Seth Jaffe

Seth Jaffe

Foley Hoag LLP

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CCRs Dodge a Hazardous Waste Bullet: EPA Regulates under RCRA Subtitle D

On Friday, EPA finally released its final rule regulating coal combustion residuals. Facility owners breathed a sigh of relief, as EPA chose to regulate under Subtitle D of RCRA, rather than under the cradle-to-grave...more

12/24/2014 - Coal Coal Ash EPA Final Rules Hazardous Waste RCRA

Fish Two, Water Withdrawals Zero: The 9th Circuit Affirms Another Biological Opinion

On Monday, the 9th Circuit Court of Appeals dealt another blow to traditional operation of the massive water projects that supply California’s Central Valley. The Court reversed those parts of a District Court opinion that...more

12/24/2014 - Appeals Delta Smelt Endangered Species National Marine Fisheries Service Public Projects State Water Project Water

EPA Releases FY 2014 Enforcement Results: Maybe Less Enforcement Is Good News

Last week, EPA released its report on Enforcement Annual Results in EPA Regions for Fiscal Year 2014. As always, the report is worth reading, if only for the interactive map which shows where EPA has brought various kinds of...more

12/22/2014 - Enforcement Enforcement Statistics EPA

Proof and Causation Matter: District Court Declines to Penalize ExxonMobil in Texas Citizen Suit

On Wednesday, Judge David Hittner, of the District Court for the Southern District of Texas, in a decision long enough to require two separate pdfs, declined to impose an injunction or penalties (plaintiffs sought...more

12/19/2014 - Citizen Suits Clean Air Act Exxon Mobil

Virginia Proposes Nutrient Trading Regulations: Established Concept, New Medium

This week, Virginia formally proposed Nutrient Trading Certification Regulations. The program will establish a market in phosphorus and nitrogen removal credits. Although the program is welcome news, it should be neither...more

12/18/2014 - Emissions Trading System

Cole Porter Was Right: The Economic Cost of Climate Change

There has already been significant discussion of the economic impacts of climate change. Damage from catastrophic events, the cost to build adaptation measures such as sea walls; these have all been examined. ...more

12/17/2014 - Climate Change

FERC Will Seek Supreme Court Review of the Decision Striking Down Order 745

Last Friday, FERC sought a further stay of the decision by the D.C. Circuit Court of Appeals striking down FERC Order 745. Whereas the United States had previously only indicated that it was considering filing a cert....more

12/12/2014 - Chevron Deference FERC SCOTUS

When Is a Solid Waste Not a Solid Waste? An Eternal Question

This year, EPA has proposed a rule to regulate GHG emissions from existing sources, the legality of which turns, in significant part, on the definition of a “source” under section 111(d) of the Clean Air Act. It has also...more

12/11/2014 - Clean Air Act EPA Greenhouse Gas Emissions Proposed Regulation RCRA Solid Waste Waters of the United States

EPA Does Not Have a Nondiscretionary Duty to Revise PSD Regulations When It Amends a NAAQS

On Monday, the 9th Circuit Court of Appeals ruled that EPA does not have an obligation to amend PSD regulations for a criteria pollutant within two years of revising the National Ambient Air Quality Standard for that...more

12/4/2014 - Appeals Clean Air Act EPA NAAQS PSD

EPA Finally Proposes a Revised Ozone Standard, Sort Of

Yesterday, EPA finally proposed a revised ambient air quality standard for ozone – except that the agency is still hedging its bets. The Clean Air Science Advisory Committee had previously supported a revised ozone NAAQS of...more

12/1/2014 - Air Quality Standards Energy Policy EPA

I’m Still a Cockeyed Optimist When It Comes to Climate Change

Last week, NRG Energy announced plans to reduce CO2 emissions 50% by 2030 and 90% by 2050. And this reduction is not from a 1990 or 2005 baseline; it is from 2014 emissions. NRG’s statement indicated that it had already...more

11/25/2014 - Cap-and-Trade Carbon Emissions Carbon Taxes Climate Change Energy Policy

Should Watersheds Have Standing? Should Corporations?

In his seminal essay in 1972, Christopher Stone famously asked “Should Trees Have Standing?” Apart from Justice Douglas’s dissent in Sierra Club v. Morton, the idea has never gained much traction, at least in United States...more

11/24/2014 - Corporate Counsel Drilling Waste Disposal Fracking Local Ordinance Standing Watershed

Massachusetts Climate Adaptation Policy: How Broad Will It Be?

Yesterday, I suggested that Massachusetts EOEEA may not have authority to issue its “MEPA Climate Change Adaptation and Resiliency Policy.” However, since I also conceded that Massachusetts courts are unlikely to agree with...more

11/19/2014 - Climate Change Energy Policy

Environmental Impact Analysis — The Impact of a Project on the Environment or the Impact of the Environment on a Project?

