Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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Two Days, Three Decisions, One Big Mess: Welcome to Judicial Review of the Waters of the United States Rule

On Wednesday, Judge Irene Keeley of the Northern District of West Virginia held that district courts do not have jurisdiction to hear challenges to EPA’s rule defining waters of the United States, because courts of appeal...more

8/28/2015 - Clean Water Act EPA Final Rules Injunctions Irreparable Harm Waters of the United States

No Short Cuts Allowed: The FWS Must Comply with NEPA Before Extending Programmatic Take Permits to 30 Years

Earlier this month, the Judge Lucy Koh set aside the Fish & Wildlife Service’s decision to extend its programmatic permit for bald and golden eagle takes from five to 30 years. The extension was sought by the wind industry...more

8/27/2015 - Environmental Impact Report Fish and Wildlife Service NEPA Permits Time Extensions Wind Farm

Stop the Presses: RGGI Works

When the Regional Greenhouse Gas Initiative was first implemented, there were questions regarding how much of an impact it would actually have on GHG emissions. I recall Ian Bowles, then Secretary of Environmental Affairs in...more

8/25/2015 - Economic Impact Analysis Emissions Trading System Greenhouse Gas Emissions RGGI

Is Superfund a Machine for Manufacturing Tea Party Members?

A group of PRPs received an oversight cost bill pursuant to a CERCLA consent decree. (The following details are intentionally vague to protect both the innocent and the guilty.) The bill was for several hundred thousand...more

8/24/2015 - CERCLA Consent Decrees EPA Superfund Tea Party

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 Clean Power Plan. Is Better Good Enough? Is More Defensible Defensible Enough?

So the Clean Power Plan is out. It’s difficult to be pithy about such a big, sprawling, mess, other than to say that it’s probably about as good as it could be, though that may not be enough. Here are a few items that have...more

8/5/2015 - Cap-and-Trade Carbon Emissions Clean Power Plan Emissions Trading System Energy Efficiency EPA Greenhouse Gas Emissions Renewable Energy

The Problem With Using Economic Incentives to Reduce Water Use? People

Earlier this month, I noted that demand side management policies need to take human behavior into account if they are going to be successful. The same is apparently true for policies to reduce water consumption in...more

7/31/2015 - Drought Incentives Rebates Water Water Conservation Water Usage

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

EPA Hubris, July 2015 Edition

Anyone who reads this blog must have seen the explosion of reports in the trade press that EPA ignored significant criticism from the Army Corps of Engineers in promulgating its Waters of the United States rule. I have not...more

7/29/2015

The Earth Once More Spins Calmly On Its Axis; EPA’s Updated Hex Chrome MACT Rule Is Affirmed

On Tuesday, the D.C. Circuit Court of Appeals affirmed EPA’s update of its hexavalent chromium MACT rule. Suffice it to say that this was a little easier than review of the power plant MACT rule....more

7/23/2015 - Boiler MACT Rule EPA National Emissions Standards Nexus

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

The 10th Circuit Affirms Colorado’s RPS; The Dormant Commerce Clause Remains Dormant

When Colorado enacted a referendum petition strengthening its renewable portfolio standard, the Energy and Environment Legal Institute sued, arguing that the RPS violates the dormant commerce clause, because it harms...more

7/15/2015 - Appeals Dormant Commerce Clause Referendums Renewable Energy Renewable Portfolio Standards

The Ninth Circuit Reminds Us — Again — Just How Powerful the Endangered Species Act Is

On Tuesday, the 9th Circuit Court of Appeals affirmed the Commerce Department’s designation of critical habitat for the southern distinct population segment of green sturgeon, once again reminding us just how difficult it is...more

7/10/2015 - Appeals Critical Habitat Economic Impact Analysis Endangered Species Endangered Species Act Environmental Protection Act U.S. Commerce Department

The Problem With Relying on Energy Efficiency to Reduce Emissions? People

The connection between energy use and emissions of air pollutants, including GHGs, is uncontroversial. It is also widely, if not universally, accepted that there is a lot of low-hanging fruit in energy efficiency. I agree...more

7/10/2015 - Carbon Emissions Energy Efficiency Greenhouse Gas Emissions

Easy Cases Make Good Law: The Third Circuit Affirms EPA’s Chesapeake Bay TMDL

On Monday, the Third Circuit Court of Appeals affirmed EPA’s TMDL for the Chesapeake Bay. This should not be news. Although Judge Ambro comprehensively disposed of the appellants arguments in a thoughtful opinion, I think...more

7/8/2015 - Chevron Deference EPA TMDL Watershed

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

Do Climate Change and Same-Sex Marriage Have Anything in Common?

Recent events have me pondering this question. Most notably, in two court decisions last week, courts ordered the State of Washington and the government of the Netherlands to take more aggressive action against climate...more

6/29/2015 - Climate Change Greenhouse Gas Emissions Nuisance Standing

FWS To Authorize Incidental Takes Under the Migratory Bird Treaty Act?

Late last month, the Fish & Wildlife Service issued a Notice of Intent to prepare a programmatic environmental impact statement to evaluate various options for authorizing incidental takes under the Migratory Bird Treaty Act....more

6/23/2015 - Environmental Impact Report Fish and Wildlife Service Migratory Bird Treaty Act Oil & Gas Wind Power

Environmental Impact Assessments Don’t Have to Be Wise, But They May Not Assume Their Conclusion

In an important decision last week, United States District Judge Jorge Alonso rejected the Environmental Impact Statement for the Illiana Corridor Project, which would connect I55 in Illinois to I65 in Indiana. (And why...more

6/22/2015 - DOT Environmental Impact Report Public Projects

EPA’s EJSCREEN: Making Citizen Environmental Suits Just a Little Bit Easier

I have previously noted that EPA, perhaps recognizing that an unfriendly Congress will lead to budgetary constraints on government enforcement, has been trying to facilitate citizen enforcement efforts. EPA’s latest move on...more

6/16/2015 - Citizen Suits EPA

No, Virginia, You Can’t Challenge a Rule that Hasn’t Even Been Promulgated

Easy way to tell when you’ve lost your appeal? When a pithy judge starts making fun of you in the first sentence of the opinion. In a case that was only ever going to have one outcome, the D.C. Circuit Court of Appeals...more

6/10/2015 - Clean Power Plan EPA Jurisdiction Power Plants

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

Startup, Shutdown, and Malfunction — No Longer Any Automatic Exemptions or Affirmative Defenses

Last week, EPA finally responded to the Sierra Club’s petition requesting that it eliminate exemptions and defenses for excess emissions resulting from startup, shutdown, or malfunction events. EPA concluded that it needed to...more

6/1/2015 - Affirmative Defenses EPA Exemptions SIP SSM Periods

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

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