Yesterday, the Biden-Harris administration outlined in a fact sheet its priorities for permitting reform to accelerate the build-out of America’s energy infrastructure “faster, safer, and cleaner.” The fact sheet provides an endorsement of the Building American Energy Security Act of 2023, establishes several major objectives for permitting reform, provides several recommendations to streamline federal permitting processes, and urges Congress to include the objectives and recommendations as part of bipartisan permitting reform legislation.… More
Category Archives: Uncategorized
Clean Hydrogen: How It’s Produced and What We Can Do with It
Regulating the Impossible Dream: NRC decision streamlines efforts to commercialize fusion
On April 13, 2023, the Commissioners of the Nuclear Regulatory Commission (NRC) voted to approve a proposal that will accelerate the commercialization of fusion energy in the United States. Specifically, the NRC determined that fusion energy be regulated under the Nuclear Regulatory Commission’s byproduct material framework contained in 10 C.F.R. Part 30, “Rules of General Applicability to Domestic Licensing of Byproduct Material.”
Part 30 requires general or specific licenses to manufacture,… More
Accelerating Electric Vehicle Adoption in 2022
This past year represents a real turning point in the transition to electric vehicles, demonstrated by new major incentives and regulatory activities at both federal and state government levels and several notable accomplishments in the private sector. First, the U.S. government approved EV Infrastructure Deployment Plans for all 50 states, the District of Columbia and Puerto Rico with an estimated $4.155 billion in funding going to states in the next five years to build out EV infrastructure.… More
CEQ Issues NEPA Climate Guidance
The new year brings new NEPA (interim) guidance on climate change. It recommends several ways that federal agencies should consider climate change impacts for projects subject to NEPA review. The guidance is effective immediately but is subject to a 60-day comment period that could lead to revisions. Comments on the guidance are due to CEQ on March 10, 2023.
All projects that are federally funded or need federal permits,… More
U.S. DOE Announces $3.5 Billion to Accelerate Direct Air Capture Commercialization
The U.S. Department of Energy (DOE) recently announced a $3.5 billion funding opportunity to create regional Direct Air Capture (DAC) Hubs. The DAC Hubs program is one of four new programs announced by the Biden-Harris administration aimed at building “a commercially viable, just, and responsible carbon dioxide removal industry,” in the U.S. with funds from the Bipartisan Infrastructure Law (BIL).
Under the DAC Hubs program,… More
DOER Issues an Updated Stretch Code – Are Net-Zero Energy Buildings Really Coming Soon?
Massachusetts will soon see significant updates to the energy codes that govern the construction and alteration of buildings throughout the Commonwealth. As required by the 2021 climate bill,
the Massachusetts Department of Energy Resources (DOER) has recently finalized regulations updating the current Stretch Energy Code, previously promulgated by the state’s Board of Building Regulations and Standards (BBRS), and establishing a new Specialized Code geared toward achieving net-zero building energy performance.… More
IRA Incentives for Carbon Sequestration and Low Carbon Fuels
Yesterday, President Biden signed the Inflation Reduction Act, creating a law that contains the most significant climate-related incentives in U.S. history. In the few short weeks since the bill was introduced in the Senate, a flurry of economic activity has already begun, with entities already beginning to align their business practices to the incentives laid out in the bill.
Among the many programs enhanced or created by the legislation,… More
The Inflation Reduction Act: Investments in Environmental Justice
The Biden administration has made it a priority to target environmental justice issues as part of the administration’s broader economic agenda. On August 7, the Senate passed the Inflation Reduction Act of 2022 (Act), which would provide about $369 billion to reduce greenhouse gas emissions to 40 percent below their 2005 levels by 2030 as well as reduce carbon emissions and invest in renewable energy. A small but potentially mighty component of the Act focuses on strengthening environmental justice.… More
Inflation Reduction Act Aims to Propel EV and Clean Fuel Vehicle Adoption
The Inflation Reduction Act looks to accelerate the adoption of clean vehicles by reforming the related tax credits in a number of key ways. Specifically, the bill does the following.
- Eliminates the 200,000 clean vehicles sold quota per manufacturer.
- Previously, Tesla, GM, and Toyota were all over the 200,000 vehicle threshold and thus ineligible for the tax credit.
- Preserves the existing up to $7,500 tax credit for new qualified vehicles including electric,…
Is Momentum Building To Change the Way We Manage Plastic?
There has been a reasonable amount of recent activity related to management (or lack thereof) of plastic waste. Two more developments this month have me wondering whether we might be near the proverbial tipping point in our approach to managing plastics.
