Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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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

What’s a Court to Do When An Agency Admits Error? Vacate? Remand?

In Black Warrior Riverkeeper v. ACOE, decided this week by the 11th Circuit Court of Appeals, the Court was faced with a quandary. “On the eve of oral argument”, in a case challenging The Army Corps of Engineers Nationwide...more

3/26/2015 - Coal Industry Coal Mines US Army Corps of Engineers

Conservative Support for a Carbon Tax? Hope Springs Eternal

I have long thought that the best argument for market-based approaches to climate change mitigation was the clunkiness of the alternative. However much time EPA has spent trying to make the GHG regulations efficient, no one...more

3/25/2015 - Carbon Taxes Energy Policy EPA Greenhouse Gas Emissions Legislative Agendas

RCRA Still Poses Some Interpretive Problems (To Put It Gently)

In a potentially significant opinion last week, in Little Hocking Water Association v. DuPont, Judge Algenon Marbley gave hope to citizen plaintiffs everywhere, with a remarkably expansive reading of the imminent and...more

3/24/2015 - Citizen Suits DuPont RCRA

Is Injunctive Relief Available Against Former Owners? At Least One Judge Thinks So.

As we noted in 2013, two different Courts of Appeal had ruled that injunctive relief is not available in PSD/NSR enforcement cases against former owners. Both United States v. Midwest Generation and United States v. EME...more

3/23/2015

RCRA Is a Mess

In a potentially significant opinion last week, in Little Hocking Water Association v. DuPont, Judge Algenon Marbley gave hope to citizen plaintiffs everywhere, with a remarkably expansive reading of the imminent and...more

3/18/2015 - Citizen Suits DuPont RCRA

What’s a Significant Nexus? The Answer, My Friend, Is Flowin’ Through the Ditch.

Even assuming that the “significant nexus” test from Justice Kennedy’s concurring opinion in Rapanos defines waters of the United States subject to Clean Water Act jurisdiction, the question remains what establishes a...more

3/16/2015 - Clean Water Act EPA Federal Jurisdiction

News Flash: Courts Still Defer to an Agency’s Interpretation of Its Own Rules

The Supreme Court today ruled that, when an agency revises its interpretive rules, it need not go through notice-and-comment rulemaking. Although the decision, in Perez v. Mortgage Bankers Association, required the court to...more

3/10/2015 - Administrative Procedure Act DOL FLSA Mortgage Loan Originators Paralyzed Veterans Doctrine Perez v Mortage Bankers Assoc Rulemaking Process SCOTUS Statutory Interpretation

Self Righteousness Still Does Not Help the Environmentalists’ Cause

Fully five years ago, I noted that the cavalier treatment by government officials of FOIA requests made by opponents of government policy revealed a degree of self-righteousness that was both offensive and self-defeating –...more

3/3/2015 - Environmental Policies EPA FOIA

MassDEP — A Voice of Reason in the Stormwater Permitting Debate

EPA has been working to craft a general permit for small Municipal Separate Storm Sewer Systems for quite some time. The most recent draft permit, published last September, has received significant comment, most recently...more

3/3/2015 - EPA General Permit MassDEP Storm Water

No Competitors In My Backyard?

In Paradise Lost, John Milton wrote that “easy is the descent into Hell, for it is paved with good intentions.” A modern environmental lawyer might say that the road to waste, inefficiency, and obstruction is paved with good...more

3/2/2015 - Business Litigation Citizen Suits Clean Air Act Competition EPA

Is It Too Late to Just Throw Superfund to the Curb?

Last week, Judge Paul Borman of the Eastern District of Michigan, allowed a motion by the United States for judgment on the pleadings, dismissing a third-party complaint brought against the United States by Michigan...more

2/19/2015 - CERCLA Judgment on the Pleadings Superfund

An Analysis of the Problems at the MBTA: Is This the Origin of “Sue-and-Settle”?

