental Impact Assessments Don’t Have to Be Wise, But They May Not Assume Their Conclusion

In an important decision last week, United States District Judge Jorge Alonso rejected the Environmental Impact Statement for the Illiana Corridor Project, which would connect I55 in Illinois to I65 in Indiana. (And why...more

6/22/2015 - DOT Environmental Impact Report Public Projects

EPA’s EJSCREEN: Making Citizen Environmental Suits Just a Little Bit Easier

I have previously noted that EPA, perhaps recognizing that an unfriendly Congress will lead to budgetary constraints on government enforcement, has been trying to facilitate citizen enforcement efforts. EPA’s latest move on...more

6/16/2015 - Citizen Suits EPA

No, Virginia, You Can’t Challenge a Rule that Hasn’t Even Been Promulgated

Easy way to tell when you’ve lost your appeal? When a pithy judge starts making fun of you in the first sentence of the opinion. In a case that was only ever going to have one outcome, the D.C. Circuit Court of Appeals...more

6/10/2015 - Clean Power Plan EPA Jurisdiction Power Plants

If Congress Wants to Limit EPA’s Discretion, Perhaps It Should Do a Better Job Legislating

Earlier this week, the D.C. Circuit Court of Appeals rejected both industry and environmental group petitions challenging EPA’s determination of what is a solid waste in the context of Clean Air Act standards for incinerators...more

6/8/2015 - Auto Manufacturers Automotive Industry Chevron Clean Air Act EPA Manufacturers RCRA Solid Waste

Startup, Shutdown, and Malfunction — No Longer Any Automatic Exemptions or Affirmative Defenses

Last week, EPA finally responded to the Sierra Club’s petition requesting that it eliminate exemptions and defenses for excess emissions resulting from startup, shutdown, or malfunction events. EPA concluded that it needed to...more

6/1/2015 - Affirmative Defenses EPA Exemptions SIP SSM Periods

EPA Defines “Waters of the United States”. The Sky Has Not Fallen.

Yesterday, EPA and the Army Corps finally released their long-awaited rule defining “waters of the United States.” I’m actually with EPA and the Corps on this one. It’s an important rule, and I’m glad that EPA and the Corps...more

5/29/2015 - Clean Water Act EPA US Army Corps of Engineers Waters of the United States

Easy Cases Make Better Law — Standing Edition

In an interesting, but not really difficult, decision on Tuesday, the D.C. Circuit Court of Appeals found that the National Association of Home Builders did not have standing to challenge a consent decree pursuant to which...more

5/27/2015 - Endangered Species Act Fish and Wildlife Service Homeowners National Association of Home Builders Standing Warranted-But-Precluded Determination

Kansas Thumbed Its Nose at EPA’s SIP Requirements — How’d That Work Out?

The D.C. Circuit Court of Appeals today rejected Kansas’s challenge to EPA’s disapproval of Kansas’s SIP revisions intended to comply with the Interstate Transport Rule. The Court found that EPA was not arbitrary or...more

5/26/2015

Half a Loaf May Not Be Too Bad: The 9th Circuit Affirms Most of EPA’s Approval of the San Joaquin Valley SIP

Earlier this week, the 9th Circuit Court of Appeals granted part of a petition challenging EPA’s approval of California’s SIP for ozone and PM 2.5 in the San Joaquin Valley.  While the trade press has been focusing on the...more

5/26/2015 - Appeals Energy Sector EPA NAAQS Ozone SIP

MassDEP Has A Lot of Discretion in Implementing the Global Warming Solutions Act

Unsatisfied with the pace of the administration’s implementation of the Global Warming Solutions Act, the Conservation Law Foundation sued the Massachusetts Department of Environmental Protection, seeking a court order...more

5/22/2015 - Global Warming Solutions Act MassDEP

The SJC Walks Back the GE Decision; State Agencies Can Protect Work Product

In its 1999 decision in GE v. DEP, the SJC surprised most Massachusetts lawyers by ruling that the Commonwealth’s Public Records Act (our version of FOIA) did not have an exemption for work product materials and that it had...more

5/18/2015 - Discovery FOIA General Electric Public Records Act Superfund Work Product Privilege

Is There Any End to Post-Closure Care Under RCRA?