First, California enacted a fairly sweeping statute, S.B. 54, that will impose extended producer responsibility requirements on producers of plastics. The statute has at least three significant pieces: (1) a requirement to increase the percentage of single-use packaging that is recycled,… More
West Virginia v. EPA Limits the Federal Government’s Power to Promote Clean Energy and Combat Climate Change
The Supreme Court decided West Virginia v. EPA on Thursday, June 30, 2022, curbing the power of the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from power plants across the country. The decision focuses on EPA’s authority under a specific section of the Clean Air Act. But a closer read suggests more sweeping, longer-term implications for incentivizing the development of clean energy projects nationwide.… More
Biden-Harris Administration Announce New Proposed Rules for National Electric Vehicle Charging Network
On June 9, 2022, the Biden-Harris Administration announced a notice of proposed rulemaking to set minimum standards and requirements for projects funded through the National Electric Vehicle Infrastructure Formula Program (“NEVI”), which was created by the Infrastructure Investment and Jobs Act. Generally, NEVI will distribute $1 billion per year, for FY 2022-2026, in appropriations to help fund the construction of EV charging stations and related infrastructure. … More
California AG Launches Investigation into Fossil Fuel and Petrochemical Industries for Plastic Pollution
On April 28, 2022, the California Attorney General launched an investigation into the “fossil fuel and petrochemical industries for their role in causing and exacerbating the global plastics pollution crisis.” As a first step, the CA AG issued a subpoena to ExxonMobil, “a major source of global plastic pollution, seeking information relating to the company’s role in deceiving the public.” The stated purpose of the investigation is to “target companies that have caused and exacerbated the global plastics pollution crisis,… More
Finding the Path to a Necessary Future: CARB Chair Liane Randolph and ELI President Jordan Diamond Share Their Vision for California, Climate, and Energy in the Coming Decades
Join the California Air Resources Board (CARB), Environmental Law Institute (ELI), Foley Hoag LLP, and Baker Botts LLP for an intimate discussion with CARB Chair Liane Randolph and ELI President Jordan Diamond, two leaders in the field of environmental law and policy. Both are tackling significant and pressing environmental and public health challenges from different perspectives. Our moderator will lead a conversation about how these two women got to this distinguished point in their careers,… More
Foley Hoag Attorneys Contribute to French-U.S. Plastic Pollution Pro-Bono Project
In September 2021, Foley Hoag partnered with the Global Council for Science and the Environment (GCSE) and the American College of Environmental Lawyers (ACOEL) on a collaborative research effort designed to compare French and U.S. legal frameworks for regulating plastic pollution. Over the last six months, a team of international environmental lawyers analyzed the existing policies, regulations, and legislation in France and the U.S. that directly and indirectly regulate plastic pollution;… More
New MEPA Rules Mean Big Changes For Practitioners and Developers
In compliance with the Climate Roadmap Act, the Massachusetts Environmental Policy Act (MEPA) Office has released the final version of its new regulations and two final protocols regarding new MEPA review procedures to evaluate project impacts on Environmental Justice (EJ) populations. The regulations will go into effect on December 24, 2021 and the two protocols will go into effect on January 1, 2022. Here are the big takeaways:
The MEPA Regulations
The new MEPA regulations include six new definitions: Designated Geographic Area,… More
Local Regulation of Fossil Fuel Pipelines (or The Little City That Could)
With all the attention focused on the Keystone pipeline and the disputes over local regulation of fracking, it’s easy to overlook the small city of South Portland, Maine (population 26,000), which just prevailed in the First Circuit in a challenge to its regulation of an international oil pipeline that originates in Montreal and ends in South Portland Harbor. (Full disclosure: I represented the city in this case.)
When Portland Pipeline Corporation (“PPLC”)(whose parent company was owned at the time at the time by ExxonMobil,… More
Maine, Massachusetts, and Maryland Expand Utility Regulators’ Mandate to Include Climate Considerations, Marking an Emerging Trend by State Legislatures
Maine, Massachusetts, and Maryland all passed legislation this summer that expands the raison d’etre of state utility regulatory bodies to include addressing the impacts of climate change. These efforts mark an emerging trend of legislative bodies directing utility regulators to help advance climate policies. This enhanced vision of utility regulation gives me hope in the fight against climate change.
