Monthly Archives: April 2020

Earlier this week, the D.C. Circuit Court of Appeals became the latest court to reject EPA’s position that its decision to bar scientists receiving grants from EPA from serving on its advisory panels was not subject to judicial review.  The D.C. Circuit went farther than the First Circuit; it went to the merits and found that EPA’s policy was arbitrary and capricious under the Administrative Procedure Act.… More

The Supreme Court ruled today that discharges to groundwater are subject to the permitting requirements of the Clean Water Act, but only where the “discharge is the functional equivalent of a direct discharge from the point source into navigable waters.”

I don’t often say this about Supreme Court environmental decisions, but I think that the Court got it exactly right.

The apparent dilemma for the Court was that,… More

Last week, EPA formally revised the cost-benefit analysis for its rule limiting the emissions of hazardous air pollutants from coal-fired power plants.  The rule jettisons consideration of so-called “co-benefits,” in this case, the benefits from the reduction in emissions of PM2.5 that result from limits on mercury emissions.  The very idea of excluding consideration of co-benefits is just plain incoherent.

I’ve spent my career defending cost-benefit analysis to many of my environmentalist friends. … More

I have previously discussed how nice it must be for Supreme Court justices to reach judicial decisions from on high, without getting their collective hands dirty worrying about the practical consequences of their decisions.  The same has always been true with respect to SCOTUS decisions concerning CERCLA, which has seemed far simpler to SCOTUS than to us poor lawyers who have to actually make it work.

Exhibit A for this argument is the latest SCOTUS Superfund decision. … More

by Adam Wade and Ethan Severance

On April 14, 2020, the Massachusetts Department of Energy Resources (“DOER”) filed emergency regulations for the Solar Massachusetts Renewable Target (“SMART”) Program. A redline showing the additions to 225 CMR 20 is available here: MA DOER 225 CMR 20 Emergency Regulations 4.15.20. As emergency regulations, these changes went into effect Wednesday, April 16, 2020. DOER plans to hold a virtual public hearing on the new regulations on May 22,… More

After more than three years of ignoring science whenever it does not support this Administration’s preferred outcomes, the issue of the future of science in environmental regulation has now been well and truly joined.  Yesterday, Administrator Wheeler, disagreeing with the recommendation of EPA’s own staff, announced that EPA is proposing to retain the current National Ambient Air Quality Standard for PM2.5 of 12 ug/m3, notwithstanding substantial evidence that PM2.5 poses significant risks even below 10 ug/m3. … More

As I was reading the latest statistics regarding the spread of COVID-19, I became frustrated.  My frustration stemmed not just from the fact that we are unprepared despite repeated warnings, but also from the way our elected officials and their teams present (and the media reports) the data.  Having practiced environmental law for over thirty years and observed countless instances of data misuse and misinterpretation, I am not surprised, but I am disappointed.… More

In another (shocking) piece of good news from the Trump Administration, the Fish & Wildlife Service last week announced a major agreement for the recovery of the monarch butterfly.  The agreement will be implemented by the University of Illinois – Chicago and will involve the participation of dozens of companies in the energy and transportation sectors.

The key to the agreement is the Candidate Conservation Agreement with Assurance. … More

I hope that I am not struck down for saying this, but EPA’s guidance on doing remedial work during the COVID-19 emergency is reasonable and appropriate.  At the risk of oversimplifying, it basically has two requirements:

1. Consider the benefits to be obtained by performing the work, and prioritize work intended to eliminate or abate serious hazards that are imminent, such as immediate risks to indoor air or drinking water supplies;…

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Just a straightforward informational post.  MassDEP has issued a concise, helpful, guidance on performing response actions during COVID-19.  Here are the highlights:

• All release notifications are still required within MCP deadlines.
• MassDEP is still taking oral notice of Immediate Response Actions and issuing oral approvals.  It is still reviewing written IRA plans.  If MassDEP does not respond to a within plan 21 days,…

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Last week, I discussed the Administration’s guidance concerning the exercise of its enforcement discretion during the COVID-19 pandemic. Now comes evidence that the guidance may actually be self-defeating.  While the administration is – understandably – trying to cut regulated industries some slack while they are trying to deal with COVID-19, it turns out that exposure to PM2.5 has a significant impact on the COVID-19 death rate.… More

EPA and the NHTSA have finally released Part 2 of the Safer Affordable Fuel-Efficient (SAFE) Vehicle Rule.  Most readers will know that Part 1 of the SAFE rule revoked California’s waiver authorizing it to impose more stringent mileage standards.  Part 2 substantially rolls back the federal fuel-efficiency standards promulgated by the Obama Administration.

I referred to George Orwell on this blog as recently as January,… More