Category Archives: Massachusetts DEP

RGGI: the Hot New Investment Tip?

In last week’s auction held by the Regional Greenhouse Gas Initiative (RGGI), not only did the allowances sell at $3 — the highest clearing price in four years, other than the June auction’s $3.21 — but a majority of the allowances sold to investors, rather than the large generators of electricity whose carbon dioxide emissions […]

Standing Matters, TMDL Version

Last week, in Conservation Law Foundation v. EPA, Judge Mark Wolf ruled that CLF did not have standing to challenge EPA’s approval of total maximum daily loads promulgated for certain waters in and around Cape Cod.  Given the increasing number of citizen suits involving TMDL promulgation, the decision is important. CLF asserted two claims.  First, […]

MassDEP Proposes Amendments to CO2 Budget Trading Regs to Implement RGGI Program Changes

On Friday, MassDEP released for public review and comment draft amendments to the CO2 Budget Trading Program regulations.   These amendments are designed to implement the changes to the Regional Greenhouse Gas Initiative (RGGI) agreed to by the RGGI states earlier this year as part of the 2012 Program Review. As Seth previously discussed, the major change […]

I Believe in Environmental Regulation, But….

As readers of this blog know, I believe in governmental environmental regulation.  We have a complicated world and it is not surprising that many activities, including those generating greenhouse gases, cause negative externalities.  At the same time, however, I have spent more than 25 years representing regulated entities in negotiations with government regulators and it […]

When is a Park not a Park? The SJC Declines to Give Broad Interpretation to Article 97

Earlier this month, the Supreme Judicial Court (SJC) issued its decision in Mahajan v. DEP, holding that the Boston Redevelopment Authority’s (BRA) proposed redevelopment of Long Wharf in Boston is not subject to Article 97 of the Amendments to the Massachusetts Constitution.   Among other things, Article 97 protects park lands from being disposed of or used for other […]

MassDEP Regulatory Reform Release 2.0: Wetlands, Water, and Waterways

In addition to its MCP package, MassDEP has also released its formal regulatory reform proposals for its water, wastewater, wetlands, and waterways programs.  As with the MCP proposal, the water package took longer than it should have, and may not be perfect, but is definitely worth the wait.  MassDEP has provided two separate helpful summaries […]

MassDEP Formally Proposes MCP Reforms: It’s About Time? Job Well Done? Definitely Both.

On Friday, MassDEP issued the formal public comment draft of its package of regulatory reforms under the Massachusetts Contingency Plan.  Overall, it’s certainly a good package, which will facilitate getting to an endpoint with reduced transaction costs, but no decrease in environmental protection.  It’s not perfect (and you have until May 17, 2013 to provide […]

MassDEP Begins to Roll Out Its Regulatory Reforms: Good News on the Solid Waste Front

As I’ve previously discussed, MassDEP has been embarked on an effort – prompted by shrinking budgetary resources – to promulgate a package of regulatory reforms.  While the package was announced in March 2012 and updated last October, we only saw the first set of actual proposed regulations last week, when MassDEP announced changes to both […]

MassDEP Issues Final Rules for Anaerobic Digestion Facilities: Let’s Hope They Work

This week, MassDEP announced that it had finalized regulatory revisions intended to encourage anaerobic digestion projects in the Commonwealth. The regulations are the culmination of a long stakeholder process . Since our firm knows from personal experience MassDEP’s ability to tie itself in knots on this issue, there is little doubt that this package was necessary as a practical matter. Highlights […]

Accidental Success? Even Without National Climate Policy, US Emissions May Fall Enough To Avoid Failure

In 2009, at the international climate talks in Copenhagen, Denmark, President Obama pledged that the US would reduce its greenhouse gas emissions 17% below 2005 levels by 2020. Since then, national efforts toward comprehensive climate legislation, or even making concrete strides to intentionally reduce emissions on a national scale have been, let’s say… lackluster. But even so, a recent […]

Repeat After Me: There Ain’t No Such Thing as a Free Lunch

Yesterday, the Boston Globe reported that MassDEP is considering promulgating new regulations to manage noise from on-shore wind turbines. I sympathize with my friends at MassDEP, who are trying to implement a clean energy agenda and ensure that Massachusetts meets the aggressive carbon reduction targets in the Global Warming Solutions Act. This is no easy task in […]

Is Massachusetts the NIMBY Capital of the World? What Will Be the Impact of the Wind Turbine Health Impact Study?