Despite the fact that utility regulators play a huge role in our energy sector–the sector primarily responsible for historical U.S.… More
NESCOE Report Advances Governors’ Demands for Climate Leadership at ISO-NE
The managers of the New England States Committee on Electricity (“NESCOE”) recently released a report (“Report”) to New England’s governors to advance its shared vision for a clean, affordable, and reliable 21st-century electric grid. The Report is the latest development that highlights the growing tension between the states’ decarbonization policies on the one hand, and ISO-NE’s wholesale market rules, on the other. The Report calls for critical changes to three elements of New England’s regional energy system: wholesale market design,… More
Local Communities and Environmental Groups Bring Challenge to the New York State Office of Renewable Energy Siting’s Regulations for Siting and Permitting Major Renewable Energy Facilities
On June 29, 2021, a cohort of New York local governments (including many where large-scale solar projects are currently proposed), community organizations, and avian interest groups filed a lawsuit in the New York State Supreme Court (the State’s trial-level court) against the Office of Renewable Energy Siting (“ORES”). ORES is required to respond to the allegations no later than 30 days from receipt.
The ORES was created under the Accelerated Renewable Energy Growth and Community Benefit Act,… More
Congress A Step Closer to Making Corporate ESG Disclosure Mandatory
On June 16, 2021, the U.S. House of Representatives passed legislation that would impose new ESG due diligence and disclosure requirements on publicly traded companies. H.R. 1187 – the ESG Disclosure Simplification Act of 2021 – would require publicly traded companies to disclose their commitments to ensuring that environmental, social (human rights), and good governance standards (ESG) are reflected in their operations, activities, and supply chains.
The Legislation’s Impact on ESG Due Diligence and Disclosure
I May Agree With This EPA On Most Issues, But I Still Don’t Like Guidance
One of the results of the November election that makes me happiest is that I can now go back to being part of the loyal opposition. In other words, I know that the Administration and I share a common mission and common goals. We also often share common approaches to achieving those goals, but not always. And now, in the spirit of friendly cooperation, I know that I can sometimes disagree with the Biden administration on implementation of those goals without undermining my confidence that we are generally on the same page.… More
Incoming SEC Chairman Likely To Push For More ESG Disclosure
In a recent post, we examined the growing clash within the SEC over whether to mandate and standardize disclosure by public companies of business impacts and risks associated with Environmental, Social, and Governance (ESG) concerns. Some at the SEC pushed for more standardized, comparable, and reliable disclosure of issuers’ exposure ESG risks. Others, including former Chairman Jay Powell, pushed back, arguing that current disclosure rules, which already require companies to disclose material risks,… More
Foley Hoag Attorneys Christina Hioureas and Alejandra Torres Camprubi to Participate in Dialogue Focused on Self-Determination and Sea-Level Rise
Foley Hoag LLP counsel and United Nations practice group Chair Christina Hioureas and associate Alejandra Torres Camprubi will serve as panelists for a series titled “Climate, State and Sovereignty: Self-Determination and Sea-Level Rise,” to be held in consecutive months from September – December 2020. The series, sponsored by the Liechtenstein Mission to the United Nations and the Liechtenstein Institute on Self-Determination (LISD) at Princeton University, will bring together academics and experts representing the States most affected by the rising sea levels to discuss the situation as it stands,… More
Mass. Clean Peak Standard’s Success Will Hinge On Details | Law360
Massachusetts Implements a Clean Peak Standard
On July 23, 2020, the Massachusetts Department of Energy Resources (“DOER”) filed final regulations implementing a “Clean Peak Energy Standard,” which formally went into effect on August 7, 2020. The final regulations are the latest step towards making reality out of an idea enacted through the 2018 Act to Advance Clean Energy and make Massachusetts the first state to adopt such a program.… More
Massachusetts AG Petitions DPU to Investigate Gas Industry Future in Light of Commonwealth’s GHG Emissions Goals
On June 4, 2020, the Massachusetts Office of the Attorney General (AGO) filed a petition with the Department of Public Utilities (DPU) requesting that the DPU open an investigation “to assess the future of local gas distribution company (LDC) operations and planning in light of the Commonwealth’s legally binding statewide limit of net-zero greenhouse gas (GHG) emissions by 2050.” Citing Massachusetts’ Global Warming Solutions Act, and the Executive Office of Energy and Environmental Affairs’ Determination of Statewide Emissions Limit for 2020,… More
It’s Not Looking Good For Nationwide Permit 12
Yesterday, the 9th Circuit Court of Appeals refused the appellants’ request for a partial stay of the injunction recently issued against use of the Army Corps Nationwide Permit 12 for oil and gas pipeline projects. The upshot is that use of Nationwide Permit 12 is prohibited for oil and gas pipelines until the Court of Appeals hears and decides the appeal.
