Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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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Late last month EPA issued draft guidance on adjusting post-closure periods under RCRA.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

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

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