Seth Jaffe

Seth Jaffe

Foley Hoag LLP

Contact  |  View Bio  |  RSS

Latest Publications

Share:

RGGI Is a Success Story. When Will It Be Obsolete?

When RGGI was first implemented, I heard Ian Bowles, then Secretary of Energy and Environmental Affairs in Massachusetts, say more than once that the purpose of RGGI wasn’t really to reduce greenhouse gas emissions or jump...more

9/27/2016 - Clean Energy Clean Power Plan Energy Efficiency Greenhouse Gas Emissions Renewable Energy RGGI

EPA Eliminates “But For” Causation From the Exceptional Events Rule: Tort Professors Everywhere Get Excited

On Monday, EPA promulgated amendments to its “Exceptional Events” Rule. The rule is important, particularly in the Western states, and most particularly in connection with EPA’s latest iteration of the ozone NAAQS. EPA’s...more

9/21/2016 - Burden of Proof But For Causation EPA NAAQS

Governor Baker’s Executive Order on Change: Good News; Still Work To Be Done By MassDEP

Last Friday, Governor Baker issued Executive Order 569, “Establishing an Integrated Climate Change Strategy for the Commonwealth.” EO 569 will advance climate policy in Massachusetts in a number of important ways. It also...more

9/19/2016 - Climate Action Plan Climate Change Executive Orders Global Warming Solutions Act Governor Baker Greenhouse Gas Emissions MassDEP Oil & Gas

Back to the Fracking Drawing Board for BLM? Fracking’s Risks Are Too Obvious to Ignore

Last week, Judge Michael Fitzgerald granted summary judgment to the plaintiffs in a citizen suit alleging that BLM’s Environmental Impact Statement prepared to address whether to open certain lands in California to mineral...more

9/14/2016 - Bureau of Land Management Fracking NEPA Summary Judgment

DOE and DOI Release the New National Offshore Wind Strategy: Perhaps Prosperity Is Finally Just Around the Corner

Last Friday, DOE and DOI issued an update of their National Offshore Wind Strategy. It’s a moderately aggressive strategy, seeking to deploy at least 86 gigawatts of offshore wind by 2050. The report highlights both the...more

9/13/2016 - DOE Offshore Wind Renewable Energy Wind Power

A Lumber Mill Biomass CoGen Need Not Consider Other Fuels In Its BACT Analysis. Other Sources Should Be So Lucky.

Ever since EPA began considering how BACT analysis would be applied to greenhouse gas emissions, there has been concern that EPA would use its BACT authority to “redefine the source” – with the particular concern that BACT...more

9/8/2016 - Agency Deference Appeals BACT Biomass Coal Mines EPA Greenhouse Gas Emissions Natural Gas Oil & Gas Permits Sierra Club

I Hate Home Rule

Massachusetts is a Home Rule state (Commonwealth, actually, but that’s a separate issue). Our 351 cities and towns can pretty much legislate as they please, so long as the local action is not preempted. Our state Wetlands...more

9/1/2016 - Appeals Bylaws Home Rule States Municipalities Property Owners State and Local Government Wetlands

Citizen Suits Remain a Potent Weapon

Although citizen groups have suffered some defeats in Clean Air Act cases in the NSR/PSD context recently, a decision last week in a different kind of CAA case is a reminder of just how powerful a weapon citizen suits can be,...more

8/31/2016 - Citizen Suits Clean Air Act Injury-in-Fact Power Plants Standing

The Arbitrary and Capricious Standard Remains Deferential: The Corps’ Nationwide Permit 21 Survives Review

Late last week, the 11th Circuit Court of Appeals rejected challenges to the Army Corps’ Nationwide Permit 21, which allows small surface mining projects to proceed without individual permits under § 404. ...more

8/16/2016 - Agency Deference Arbitrary and Capricious Mining Permits Section 404 US Army Corps of Engineers

The Social Cost of Carbon Passes Its First Judicial Test

Earlier this week, the 7th Circuit affirmed the Department of Energy’s new energy efficiency requirements for commercial refrigeration equipment. This is a big deal in its own right, simply because the numbers are really...more

8/13/2016 - Chevron Deference Conservation DOE Energy Efficiency Energy Sector Environmental Assessments

A Foolish Consistency Is the Hobgoblin of Little Minds: So Said Emerson, So Says EPA

On Wednesday, EPA issued a final rule amending its “Regional Consistency Regulations.” The new rule provides that EPA will only follow adverse judicial decisions in the areas of the country where such judicial decisions are...more

8/8/2016 - Clean Air Act EPA Federal v State Law Application Regional Consistency Rule State Implementation Plans (SIPs)

Chevron Deference Lives! EPA’s Boiler Rule (Mostly) Survives Review

On Friday, the D.C. Circuit largely upheld EPA’s Boiler MACT rule. The industry challenges were a complete washout. The environmental petitioners won one significant victory and a number of smaller ones....more

8/2/2016 - Air Pollution Boiler MACT Rule Carbon Emissions Chevron Chevron Deference Clean Air Act EPA

No Deference to State Settlements Under CERCLA? No Problem!

