Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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EPA Wins Two Clean Water Cases in One Day: The Fourth Circuit Affirms a Narrow Construction of the Permit Shield Defense

Yesterday, I noted that the D.C. Circuit rejected challenges to EPA’s Enhanced Coordination Process and Final Guidance on Clean Water Act permitting for mining activities. It was not EPA’s only CWA victory. On the same day,...more

7/15/2014 - Clean Water Act Environmental Policies EPA Mining Water

Still Using Economic (and Safety) Arguments to Reduce Greenhouse Gas Emissions: Massassachusetts Enacts Gas Leak Legislation

As I noted last year, there has been a concerted effort on the part of those fighting climate change to emphasize economic issues in connection with their policy proposals. That post concerned Senator Markey’s efforts to...more

7/14/2014 - Carbon Emissions Environmental Policies Greenhouse Gas Emissions

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

More on EPA’s GHG Rule: I Am NOT Going To Set Odds on Whether the Rule Would Survive Judicial Review

Last week, in posting about EPA’s Clean Power Plan, I noted that some potential plaintiffs might face standing obstacles in seeking to challenge the rule, assuming it is promulgated as proposed. Today, I take a (very)...more

6/12/2014 - Carbon Emissions Clean Power Plan Energy Environmental Policies EPA Greenhouse Gas Emissions Power Plants

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

EPA’s GHG Rule: The Really Big Picture View

As some folks may have heard, EPA proposed emission guidelines for GHG emissions from existing generating units on Monday. Obviously, the rule is a little too complicated to summarize in one blog post, though I’ll try to post...more

6/5/2014 - Carbon Emissions Environmental Policies EPA Greenhouse Gas Emissions Power Plants

When Does the Sixth Circuit Set EPA Rules for the Entire Country? When EPA Regulations Require National Uniformity

In a fascinating decision issued today, the D.C. Circuit Court of Appeals struck down EPA’s Summit Directive. The Summit Directive – sounds ominous – was issued in response to the 2012 decision in Summit Petroleum Corp. v....more

6/2/2014 - Environmental Policies EPA NSR Title V

EPA Promulgates Final Cooling Water Intake Rule: Much Ado About Not Very Much?

On Monday, EPA finally announced promulgation of its long-awaited rule governing cooling water intake structures at existing facilities. The rule is certainly important, but it’s not earthshattering and it may be more...more

5/21/2014 - Environmental Policies EPA NGOs Water

Coming To An Air Quality District Near You: A More Stringent Ozone NAAQS

As we have noted previously, EPA has had difficulty in promulgating a revised National Ambient Air Quality Standard for ozone. Whenever the revised NAAQS is issued – and EPA is under court deadline to propose a draft by...more

5/14/2014 - Environmental Policies EPA NAAQS Regulatory Standards

Light at the End of the Cape Wind Tunnel? Judge Stearns Proclaims the Opponents “Vexatious”

On Friday, Judge Richard Stearns dismissed the latest challenge to Cape Wind, ruling that claims that the Massachusetts DPU coerced NSTAR into purchasing power from Cape Wind, and that such coercion violated the dormant...more

5/6/2014 - Energy Environmental Policies Renewable Energy Wind Power

Is the NSR Enforcement Initiative Dead Yet? Injunctive Relief Claims Dismissed Against U.S. Steel

Last Friday, EPA lost another NSR enforcement case. Not only that, but this was a case EPA had previously won. As we noted last August, Chief Judge Philip Simon of the Northern District of Indiana, had previously ruled that...more

4/24/2014 - Enforcement Environmental Policies EPA Injunctions NSR Sierra Club

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

Enforcement of Municipal Stormwater Ordinances Is Tricky Business: Failure to Enforce an Ordinance Required Under a Permit Is Not...

