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 - Appeals Clean Air Act EPA Jurisdiction Rulemaking Process Sierra Club

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

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

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

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

Yes, Virginia, NSR Really is a Preconstruction Permitting Program: Another NSR Enforcement Case Fails on Statute of Limitations...

The trend of cases holding that the NSR provisions of the Clean Air Act constitute a one-time preconstruction review requirement got stronger earlier this month, as the decision in Sierra Club v. Oklahoma Gas and Electric...more

3/17/2014 - Clean Air Act Enforcement Actions NSR Sierra Club Statute of Limitations

NSR Emissions Projections — Finally, An Area Where It is the Regulated Entity Which Is Entitled to Deference

Last spring, the 6th Circuit Court of Appeals ruled that when power plant owners compare actual emissions to projected future actual emissions for the purpose of determining whether a project is subject to the Clean Air Act’s...more

3/5/2014 - Clean Air Act Environmental Policies EPA NSR

The States Lose Another NSR (and NSPS) Enforcement Case: I Think I Detect A Trend

As I have previously noted, the government’s record in NSR enforcement cases has been going downhill, particularly with important defeats before the 3rd and 7th Circuits’ Courts of Appeals. The latest governmental defeat...more

2/10/2014 - Clean Air Act Enforcement Actions Environmental Claims Environmental Policies NSR

The Third Circuit Reinstates Nuisance Claims Against Cheswick Generating: Bad Idea

On Wednesday, in Bell v. Cheswick Generating Station, the 3rd Circuit Court of Appeals revived class action nuisance claims brought by residential property owners living within one mile of GenOn’s Cheswick Generating Station....more

8/23/2013 - Clean Air Act Environmental Policies EPA Nuisance SCOTUS

We Still Don’t Need No Stinkin Cooperative Federalism: The D.C. Circuit Court of Appeals Holds that GHG Sources Require PSD...

Last Friday, I posted about the limits to EPA’s cooperation with states in the name of “cooperative federalism” under the Clean Air Act. On the same day, in Texas v. EPA, the D.C. Circuit Court of Appeals only emphasized my...more

7/30/2013 - Chevron Clean Air Act EPA Greenhouse Gas Emissions Permits PSD SIP

Cooperative Federalism? We Don’t Need No Stinkin Cooperative Federalism

Last Friday, the Court of Appeals for the 10th Circuit, in Oklahoma v. EPA, affirmed EPA’s rejection of Oklahoma’s state implementation plan setting forth its determination of the Best Available Retrofit Technology, or BART,...more

7/25/2013 - Clean Air Act EPA Federalism Political Debates SIP Technology

Mississippi v. EPA: Support of the Clean Air Science Advisory Committee is Not Necessary to Affirm EPA’s NAAQS

On Tuesday, in Mississippi v. EPA, the Court of Appeals for the D.C. Circuit affirmed EPA’s 2008 NAAQS for ozone of 0.075 ppm. However, it remanded EPA’s decision to set the secondary NAAQS, for public welfare, at the same...more

7/25/2013 - Clean Air Act Environmental Impact Report Environmental Policies Environmental Review EPA NAAQS

Section 126 of the Clean Air Act and Cooperative Federalism: EPA May Cooperate with the Downwind State Rather than the Upwind...

On Friday, in GenOn REMA v. EPA, the 3rd Circuit Court of Appeals ruled that, in response to a petition from a downwind state under § 126 of the Clean Air Act, EPA may issue a rule imposing emission limits on a source in the...more

7/16/2013 - Air Pollution Clean Air Act Environmental Claims Environmental Liability EPA NAAQS SIP

One Step At A Time Is Just Too Late: The DC Circuit Strikes Down EPA’s Deferral of GHG Regulation of Biomass Emissions

On Friday, in Center For Biological Diversity v. EPA, the D.C. Circuit Court of Appeals struck down EPA’s rule deferring regulation of GHG emissions from “biogenic” sources. ...more

7/15/2013 - Biomass Carbon Emissions Clean Air Act EPA Greenhouse Gas Emissions

The President Issues His Climate Action Plan: Not Much Mention of Congress

President Obama yesterday released his Climate Action Plan, together with a Memorandum concerning EPA’s issuance of rules governing carbon emissions from new and existing power plants under the Clean Air Act. At a certain...more

6/26/2013 - Barack Obama Carbon Emissions Clean Air Act Climate Change EPA Power Plants

The Fifth Circuit Rejects EPA’s Disapproval of Alabama’s Opacity Regulation: Do We Blame EPA, DOJ, or Two Judges?

On Wednesday, in Alabama Environmental Council v. EPA, the Fifth Circuit Court of Appeals rejected EPA’s 2011 disapproval of Alabama’s opacity regulation. The case involves relatively obscure provisions of the Clean Air Act,...more

3/11/2013 - Clean Air Act DOJ EPA Opacity Regulations SIP

When Do Air Emissions Constitute a Discharge to Waters of the United States? Any Time the Emissions Reach Waters of the United...

In a fascinating post today, my colleague from the American College of Environmental Lawyers, Patricia Finn Braddock, reported on a case at the intersection of the Clean Water Act and the Clean Air Act that could have...more

2/4/2013 - Air Pollution Clean Air Act Clean Water Act Discharge of Pollutants Permits

EPA Loses Another PSD Case: The Clean Air Act is “Extraordinarily Rigid”

In Sierra Club v. EPA, issued today, The Court of Appeals for the District of Columbia rejected EPA’s rules governing “significant impact levels” and “significant monitoring concentrations” for determining PSD permitting...more

1/23/2013 - Appeals Clean Air Act EPA Extraordinarily Rigid Permits PSD

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