The order contains more bad news for the Trump administration,… More
Lies, Damn Lies, and Statistics: How the COVID-19 Crisis Highlights Our Misuse of Data
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
EPA Enforcement (or not) in a COVID-19 Emergency
Last week, Susan Bodine, EPA Assistant Administrator for Enforcement and Compliance Assurance, issued a memorandum stating that EPA would exercise its enforcement discretion and not take enforcement action against entities that cannot comply with obligations to EPA due to issues arising from COVID-19. At a certain level, this is understandable. The world has been turned upside down and no one quite knows what is feasible in the current circumstances and what it not.… More
The “Navigable Waters Protection Rule” — Candidate For Misnomer of the Year
Yesterday, EPA and the Army Corps of Engineers finalized their revisions to the definition of Waters of the United States. There’s nothing in here that everyone didn’t already know. The agencies largely sidestepped the science and issued a rule based on a narrow reading of the permissible scope of the term “navigable waters” under the Clean Water Act. Time will tell whether the courts buy it, though I assume that the Vegas oddsmakers are giving the Administration a pretty good shot at prevailing.… More
Being On the Eve of Destruction Does Not Provide a Basis for Judicial Relief
Last week, the 9th Circuit Court of Appeals ruled that the plaintiffs in Juliana v. United States do not have standing. Given where we are, this is about as momentous a decision as I can imagine. I get the majority opinion. Under traditional standing doctrine, it may even be right, though I think it’s a close call.
However, this is not a time for timidly falling back on the easy jurisprudential path. … More
Time For Another Superfund Rant: Still Stupid After All These Years.
It’s been some time since I ranted about Superfund, but that’s not because the statute’s gotten any more reasonable. To the contrary, there’s so much to rant about that it usually just seems too futile to bother. Take Scott Pruitt’s vow to return Superfund to the “core” of EPA’s mission. Funny, as stupid as CERCLA has always been, it’s never been at the core of EPA’s mission,… More
Massachusetts Selects Vineyard Wind In 83C RFP
The Evaluation Team in Massachusetts’ Section 83C Offshore Wind Generation request for proposals (“RFP”) for long term contracts for offshore wind has announced that our client Vineyard Wind was named the winning bidder in the RFP for an offshore wind project to be built off the coast of Martha’s Vineyard. The project will include approximately 800 megawatts of offshore wind energy generation as well as a generator lead line connection. … More
When Did Chevron Become a Dirty Word?
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
EPA Does Have a Duty to Update Its Lead Paint Standards: Cass Sunstein Agrees With Me
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
Attacking Invasive Species Requires Serious Measures — A Judicial Opinion with Beatles Annotations
Everyone knows what a problem invasive species can be. Difficult problems require difficult solutions. In a recent case decided by the 1st Circuit Court of Appeals, the scope of the government’s authority to address one invasive species – the Asian Longhorned Beetle – was made clear.
On the merits, the case was relatively simple. In order to combat the ALB, the USDA removed numerous trees from plaintiff’s property without permission. … More
Syria Joins the Paris Accord: Who’s On the Outside?
Syria has joined the Paris climate accord. Senator Tom Carper’s reaction:
One is the loneliest number.
Thank you Senator Carper. More
If China Can Cap-and-Trade Auto Fuel, Why Can’t We?
Bloomberg reported earlier this week that:
China will soon unveil a mandatory cap-and-trade credit program for electric cars, starting the countdown for carmakers to be in compliance with stricter rules on emissions and fuel economy.
It’s pretty well known that China is not the world’s most transparent government. Thus, I won’t fully believe until I see it. On the other hand, it does seem pretty clear that China is intent on cracking down on motor vehicle pollution. … More
Trump’s “2 for 1” EO: Can You Say “Arbitrary and Capricious”?
On Monday, on behalf of our client, the Union of Concerned Scientists, Foley Hoag filed an amicus brief in support of the plaintiffs in the case challenging President Trump’s Executive Order 13771, the so-called “2 for 1” EO. One paragraph from the brief pretty much summarizes the argument:
It is important to note, as Executive Order 13771 acknowledges, that agencies are already required,… More
Six Years in the Making, New Ch. 91 Flexibility Washes Ashore
Last month, MassDEP and the Massachusetts Office of Coastal Zone Management released long-awaited revisions to the regulations governing waterfront development in Massachusetts (the Chapter 91 regulations, the Designated Port Area regulations, and the Municipal Harbor Plan regulations). The changes have been in the works since 2010, when MassDEP and CZM first convened working groups to review whether the regulations could be revised to provide greater flexibility to accommodate a variety of uses along the waterfront. … More
CLF Takes Its MHP Fight Across the Fort Point Channel
Last week we wrote about the Conservation Law Foundation filing suit against EOEEA Secretary Beaton and DEP Commissioner Suuberg for actions associated with the approval of an amendment to the South Boston Waterfront District Municipal Harbor Plan. In that suit, CLF alleged that the Secretary’s decision approving the plan was arbitrary and capricious.
