Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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EPA Proposes to Eliminate Affirmative Defenses for Excess Emissions During Startups, Shutdowns, or Malfunctions — Get Ready for...

This past April, the D.C. Circuit struck down the part of EPA’s cement kiln rule that would have provided an affirmative defense to civil penalties for excess emissions resulting from unavoidable malfunctions. As we noted at...more

9/10/2014 - Affirmative Defenses Carbon Emissions Environmental Policies EPA Greenhouse Gas Emissions

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

EPA May Rely — In Part — on Projects Funded Under the Energy Policy Act to Justify the Greenhouse Gas NSPS. That’s Its Story and...

As those following EPA’s efforts to promulgate NSPS for greenhouse gas emissions from new fossil fuel-fired electric generating plants know, EPA has come under fire for basing its proposal on demonstrations of feasibility at...more

2/10/2014 - Carbon Emissions Energy Energy Policy EPA Greenhouse Gas Emissions Oil & Gas Power Plants

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

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

EPA Issues Revised Draft NSPS for Carbon Emissions From New Power Plants: It’s All About Technology Forcing

Last Friday, EPA reissued its draft NSPS addressing carbon emissions from new power plants. It’s not actually that different from the prior proposal, which would have required all new fossil-fuel plants to meet a 1,000 lbs...more

9/24/2013 - Carbon Emissions Climate Change Energy Policy EPA Greenhouse Gas Emissions Power Plants

Integrated Assessment Models of the Social Cost of Carbon: False Precision Is More False Than Precise

For those who both believe in the reality of climate change and dream of a day when Congress might get past gridlock and address the issue, the critical question is how to price carbon emissions to reflect the external costs...more

8/23/2013 - Carbon Emissions Climate Change Greenhouse Gas Emissions

Making Economic Arguments to Reduce GHG Releases: Senator Markey Releases a Report on Methane Leaks From Gas Distribution Lines

Two years ago, when I participated in a D.C. fly-in with a renewable energy group, we were instructed not to use the words “climate change.” Instead, we were told to focus on “growing the clean energy economy.” The push to...more

8/2/2013 - Climate Change Greenhouse Gas Emissions Oil & Gas Pipelines Renewable Energy

We Still Don’t Need No Stinkin Cooperative Federalism: The D.C. Circuit Court of Appeals Holds that GHG Sources Require PSD...

Last Friday, I posted about the limits to EPA’s cooperation with states in the name of “cooperative federalism” under the Clean Air Act. On the same day, in Texas v. EPA, the D.C. Circuit Court of Appeals only emphasized my...more

7/30/2013 - Chevron Clean Air Act EPA Greenhouse Gas Emissions Permits PSD SIP

One Step At A Time Is Just Too Late: The DC Circuit Strikes Down EPA’s Deferral of GHG Regulation of Biomass Emissions

On Friday, in Center For Biological Diversity v. EPA, the D.C. Circuit Court of Appeals struck down EPA’s rule deferring regulation of GHG emissions from “biogenic” sources. ...more

7/15/2013 - Biomass Carbon Emissions Clean Air Act EPA Greenhouse Gas Emissions

I Believe in Environmental Regulation, But….

As readers of this blog know, I believe in governmental environmental regulation. We have a complicated world and it is not surprising that many activities, including those generating greenhouse gases, cause negative...more

6/10/2013 - Environmental Liability EPA Greenhouse Gas Emissions Hazardous Substances RCRA

Which Comes First, Innovation or Regulation?

Two seemingly unrelated stories in Wednesday’s trade press got me thinking – always dangerous – about the relationship between regulation and innovation. The first story, from Daily Environment Report, noted that House...more

5/31/2013 - Carbon Capture and Sequestration Climate Change EPA Greenhouse Gas Emissions Proposed Legislation Technology

California GHG Auction: Some Anecdotal Evidence of the Cost of Regulatory Uncertainty?

The California Air Resources Board just released the results of its second auction of GHG allowances. While the auction for vintage 2013 allowances was still healthy, with all allowances sold at $13.62/allowance, the future...more

2/26/2013 - California Air Resources Board CARB Carbon Capture and Sequestration Coal-Fired Plants GHG Auction Greenhouse Gas Emissions

Building Energy Reporting Comes To Boston (Almost)

Today, Mayor Menino forwarded to the Boston City Council proposed amendments to the City of Boston Code that would require owners of many city buildings to report their energy and water use annually. That information would...more

2/26/2013 - Annual Reports Audits Energy Energy Consumption Energy Efficiency Greenhouse Gas Emissions Injunctions Public Disclosure Reporting Requirements Water

RGGI Ratchets Down the Cap: We’re Still Going to Have to Adapt

It was a busy week on the climate change front in Boston. First, RGGI announced a new Model Rule. Under the new Model Rule, summarized here, the 2014 cap would be reduced by 45%, from 165 million tons to 91 million tons. ...more

2/11/2013 - Climate Change Greenhouse Gas Emissions Sea Levels

MassDOT Issues Its 21st-Century Transportation Plan: Brother, Can You Spare $13 Billion?

The Massachusetts Department of Transportation today released The Way Forward: A 21st-Century Transportation Plan. The Plan summarizes steps that MassDOT has already taken to implement reforms, describes transportation...more

1/15/2013 - Department of Transportation Greenhouse Gas Emissions

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