Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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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

Governor Patrick Announces Climate Change Preparedness Initiatives: Not Everyone’s On Board

On Tuesday, Governor Patrick announced a series of climate change preparedness initiatives, including about $50 million in funds for a variety of programs. Before summarizing the plan, I’ll note that Massachusetts appears to...more

1/16/2014 - Carbon Emissions Climate Action Plan Climate Change Disaster Preparedness Environmental Policies Greenhouse Gas Emissions

EPA’s Proposed NSPS Rule for GHGs Is Finally Published in the Federal Register; I’m Still Skeptical

EPA’s Proposed New Source Performance Standards for greenhouse gas emissions from new sources was finally published in the Federal Register on Wednesday. At least fundamentally, it seems unchanged from the proposal released...more

1/10/2014 - Carbon Capture and Sequestration Carbon Emissions Environmental Policies EPA Greenhouse Gas Emissions Oil & Gas

Citizens Are Not Harmed By the Concept of Pollution Trading: A Challenge to the Chesapeake Bay TMDL Is Dismissed

On December 13, the District Court for the District of Columbia dismissed plaintiffs’ challenge in Food and Water Watch v. EPA to the Chesapeake Bay TMDL’s discussion of pollution trading and offsets. As I had previously...more

12/16/2013 - Dismissals Environmental Policies EPA Pollution Trading TMDL

Just a Hiccup or a Major Obstacle? EPA Science Advisory Board Work Group Recommends that the SAB Review the Science Behind EPA’s...

I have posted numerous times in recent years on the importance of the views of EPA’s own science advisors in judicial determinations whether EPA regulatory actions are arbitrary and capricious. With few exceptions, courts...more

12/9/2013 - Carbon Emissions Environmental Policies EPA Greenhouse Gas Emissions

Waters of the United States: Definitely a Regulation, Not Guidance

Last week, what appears to be a draft (so long that it is in two separate parts) of EPA’s proposed rule defining “waters of the United States” was widely circulated. Part of what I love about this story is that it is...more

11/18/2013 - Environmental Policies EPA OMB Water

EPA’s Groundwater Remedy Completion Strategy: Making Cleanups More Efficient Or Just Increasing PRP Costs?

Last week, EPA released a draft Groundwater Remedy Completion Strategy. The strategy is intended to provide: a recommended step-wise plan and decision making process for evaluating remedy operation, progress and...more

11/5/2013 - Environmental Policies EPA Groundwater Water

Standing Matters, TMDL Version

Last week, in Conservation Law Foundation v. EPA, Judge Mark Wolf ruled that CLF did not have standing to challenge EPA’s approval of total maximum daily loads promulgated for certain waters in and around Cape Cod. Given the...more

9/4/2013 - Chemicals Environmental Claims Environmental Policies EPA Standing TMDL Water

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

The Atomic Energy Act Preempts Vermont’s Efforts To Close Vermont Yankee: Sometimes, Legislative Intent Is Just Too Clear To...

Last week, in Entergy v. Shumlin, the 2nd Circuit Court of Appeals largely struck down Vermont’s efforts to close Vermont Yankee. Although three separate Vermont statutes were at issue, and Entergy made both preemption and...more

8/21/2013 - Atomic Energy Act Energy Environmental Liability Environmental Policies Nuclear Power

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

The Seventh Circuit Cuts the Gordian Knot of NSR Interpretation: Preconstruction Review Cannot Lead to Continuing Violations

Last week, in United States v. Midwest Generation, the 7th Circuit Court of Appeals affirmed dismissal of EPA’s NSR enforcement action against Commonwealth Edison. Commonwealth Edison was the prior owner of the plants at...more

7/15/2013 - Commercial Bankruptcy Environmental Claims Environmental Policies EPA NSR

Equal Protection Claims Concerning Disparate Enforcement of Environmental Laws Remain an Uphill Battle

In 2000, in its 2-page per curiam opinion in Village of Willowbrook v. Olech, the Supreme Court gave hope to developers and property owners that the equal protection clause could be used to prevent local zoning and...more

4/17/2013 - Disparate Impact Enforcement Actions Environmental Policies Equal Protection

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