This week, CLF is in the news again for sending a letter to Secretary Beaton requesting that he delay the state’s approval process for another Municipal Harbor Plan located just across the Fort Point Channel.… More
The Wages of Trespass Is A Big, Fat, Penalty
Last year, I blogged about the 9th Circuit decision in United States v. Estate of E. Wayne Hage, in which the Court reversed a District Court decision rejecting United States claims that Hage had trespassed on federal lands by grazing livestock without a grazing permit. The decision was notable for the Court’s explicit discussion of District Judge Clive Jones’s bias against the United States;… More
Trump Signs Executive Order Expediting Environmental Permitting for High Priority Infrastructure
In one of the first acts of his presidency, Donald Trump signed an Executive Order entitled “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects”, with a stated goal of streamlining environmental permitting for infrastructure projects.
The order establishes a process by which the Chairman of the Council on Environmental Quality may be petitioned to designate an infrastructure project as “high priority”. … More
EPA Adds Vapor Intrusion to Hazard Ranking. Can You Say “Deck Chairs on the Titanic?”
EPA has finally issued a final rule including vapor intrusion in the Hazard Ranking System. The good news is that this is appropriate, because VI is one of the few real hazards regulated by the Superfund program. The bad news is that the Superfund program is so hopeless that promulgation of the rule will probably substantially multiply the cost of addressing VI without buying an ounce of additional public health protection.… More
MassDEP: The Rising Tide May Steal Your Development Rights
Does a pile field exist if it’s covered at high tide?
MassDEP seems to think not.
Through the Commonwealth’s Chapter 91 program, MassDEP regulates what can be built over tidelands. In last week’s Environmental Monitor, MassDEP announced a “Proposed Interpretation” that would prescribe the way a proponent seeking a Chapter 91 license to authorize development should define a “Project Shoreline”… More
One Final Word on Peterborough Oil: Yes, MTBE Is An Additive
The final answer to the critical issue raised by the recent Peterborough Oil Company decision is that MTBE is an additive and is not, in MassDEP’s view, subject to the “oil exemption” under the Massachusetts Contingency Plan.
I have to say that I’ve done few posts in recent years that have prompted more immediate responses than those on this case. After yesterday’s little birdie suggesting that MassDEP might be taking the position that MTBE is subject to the oil exemption,… More
More on the Peterborough Oil Case: Is MTBE An “Additive”?
Since yesterday’s post on the Peterborough Oil case, a little birdie told me that MassDEP may be taking the position that MTBE is covered by the “oil exemption”, because it is a hydrocarbon. If so, that would be good news for PRPs, because most cleanups don’t involve third parties. If MassDEP says that MTBE is covered by the exemption, then a PRP cleaning up a site with an “oil” release containing MTBE could still close out the site based on the MassDEP interpretation.… More
MassDEP and CZM Propose Changes to Chapter 91 Regulations
MassDEP and the Commonwealth’s office of Coastal Zone Management recently proposed draft changes to the Designated Port Area and Facility of Public Accommodation regulations under the Chapter 91 program. The draft for public comment, including a summary of the changes and redlines of the regulations, can be found here. Information on submitting public comments can be found here. Comments are due by Monday,… More
EPA Releases Long-Awaited MS4 Permit for Massachusetts
As announced in the Federal Register this week, EPA finally released the General Permit for small Municipal Separate Storm Sewer Systems in Massachusetts (say that three times fast!)
This permit has been in the works for quite a while. As we wrote last year at this time, MassDEP has expressed some serious reservations about the MS4 permit throughout the drafting process.… More
The 5th Installment of Our Paris Climate Change Negotiations Tracker
The fifth installment of our Paris climate change negotiations tracker is now available. It looks as though it’s going to go down to the wire. Fingers are firmly crossed at this point.
Click here to download the report:
Alaska Needs to Drill For More Oil — It’s All the Fault of Climate Change
According to the BBC, Alaska Governor Bill Walker has concluded that more drilling for oil is necessary in order for Alaska to have the funds necessary to pay to mitigate the costs of climate change in Alaska. Such costs include $100 million to relocate the residents of Kivalina.
