Foley Hoag LLP - Environmental Law

DOER’s Solar Incentive Straw Proposal: Optimism, Anxiety, Uncertainty.

On September 23, DOER presented a straw proposal for the next phase of Massachusetts solar incentives. DOER’s ambitious proposal for a tariff-based program reflects a thoughtful development process and a laudable goal of…more
| Energy & Utilities, Environmental Law

MassDEP: The Rising Tide May Steal Your Development Rights

Does a pile field exist if it’s covered at high tide? MassDEP seems to think not. Through the Commonwealth’s Chapter 91 program, MassDEP regulates what can be built over tidelands. In last week’s Environmental…more
| Environmental Law, Zoning, Planning & Land Use

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 start…more
| Energy & Utilities, Environmental Law

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 most…more
| Administrative Law, Environmental Law

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
| Energy & Utilities, Environmental Law

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
| Energy & Utilities, Environmental Law, Zoning, Planning & Land Use

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
| Energy & Utilities, Environmental Law

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 for a…more
| Administrative Law, Civil Procedure, Energy & Utilities, Environmental Law, Zoning, Planning & Land Use

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
| Environmental Law, Real Estate - Residential, Zoning, Planning & Land Use

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
| Civil Procedure, Energy & Utilities, Environmental Law, Personal Injury

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
| Administrative Law, Constitutional Law, Energy & Utilities, Environmental Law, Zoning, Planning & Land Use

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 large…more
| Administrative Law, Civil Procedure, Energy & Utilities, Environmental Law

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
| Administrative Law, Civil Procedure, Conflict of Laws, Energy & Utilities, Environmental Law

Massachusetts Legislature Enacts Significant Energy Bill in Support of Offshore Wind and Hydro Procurement, Storage and Transmission

Late last night, the Massachusetts legislature enacted House Bill 4568, an act to promote energy diversity (the “Act”). Overall, the Act marks a compromise between the House’s original procurement-only legislation and the…more
| Energy & Utilities, Environmental Law

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
| Administrative Law, Civil Procedure, Energy & Utilities, Environmental Law
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Contact: Audra Callanan

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