Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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Latest Posts › EPA


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

EPA Updates Effluent Limitations Guidelines and Standards For Steam Electric Generating Facilities – It’s Only Been 33 Years

On September 30, EPA released its long-awaited (long-feared?) final rule governing wastewater discharges from steam electric generating facilities. The trade press is presenting the rule as a victory for environmentalists...more

10/6/2015 - Coal Ash Coal-Fired Plants Effluent Limitations Electric Generation Suppliers EPA Power Plants Wastewater

EPA Lowers the Ozone Standard to 70 PPB: Industry Isn’t Happy, But It Should Be

On October 1, 2015, EPA finally released its final rule revising the ozone NAAQS to 70 ppb. I do not spend much time peering into a crystal ball, but I will go out on a limb and say that the industry challenges to the rule...more

10/2/2015 - Air Quality Standards EPA Final Rules NAAQS Ozone

A Brief Rant on Cost-Effectiveness Analysis

On September 29, 2015, I posted about the 3rd Circuit’s decision to remand EPA’s approval of Pennsylvania’s regional haze SIP. Although I think that the decision was important and largely unobjectionable, it did get one...more

10/1/2015 - Cost-Benefit Analysis EPA Raw Data Metrics SIP

Record Review Means That EPA Must Refer To the Record: The Third Circuit Remands EPA’s Approval of the Pennsylvania Regional Haze...

On Tuesday, the 3rd Circuit Court of Appeals remanded EPA’s approval of Pennsylvania’s regional haze SIP. The decision is a must-read for practitioners. It decides some important issues and provides important reminders for...more

10/1/2015 - EPA Judicial Records National Emissions Standards Pollution Control Remand SIP

Can EPA Keep Winning By Losing? Another Court Remands An EPA Rule Without Vacatur

Last Wednesday, the D.C. Circuit Court of Appeals remanded EPA’s rule exempting stationary engines that operate up to 50 hours per year to supply non-emergency service to power providers from the EPA NESHAP for reciprocating...more

9/28/2015 - Appeals EPA Motion to Vacate NESHAP Remand

Chicken Little Cannot Compare to the Opponents of the Clean Power Plan

Yesterday, the D.C. Circuit Court of Appeals dismissed the latest effort to stay EPA’s Clean Power Plan before it has even been promulgated in the Federal Register. The Court simply stated that “petitioners have not...more

9/10/2015 - Clean Power Plan Dismissals EPA Motion To Stay

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

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

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 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

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

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

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

Half a Loaf May Not Be Too Bad: The 9th Circuit Affirms Most of EPA’s Approval of the San Joaquin Valley SIP

Earlier this week, the 9th Circuit Court of Appeals granted part of a petition challenging EPA’s approval of California’s SIP for ozone and PM 2.5 in the San Joaquin Valley.  While the trade press has been focusing on the...more

5/26/2015 - Appeals Energy Sector EPA NAAQS Ozone SIP

Is There Any End to Post-Closure Care Under RCRA?

Late last month EPA issued draft guidance on adjusting post-closure periods under RCRA. It’s not good news. ...more

5/13/2015 - Contaminated Properties Draft Guidance EPA RCRA Remediation

EPA Is Not an Expert in Determining Electric System Reliability

The D.C. Circuit Court of Appeals just reversed and remanded EPA’s rule allowing backup generators to operate for up to 100 hours per year as necessary for demand response. It’s an important decision that could have lessons...more

5/4/2015 - Appeals EPA FERC Greenhouse Gas Emissions NERC Reliability Standards

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