Words fail me. 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
Is the Shrinking Availability of Joint And Several Liability In Superfund Cases A Good Thing?
Although it has taken a surprisingly long time, the holding in Burlington Northern which greatly lowered the standard for apportionment in Superfund cases is finally being embraced by lower courts. Last fall I blogged about a Seventh Circuit decision which rejected the trial court’s conclusion in the long-running Lower Fox River Litigation (US v. NCR Corp.) that a portion of the liability was not divisible. … More
The SJC Walks Back the GE Decision; State Agencies Can Protect Work Product
In its 1999 decision in GE v. DEP, the SJC surprised most Massachusetts lawyers by ruling that the Commonwealth’s Public Records Act (our version of FOIA) did not have an exemption for work product materials and that it had no discretion to read any implied exemptions into the Act. Yesterday, in DaRosa v. New Bedford, the SJC, in the immortal words of David Byrne,… More
Musings on Another Snowy Morning While Waiting For the Redline in Boston
As two current events illustrate, climate change over the coming years is likely to test and ultimately expose the fundamental inadequacy of much of the infrastructure built to support modern societies. The first current event involves a record-breaking drought in South America which has left water taps dry in many homes in one of the largest cities in the world — San Paulo, Brazil. The second current event involves record-breaking cold and snow over the past month which has left significant portions of Boston’s public transportation system inoperable.… More
Is It Too Late to Just Throw Superfund to the Curb?
Last week, Judge Paul Borman of the Eastern District of Michigan, allowed a motion by the United States for judgment on the pleadings, dismissing a third-party complaint brought against the United States by Michigan Consolidated Gas. The decision is the latest judicial effort to clarify the distinction between cost recovery actions under § 107 of CERCLA and contribution actions under § 113 of CERCLA.
I don’t have any criticism of Judge Borman’s decision. … More
FutureGen is Dead. Long Live CCS.
Although there is no news on DOE’s web site as of today, apparently FutureGen 2.0 is dead. DOE stopped federal funding. The FutureGen Alliance has already asked DOE to reconsider, but that seems unlikely at this point.
Two big questions beg for answers in light of the announcement. First, does carbon capture and storage still have a future even if FutureGen does not? … More
Should Watersheds Have Standing? Should Corporations?
In his seminal essay in 1972, Christopher Stone famously asked “Should Trees Have Standing?” Apart from Justice Douglas’s dissent in Sierra Club v. Morton, the idea has never gained much traction, at least in United States courts. Now, due to the passage of a “Community Bill of Rights” ordinance by the Grant Township (Pennsylvania) Supervisors,… More
Is Obesity an Environmental Problem?
Like Canada, environmental contamination gets blamed for a lot of things wrong in America. But a recent study in a respected NIH journal, Environmental Health Perspectives, offers a novel expansion of what in our lives that is wrong that we can now blame on the environment. In an article with the catchy title, “A Longitudinal Cohort Study of Body Mass Index and Childhood Exposure to Secondhand Tobacco Smoke and Air Pollution: The Southern California Children’s Health Study,”… More
Some PURPA Qualifying Facilities are More Qualified Than Others
In a fascinating decision last week, a divided panel of the 5th Circuit Court of Appeals held that the Texas Public Utilities Commission had authority to limit the universe of “Qualifying Facilities” under the Public Utilities Regulatory Policies Act which can choose to enter into a “legally enforceable obligation” requiring a utilities to purchase power from a renewable energy producer. The decision could be a big problem for wind power facilities in jurisdictions less than fully hospitable to renewable energy.… More
Be Careful With Pollution Insurance Coverage Disclosures – How Conditions Actually Disclosed Were Deemed Not Disclosed
A Massachusetts company learned the hard way that you need to pay close attention to policy endorsements when you negotiate them. In Market Forge Industries, Inc. v. Indian Harbor Insurance Company, the Appeals Court of Massachusetts held, in an unpublished decision, that a Pollution and Remediation Legal Liability Policy did not cover the costs of cleaning up certain pollution because the “Pollution Conditions” were not specifically listed in the “Known Conditions” endorsement.… More
Importance of Judicial Approval of CERCLA Settlements
Before a Superfund settlement becomes enforceable, it must be reviewed by a federal court to confirm that it is fair, reasonable, and consistent with CERCLA’s objectives. This judicial review is at the heart of CERCLA’s settlement process. Since Superfund settlements provide broad protection to settling parties, judicial approval provides the necessary and exclusive procedural mechanism to vouchsafe that a proposed settlement is in the interest of the public as well as all other parties.… More