I will confess that I do enjoy being correct. In 2014, the 9th Circuit Court of Appeals refused to defer to a state agency determination of the procedural and substantive fairness of a CERCLA consent decree. Various parties...more

7/26/2016 - Appeals CERCLA Chevron Deference Settlement Agreements State Agencies

Forecast is Hazy For EPA’s Regional Haze Oversight Authority

Earlier this month, the 5th Circuit Court of Appeals stayed EPA’s disapproval of the Texas and Oklahoma regional haze state implementation plans, as well as EPA’s promulgation of its own federal implementation plan. The...more

7/25/2016 - Administrative Authority Appeals Clean Air Act EPA Jurisdiction Motions to Stay Proceedings Oil & Gas Order to Stay State Implementation Plans (SIPs)

Three Strikes and Mingo Logan Is Out: The D.C. Circuit Affirms EPA Withdrawal of Approval of Mountaintop Removal Disposal Sites

In 2013, the D.C. Circuit affirmed EPA’s authority to withdrawal approval of mountaintop mining disposal sites, even after the Army Corps has issued a Section 404 permit. In 2014, the District Court rejected Mingo Logan’s...more

7/22/2016 - Clean Water Act EPA NPDES Permits Section 404 Waste Disposal

Wyoming Prohibits Trespassing For Resource Data Collection: Might Massachusetts Follow?

In a fascinating case, Judge Scott Skavdahl (who recently struck down BLM’s fracking regulations) dismissed challenges from NRDC and PETA, among others, to a Wyoming law that prohibits trespassing on private land for the...more

7/11/2016 - Data Collection Endangered Species Equal Protection First Amendment Free Speech Natural Resources NRDC PETA Private Property Trespass

Violations of Environmental Law Are About To Get More Expensive

On July 1, EPA promulgated an interim final rule making inflation adjustments to the civil penalties under statutes it administers. The adjustments are required by statute. The new amounts apply to violations that occurred...more

7/5/2016 - Civil Monetary Penalty Clean Water Act EPA Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 Final Rules

The Antarctic Ozone Hole Is Healing. Full Stop.

An article published Friday in Science reports that the Antarctic ozone hole is healing.  As the article notes, there was some previous evidence about global improvement in stratospheric ozone levels, but this is the first to...more

7/5/2016 - Climate Change Energy & Climate Debates EPA Ozone

TSCA Reform Is Real: EPA Publishes Its “First Year Implementation Plan”

On Wednesday, EPA released its “First Year Implementation Plan” for the recently enacted TSCA reform legislation. Before getting to the details, it’s worth emphasizing what a significant accomplishment it was to get...more

7/1/2016 - Chemicals EPA Federal Implementation Plans (FIP) Toxic Substances Control Act (TSCA)

I Have Seen the Future and It Is Hot and Wet

The City of Boston has just released its “Climate Projections Consensus.” It’s not a pretty picture. Here are the lowlights...more

6/24/2016 - Climate Change Global Warming Rising Sea Levels

BLM Has No Authority To Regulate Fracking, At Least For Now

Yesterday, Judge Scott Skavdahl of the District of Wyoming held that the Bureau of Land Management did not have authority to regulate the environmental impacts of fracking. I think Judge Skavdahl probably got it right, but I...more

6/22/2016 - Administrative Authority Bureau of Land Management Congressional Intent Energy Policy EPA Fracking Oil & Gas Safe Drinking Water Act Underground Injection Wells

Minnesota May Not Prohibit Power Sales That Would Increase Statewide CO2 Emissions. Why Not? Pick Your Reason.

If you needed any further proof that energy law is very complicated, Wednesday’s decision in North Dakota v. Heydinger should convince you. The judgment is simple – the 8th Circuit Court of Appeals struck down a Minnesota...more

6/17/2016 - Carbon Emissions Clean Air Act Dormant Commerce Clause Energy Sector Extraterritoriality Rules Federal Power Act Out-of-State Companies Power Purchase Agreements Preemption

NEPA Does Not Require An Agency To Guarantee Project Compliance with Environmental Laws

In an interesting decision last week, the 9th Circuit Court of Appeals rejected challenges to BLM’s decision to issue a right-of-way permit for Tule Wind’s plan for a wind farm southeast of San Diego. It’s not exactly...more

6/14/2016 - Appeals Bureau of Land Management Department of the Interior Energy Policy Act NEPA Right of Way Wind Farm Wind Power

One Final Word on Peterborough Oil: Yes, MTBE Is An Additive

The final answer to the critical issue raised by the recent Peterborough Oil Company decision is that MTBE is an additive and is not, in MassDEP’s view, subject to the “oil exemption” under the Massachusetts Contingency Plan....more

6/9/2016 - Chemicals EPA Exemptions Groundwater Hydrocarbons MassDEP Oil & Gas PRP

More on the Peterborough Oil Case: Is MTBE An “Additive”?

Since yesterday’s post on the Peterborough Oil case, a little birdie told me that MassDEP may be taking the position that MTBE is covered by the “oil exemption”, because it is a hydrocarbon. If so, that would be good news...more

6/8/2016 - Chemicals EPA Exemptions Hydrocarbons MassDEP Oil & Gas PRP

344 Results
|
View per page
Page: of 14

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
×