Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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It’s Foreseeable That More Species Will Be Listed Under the ESA Due to Climate Change

The drumbeat of cases, either approving agency action under the ESA – or reversing agency refusal to act – due to habitat alteration resulting from climate change continues to grow. In February, the 9th Circuit reversed a...more

10/25/2016 - Climate Change Endangered Species Endangered Species Act (ESA) ESA Listings US Fish and Wildlife Service

EPA Must Evaluate Job Losses From Its Regulations: Blame Ralph Nader!

Last week, Judge John Preston Bailey ruled that EPA had violated a non-discretionary duty by failing comply with the requirement of § 321(a) of the Clean Air Act that it...more

10/25/2016 - Administrative Authority Clean Air Act EPA Hiring & Firing Murray Energy

FWS Goes Back to Square One On Listing the Wolverine. It’s Not Going to Be Any Easier This Time Around.

As we noted in this space in April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine as threatened under...more

10/19/2016 - Climate Change Critical Habitat Endangered Species Endangered Species Act (ESA) ESA Listings US Fish and Wildlife Service

What a Surprise! Increased Renewal Energy Decreases GHG Emissions.

On October 12, 2016, the Energy Information Administration reported that “Energy-related CO2 emissions for first six months of 2016 are lowest since 1991.” The EIA gave three reasons for the drop in CO2 emissions. ...more

10/13/2016 - Carbon Emissions Clean Energy Climate Change Coal Energy Policy Global Warming Greenhouse Gas Emissions Hydropower Renewable Energy Solar Energy Wind Power

Massachusetts Innovates Again, This Time With New Climate Change Litigation

As an MIT grad and loyal resident (Go Sox!), I’m always happy to see stories about Massachusetts’ role in the innovation economy. Last week news arrived of more innovation in Massachusetts – this time on the legal front. ...more

10/5/2016 - Climate Change Exxon Mobil FEMA Flooding Rising Sea Levels Water Pollution

Stop the Presses: Nuclear Power Still Does Not Emit Greenhouse Gases

On Monday, the TVA announced that Watts Bar Unit 2 had successfully completed what is known as its final power ascension test. It is now producing 1,150 MW of power in pre-commercial operation. Though EnergyWire did report...more

10/5/2016 - Climate Change Dams Energy Sector Greenhouse Gas Emissions Hydropower Nuclear Power

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)

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