Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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Forecast is Hazy For EPA’s Regional Haze Oversight Authority

Earlier this month, the 5th Circuit Court of Appeals stayed EPA’s disapproval of the Texas and Oklahoma regional haze state implementation plans, as well as EPA’s promulgation of its own federal implementation plan. The...more

7/25/2016 - Administrative Authority Appeals Clean Air Act EPA Jurisdiction Motions to Stay Proceedings Oil & Gas Order to Stay State Implementation Plans (SIPs)

Three Strikes and Mingo Logan Is Out: The D.C. Circuit Affirms EPA Withdrawal of Approval of Mountaintop Removal Disposal Sites

In 2013, the D.C. Circuit affirmed EPA’s authority to withdrawal approval of mountaintop mining disposal sites, even after the Army Corps has issued a Section 404 permit. In 2014, the District Court rejected Mingo Logan’s...more

7/22/2016 - Clean Water Act EPA NPDES Permits Section 404 Waste Disposal

Wyoming Prohibits Trespassing For Resource Data Collection: Might Massachusetts Follow?

In a fascinating case, Judge Scott Skavdahl (who recently struck down BLM’s fracking regulations) dismissed challenges from NRDC and PETA, among others, to a Wyoming law that prohibits trespassing on private land for the...more

7/11/2016 - Data Collection Endangered Species Equal Protection First Amendment Free Speech Natural Resources NRDC PETA Private Property Trespass

Violations of Environmental Law Are About To Get More Expensive

On July 1, EPA promulgated an interim final rule making inflation adjustments to the civil penalties under statutes it administers. The adjustments are required by statute. The new amounts apply to violations that occurred...more

7/5/2016 - Civil Monetary Penalty Clean Water Act EPA Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 Final Rules

The Antarctic Ozone Hole Is Healing. Full Stop.

An article published Friday in Science reports that the Antarctic ozone hole is healing.  As the article notes, there was some previous evidence about global improvement in stratospheric ozone levels, but this is the first to...more

7/5/2016 - Climate Change Energy & Climate Debates EPA Ozone

TSCA Reform Is Real: EPA Publishes Its “First Year Implementation Plan”

On Wednesday, EPA released its “First Year Implementation Plan” for the recently enacted TSCA reform legislation. Before getting to the details, it’s worth emphasizing what a significant accomplishment it was to get...more

7/1/2016 - Chemicals EPA Federal Implementation Plans (FIP) Toxic Substances Control Act (TSCA)

I Have Seen the Future and It Is Hot and Wet

The City of Boston has just released its “Climate Projections Consensus.” It’s not a pretty picture. Here are the lowlights...more

6/24/2016 - Climate Change Global Warming Rising Sea Levels

BLM Has No Authority To Regulate Fracking, At Least For Now

Yesterday, Judge Scott Skavdahl of the District of Wyoming held that the Bureau of Land Management did not have authority to regulate the environmental impacts of fracking. I think Judge Skavdahl probably got it right, but I...more

6/22/2016 - Administrative Authority Bureau of Land Management Congressional Intent Energy Policy EPA Fracking Oil & Gas Safe Drinking Water Act Underground Injection Wells

Minnesota May Not Prohibit Power Sales That Would Increase Statewide CO2 Emissions. Why Not? Pick Your Reason.

If you needed any further proof that energy law is very complicated, Wednesday’s decision in North Dakota v. Heydinger should convince you. The judgment is simple – the 8th Circuit Court of Appeals struck down a Minnesota...more

6/17/2016 - Carbon Emissions Clean Air Act Dormant Commerce Clause Energy Sector Extraterritoriality Rules Federal Power Act Out-of-State Companies Power Purchase Agreements Preemption

NEPA Does Not Require An Agency To Guarantee Project Compliance with Environmental Laws

In an interesting decision last week, the 9th Circuit Court of Appeals rejected challenges to BLM’s decision to issue a right-of-way permit for Tule Wind’s plan for a wind farm southeast of San Diego. It’s not exactly...more

6/14/2016 - Appeals Bureau of Land Management Department of the Interior Energy Policy Act NEPA Right of Way Wind Farm Wind Power

One Final Word on Peterborough Oil: Yes, MTBE Is An Additive

The final answer to the critical issue raised by the recent Peterborough Oil Company decision is that MTBE is an additive and is not, in MassDEP’s view, subject to the “oil exemption” under the Massachusetts Contingency Plan....more

6/9/2016 - Chemicals EPA Exemptions Groundwater Hydrocarbons MassDEP Oil & Gas PRP

More on the Peterborough Oil Case: Is MTBE An “Additive”?

