Foley Hoag LLP - Environmental Law

Majority Support for a Carbon Tax?

What are the politics of climate change? A new poll done by Stanford University and Resources for the Future suggests that the public may be more ready to regulate carbon taxthan has previously been thought. When asked if “the…more
| Elections & Politics, Energy & Utilities, Environmental Law, Taxation

Perhaps a Corps Jurisdictional Interpretation is Final Agency Action After All

After Sackett, the question on everyone’s mind was “How far does it go?” The first test of that question was the decision by the 5th Circuit Court of Appeals – not known as a bastion of liberalism – in Belle Company v. Corps of…more
| Administrative Law, Civil Procedure, Environmental Law

EPA Really Has A Lot Of Discretion In Deciding Whether to Promulgate Water Quality Standards

When a number of citizen groups petitioned EPA to determine that it is necessary under the Clean Water Act to promulgate water quality standards for nutrient pollution in the Mississippi River Basin and the Northern Gulf of…more
| Administrative Law, Civil Procedure, Environmental Law

If MassDEP Cannot Promulgate New Regulations Absent Compliance with Executive Order 562, What About Guidance Documents?

For your humble blogger, Executive Order 562, recently issued by Governor Baker, is the gift that keeps on giving. Receipt of a notice today regarding MassDEP’s consideration of its draft vapor intrusion guidance document made…more
| Administrative Law, Environmental Law

Here’s Another Nice Mess: Executive Order 562 Claims Its First Victim

Last Friday, I posted about Governor Baker’s Executive Order 562, which requires cost-benefit analysis, cost effectiveness analysis – and more – before state agencies can promulgate regulations. It took less than a week before…more
| Administrative Law, Energy & Utilities, Environmental Law

Allocating The Liability Shares of Settling PRPs Under CERCLA

Allocation of liability under CERCLA can get messy. One particularly complex issue arises in a private cost recovery action where some but not all the PRPs have settled with the private party. In contrast to a government cost…more
| Civil Procedure, Civil Remedies, Environmental Law, Toxic Torts, Real Estate - Commercial

There’s Undoubtedly A New Sheriff in Town in Massachusetts

I have never agreed with those in the environmental community who are opposed to cost-benefit and cost-effectiveness analysis. Cost-effectiveness analysis just seems a no-brainer to me. As to cost-benefit analysis, we do it…more
| Administrative Law, Environmental Law

NEPA Review — Still the Land of Deference

Last week, District Judge Ralph Beistline allowed the summary judgment motion filed by the United States Forest Service, and dismissed citizen claims challenging the Forest Service decision to approve an logging project in an…more
| Administrative Law, Civil Procedure, Environmental Law, Zoning, Planning & Land Use

Arranger Liability for Sale of a Used Product: Standard of Metaphysics Or An Unstated Rule?

In Consolidated Coal Company v. Georgia Power Company,the Fourth Circuit recently applied the same four part test used by trial court(and blogged about here) to hold that the sale of a used product containing PCBs would not give…more
| Civil Procedure, Commercial Law & Contracts, Environmental Law

What’s a Court to Do When An Agency Admits Error? Vacate? Remand?

In Black Warrior Riverkeeper v. ACOE, decided this week by the 11th Circuit Court of Appeals, the Court was faced with a quandary. “On the eve of oral argument”, in a case challenging The Army Corps of Engineers Nationwide…more
| Energy & Utilities, Environmental Law

Conservative Support for a Carbon Tax? Hope Springs Eternal

I have long thought that the best argument for market-based approaches to climate change mitigation was the clunkiness of the alternative. However much time EPA has spent trying to make the GHG regulations efficient, no one can…more
| Elections & Politics, Energy & Utilities, Environmental Law, Taxation

RCRA Still Poses Some Interpretive Problems (To Put It Gently)

In a potentially significant opinion last week, in Little Hocking Water Association v. DuPont, Judge Algenon Marbley gave hope to citizen plaintiffs everywhere, with a remarkably expansive reading of the imminent and substantial…more
| Civil Procedure, Energy & Utilities, Environmental Law

Is Injunctive Relief Available Against Former Owners? At Least One Judge Thinks So.

As we noted in 2013, two different Courts of Appeal had ruled that injunctive relief is not available in PSD/NSR enforcement cases against former owners. Both United States v. Midwest Generation and United States v. EME Homer…more
| Civil Remedies, Environmental Law, Real Estate - Commercial, Toxic Torts

RCRA Is a Mess

In a potentially significant opinion last week, in Little Hocking Water Association v. DuPont, Judge Algenon Marbley gave hope to citizen plaintiffs everywhere, with a remarkably expansive reading of the imminent and substantial…more
| Civil Procedure, Energy & Utilities, Environmental Law, Toxic Torts

What’s a Significant Nexus? The Answer, My Friend, Is Flowin’ Through the Ditch.

Even assuming that the “significant nexus” test from Justice Kennedy’s concurring opinion in Rapanos defines waters of the United States subject to Clean Water Act jurisdiction, the question remains what establishes a…more
| Administrative Law, Constitutional Law, Construction Law, Environmental Law, Zoning, Planning & Land Use
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Contact: Jasmine Trillos-Decarie

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