How Much Deference Do States Get in Entering CERCLA Consent Decrees? Probably A Lot, But Perhaps Not As Much as You Thought
In Cannons Engineering, the First Circuit Court of Appeals famously stated that, when CERCLA consent decrees arrive at the courts of appeal for review, they do so “encased in a double layer of swaddling,” because both the EPA decision to enter into the decree and the district court review of the EPA decision are entitled to significant deference. Last week, in Arizona v.… More
Absolute Pollution Exclusions Are Absolute When There Has Been Pollution
Pollution exclusions first became routine in liability policies in the early 1970s. After a decade of often unsuccessful litigation trying to enforce those exclusions, insurers introduced a so called “absolute” pollution exclusion into their commerical liability policies. Given that the language of absolute pollution exclusions has almost universally been found to be unambiguous, there has been a surprising amount of litigation on the subject. What emerges from that litigation is a general rule: the exclusion will virtually always be enforced where the claim involves contamination of the environment,… More
EPA May Be Regulating GHGs, But Private Litigation Still Looks to be On Shaky Ground
In a case of interesting timing, three days after EPA announced its proposed GHG rules for existing facilities, the D.C. Circuit affirmed dismissal of a case seeking an injunction against EPA and other federal defendants requiring them to reduce global CO2 levels to 350 ppm during this century (and take actions to ensure that result by imposing regulations resulting in at least a 6% annual decline in emissions).… More
EPA On Track to Regulate Fine Particulates More Stringently: D.C. Circuit Affirms Revised PM 2.5 NAAQS
EPA’s judicial winning streak continues. Today, the D.C. Circuit Court of Appeals affirmed EPA’s regulations lowering the PM 2.5 National Ambient Air Quality Standard from 15.0 ug/m3 to 12.0 ug/m3. This was not a close case or a difficult decision. Indeed, as we had previously pointed out, the D.C. Circuit had previously rejected EPA’s decision to keep the NAAQS at 15 ug/m3 and EPA’s Clean Air Science Advisory Committee had supported lowering the NAAQS to 12 ug/m3 or 13ug/m3.… More
CERCLA Principles in Child Pornography Cases
Although one might not ordinarily think to associate child pornography and pollution, the two were linked at an oral argument yesterday before the United States Supreme Court. Specifically, in a child pornography case, the defendant was found guilty of viewing a child pornography video obtained from the Internet. Pursuant to federal statute, the defendant was ordered to make “restitution” in the amount of $3.4 million to the juvenile depicted in the video.… More
Sale of a Usable Waste Defense — Another Instance of the Unstated Rule of CERCLA Liability
Extending its string of CERCLA PCB losses in the Midwest, NCR Corporation was recently found liable for contribution based on its sale of waste scrap from its manufacture of carbonless copy paper in Michigan. In Georgia-Pacific v. NCR Corporation, the federal court rejected NCR’s claim that it had merely had sold a useful product when it sold waste resulting from its carbonless copy paper. Instead,… More
More on Old NSR Claims: Injunctive Relief Remains Available Against Original Owners Foolish Enough Not to Have Sold
As we noted last week and last month, the 3rd and 7th Circuits have ruled that violations of the obligation to undertake NSR review prior to implementing major modifications are not continuing, but are instead one-time violations occurring at the time the facilities undertake the modification. These holdings meant that EPA could not pursue either former owners – because they no longer control the facilities – or current owners – because they never violated the statute and have no ongoing obligation to correct the former owner’s violation.… More
The Third Circuit Reinstates Nuisance Claims Against Cheswick Generating: Bad Idea
On Wednesday, in Bell v. Cheswick Generating Station, the 3rd Circuit Court of Appeals revived class action nuisance claims brought by residential property owners living within one mile of GenOn’s Cheswick Generating Station. (Full disclosure – this firm represents GenOn, now NRG, in various matters, though not this litigation.) The District court had ruled that the claims were preempted by the Clean Air Act’s comprehensive regulatory scheme. … More
Environmental Nuisance Claims — It Helps To Have Experts
The old warning that “past performance is no guarantee of future results” apparently applies not only to investments but also to environmental nuisance suits in Tennessee. In Freeman v. Blue Ridge Paper Products, a class of 300 residents living 26 miles downriver from a paper mill plant had obtained a $2 million jury verdict in state court on the ground that the paper mill had interfered with the use and enjoyment of their property from 1999 to 2005 by putting chemicals into the river that caused odors,… More
The Real Risk of Unregulated Air Pollution
