Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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The Global Warming Solutions Act Requires MassDEP to Promulgate Declining Annual GHG Emissions Limits for Multiple Sources: ...

On Tuesday, the Supreme Judicial Court ruled that MassDEP had violated the Global Warming Solutions Act by failing "To promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions,...more

5/18/2016 - Climate Change Global Warming Greenhouse Gas Emissions MassDEP

Three Strikes and the Commonwealth Is Out: The Natural Gas Act Preempts Article 97

Last week, Judge John Agostini ruled that the Natural Gas Act preempts Article 97 of the Massachusetts Constitution, which otherwise would have required a 2/3 vote of the Legislature before Article 97 land could be conveyed...more

5/17/2016 - Injunctions Natural Gas Oil & Gas Pipelines Preemption

EPA’s Final Methane Rule: Fighting Climate Change Up to January 20, 2017 — And Beyond

Dylan Thomas said “Do not go gentle into that good night.” Obama’s EPA is taking that advice to heart, pushing forward aggressively on its climate change agenda, even as January 2017 approaches. On Thursday, EPA issued its...more

5/17/2016 - Climate Change EPA Methane New Source Performance Standards (NSPS) Oil & Gas

Better Late Than Never: Massachusetts Moves to Obtain NPDES Delegation

Like most federal environmental programs, NPDES program authority is largely delegated to the states. Only four states aren’t delegated: Idaho, Massachusetts, New Hampshire, and New Mexico. How is it that progressive...more

5/2/2016 - Administrative Authority Clean Water Act EPA NPDES State and Local Government Water Pollution

Coming Soon To A Roof Near You: Solar Panels (At Least If You Live in SF)

This week, the San Francisco Board of Supervisors enacted an ordinance that will require that the developers of all new buildings of 10 floors or less that apply for building permits after January 1, 2017 install solar PV or...more

4/22/2016 - Board of Supervisors Building Permits Green Buildings Local Ordinance Solar Energy Solar Panels

Stop the Presses! EPA Still Thinks that the MATS Rule Is a Good Idea

Last week, EPA issued its “Supplemental Finding”, confirming that it still believes that its Mercury and Air Toxics Standards are “appropriate and necessary.” I don’t have much to add to our post at the time of the proposed...more

4/21/2016 - Chevron Deference Clean Air Act EPA MATS Mercury

Big Changes With LIttle Fanfare: The FHWA Proposes to Use GHG Emissions as a Performance Measure

This week, the Federal Highway Administration issued a Noticed of Proposed Rulemaking to promulgate performance measures to be used in evaluating federal funding of transportation projects. The requirement for performance...more

4/20/2016 - Carbon Emissions Federal Highway Administration Greenhouse Gas Emissions MAP-21 NPRM

A Substantive Due Process Right to Climate Change Regulation? What’s a Lonely Apostle of Judicial Restraint To Do?

Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per...more

4/14/2016 - Carbon Emissions Climate Change Due Process Public Trust Doctrine Waters of the United States

EPA Continues to Dismantle Clean Air Act Affirmative Defenses — Blame It On the Judge(s)

On Wednesday, EPA published certain amendments to the Mercury and Air Toxics Standards in the Federal Register. EPA describes most of the changes as “technical corrections,” but there is one important substantive change. ...more

4/8/2016 - Affirmative Defenses Air Pollution Clean Air Act EPA MATS NRDC

Climate Change and the ESA: Protecting the Wolverine in the Face of Uncertainty

Under the Endangered Species Act, a species is “threatened” when it is “likely to become an endangered species within the foreseeable future.” As scientists continue to predict that climate change will alter habitat over the...more

4/7/2016 - Climate Change Endangered Species Act (ESA) ESA Listings US Fish and Wildlife Service

Water Turning To Blood; Flies; Hail? How About Water-borne Illness, Extreme Weather, and Actual Plague?

Passover starts later this month. Just in time, the U.S. Global Change Research Program has given us an updated list of plagues. What’s fascinating is that the new list actually bears a certain similarity to the biblical...more

4/7/2016 - Climate Change Information Reports Public Health

Are Corps Jurisdictional Decisions Final Agency Action? It Appears So. Is This a Good Thing?

