Last week, we posted about New York State’s enactment of the Climate Change Superfund Act. We promised to continue to monitor developments concerning climate superfund legislation and to update readers as necessary. It’s been...more
1/14/2025
/ California ,
Carbon Emissions ,
CERCLA ,
Climate Action Plan ,
Climate Change ,
Energy Policy ,
Energy Sector ,
Environmental Litigation ,
Environmental Policies ,
Greenhouse Gas Emissions ,
Public Health ,
State and Local Government
With the incoming Trump administration poised for an attack on federal environmental regulations, states are quickly emerging with actions on climate change. On December 26, 2024, New York Governor Kathy Hochul signed into...more
1/10/2025
/ Carbon Emissions ,
Clean Air Act ,
Climate Change ,
Energy Sector ,
Environmental Justice ,
Environmental Policies ,
Fossil Fuel ,
Greenhouse Gas Emissions ,
Infrastructure ,
State and Local Government ,
Superfund
Earlier this week, the Montana Supreme Court affirmed a lower court ruling in favor of plaintiffs in a climate case based on certain provisions of the Montana constitution. Specifically, the court ruled that:
- The...more
12/20/2024
/ Citizen Suits ,
Climate Action Plan ,
Climate Change ,
Environmental Impact Statements ,
Environmental Litigation ,
Environmental Protection Agency (EPA) ,
Greenhouse Gas Emissions ,
Injunctions ,
Montana ,
MT Supreme Court ,
Permits ,
State Constitutions
Earlier this week, in what almost certainly has to be the most fractured appellate decision in the history of the United States courts, the 5th Circuit Court of Appeals, sitting en banc, affirmed via per curiam decision the...more
Last week, EPA released two final rules under TSCA. The first rule bans all uses of trichloroethylene (TCE). The ban is subject to several temporary exemptions for certain uses under § 6(g) of TSCA. The second rule bans...more
12/12/2024
/ CERCLA ,
Chemicals ,
Contaminated Properties ,
Contamination ,
Enforcement ,
Environmental Protection Agency (EPA) ,
Final Rules ,
Groundwater ,
Regulatory Agenda ,
Toxic Chemicals ,
Toxic Substances Control Act (TSCA)
Earlier this week, the Court of Appeals for the District of Columbia ruled that the National Environmental Policy Act does not authorize the Council on Environmental Quality to issue binding regulations governing how federal...more
Last November, I posted about litigation filed by New York State Attorney General Letitia James, asserting public nuisance and other claims against PepsiCo concerning contamination of the Buffalo River. At the time, I...more
As the election approaches, lawyers, clients, and those who don’t have enough to do are beginning to speculate about what the election might mean for the Supreme Court. In my little world, people are particularly concerned...more
11/4/2024
/ Administrative Law Judge (ALJ) ,
Chevron Deference ,
Climate Change ,
Energy Policy ,
Energy Sector ,
Environmental Policies ,
Federal v State Law Application ,
Legislative Agendas ,
Loper Bright Enterprises v Raimondo ,
Regulatory Agencies ,
SCOTUS
According to a story in Inside EPA (subscription required) last week, EPA’s promulgation on October 8, 2024, of its “2024 Lead and Copper Rule Improvements” has already led to disputes among stakeholders regarding what should...more
On October 16, 2024, the United States Supreme Court shot down requests from states and industry groups to stay the implementation of the Environmental Protection Agency’s (EPA) rule to reduce carbon emissions from coal-fired...more
10/17/2024
/ Carbon Capture and Sequestration ,
Clean Air Act ,
Climate Change ,
Energy Sector ,
Environmental Litigation ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Greenhouse Gas Emissions ,
Regulatory Agenda ,
Regulatory Requirements ,
Utilities Sector
Sometimes, a blog just has to be written. For those of us of a certain age, Sterling Hayden's speech as Jack D. Ripper in Dr. Strangelove concerning the Communist plot to fluoridate our water is iconic. Well, it turns out...more
10/2/2024
/ Administrative Procedure Act ,
Chemicals ,
Chevron Deference ,
Citizen Suits ,
Drinking Water ,
Environmental Litigation ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Judicial Review ,
Statutory Authority ,
Statutory Interpretation ,
Toxic Chemicals ,
Toxic Substances Control Act (TSCA)
Inside EPA (subscription required) reported this week that a group of Democratic state attorneys general have filed an amicus brief supporting EPA’s appeal of a 9th Circuit Court of Appeals decision holding that EPA had...more
In this Issue: Permitting Reform, the Supreme Court, EV’s, and Climate Week 2024 -