Traditionally, environmental impact analysis, under NEPA and state analogs, has focused on the impacts that a proposed project may have on the environment. In Massachusetts, the Executive Office of Energy and Environmental...more

11/18/2014 - Climate Change Environmental Assessments Environmental Policies NEPA

Superfund Rant For a New Congress

So the new Congress will be controlled by the GOP. The House and Senate will consider various bills to reign in EPA authority. Here’s one relatively modest suggestion for congressional consideration: amend CERCLA to limit...more

11/12/2014 - CERCLA Environmental Policies EPA Superfund

Transportation Projects Get A Lot Of Deference in Demonstrating Compliance With Air Quality Standards

In a decision late last month, the 9th Circuit Court of Appeals made clear just how much deference agencies can get under the Supreme Court decisions in Chevron and Auer. The question in NRDC v. USDOT was whether, in...more

11/11/2014 - Department of Transportation Highways Port of Los Angeles Ports SIP Surface Transportation

Do Takes of the Utah Prairie Dog Affect Interstate Commerce? Only When McDonalds Starts Serving Prairie Burgers

Earlier this week, in a suit brought by the beautifully named People for the Ethical Treatment of Property Owners, Judge Dee Benson ruled that the United States Fish and Wildlife Service could not regulate takes of the Utah...more

11/10/2014 - Endangered Species Act ESA Listings Fish and Wildlife Service Incidental Take Permits Interstate Commerce

Regulation of GHG Emissions Becomes Real: Hyundai and Kia Settle For $350 Million

If readers have been wondering when GHG regulation would truly feel real, EPA may have delivered the answer yesterday, with its announcement of a $350 million settlement with Hyundai and Kia over allegations of violations of...more

11/5/2014 - Auto Manufacturers Automotive Industry EPA Greenhouse Gas Emissions Hyundai Kia Settlement

EPA’s Clean Power Plan: Potentially New and Improved?

On Tuesday, EPA issued a Notice of Data Availability, requesting further comment on some specific issues that have been raised since it published its draft Clean Power Plan in June. My immediate reaction? My head hurts....more

10/30/2014 - Clean Power Plan Coal Industry Energy Efficiency Energy Policy EPA Greenhouse Gas Emissions Natural Gas Oil & Gas Renewable Energy

FERC’s Order 745 — Still In Effect For Now

The D.C. Circuit Court of Appeals has stayed its mandate vacating FERC Order no. 745, regarding demand response. The mandate is stayed at least until December 16, 2014, by which point FERC must petition the Supreme Court for...more

10/27/2014 - Appeals Chevron Deference FERC

News Flash: Cap-and-Trade Remains the Most Efficient Way to Reduce Emissions

Notwithstanding Congressional gridlock on climate change legislation, cap-and-trade remains the tried and true efficient method for reducing air emissions. Although the acid rain provisions of the Clean Air Act are the most...more

10/23/2014 - Appeals Cap-and-Trade Carbon Emissions Clean Air Act Climate Change Energy Energy Policy EPA Greenhouse Gas Emissions

More Sauce For Standing the Goose: Industry Associations Cannot Challenge EPA’s E15 Rule

I have previously noted that standing is a double-edged sword. Most commonly, the regulated community uses standing to keep citizen plaintiffs out of court. However, as the D.C. Circuit Court of Appeals demonstrated...more

10/22/2014 - E15 Blend Environmental Policies EPA Federal Rules of Civil Procedure Standing

UCS Says to Add More Renewables to the Clean Power Plan; If It’s Better, Does that Make It Best?

The Union of Concerned Scientists today announced release of a report which attempts to document that the renewable energy “building block” in EPA’s Clean Power Plan is not sufficiently aggressive. The report argues that,...more

10/15/2014 - Clean Power Plan EPA Greenhouse Gas Emissions Information Reports Renewable Energy

What a Shock?! Nebraska’s Early Challenge to EPA’s Clean Power Plan Is Dismissed

Opponents of EPA’s Clean Power Plan have not been willing to wait until a final rule has been promulgated before challenging EPA’s authority. On Monday, Nebraska’s challenged was dismissed – not surprisingly – as premature....more

10/9/2014 - Clean Air Act Clean Power Plan Energy Policy Act EPA Federal Funding Technology

EPA Really Does Have Authority To Withdraw Specifications Under Section 404 of the Clean Water Act

Last year, the D.C. Circuit Court of Appeals ruled that EPA has authority to withdraw its approval for the specification of sites for the disposal of fill material, even after the Army Corps has issued a permit for the...more

10/3/2014 - Appeals Clean Water Act EPA Industrial Discharges Mining Section 404 US Army Corps of Engineers

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