According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government. Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are...more

3/31/2016 - Burden-Shifting Clean Water Act Final Action Hawkes Co v United States Army Corps of Engineers Judicial Review Jurisdictional Determination (JD) Property Owners Sackett US Army Corps of Engineers

CSAPR > BART: The Eighth Circuit Affirms Minnesota’s Regional Haze Plan

Environmental lawyers live for acronyms. Why is CSAPR > BART? Because EPA determined that, on net, EPA’s Transport Rule is “better than BART,” meaning that compliance with the Transport Rule yields greater progress towards...more

3/17/2016 - Arbitrary and Capricious Clean Air Act EPA Standard of Review

The Statute of Limitations Narrows a Bit More on PSD Violations: Sierra Club Suffers a Self-Inflicted Wound

The law is full of fine distinctions. Today’s example? A divided 10th Circuit panel affirmed dismissal of the Sierra Club’s citizen suit claims against Oklahoma Gas and Electric concerning alleged PSD violations at OG&E’s...more

3/10/2016 - Clean Air Act Dismissals Oil & Gas Permits Sierra Club Statute of Limitations

Complaints Are Not Totally Meaningless: A CERCLA Plaintiff Must Allege Disposal Against a Former Owner

I know it may surprise some litigators, but occasionally the allegations in a complaint do matter. In Garrett Day v. International Paper, the Court dismissed CERCLA claims brought by the current owner of a former paper mill...more

3/7/2016 - CERCLA Contaminated Properties Dismissals Hazardous Substances Pleadings Subsequent Purchasers

The Ninth Circuit Approves the FWS Polar Bear Critical Habitat Designation

On Monday, the 9th Circuit reversed a district court decision that rejected the critical habitat designated by the Fish and Wildlife Service for protection of the polar bear, which was listed as threatened in 2008. The case...more

3/2/2016 - Critical Habitat Endangered Species Endangered Species Act (ESA) US Fish and Wildlife Service

EPA’s Charles River Two-Step

At least since the Standells’ Dirty Water in 1966, cleaning up the Charles River has been on the mind of Bostonians (and Cantabrigians and those farther upriver). Notwithstanding significant recent progress, there remains...more

3/1/2016 - Clean-Up Costs EPA Municipalities Storm Sewers Storm Water Stormwater Discharge Permits

NSR Enforcement Staggers On: A Split Decision in Missouri

Given EPA’s recent run of defeats in its NSR enforcement initiative, it’s probably breathing a sigh of relief over last week’s decision in United States v. Ameren Missouri, regarding Ameren’s Rush Island coal-fired power...more

2/29/2016 - Carbon Emissions Clean Air Act Coal-Fired Plants EPA NSR Operational Permits Power Plants Summary Judgment

In Cooperative Federalism, Who Gets Deference, EPA or the States? Can you say “Federal Supremacy”?

Earlier this week, the 9th Circuit denied Arizona’s challenge to EPA’s decision to reject Arizona’s SIP addressing regional haze requirements and instead promulgate its own federal implementation plan. The decision has a...more

2/26/2016 - Arbitrary and Capricious Chevron Deference Clean Air Act EPA Federal Implementation Plans (FIP) Judicial Review SIP Standard of Review Supremacy Clause

The Writing on the Wall Moves to the Federal Register: No 30-Year Take Permits

As we discussed last summer, the Judge Lucy Koh of the Northern District of California ruled that the Fish and Wildlife Service’s 30-year programmatic permit for incidental takes of bald and golden eagles from wind farms...more

2/18/2016 - Federal Register Financing Incidental Take Permits NEPA US Fish and Wildlife Service Wind Farm

Stop the Presses. Superfund is Stupid.

I know that pointing out CERCLA’s stupidity has something of a dog bites man quality, but sometimes Superfund’s stupidity bears repeating. Today’s exhibit? New York v. Next Millenium Realty, in which Judge Feuerstein held –...more

2/12/2016 - CERCLA Contaminated Properties Environmental Litigation EPA Statute of Limitations Superfund

EPA and DOJ Cannot Sugarcoat This: SCOTUS Stays the Clean Power Plan

On February 9, 2016, the Supreme Court stayed EPA’s Clean Power Plan rule. No matter how much EPA and DOJ proclaim that this says nothing about the ultimate results on the merits, the CPP is on very shaky ground at this...more

2/10/2016 - Clean Power Plan DOJ EPA Judicial Review Order to Stay SCOTUS

If It Walks Like a Carbon Tax and Talks Like a Carbon Tax, (Then the GOP Hates It.)

On February 4, 2015, the White House released a fact sheet describing its efforts to create a “21st Century Clean Transportation System”. There’s a lot of interesting material in the plan, but all the headlines have been on...more

2/5/2016 - Carbon Taxes Clean Energy Obama Administration Tax Revenues

Prognosticating the Ozone Standard Litigation: EPA to Win, Environmental Petitioners to Place, Murray Energy to Show

Last week, the “Public Health and Environmental Petitioners” challenging EPA’s decision not to reduce the ozone standard below 0.070 ppm filed their “Non-Binding Statement of Issues.” My crystal ball still tells me that the...more

2/1/2016 - Environmental Litigation EPA Final Rules Ozone Public Health

Good Law Catches Up With Good Policy: The Supreme Court Upholds FERC’s Demand Response Order

The Supreme Court today affirmed FERC’s Order No. 745, which required that demand response resources be treated the same as generation resources when participating in wholesale electricity markets. I’m feeling vindicated,...more

1/26/2016 - Demand Response Electricity Energy Market Energy Policy FERC SCOTUS Wholesale

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