Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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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

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

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

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

Does the Paris Agreement Provide EPA With Authority Under the CAA To Impose EconomyWide GHG Controls? Count Me Skeptical

In a very interesting article, Michael Burger of the Sabin Center and his co-authors suggest that, following the Paris climate agreement, § 115 of the Clean Air Act provides authority for EPA to develop economy-wide GHG...more

1/21/2016 - Administrative Authority Carbon Emissions Clean Air Act Climate Change EPA Greenhouse Gas Emissions Paris Agreement Reciprocity Rules

Perhaps the Clean Air Act Really Doesn’t Preempt State Common Law Remedies

This week, the 6th Circuit Court of Appeals held, in Merrick v. Diageo Americas Supply, that the Clean Air Act does not preempt source state common law remedies seeking to control air pollution – even where the defendant is...more

11/9/2015 - Air Pollution Clean Air Act Common Law Claims Pollution Control Preemption

Pre-enforcement Review? Not Enough. How About Pre-issuance Review?

In Sackett, the Supreme Court ruled that EPA could not issue enforcement orders under the Clean Water Act without allowing the subjects of the order the right to bring a pre-enforcement challenge to such orders under the...more

10/8/2015 - Administrative Procedure Act CERCLA Clean Air Act Clean Water Act Deprivation of Property Due Process Enforcement Actions EPA Penalties Sackett SCOTUS

Perhaps EPA’s NSR Enforcement Initiative Is Now Dead? EPA Loses Another

Last year, after a string of defeats for EPA in its NSR enforcement initiative, I suggested that the initiative was in trouble, but that EPA was probably not yet ready to concede defeat. After the latest blow, earlier this...more

8/31/2015 - Clean Air Act Enforcement EPA Injunctive Relief Notice of Violation NSR Statute of Limitations Title V Tolling Agreement

Obama’s Climate Action Plan: Next Step, Landfill Methane

Having gotten the Clean Power Plan out the door, EPA has moved on to another target of President Obama’s Climate Action Plan: landfill methane emissions. Late last week, EPA proposed both new emission guidelines for...more

8/19/2015 - Clean Air Act Clean Power Plan Climate Action Plan EPA Greenhouse Gas Emissions Landfills MATS Methane

The D.C. Circuit Sends EPA Back to the Drawing Board to Fix Its Transport Rule Emissions Budgets

The Clean Air Act’s good neighbor provision prohibits upwind states from emitting air pollutants in amounts that will “contribute significantly to nonattainment” of a national ambient air quality standard in a downwind state....more

7/30/2015 - Air Quality Standards Appeals Clean Air Act EPA EPA v EME Homer City NAAQS

Two Strikes and Oklahoma’s Out (For Now): Another Challenge to the Clean Power Plan Is Rejected

On Friday, Judge Claire Eagan dismissed Oklahoma’s latest challenge to EPA’s Clean Power Plan. Yes, that plan. The one that hasn’t been promulgated yet....more

7/21/2015 - Carbon Emissions Clean Air Act Clean Power Plan Coal-Fired Plants EPA Greenhouse Gas Emissions Ultra Vires

Can the Majority and the Dissent Both Be Wrong? The Supreme Court Remands the MATS Rule

The short answer is, yes, though the majority is more wrong. In fact, the issue in Michigan v. EPA seems so simple that the MATS rule could have been affirmed in a two-page opinion. Judge Scalia notes that the word...more

6/30/2015 - Chevron Deference Clean Air Act EPA MATS Michigan v. EPA SCOTUS

If Congress Wants to Limit EPA’s Discretion, Perhaps It Should Do a Better Job Legislating

Earlier this week, the D.C. Circuit Court of Appeals rejected both industry and environmental group petitions challenging EPA’s determination of what is a solid waste in the context of Clean Air Act standards for incinerators...more

6/8/2015 - Auto Manufacturers Automotive Industry Chevron Clean Air Act EPA Manufacturers RCRA Solid Waste

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

No Competitors In My Backyard?

In Paradise Lost, John Milton wrote that “easy is the descent into Hell, for it is paved with good intentions.” A modern environmental lawyer might say that the road to waste, inefficiency, and obstruction is paved with good...more

3/2/2015 - Business Litigation Citizen Suits Clean Air Act Competition 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

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

News Flash: Cap-and-Trade Remains the Most Efficient Way to Reduce Emissions

Notwithstanding Congressional gridlock on climate change legislation, cap-and-trade remains the tried and true efficient method for reducing air emissions. Although the acid rain provisions of the Clean Air Act are the most...more

10/23/2014 - Appeals Cap-and-Trade Carbon Emissions Clean Air Act Climate Change Energy Energy Policy EPA Greenhouse Gas Emissions

What a Shock?! Nebraska’s Early Challenge to EPA’s Clean Power Plan Is Dismissed

Opponents of EPA’s Clean Power Plan have not been willing to wait until a final rule has been promulgated before challenging EPA’s authority. On Monday, Nebraska’s challenged was dismissed – not surprisingly – as premature....more

10/9/2014 - Clean Air Act Clean Power Plan Energy Policy Act EPA Federal Funding Technology

Yes, Virginia, It Is Possible To Win A Fee Award Against An Environmental NGO

Last week, Judge Walter Smith, Jr., ordered the Sierra Club to pay more than six million dollars – yes, you read that correctly – to Energy Future Holdings and Luminant Generation, after finding that the Sierra Club’s Clean...more

9/4/2014 - Citizen Suits Clean Air Act Coal-Fired Plants Fee Awards Oil & Gas Sierra Club

You Can’t Estop the Government — Even When It Wants to Be Estopped

Last week, the 9th Circuit Court of Appeals issued a decision that arguably explains everything from why the Tea Party exists to why otherwise calm and sane executives suddenly lose all their hair. Perhaps most astounding,...more

8/22/2014 - Clean Air Act Environmental Policies EPA NAAQS Power Plants

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

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