After nearly a decade as New York State’s environmental chief, I recently joined Foley Hoag to help the firm’s clients emerge as global...more
9/19/2024
/ Climate Change ,
Electric Vehicles ,
Electricity ,
Energy Policy ,
Energy Projects ,
Energy Reform ,
Energy Sector ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Greenhouse Gas Emissions ,
Regulatory Reform ,
Renewable Energy ,
Utilities Sector
For most of this century, I’ve been asked with some regularity whether Superfund was dead. I’ve always considered that question to be a victory of hope over expectation. Notwithstanding frequent criticism, frequently...more
Late last month, I noted that the overturning of Chevron did not mean the end of judicial deference to agency expertise. Earlier this week, a decision by the D.C. Circuit Court of Appeals provided some confirmation that...more
8/15/2024
/ Administrative Procedure Act ,
Air Pollution ,
Chevron Deference ,
Citizen Suits ,
Corporate Counsel ,
Environmental Protection Agency (EPA) ,
Government Agencies ,
Judicial Authority ,
Loper Bright Enterprises v Raimondo ,
Regulatory Authority ,
SCOTUS ,
Statutory Interpretation
Greenwire (subscription required) had an article yesterday with the breathless headline “Post-Chevron era tests courts’ readiness to tackle science.” The article noted that, in the recent Supreme Court decision in Ohio v....more
7/31/2024
/ Administrative Procedure Act ,
Chevron Deference ,
Environmental Protection Agency (EPA) ,
Government Agencies ,
Judicial Authority ,
Loper Bright Enterprises v Raimondo ,
Regulatory Authority ,
Scientific Evidence ,
SCOTUS ,
Section 706 ,
Statutory Interpretation
Yesterday, in SEC v. Jarkesy, the Supreme Court ruled that the defendants in a securities fraud case brought by the SEC were entitled to have the SEC’s claims for civil penalties decided by a jury. The question now is how...more
Last week, Vermont became the first state to enact a “Climate Superfund” law. As I noted in January, I fear that this will not end well. It seems odd to model a statute on a law frequently given the accolade – deserved, in my...more
On Wednesday, the 9th Circuit granted a petition for mandamus from the United States and ordered the District Court to dismiss the complaint in Juliana v. United States. The 9th Circuit had previously ordered the case...more
Last Friday, EPA formally designated perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) – including their salts and structural isomers! – as hazardous substances under CERCLA. I cannot really quarrel with...more
4/23/2024
/ CERCLA ,
Contamination ,
Discharge of Pollutants ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Final Rules ,
Groundwater ,
Hazardous Substances ,
PFAS ,
Public Health ,
Regulatory Reform ,
Superfund
On Tuesday, in Ohio v. EPA, the D.C. Circuit Court of Appeals denied several challenges to EPA’s decision to restore California’s authority under § 209(b) of the Clean Air Act to regulate emissions from motor vehicles. It’s...more
4/10/2024
/ Air Pollution ,
Air Quality Standards ,
Carbon Emissions ,
Clean Air Act ,
Environmental Litigation ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Motor Vehicles ,
NGOs ,
Preemption ,
Regulatory Requirements
This week, Inside EPA (subscription required) ran a story indicating that EPA is trying to figure out how to juggle some increasingly expensive cleanups with shortfalls in Superfund tax revenue. The story notes that EPA is...more
Earlier this month, the District of Columbia Court of Appeals vacated most of EPA’s startup, shutdown, and malfunction SIP Call. The Court’s rationale boils down to EPA’s failure to make a predicate finding that the SIP call...more
3/11/2024
/ Air Pollution ,
Air Quality Standards ,
Appeals ,
Citizen Suits ,
Electricity ,
Environmental Litigation ,
Environmental Protection Agency (EPA) ,
Florida ,
NAAQS ,
Regulatory Agenda ,
Vacated
Last week, in Bristol Asphalt v. Rochester Bituminous Products, the SJC jettisoned two prior decisions and revised its directions to lower courts regarding how to handle “special motions to dismiss” under Massachusetts’...more
It is now almost 18 months since Congress enacted the Inflation Reduction Act. One of the IRA’s provisions was an adder to the ITC for renewable energy projects located in an “energy community”. One way to be in an energy...more
2/12/2024
/ Brownfield Properties ,
CERCLA ,
Department of Justice (DOJ) ,
Energy Policy ,
Energy Sector ,
Inflation Reduction Act (IRA) ,
IRS ,
Legislative Agendas ,
RCRA ,
Renewable Energy ,
Superfund ,
Toxic Substances Control Act (TSCA)