Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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Who Gets to Review EPA Actions? The Court of Appeals? The District Court? (Hint: The Answer Is Not “Neither One”)

The general rule under the Clean Air Act is that any: person may bring suit in district court against the EPA Administrator for an alleged failure to perform a nondiscretionary act or duty, and the district court has...more

7/31/2014

Is Selenium the Coal Industry’s Kryptonite? Citizen Groups Obtain Summary Judgment Based on Water Quality Criteria Exceedances

Last week, the Ohio Valley Environmental Coalition and other NGOs obtained summary judgment that Alex Energy had violated both its NPDES permit and its Surface Mining Permits due to exceedances of the West Virginia water...more

7/28/2014 - Coal Contaminated Properties Contamination Corporate Counsel Environmental Policies Water Water Quality Control Boards

An Update On Standing — Some Specifics Really Are Required

Last week, the 9th Circuit Court of Appeals affirmed EPA’s approval of Nevada’s State Implementation Plan for regional haze against a challenge by WildEarth Guardians. The decision isn’t earthshaking. However, because it...more

7/22/2014

EPA Wins Two Clean Water Cases in One Day: The Fourth Circuit Affirms a Narrow Construction of the Permit Shield Defense

Yesterday, I noted that the D.C. Circuit rejected challenges to EPA’s Enhanced Coordination Process and Final Guidance on Clean Water Act permitting for mining activities. It was not EPA’s only CWA victory. On the same day,...more

7/15/2014 - Clean Water Act Environmental Policies EPA Mining Water

Still Using Economic (and Safety) Arguments to Reduce Greenhouse Gas Emissions: Massassachusetts Enacts Gas Leak Legislation

As I noted last year, there has been a concerted effort on the part of those fighting climate change to emphasize economic issues in connection with their policy proposals. That post concerned Senator Markey’s efforts to...more

7/14/2014 - Carbon Emissions Environmental Policies Greenhouse Gas Emissions

The D.C. Circuit Rejects Challenge to EPA’s Final Guidance on CWA Coal Mining Permits: EPA Action Has to Be Really, Really, Final...

On Friday, the D.C. Circuit reversed Judge Reggie Walton’s decision from 2012 and affirmed EPA’s authority to adopt the “Enhanced Coordination Process” governing coordination with the Army Corps of Engineers in the processing...more

7/14/2014 - Clean Water Act EPA Final Guidance Land-Use Permits Permits US Army Corps of Engineers

The Reach of Sackett is Not Infinite: Regulated Facilities May Not Challenge EPA Notices of Violation

After the Supreme Court held in Sackett v. EPA that EPA must provide hearings to those to whom it issues unilateral administrative orders, the regulated community immediately began to wonder how broadly the ruling would...more

7/10/2014 - Administrative Hearings EPA Notice of Violation Sackett SCOTUS

83% of a Loaf Is Better Than None: The Supreme Court Affirms EPA’s Authority to Regulate “Anyway Sources”, But Rejects Regulation...

The Supreme Court affirmed EPA’s authority to subject 83% of greenhouse gas emissions to its PSD and Title V Operating Permit programs. However, EPA’s rationale for the rule did not fare so well, and EPA does not have...more

6/25/2014 - BACT Clean Air Act Climate Change Environmental Policies EPA Greenhouse Gas Emissions Permits Power Plants SCOTUS Title V Utilities Sector Utility Air Regulatory Group v EPA

Does Offshore Wind Finally Have The Wind At Its Back? DOI Announces Plan For Largest Auction To Date

Earlier this week, DOI Secretary Jewell joined with Governor Patrick to announce plans to auction more than 1,000 square miles on the Outer Continental Shelf offshore Massachusetts for wind energy development. The auction,...more

6/23/2014 - Department of the Interior Energy Offshore Wind Renewable Energy Wind Power

More on EPA’s GHG Rule: I Am NOT Going To Set Odds on Whether the Rule Would Survive Judicial Review

Last week, in posting about EPA’s Clean Power Plan, I noted that some potential plaintiffs might face standing obstacles in seeking to challenge the rule, assuming it is promulgated as proposed. Today, I take a (very)...more

6/12/2014 - Carbon Emissions Clean Power Plan Energy Environmental Policies EPA Greenhouse Gas Emissions Power Plants

EPA May Be Regulating GHGs, But Private Litigation Still Looks to be On Shaky Ground

In a case of interesting timing, three days after EPA announced its proposed GHG rules for existing facilities, the D.C. Circuit affirmed dismissal of a case seeking an injunction against EPA and other federal defendants...more

6/9/2014 - Air Pollution Carbon Emissions Clean Air Act Environmental Policies EPA Greenhouse Gas Emissions Public Trust Doctrine

EPA’s GHG Rule: The Really Big Picture View

As some folks may have heard, EPA proposed emission guidelines for GHG emissions from existing generating units on Monday. Obviously, the rule is a little too complicated to summarize in one blog post, though I’ll try to post...more

6/5/2014 - Carbon Emissions Environmental Policies EPA Greenhouse Gas Emissions Power Plants

When Does the Sixth Circuit Set EPA Rules for the Entire Country? When EPA Regulations Require National Uniformity

