Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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Prognosticating the Ozone Standard Litigation: EPA to Win, Environmental Petitioners to Place, Murray Energy to Show

Last week, the “Public Health and Environmental Petitioners” challenging EPA’s decision not to reduce the ozone standard below 0.070 ppm filed their “Non-Binding Statement of Issues.” My crystal ball still tells me that the...more

2/1/2016 - Environmental Litigation EPA Final Rules Ozone Public Health

Does the Paris Agreement Provide EPA With Authority Under the CAA To Impose EconomyWide GHG Controls? Count Me Skeptical

In a very interesting article, Michael Burger of the Sabin Center and his co-authors suggest that, following the Paris climate agreement, § 115 of the Clean Air Act provides authority for EPA to develop economy-wide GHG...more

1/21/2016 - Administrative Authority Carbon Emissions Clean Air Act Climate Change EPA Greenhouse Gas Emissions Paris Agreement Reciprocity Rules

Courts Must Determine The Economic Benefit Of Noncompliance In Assessing CWA Penalties

It is well-known that the “economic benefit of noncompliance” is one of the factors to be evaluated in setting penalties under the Clean Water Act. Thus, it is not surprising that, after an oil spill at Citgo’s facility in...more

1/5/2016 - Administrative Monetary Penalties Appeals Citgo Clean Water Act EPA Oil Spills

The Mercury Rule Lives To Fight Another Day: Vacatur Is Very Much Out of Fashion

On December 15, 2015, the D.C. Circuit Court of Appeals refused to vacate EPA’s Mercury and Air Toxics Standards. The decision was not a surprise. As I noted earlier this fall, there is a definitely trend towards refusing...more

12/16/2015 - Cost-Benefit Analysis Environmental Litigation EPA MATS SCOTUS Vacatur

Determining An Intent To Dispose Under CERCLA Remains a Puzzlement

Determining when a person has “arranged” for the disposal of a hazardous substance has long been difficult. The Supreme Court brought some clarity to the issue in Burlington Northern, when it said that...more

12/11/2015 - Burlington Northern CERCLA EPA Hazardous Waste Intent PCBs SCOTUS Superfund

Welcome to the Brave New World of eDisclosure

On December 9, 2015, EPA provided notice of its new “eDisclosure portal”. Going forward, self-disclosures under EPA’s Audit Policy and its Small Business Compliance Policy will be made via the web-based portal....more

12/11/2015 - Confidential Information Disclosure Requirements EPA Self-Disclosure Requirements Small Business

I’ll Go Out On A Limb; The CPP Will Not Be Stayed

I finally caught up with the brief filed by the government last week, opposing the motion to stay the EPA Clean Power Plan rule, pending full judicial review. I just don’t see the stay being granted (of course, I did not see...more

12/10/2015 - Clean Power Plan DOJ EPA Irreparable Harm Likelihood of Success Motion To Stay Public Interest

Does Colorado Support the Clean Power Plan? Yes. And No.

I have never understood why 43 states – including the great Commonwealth of Massachusetts – have independent elected attorneys general. I’m sure my new colleague, former Massachusetts Attorney General Martha Coakley, would...more

12/9/2015 - Attorney Generals Clean Power Plan Environmental Litigation EPA

What Is a Water of the United States? EPA and the Corps Make It Easier To Know What They Think

While the litigation over the WOTUS rule wends its tortuous way through the courts, EPA and the Corps have not been idle. Earlier this month, they jointly issued a memorandum on their plans for improving the permitting...more

12/1/2015 - Databases EPA Jurisdiction US Army Corps of Engineers Waters of the United States

MATS, Take Two: EPA Still Supports the Rule (And EPA Is Correct)

Late last week, EPA issued a Supplemental Finding, concluding that it is still “appropriate and necessary” to regulate hazardous air pollutants from coal- and oil-fired electric generating units. The Supplemental Finding was...more

11/25/2015 - Coal Cost-Benefit Analysis EPA MATS Michigan v. EPA Oil & Gas SCOTUS

EPA To Rename OSWER: How About “The Office That Should Be Eliminated As Soon As Possible”?

According to the Daily Environment Report (subscription required), EPA is going to change the name of the Office of Solid Waste and Emergency Response to the Office of Land and Emergency Management. What a grand name; surely...more

10/30/2015 - Emergency Response EPA Solid Waste

What Do Opponents of the Clean Power Plan and the Oklahoma Sooners Have In Common?

So the Clean Power Plan has been published in the Federal Register. For those who cannot get enough, you can find all of the important materials, including EPA’s Technical Support Documents, on EPA’s web site for the CPP....more

10/26/2015 - Clean Power Plan Environmental Litigation EPA Federal Register

The Sixth Circuit Stays the Waters of the United States Rule: Just a Plain Vanilla Preliminary Injunction — Not!

On October 9, 2015, the Sixth Circuit Court of Appeals issued a nationwide stay against implementation of the “Waters of the United States” rule. The case is so weird, in so many ways, that I don’t even think I can count...more

10/12/2015 - Case Consolidation EPA Jurisdiction Nexus Order to Stay Preliminary Injunctions Rapanos v US SCOTUS US Army Corps of Engineers Waters of the United States

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

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