Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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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

CCRs Dodge a Hazardous Waste Bullet: EPA Regulates under RCRA Subtitle D

On Friday, EPA finally released its final rule regulating coal combustion residuals. Facility owners breathed a sigh of relief, as EPA chose to regulate under Subtitle D of RCRA, rather than under the cradle-to-grave...more

12/24/2014 - Coal Coal Ash EPA Final Rules Hazardous Waste RCRA

Fish Two, Water Withdrawals Zero: The 9th Circuit Affirms Another Biological Opinion

On Monday, the 9th Circuit Court of Appeals dealt another blow to traditional operation of the massive water projects that supply California’s Central Valley. The Court reversed those parts of a District Court opinion that...more

12/24/2014 - Appeals Delta Smelt Endangered Species National Marine Fisheries Service Public Projects State Water Project Water

EPA Releases FY 2014 Enforcement Results: Maybe Less Enforcement Is Good News

Last week, EPA released its report on Enforcement Annual Results in EPA Regions for Fiscal Year 2014. As always, the report is worth reading, if only for the interactive map which shows where EPA has brought various kinds of...more

12/22/2014 - Enforcement Enforcement Statistics EPA

Proof and Causation Matter: District Court Declines to Penalize ExxonMobil in Texas Citizen Suit

On Wednesday, Judge David Hittner, of the District Court for the Southern District of Texas, in a decision long enough to require two separate pdfs, declined to impose an injunction or penalties (plaintiffs sought...more

12/19/2014 - Citizen Suits Clean Air Act Exxon Mobil

Virginia Proposes Nutrient Trading Regulations: Established Concept, New Medium

This week, Virginia formally proposed Nutrient Trading Certification Regulations. The program will establish a market in phosphorus and nitrogen removal credits. Although the program is welcome news, it should be neither...more

12/18/2014 - Emissions Trading System

Cole Porter Was Right: The Economic Cost of Climate Change

There has already been significant discussion of the economic impacts of climate change. Damage from catastrophic events, the cost to build adaptation measures such as sea walls; these have all been examined. ...more

12/17/2014 - Climate Change

FERC Will Seek Supreme Court Review of the Decision Striking Down Order 745

Last Friday, FERC sought a further stay of the decision by the D.C. Circuit Court of Appeals striking down FERC Order 745. Whereas the United States had previously only indicated that it was considering filing a cert....more

12/12/2014 - Chevron Deference FERC SCOTUS

When Is a Solid Waste Not a Solid Waste? An Eternal Question

This year, EPA has proposed a rule to regulate GHG emissions from existing sources, the legality of which turns, in significant part, on the definition of a “source” under section 111(d) of the Clean Air Act. It has also...more

12/11/2014 - Clean Air Act EPA Greenhouse Gas Emissions Proposed Regulation RCRA Solid Waste Waters of the United States

EPA Does Not Have a Nondiscretionary Duty to Revise PSD Regulations When It Amends a NAAQS

On Monday, the 9th Circuit Court of Appeals ruled that EPA does not have an obligation to amend PSD regulations for a criteria pollutant within two years of revising the National Ambient Air Quality Standard for that...more

12/4/2014 - Appeals Clean Air Act EPA NAAQS PSD

EPA Finally Proposes a Revised Ozone Standard, Sort Of

Yesterday, EPA finally proposed a revised ambient air quality standard for ozone – except that the agency is still hedging its bets. The Clean Air Science Advisory Committee had previously supported a revised ozone NAAQS of...more

12/1/2014 - Air Quality Standards Energy Policy EPA

I’m Still a Cockeyed Optimist When It Comes to Climate Change

Last week, NRG Energy announced plans to reduce CO2 emissions 50% by 2030 and 90% by 2050. And this reduction is not from a 1990 or 2005 baseline; it is from 2014 emissions. NRG’s statement indicated that it had already...more

11/25/2014 - Cap-and-Trade Carbon Emissions Carbon Taxes Climate Change Energy Policy

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