In a fascinating decision issued today, the D.C. Circuit Court of Appeals struck down EPA’s Summit Directive. The Summit Directive – sounds ominous – was issued in response to the 2012 decision in Summit Petroleum Corp. v....more

6/2/2014 - Environmental Policies EPA NSR Title V

When Is An Agreement Not To Purchase Electricity a Retail Sale? The DC Circuit Strikes Down FERC Order 745

Last Friday, the D.C. Circuit Court of Appeals struck down FERC Order 745, which required that demand response resources be compensated in the same way as traditional generation resources, at the “locational marginal price”,...more

5/29/2014 - Appeals Electric Generation Suppliers Electricity FERC Wholesale

The RGGI Annual Report for 2013: Do We Finally Have a Real Market for Allowances?

Potomac Economics has released the Annual Report on the Market for RGGI CO2 Allowances for 2013. Based on the data in the report, it appears that a functioning market for CO2 allowances is finally developing. What’s the...more

5/22/2014 - Carbon Emissions Emissions Trading System Energy RGGI

EPA Promulgates Final Cooling Water Intake Rule: Much Ado About Not Very Much?

On Monday, EPA finally announced promulgation of its long-awaited rule governing cooling water intake structures at existing facilities. The rule is certainly important, but it’s not earthshattering and it may be more...more

5/21/2014 - Environmental Policies EPA NGOs Water

Massachusetts Land Trusts Breath a Collective Sigh of Relief: The SJC Rules That There Is No Requirement to Promote Public Access...

The Massachusetts Supreme Judicial Court today ruled that land trusts or other charities which own and preserve conservation land may take advantage of a state tax exemption on such land even if they do not affirmatively...more

5/16/2014 - Conservation Property Tax Public Access Laws Tax Exemptions

Coming To An Air Quality District Near You: A More Stringent Ozone NAAQS

As we have noted previously, EPA has had difficulty in promulgating a revised National Ambient Air Quality Standard for ozone. Whenever the revised NAAQS is issued – and EPA is under court deadline to propose a draft by...more

5/14/2014 - Environmental Policies EPA NAAQS Regulatory Standards

EPA On Track to Regulate Fine Particulates More Stringently: D.C. Circuit Affirms Revised PM 2.5 NAAQS

EPA’s judicial winning streak continues. Today, the D.C. Circuit Court of Appeals affirmed EPA’s regulations lowering the PM 2.5 National Ambient Air Quality Standard from 15.0 ug/m3 to 12.0 ug/m3. This was not a close case...more

5/12/2014 - Appeals EPA NAAQS

Light at the End of the Cape Wind Tunnel? Judge Stearns Proclaims the Opponents “Vexatious”

On Friday, Judge Richard Stearns dismissed the latest challenge to Cape Wind, ruling that claims that the Massachusetts DPU coerced NSTAR into purchasing power from Cape Wind, and that such coercion violated the dormant...more

5/6/2014 - Energy Environmental Policies Renewable Energy Wind Power

The Wind Bloweth Where It Listeth — And the Supreme Court Says EPA Therefore Has Discretion in Regulating Wind-Borne Pollution

The Supreme Court today reversed the D.C. Circuit and affirmed EPA’s Transport Rule (known more formally as the Cross-State Air Pollution Rule). Whatever the hopes and dreams of the upwind states and the industry opponents,...more

4/30/2014 - Clean Air Act EPA SCOTUS Transport Rule

Is the NSR Enforcement Initiative Dead Yet? Injunctive Relief Claims Dismissed Against U.S. Steel

Last Friday, EPA lost another NSR enforcement case. Not only that, but this was a case EPA had previously won. As we noted last August, Chief Judge Philip Simon of the Northern District of Indiana, had previously ruled that...more

4/24/2014 - Enforcement Environmental Policies EPA Injunctions NSR Sierra Club

Cement Kiln Operators Better Hope that Their Control Technology Works: D.C. Circuit Vacates EPA’s Affirmative Defense Rule

Last week was hazardous air pollutant regulation week at the D.C. Circuit Court of Appeals. First, as we reported, the Court affirmed EPA’s mercury air toxics rule, determining that EPA need not take cost into account in...more

4/23/2014 - Air Pollution Clean Air Act Energy Energy Policy Environmental Policies EPA Power Plants

D.C. Circuit Affirms EPA’s Utility Air Toxics Rule: An “Appropriate” Rule Need Not Be Justified By Cost-Benefit Analysis

Yesterday, the D.C. Circuit Court of Appeals affirmed EPA’s rule setting limits for emissions of mercury and other air toxics from fossil-fuel-fired electric steam generating units. The focus of the decision – and the issue...more

4/17/2014 - Air Pollution EPA National Emissions Standards Trucking Industry

Enforcement of Municipal Stormwater Ordinances Is Tricky Business: Failure to Enforce an Ordinance Required Under a Permit Is Not...

Stormwater pollution has become an increasingly important problem. Part of the difficulty in solving it is that it’s not obvious who should be responsible. Should cash-strapped municipalities be on the hook or should it be...more

4/14/2014 - Environmental Policies EPA Industrial Stormwater Rule Storm Water

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