Monthly Archives: September 2015

Record Review Means That EPA Must Refer To the Record: The Third Circuit Remands EPA’s Approval of the Pennsylvania Regional Haze SIP

On Tuesday, the 3rd Circuit Court of Appeals remanded EPA’s approval of Pennsylvania’s regional haze hazeSIP.  The decision is a must-read for practitioners.  It decides some important issues and provides important reminders for EPA and the states on how to build a record and how to justify decisions – or not! – based on that record.

Although seen as a defeat for Pennsylvania and the large sources subject to the regional haze rule,… More

Can EPA Keep Winning By Losing? Another Court Remands An EPA Rule Without Vacatur

Last Wednesday, the D.C. Circuit Court of Appeals remanded EPA’s rule exempting stationary engines that operate up to 50 hours per year to supply non-emergency service to power providers from the EPA NESHAP for reciprocating internal combustion engines.  Why is that news?

Because, once more, a court has acceded to EPA’s request that it remand without vacatur, leaving the rule in place.  We’re now seeing something of a trend towards remand without vacatur. … More

A Dangerous Product Does Not Necessarily Have A Design Defect

When the Town of Lexington detected PCBs PCB moleculein building caulk and then in indoor air in an elementary school built in 1960-61, it sued Pharmacia, alleging that Pharmacia sold a product – PCBs – with a design defect.  In alleging the design defect, Lexington largely relied on the decision to ban the sale of PCBs, and the extensive regulation of PCBs under TSCA.  Judge Denise Casper of the District of Massachusetts concluded that this was not enough and she granted Pharmacia’s motion for summary judgment. … More

Why Is John Prine Involved In A Suit By Shareholder Activists?

In one of the more consequential legal decisions of recent times, Magistrate Judge Kelly Rankin ruled recently that she would not strike part of a complaint filed by shareholder activists against Peabody Energy Corporation, which allegedly had the activists arrested in 2013 outside a Peabody shareholders’ meeting.

What was the offending material?  One verse from John Prine’s 1971 song, “Paradise:”

And daddy won’t you take me back to Muhlenberg County

Down by the Green River where Paradise lay?… More

Perhaps Massive Purchases of Canadian Hydropower Would Not Be a Panacea

Governor Baker recently submitted Senate Bill No. 1965 to the Legislature.  It calls for utilities to solicit long-term purchases of renewable energy.  We are talking about as much as 1/3 of Massachusetts’ annual electricity use over a 15-25 year period.  Two rationales are often provided to justify the large purchase of Canadian hydropower.  First, cheap hydropower will ameliorate the high cost of electricity.  Second, it will help Massachusetts attain its initial Global Warming Solutions Act goal of reducing GHG emissions by 25% below 1990 levels by 2020. … More

Chicken Little Cannot Compare to the Opponents of the Clean Power Plan

Yesterday, the D.C. Circuit Court of Appeals dismissed the latest effort to stay EPA’s Clean Power Plan before it has even been promulgated in the Federal Register.  The Court simply stated that “petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”

Really?  Tell me something I did not know.

I’m sorry.  The CPP is a far-ranging rule. … More