Monthly Archives: January 2018

Earlier this month, Jeffrey Wood, Acting Assistant Attorney General for Environment and Natural Resources issued a memorandum expanding on Jeff Sessions’ memorandum of June 5, 2017, generally barring payments to third parties as part of government settlements.  (And, yes, I know there should be another “s” after the apostrophe, but I’m hereby announcing a new rule; if I can’t pronounce it, I’m not writing it!) The Wood Memorandum affirms – of course – the June 5 Memorandum,… More

Last week, the First Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA’s acceptance of TMDLs in Rhode Island and Massachusetts carried with it a concomitant obligation to require permits of landowners contributing to violations of the TMDLs.  Easy cases make good law.

CLF’s position was simple.  EPA’s approval of the TMDLs meant that EPA had determined that stormwater controls are needed. … More

On Monday, the Supreme Court ruled that challenges to the WOTUS Rule must be heard in the district courts.  At a certain level, the decision was easy and obvious – as evidenced by the absence of any dissent. 

After all, the Clean Water Act does assign jurisdiction to the district courts of all cases under the Act other than in seven specifically identified categories,… More

In the early days of Superfund, defense lawyers used to joke that all government lawyers had the same oral argument script.  It was three sentences long.

Good afternoon, your honor.  My name is _____ and I represent the government in this case.  We win.

Lawyers in Massachusetts rightly feel that that pretty much remains the state of affairs in Massachusetts, at least for private cost recovery or property damage claims. … More

Last week the 9th Circuit Court of Appeals rejected arguments that the Fish and Wildlife Service may only issue permits under the Migratory Bird Treaty Act for the “scientific use” of a species where the use will benefit the species being used.  The facts are interesting, if you enjoy nature red in tooth and claw. The Northern Spotted Owl is endangered and it appears that it is being outcompeted by the Barred Owl. … More

As a follow-up to my post last week about the 9th Circuit decision requiring EPA to propose new lead paint standards under TSCA within 90 days, I was encouraged to see Cass Sunstein support the decision in a BloombergView piece.  Noting as I had the uphill battle plaintiffs face in these cases – and agreeing that they should in general face an uphill battle – Sunstein concisely summarized the issues:

In many contexts,… More

Yesterday, FERC terminated the docket it opened in response to DOE Secretary Perry’s September proposal to compensate generators who maintain a 90-day fuel supply on-site.  The intent of the proposal was to compensate generators who provide reliability and resilience attributes to the grid.

The decision was unanimous, though there were several concurrences.  The commissioners were not persuaded that there is a reliability problem that requires immediate,… More

If this Administration’s first year has taught us anything, it is that determining when EPA has an affirmative duty to act is going to be very important over the remaining 3 (or 7!) years of the Trump presidency.  That was the subject of last week’s decision in A Community Voice v. EPA, in which the 9th Circuit ordered EPA to issue a proposed rule updating its lead paint standards within 90 days,… More

Today’s ClimateWire (subscription required) contained a long summary of evidence that scientists are increasingly able to demonstrate that climate change is what we lawyers would call the “but for” cause of extreme weather events.  One of the most interesting is the recent paper “Explaining Extreme Weather Events of 2016:  From a Climate Perspective,” from the Bulletin of the American Meteorological Society.  It looked at a number of extreme events and found – for the first time –

that some extreme events were not possible in a preindustrial climate. … More