Monthly Archives: April 2015

When Does a Judge Refuse an Unopposed Motion to Enter a Consent Decree?

Last week, Judge John Copenhaver refused to allow a motion by the United States to enter a consent decree that would have resolved government claims against DuPont concerning alleged violations of the Clean Air Act, CERCLA, and EPCRA at its facility in Belle, West Virginia.  DuPont Belle facilityThe motion was unopposed.

Instead, Judge Copenhaver ordered the United States to file a revised memorandum in support and he specifically directed that the memorandum address certain issues that concerned him,… More

The Stormwater Mess Continues in Massachusetts: CLF and CRWA Sue EPA

In February, we noted that the Conservation Law Foundation and the Charles River Watershed Association had threatened to sue EPA for failing to require that “commercial, industrial, institutional, and high density residential property dischargers of nutrient-polluted stormwater” obtain NPDES permits, and for failing to make a final determination on CLF’s and CRWA’s petition that EPA exercise its residual designation authority with respect to stormwater discharges in the Charles River Watershed.  … More

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 carbon taxthan has previously been thought.  When asked if “the federal government should or should not require companies to pay a tax to the government for every ton of greenhouse gases the companies put out,” 61% of respondents said yes. … More

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 me realize that EO 562 does not, at least on its face, apply to the development of guidance documents.

Why does this matter?

Because the use of guidance in lieu of regulatory development is already a significant problem.  … More

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 miss3and the Northern Gulf of Mexico, EPA did not decide to issue the standards.  It did not decide not to issue the standards.  It decided not to decide.  Litigation ensued.

Earlier this week,… More

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 it became clear that EO 562 has real teeth.  Yesterday, MassDEP sent out a one-paragraph notice delaying hearings on its proposed Clean Energy Standard, citing EO 562 as the reason:

MassDEP is postponing the hearings and comment period on the proposed Clean Energy Standard rule until it has completed the reviews required under the recent Executive Order 562.… More

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 recovery action, where CERCLA Section 113(f)(2) expressly provides that the response costs sought to be recovered by the government are reduced dollar-for-dollar by any settlement proceeds, CERCLA is silent with respect to the treatment of settlements in private party CERCLA claims.… More

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 implicitly every time we write a regulation, and I don’t understand the unwillingness to do so explicitly.

All of which serves as burying the lede to Executive Order 562, issued by Governor Baker governor-charlie-baker-300x450this week.  … More