Yesterday, the “Independent Expert Panel” convened by MassDEP to review whether wind turbines cause any adverse health effects issued its report. I was pleased that the headline in the Boston Globe was that “Wind turbines don’t cause health problems.” Similarly, the Daily Environment Report headline was that “Massachusetts Study Finds ‘No Evidence’ of Health Impacts from Wind […]

MassDEP Issues Vapor Intrusion Guidance: Don’t Worry; It’s Only Guidance

Last week, MassDEP finally issued its long-awaited vapor intrusion guidance. Including appendices, it is 148 pages. There is a separate 52-page response to comments on the draft guidance. MassDEP has certainly learned that guidance must at least be described as guidance. The disclaimer runs a full page, and includes the following text: MassDEP generally does not intend the guidance […]

Democracy In Action: Environmental Legislation Edition

What follows is the full text of Bill S.325, introduced in the Massachusetts legislature this term.  SECTION 1. LIABILITY RELIEF In the event an individual or group of individuals unknowingly purchase contaminated residential land that does not qualify for Brownsfield funding and are not the polluter, they must be relieved of liability and fines in […]

MassDEP Issues Its Regulatory Reform Proposal

Earlier this week, the Massachusetts DEP issued a package of regulatory reforms. While the focus of the package was on finding ways for MassDEP to implement its mission with fewer resources, a number of the reforms are specifically targeted at facilitating the development of renewable energy. If you want to see more about that angle, you can […]

Coming Soon to Massachusetts: Adaptation to Climate Change

The abandonment of any discussion of climate change in Washington has not been followed in Massachusetts. Yesterday, Rick Sullivan, the Secretary of Energy and Environmental Affairs, released the Massachusetts Climate Change Adaptation Report, providing the fruits of a lengthy process in Massachusetts to look at the impacts of climate change on five areas: Natural Resources and Habitat; […]

The Conservation Commission That Couldn’t Shoot Straight

It’s easy enough to complain about EPA; I’ve even been known to do it on occasion. However, in Massachusetts, we have a different problem. We let local municipalities regulate all sorts of matters in which they have no expertise.  We even delegate to municipalities the implementation of our state Wetlands Protection Act. That’s how we end up […]

MassDEP Commissioner Ken Kimmell Wants Regulatory Reform: Do the DEP Employees Want It?

New MassDEP Commissioner Ken Kimmell has launched a regulatory reform effort at DEP. As everyone knows, Ken did an outstanding job as EEA General Counsel and I expect he will be an outstanding DEP Commissioner. I hope he succeeds and I fully support the regulatory reform initiative. However, he does have one major problem – his staff, other […]

A Twofer: Indoor Air and Guidance v. Regulation

Vapor intrusion is the issue de jour at federal and state Superfund sites. On the federal side, EPA announced in January that it was considering adding vapor intrusion criteria to its calculation of hazard ranking scores. Frankly, as a concept, it’s hard to dispute. In fact, aside from when actual public water supplies are contaminated, indoor air is […]

The Next Big Thing for the Future of Everything

In what might not be an overstatement, Seth has described Massachusetts’ Global Warming Solutions Act (GWSA), as "the future of everything".  If so, welcome to the future of the future of everything.  The GWSA requires the Executive Office of Energy and Environmental Affairs (EEA) to set a 2020 goal for state-wide reductions of greenhouse gas […]

Which Take Longer in Massachusetts, Permit Renewals or Permit Appeals?