On Sunday, the Boston Globe had a fairly comprehensive look at the causes of the current failings of the MBTA. Interesting reading for those who like to belabor the obvious. The short version? Lack of political will and...more

2/19/2015 - Citizen Suits Infrastructure Public Transporation

The Impact of the Clean Power Plan on Reliability: Now We Have Dueling Assessments

In November, the North American Electric Reliability Corporation provided its “Initial Reliability Review” of EPA’s Clean Power Plan. NERC raised a number of concerns about the impact of the CPP on reliability....more

2/18/2015 - Clean Power Plan Electricity EPA NERC Power Infrastructure

Déjà Vu All Over Again: CLF and CWRA Try Once More to Get EPA to Regulate Stormwater Discharges to the Charles River

In 2008, EPA made a preliminary determination to use its residual designation authority (RDA) under the Clean Water Act to designate stormwater discharges from two or more acres of impervious surfaces in the Lower Charles...more

2/12/2015 - Charles River Watershed Clean Water Act EPA Stormwater Stormwater Discharge Permits

Parent Corporations Beware: Control Over Your Subsidiaries is a Double-Edged Sword

The decision earlier this month in Cyprus Amax Minerals v. TCI Pacific Communications is a useful reminder that corporate form exists for a reason and that parent corporations who ignore corporate niceties do so at their...more

2/10/2015 - CERCLA Corporate Veil Parent Corporation Subsidiaries

FutureGen is Dead. Long Live CCS.

Although there is no news on DOE’s web site as of today, apparently FutureGen 2.0 is dead.  DOE stopped federal funding.  The FutureGen Alliance has already asked DOE to reconsider, but that seems unlikely at this point....more

2/5/2015 - DOE FutureGen 2.0 Power Plants

A Federal Court Rules that Increased Conductivity Impairs a Stream — How Shocking!

On Tuesday, Chief Judge Robert Chambers ruled that Fola Coal Company violated the Clean Water Act by discharging mine waste with sufficiently high levels of conductivity to cause or materially contribute to impairment of...more

2/2/2015 - Chevron Deference Clean Water Act Coal Industry Discharge of Pollutants EPA

General Permits Are Also Entitled to a Permit Shield

On Tuesday, the 6th Circuit Court of Appeals held that the “permit shield” provisions of the Clean Water Act protected ICG hazard from Sierra Club claims that effluent from ICG Hazard’s Thunder Ridge mine caused exceedances...more

1/29/2015

Coming Soon to a Settlement Near You: Next Generation Compliance

In a memorandum issued earlier this month, EPA Assistant Administrator for Enforcement Cynthia Giles encouraged use by EPA staff of “Next Generation Compliance Tools” in civil settlements. Some of the tools are more “next...more

1/27/2015 - EPA Strategic Enforcement Plan

It’s All Connected: EPA Finally Determines that the Science Supports an Expansive Definition of Waters of the United States

On Thursday, EPA issued its final report on Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence. The Connectivity report is intended to support EPA’s rule clarifying the...more

1/16/2015 - EPA Information Reports Inland Waterways US Army Corps of Engineers Waters of the United States

What is the Social Cost of Carbon? And Who Bears Those Costs?

As I noted last year, there has been significant criticism of the Integrated Assessment Models used to calculate the social cost of carbon. An article published this week in Nature Climate Change (not free), attempts to...more

1/15/2015 - Carbon Emissions Climate Change

Is a Clean Energy Standard Coming to Massachusetts? We’ll See What the New Governor Thinks

Last week, the Massachusetts Department of Environmental Protection proposed to implement a “Clean Energy Standard,” which would require that, by 2020, at least 45% of electricity sales come from sources which have “clean...more

1/14/2015 - Clean Energy Electricity Energy Policy Proposed Standards

EPA Extends The Schedule For Issuing Its Power Plant Carbon Rules

As most readers know, EPA has extended its schedule for issuing its rules addressing GHG emissions from both existing, and new and modified, power plants. EPA expects to issue the rules in the Summer of 2015. Only time will...more

1/13/2015 - EPA Greenhouse Gas Emissions Regulatory Standards Time Extensions

Not a Good Day For Cape Wind: NStar and National Grid Terminate the Power Purchase Agreements

According to today’s Boston Globe, both NStar and National Grid have terminated their power purchase agreements with Cape Wind, citing the failure by Cape Wind to meet a December 31, 2014 deadline to obtain financing and...more

1/7/2015 - Cape Wind Energy Projects Energy Sector Financing Greenhouse Gas Emissions Power Purchase Agreements

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