Since yesterday’s post on the Peterborough Oil case, a little birdie told me that MassDEP may be taking the position that MTBE is covered by the “oil exemption”, because it is a hydrocarbon. If so, that would be good news...more

6/8/2016 - Chemicals EPA Exemptions Hydrocarbons MassDEP Oil & Gas PRP

When Is Gasoline Not Oil (At Least In Massachusetts)? When It’s Leaded, Of Course.

Unlike CERCLA, the Massachusetts Superfund law, Chapter 21E, does include oil within its ambit. However, oil is not treated exactly the same as hazardous materials. One difference is that, in 2007, MassDEP revised the...more

6/7/2016 - Exemptions Hazardous Substances MassDEP Oil & Gas Oil Spills Superfund Water Supplies

If You Don’t Like Nukes, Petition Congress: The D.C. Circuit Affirms the NRC’s GEIR On Nuclear Waste Storage

On Friday, the D.C. Circuit Court of Appeals rejected challenges by several states and the NRDC to the Nuclear Regulatory Commission’s Generic Environmental Impact Statement analyzing the impacts of continued on-site storage...more

6/6/2016 - Administrative Procedure Act Appeals Arbitrary and Capricious Article III Energy Storage Environmental Impact Report (EIR) Judicial Review NEPA NRDC Nuclear Power Nuclear Regulatory Commission Power Plants Site Remediation Standing

Corps Jurisdictional Determinations Are Final Agency Action: Now What?

In a decision that was not a surprise based on oral argument, the Supreme Court today ruled that Army Corps of Engineers Jurisdictional Determinations concerning “waters of the United States” are final agency action subject...more

5/31/2016 - Administrative Procedure Act Clean Water Act Final Judgment Hawkes Co v United States Army Corps of Engineers Judicial Review Jurisdictional Determination (JD) SCOTUS US Army Corps of Engineers Waters of the United States

5th Circuit Vacates Verdict for ExxonMobil in CAA Citizen Suit: Still Not Much of a Win for the Plaintiffs

Last Friday, the 5th Circuit Court of Appeals vacated a District Court decision which had refused to impose penalties on ExxonMobil for various violations of the Clean Air Act at ExxonMobil’s Baytown refinery. While the...more

5/31/2016 - Appeals Clean Air Act Declaratory Judgments Exxon Mobil Good Faith Injunctions Penalties Refineries Remand

The Global Warming Solutions Act Requires MassDEP to Promulgate Declining Annual GHG Emissions Limits for Multiple Sources: ...

On Tuesday, the Supreme Judicial Court ruled that MassDEP had violated the Global Warming Solutions Act by failing "To promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions,...more

5/18/2016 - Climate Change Global Warming Greenhouse Gas Emissions MassDEP

Three Strikes and the Commonwealth Is Out: The Natural Gas Act Preempts Article 97

Last week, Judge John Agostini ruled that the Natural Gas Act preempts Article 97 of the Massachusetts Constitution, which otherwise would have required a 2/3 vote of the Legislature before Article 97 land could be conveyed...more

5/17/2016 - Injunctions Natural Gas Oil & Gas Pipelines Preemption

EPA’s Final Methane Rule: Fighting Climate Change Up to January 20, 2017 — And Beyond

Dylan Thomas said “Do not go gentle into that good night.” Obama’s EPA is taking that advice to heart, pushing forward aggressively on its climate change agenda, even as January 2017 approaches. On Thursday, EPA issued its...more

5/17/2016 - Climate Change EPA Methane New Source Performance Standards (NSPS) Oil & Gas

Better Late Than Never: Massachusetts Moves to Obtain NPDES Delegation

Like most federal environmental programs, NPDES program authority is largely delegated to the states. Only four states aren’t delegated: Idaho, Massachusetts, New Hampshire, and New Mexico. How is it that progressive...more

5/2/2016 - Administrative Authority Clean Water Act EPA NPDES State and Local Government Water Pollution

Coming Soon To A Roof Near You: Solar Panels (At Least If You Live in SF)

This week, the San Francisco Board of Supervisors enacted an ordinance that will require that the developers of all new buildings of 10 floors or less that apply for building permits after January 1, 2017 install solar PV or...more

4/22/2016 - Board of Supervisors Building Permits Green Buildings Local Ordinance Solar Energy Solar Panels

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

Big Changes With LIttle Fanfare: The FHWA Proposes to Use GHG Emissions as a Performance Measure

This week, the Federal Highway Administration issued a Noticed of Proposed Rulemaking to promulgate performance measures to be used in evaluating federal funding of transportation projects. The requirement for performance...more

4/20/2016 - Carbon Emissions Federal Highway Administration Greenhouse Gas Emissions MAP-21 NPRM

A Substantive Due Process Right to Climate Change Regulation? What’s a Lonely Apostle of Judicial Restraint To Do?

Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per...more

4/14/2016 - Carbon Emissions Climate Change Due Process Public Trust Doctrine Waters of the United States

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

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