An adjudicatory hearing decision issued by MassDEP in September just came to my attention. The decision in the case, In the Matter of Town of Plymouth, is worth reading for those of you interested in the emerging issues related to concerns over nutrients and how nutrient discharges will be regulated in groundwater or surface water discharge […]

More on TMDLs, or Too Much Darn Litigation

Sometimes, the headline writes the story. EPA’s TMDL program under the Clean Water Act has been the subject of so much litigation since its inception that EPA has a web page devoted to the status of litigation on the establishment of TMDLs. Bringing things close to home, the Conservation Law Foundation and the Coalition for Buzzards […]

Fishing, Fowling, Navigation and Wind Energy: SJC Approves Cape Wind Siting Process

The Cape Wind project cleared another important hurdle yesterday with a 4-2 ruling by the Massachusetts Supreme Judicial Court, holding that the state Energy Facilities Siting Board (EFSB) can authorize local construction permits for the project’s transmission lines. The decision in Alliance to Protect Nantucket Sound Inc. v. Energy Facilities Siting Board is particularly significant […]

There Is a Statute of Limitations For Challenging Permits In Massachusetts (Or, We’re Crazy Here, But Not That Crazy)

Those who operate industrial facilities or do development in Massachusetts often know far more than they would like about Chapter 214, § 7A, the environmental citizens’ suit provision of the Massachusetts General Laws. Chapter 214, § 7A, eliminates plaintiffs’ usual obligation to demonstrate standing and simply gives 10 citizens the right to sue to prevent or eliminate […]

Renewable Energy In Massachusetts: Is The Answer Finally Blowin’ In The Wind?

It has long been understood that Massachusetts that the Commonwealth cannot meet its renewable energy goals with solar power alone. Solar is great, but really ratcheting up the percentage of energy supplied by renewable sources is going to take a big commitment to wind. In fact, Governor Patrick announced a goal of 2,000 MW of wind on- […]

Taking it to the Streets: the East Coast’s Newest Climate Initiative

It may be time to learn a new acronym.  The 10 RGGI states, plus Pennsylvania and Washington DC have banded together to create the Transportation and Climate Initiative (TCI) — a group that has pledged to create a plan to address the estimated 30% of greenhouse gas emissions on the eastern seaboard caused by the […]

Water, Water, Everywhere: More Than a Drop to Treat

Last week, EPA released its Clean Watersheds Needs Survey 2008 Report to Congress. I have three immediate reactions to the Report. The first is that there are a lot of needs out there. The Report’s bottom line is that there is currently an expected shortfall of $298 billion over the next 20 years for clean water infrastructure. As Congress […]

EPA’s Move to Regulate Stormwater Discharges from Development Gathers Steam; EPA Issues Mandatory Questionnaire For Public Comment

EPA is proceeding with its plan to establish a new program to regulate stormwater discharges from new development and redevelopment, with a target date for a final rule by November 2012. The next step: the reissuance of draft mandatory questionnaires that, once finalized, will be sent to various stakeholders, including approximately 738,000 owners and developers […]

Still Hope For New Municipal Waste Combustors in Massachusetts?

Yesterday’s New York Times had a very interesting article regarding the use of advanced municipal waste combustor technology in Europe. As the article notes, such plants are relatively commonplace in Europe, whereas literally no new waste-to-energy plants are being built in the United States. Ian Bowles, our own Secretary of Energy and Environmental Affairs – and someone […]

EPA Keeps Up the Stormwater Drumbeat: Releases Draft Permit for Charles River Communities

EPA Region 1 continues to roll out new programs on the stormwater front, and this week’s development is particularly important for private property owners in the Charles River watershed. The agency released proposed amendments to the Residual Designation for the Charles River (“RDA”) and a Draft General Permit for Residually Designated Discharges. While the proposed permit only […]

Believe It Or Not, Sometimes MassDEP Does Things of Which the SJC Does Not Approve

Those of us who advise clients regarding compliance with environmental regulations have often been in the awkward position of agreeing with clients that the agency position is, shall we say, misguided, yet at the same time advising against legal challenge, because the judicial review deck is stacked so heavily in favor of the agency. (In another […]

Dog Bites Man, Monday Edition: Massachusetts Retains Its Municipal Waste Combustor Moratorium

As most of my Massachusetts readers know, on Friday, Secretary of Energy and Environmental Affairs Ian Bowles and DEP Commissioner Laurie Burt announced that Massachusetts would retain its moratorium on new construction or expansion of municipal waste combustors. Although the overall outcome is not really a surprise from this administration, a few points are worth noting. […]

A Follow-up On Regulatory Reform in Massachusetts: Secretary Bowles Starts to Get Some Suggestions