Stormwater pollution has become an increasingly important problem. Part of the difficulty in solving it is that it’s not obvious who should be responsible. Should cash-strapped municipalities be on the hook or should it be...more

4/14/2014 - Environmental Policies EPA Industrial Stormwater Rule Storm Water

Definitely a Victory For Regulations Over Guidance: EPA Issues Proposed Rule Defining Waters of The United States

The Supreme Court issued its decision in Rapanos almost 8 years ago and EPA has been struggling ever since to figure out what “waters of the United States” are within the meaning of the Clean Water Act. After several failed...more

3/31/2014 - Clean Water Act Environmental Policies EPA Water

Coal Companies, Don’t Look Behind; EPA May Be Gaining on You

As the lawyers among our readers know, the denial of a certiorari petition does not establish precedent. However, that doesn’t make it unimportant. Yesterday, the Supreme Court denied cert. in Mingo Logan Coal Co. v. EPA. ...more

3/25/2014 - Clean Water Act Coal Discharge of Pollutants Energy Policy Environmental Policies EPA Water

2 and 1/2 Strikes and the NGOs May Be Out: EPA Refuses to Exercise Residual Designation Authority

Stormwater regulation is a thorny issue. There is widespread agreement that nutrient run-off can be a significant problem, but little agreement on what to do about it, since stormwater infrastructure is normally managed by...more

3/20/2014 - Environmental Policies EPA NGOs Storm Water

The Song Remains the Same: Cape Wind Wins Another Case and the Opponents Declare Victory

Late last week, in Public Employees for Environmental Responsibility v. Beaudreu, Judge Reggie Walton gave Cape Wind and its federal co-defendants an almost across the board victory in a series of challenges by Cape Wind...more

3/18/2014 - Energy Environmental Policies Renewable Energy Wind Power

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

I Thought Redeveloping Brownfields Was a Good Idea: Apparently the Boston Globe Hasn’t Gotten the Message

In an article earlier this week, the Boston Globe reported on concerns that the Massachusetts Department of Environmental Protection is planning to weaken cleanup standards for hazardous waste sites in Massachusetts,...more

2/26/2014 - Brownfield Properties Department of Environmental Protection Environmental Policies

More Than Five Years Later, the Bush Administration Is Still Losing Environmental Cases

I previously noted that the record of the Bush administration in defending its rulemaking decisions was dangerously near the Mendoza Line. Indeed, even four years after Bush left office, it was continuing to lose decisions. ...more

2/24/2014 - Endangered Species Act Environmental Claims Environmental Liability Environmental Policies Fish and Wildlife Service National Parks

The Ninth Circuit Addresses NEPA’s Goldilocks Problem: How Many Alternatives Are Just Enough?

One of the critical elements of NEPA is that project proponents must assess the feasibility and impacts of not only the preferred alternative, but also a range of alternatives. However, there is a tension in NEPA, because it...more

2/20/2014 - Environmental Assessments Environmental Policies NEPA Trucking Industry

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

Cooperative Federalism Is Even Messier Than We Thought: 21 States Oppose the Chesapeake Bay TMDL

Last fall, the District Court for the Middle District of Pennsylvania affirmed EPA’s TMDL for the Chesapeake Bay. As I noted at the time, Judge Rambo pointed to the sometimes “messy and cumbersome” nature of cooperative...more

2/7/2014 - Clean Water Act Environmental Policies EPA Pollution Control TMDL

EPA Inches Closer to a More Stringent Ozone Standard: When Will It Actually See the Light of Day?

On Monday, EPA released its second external review draft of an updated Policy Assessment on the national ambient air quality standard for ozone. It also released updated draft risk and exposure assessments. To no one’s...more

2/4/2014 - Air Quality Standards Environmental Policies EPA

BOEM Gives a Lesson on How Not To Survive NEPA Review

Last week, the Ninth Circuit Court of Appeals agreed with the plaintiffs that the Environmental Impact Statement issued by the Bureau of Ocean Energy Management to support oil and gas leasing in the Chukchi Sea was flawed. ...more

1/28/2014 - BOEM Environmental Impact Report Environmental Policies NEPA Oil & Gas

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