Late last month EPA issued draft guidance on adjusting post-closure periods under RCRA. It’s not good news. ...more

5/13/2015 - Contaminated Properties Draft Guidance EPA RCRA Remediation

EPA Is Not an Expert in Determining Electric System Reliability

The D.C. Circuit Court of Appeals just reversed and remanded EPA’s rule allowing backup generators to operate for up to 100 hours per year as necessary for demand response. It’s an important decision that could have lessons...more

5/4/2015 - Appeals EPA FERC Greenhouse Gas Emissions NERC Reliability Standards

When Does a Judge Refuse an Unopposed Motion to Enter a Consent Decree?

Last week, Judge John Copenhaver refused to allow a motion by the United States to enter a consent decree that would have resolved government claims against DuPont concerning alleged violations of the Clean Air Act, CERCLA,...more

5/1/2015 - CERCLA Clean Air Act Consent Decrees DuPont EPCRA Judges Manufacturing Facilities

The Stormwater Mess Continues in Massachusetts: CLF and CRWA Sue EPA

In February, we noted that the Conservation Law Foundation and the Charles River Watershed Association had threatened to sue EPA for failing to require that “commercial, industrial, institutional, and high density residential...more

4/30/2015 - Discharge of Pollutants EPA MassDEP Storm Water Stormwater Discharge Permits

Majority Support for a Carbon Tax?

What are the politics of climate change? A new poll done by Stanford University and Resources for the Future suggests that the public may be more ready to regulate carbon taxthan has previously been thought. When asked if...more

4/16/2015 - Carbon Taxes Climate Change Polling

Perhaps a Corps Jurisdictional Interpretation is Final Agency Action After All

After Sackett, the question on everyone’s mind was “How far does it go?” The first test of that question was the decision by the 5th Circuit Court of Appeals – not known as a bastion of liberalism – in Belle Company v. Corps...more

4/14/2015 - Administrative Authority Appeals Final Action Judicial Review Jurisdiction Private Property Rights US Army Corps of Engineers

EPA Really Has A Lot Of Discretion In Deciding Whether to Promulgate Water Quality Standards

When a number of citizen groups petitioned EPA to determine that it is necessary under the Clean Water Act to promulgate water quality standards for nutrient pollution in the Mississippi River Basin and the Northern Gulf of...more

4/13/2015 - Clean Water Act EPA Standard of Review

If MassDEP Cannot Promulgate New Regulations Absent Compliance with Executive Order 562, What About Guidance Documents?

For your humble blogger, Executive Order 562, recently issued by Governor Baker, is the gift that keeps on giving. Receipt of a notice today regarding MassDEP’s consideration of its draft vapor intrusion guidance document...more

4/13/2015 - Executive Orders Governor Baker MassDEP Vapor Intrusion Guidance

Here’s Another Nice Mess: Executive Order 562 Claims Its First Victim

Last Friday, I posted about Governor Baker’s Executive Order 562, which requires cost-benefit analysis, cost effectiveness analysis – and more – before state agencies can promulgate regulations. It took less than a week...more

4/10/2015 - Clean Energy Executive Orders Governor Baker MassDEP

There’s Undoubtedly A New Sheriff in Town in Massachusetts

I have never agreed with those in the environmental community who are opposed to cost-benefit and cost-effectiveness analysis. Cost-effectiveness analysis just seems a no-brainer to me. As to cost-benefit analysis, we do it...more

4/3/2015 - Executive Orders Regulatory Agenda State Regulators

NEPA Review — Still the Land of Deference

Last week, District Judge Ralph Beistline allowed the summary judgment motion filed by the United States Forest Service, and dismissed citizen claims challenging the Forest Service decision to approve an logging project in an...more

3/27/2015 - Citizen Suits Dismissals Forest Service NEPA

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