As I discussed last week, in response to the current dire state fiscal outlook, Massachusetts Secretary of Energy & Environmental Affairs Ian Bowles announced, pursuant to a request from Governor Patrick, a search for “options for departmental reorganization and consolidation, streamlined operations and procedures, and new models for doing the public’s business.” Given that Secretary Bowles […]

Desperate Times, Desperate Measures? Massachusetts Environmental Agencies Look to Reinvent Themselves

On the be careful what you wish for front, Massachusetts Energy and Environment Secretary Ian Bowles announced yesterday an effort to examine “options for changes in administrative structures and programs to meet environmental goals in light of budget challenges.” The announcement identifies three separate areas of investigation: Public-Private Partnerships – This makes a lot of sense, […]

RGGI Prices Fall Again in 5th Auction: $2.19 and $1.87

The Regional Greenhouse Gas Initiative (RGGI) has released the clearing prices from its 5th quarterly auction of CO2 allowances, held on September 9, 2009.  Prices for the 28.4 million 2009 vintage allowances sold fell sharply from the June auction’s clearing price of $3.23 to $2.19, and the 2.1 million 2012 vintage allowances sold for only $1.87, […]

Is it Good News or Bad? MassDEP Wins an Adjudicatory Hearing Appeal

Although not breaking any new ground, a decision from the Massachusetts Appeals Court last week provides a helpful summary of the discretion typically given to MassDEP in making permitting decisions. In Healer v. Department of Environmental Protection, abutters to a proposed wastewater treatment facility in Falmouth sued MassDEP, claiming that the groundwater discharge from the leach […]

Massachusetts Limits The Standing of Businesses to Challenge Permits Issued to Competitors

In an important decision yesterday, the Massachusetts Supreme Judicial Court ruled that the operator facility participating in the renewable portfolio standard program did not have standing to challenge a state decision authorizing other facilities to participate in the RPS program. The decision may have broad implications regarding when businesses may challenge the issuance of permits or […]

Massachusetts Finalizes Global Warming Solutions Act Reporting Regulations

The Massachusetts Department of Environmental Protection (DEP) yesterday published a final amendment to the first set of Global Warming Solutions Act regulations, 310 CMR 7.71.  These regulations set a baseline for Massachusetts’ 1990 emissions and create a reporting system that will track emissions going forward, providing a framework for economy-wide reductions of 10% to 25% by 2020 […]

More on Guidance v. Regulation

Laura Rome of Epsilon has helpfully reminded me that the maturity of a regulatory program is also relevant to whether an agency should proceed by guidance or regulation.  With newer programs that remain in flux, the flexibility inherent in guidance – and the easier amendment process for guidance – counsels in favor of guidance rather […]

Regulations v. Guidance: Pick Your Poison

There are not too many areas of environmental law where practice intersects frequently with academic theory. One such area is whether agencies should use notice and comment rule-making any time they want to set forth policy or whether they should instead be permitted to use flexible guidance documents. The real issue from the practitioner’s point of view […]

RGGI’s Third Auction Brings In Divergent Bids of $3.51 and $3.05

RGGI, Inc. the operators of the Regional Greenhouse Gas Initiative (RGGI) today announced the results of its third auction of CO2 allowances, held on March 18, 2009.  The auction offered allowances from all ten states participating in RGGI – Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont.   As we noted […]

RGGI’S Second Auction: Prices Rise to $3.38

RGGI, Inc., the operators of the Regional Greenhouse Gas Initiative (RGGI) announced today that the second auction has proceeded smoothly and as planned.  All 31,505,898 allowances offered for sale at Auction 2 on December 17 were purchased at a clearing price of $3.38 per allowance.  This price is above the first RGGI auction’s clearing price of […]

Get Ready for Carbon Reporting in 2 weeks!

Massachusetts and California seem to be neck-and-neck in the race to be the first state to cap greenhouse gases economy-wide. Massachusetts issued emergency regulations last week which create the first phase of a mandatory reporting program, thus taking the title of first state to implement the beginnings of an economy-wide cap and trade plan.   The regulations commence […]

You Want a Permit? You May Have to Get in Line.

It’s not really a surprise, but the nation’s financial woes have begun to affect state government. On Wednesday, Governor Deval Patrick announced a set of wide-ranging budget cuts, intended to save more than $1 Billion. The cuts were made necessary by a steep drop in tax revenue and predictions that the drop will continue for […]