Foley Hoag LLP - Environmental Law

Seaport West 155 Seaport Boulevard
Boston, MA 02210-2600, United States

Contact: Jasmine Trillos-Decarie

  • 617-832-1000
  • 617-832-7000

More Than (You Thought) You Ever Wanted To Know About Waters Of The United States

Over the past few months, I worked with a number of colleagues from the American College of Environmental Lawyers to provide the Environmental Council of the States with a balanced review of the history and background of how the…more
| Environmental Law

Some PURPA Qualifying Facilities are More Qualified Than Others

In a fascinating decision last week, a divided panel of the 5th Circuit Court of Appeals held that the Texas Public Utilities Commission had authority to limit the universe of “Qualifying Facilities” under the Public Utilities…more
| Civil Procedure, Commercial Law & Contracts, Energy & Utilities, Environmental Law

Be Careful With Pollution Insurance Coverage Disclosures – How Conditions Actually Disclosed Were Deemed Not Disclosed

A Massachusetts company learned the hard way that you need to pay close attention to policy endorsements when you negotiate them. In Market Forge Industries, Inc. v. Indian Harbor Insurance Company, the Appeals Court of…more
| Environmental Law, Insurance

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

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 the…more
| Administrative Law, Construction Law, Environmental Law

NPDES Permits Are Construed Narrowly Against the Permittee

In July, we noted that the Clean Water Act’s permit shield defense would be construed narrowly, applying only where a permittee had clearly disclosed that the relevant pollutant to the agency. This week, in Alaska Community…more
| Construction Law, Energy & Utilities, Environmental Law, Zoning, Planning & Land Use, Toxic Torts

Economic Development Is Not an Unqualified Environmental Evil (In Case You Didn’t Know)

I do not want to suggest that most environmentalists are Luddites or that the environmental movement is opposed to economic development. Indeed, hardly a speech is made today that does not tout the economic benefits of…more
| Environmental Law

Yes, Virginia, It Is Possible To Win A Fee Award Against An Environmental NGO

Last week, Judge Walter Smith, Jr., ordered the Sierra Club to pay more than six million dollars – yes, you read that correctly – to Energy Future Holdings and Luminant Generation, after finding that the Sierra Club’s Clean Air…more
| Civil Procedure, Civil Remedies, Energy & Utilities, Environmental Law, Zoning, Planning & Land Use

How Low Will They Go? A Lower Ozone NAAQS Begins to Have An Air of Inevitability

On Friday, EPA released its “Policy Assessment for the Review of the Ozone National Ambient Air Quality Standards.” EPA staff concluded: that it is appropriate in this review to consider a revised primary O3 standard level…more
| Administrative Law, Civil Procedure, Energy & Utilities, Environmental Law

What Triggers Excess Coverage In An Environmental Case: Not Necessarily the Payment of the Full Underlying Policy Limits

More and more excess insurers are taking the position that a policyholder which settles with primary or low level excess insurers for less than the full amount of the policy limits has waived its right to obtain coverage from…more
| Commercial Law & Contracts, Environmental Law, Insurance, Real Estate - Commercial

CERCLA’s Three Year Statute of Limitations for Contribution Applies To Non-CERCLA Settlements

Parties which settle environmental liability in a judicially approved settlement have three years from the date of that settlement in which to seek contribution even if the settlement is not a CERCLA settlement. That is the…more
| Civil Procedure, Commercial Law & Contracts, Environmental Law, Toxic Torts, Real Estate - Commercial

You Can’t Estop the Government — Even When It Wants to Be Estopped

Last week, the 9th Circuit Court of Appeals issued a decision that arguably explains everything from why the Tea Party exists to why otherwise calm and sane executives suddenly lose all their hair. Perhaps most astounding, the…more
| Civil Procedure, Energy & Utilities, Environmental Law, Zoning, Planning & Land Use

EPA Refuses to Amend Its Backup Generator Rule: Demand Response Breathes Easier

Last Friday, EPA published notice that it would not be revising its regulations on backup generators in response to three petitions for reconsideration it had received after it promulgated its final rule in January 2013. The…more
| Energy & Utilities, Environmental Law

EPA Publishes Final 316(b) Rule: Flexibility for Generators Means Litigation By Environmental Groups

Last Friday, EPA finally published its § 316(b) rule in the Federal Register. As we noted in May, the rule is more significant for what it does not do – require closed cycle cooling – than for what it does…more
| Energy & Utilities, Environmental Law

Importance of Judicial Approval of CERCLA Settlements

Before a Superfund settlement becomes enforceable, it must be reviewed by a federal court to confirm that it is fair, reasonable, and consistent with CERCLA’s objectives. This judicial review is at the heart of CERCLA’s…more
| Civil Procedure, Environmental Law, Toxic Torts, Real Estate - Commercial

It’s Really Difficult to Site a Highway in a Refuge

In an important decision last week, the 4th Circuit Court of Appeals made clear just how high the hurdles are in the way of building highways in wildlife refuges. The decision in Defenders of Wildlife v. North Carolina DOT sent…more
| Administrative Law, Civil Procedure, Zoning, Planning & Land Use, Transportation
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Areas of Practice
  • Alternative Dispute Resolution (ADR)
  • Construction Law
  • Energy & Utilities
  • Environmental Law
  • Toxic Torts
  • Zoning, Planning & Land Use
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