Sometimes the most valuable research turns out to be a confirmation of the obvious. Fitting that bill is the study released yesterday in the Proceedings of the National Academy of Science documenting the substantially decreased life expectancy among people in China living in areas where coal has for many decades been used to heat homes. The study is based on a long-standing policy in China of distributing coal free to residents who live north of the Huai River but not to people living south of the river. … More
CERCLA Is Still Constitutional
To paraphrase Shakespeare, United States v. Sterling Centrecorp, Inc., is a great feast of legal argument. The PRP in that case purchased the assets of a mining company whose operations in California had caused releases of arsenic. That PRP was found to be liable for CERCLA response costs under no fewer than four discrete legal theories –(1) explicit assumption of liabilities, (2) implicit assumption of liabilities,… More
What Response Costs Are Necessary Under CERCLA
In a post last year, I discussed what I I thought was the dubious dismissal of a CERCLA cost recovery action in Stratford Holding, LLC v. Fog Cap Retail Investors LLC. That case involved a holding that the costs of investigating the presence of solvents in the groundwater above regulatory standards were not “necessary” response costs because the the state had declined to list the site on its Hazardous Sites Inventory. … More
Weighing the Costs and Benefits of Cost-Benefit Analysis
I have previously posted about Cass Sunstein’s efforts to bring cost-benefit analysis to government regulation. On Friday, E&E News reported on Sunstein’s new book, Simpler: The Future of Government, noting that Sunstein has been subject to “scathing” criticism from Lisa Heinzerling. It will probably not surprise you to learn that I’m with Sunstein on this one.
Heinzerling has three principal criticisms.… More
The Fifth Circuit Rejects EPA’s Disapproval of Alabama’s Opacity Regulation: Do We Blame EPA, DOJ, or Two Judges?
On Wednesday, in Alabama Environmental Council v. EPA, the Fifth Circuit Court of Appeals rejected EPA’s 2011 disapproval of Alabama’s opacity regulation. The case involves relatively obscure provisions of the Clean Air Act, but the decision nonetheless provides a number of – abject – lessons.
First, a short history. In 2003, Alabama adopted a revision to its opacity regulations. The revision allowed exceedances of the opacity standard,… More
Unstated Rule on Superfund Liability for Sale of a Usable Product — One Year Later
Exactly a year ago, I posted a blog that argued that the decisions on Superfund liability for the sale of usable product could be distilled down to an “unstated rule” — a party will be held liable as having intended to arrange for the disposal of a hazardous substance if it sells a waste that cannot be used or won’t be used as delivered without first causing the release of a hazardous substance. … More
It Is a Unitary Government Afterall: Privilege For Intra-Governmental Communications
About a year ago, I blogged about a decision by the federal district court in the Lower Fox River case ruling that there was no attorney-client privilege protecting communications between government lawyers representing the EPA and those representing federal PRPs. At the heart of that decision was the finding that the two sets of government lawyers were actually representing different and adversarial parties. The Seventh Ciruict in Menasha Corporation v.… More
MassDOT Issues Its 21st-Century Transportation Plan: Brother, Can You Spare $13 Billion?
The Massachusetts Department of Transportation today released The Way Forward: A 21st-Century Transportation Plan. The Plan summarizes steps that MassDOT has already taken to implement reforms, describes transportation needs over the next ten years, and discusses options for attaining the funding necessary to address the identified needs.
The needs include a number of proposals that have been mentioned previously, including South Coast Rail, train connection from Boston to Springfield,… More
EPA’s Authority to Set TMDLs Is Limited: Be Careful What You Wish For
Last week, in Virginia Department of Transportation v. EPA, Judge Liam O’Grady struck down EPA’s attempt to set a TMDL for the Accotink Creek in Virginia based on the rate of total stormwater discharge to the Creek, rather than on the amount of sediment in the stormwater discharge. To Judge O’Grady, the case was a fairly simple exercise in step 1 analysis under Chevron (busy week for Chevron analyses). … More
CERCLA Cost Recovery or Contribution Claim: Another Judicial Misstep
The chaos unleashed by Aviall continues in a recent decision by the Seventh Circuit. In Bernstein v. Blankert, the Seventh Circuit revisited the issue whether a party having entered into an Administrative Order by Consent had a claim against other PRPs for cost recovery under Section 107(a) or for contribution under Section 113(f)(1). Offering a novel and entirely misguided conclusion, the court found that whether a party has a claim for cost recovery or for contribution hinges on whether that party had completed all of its obligations under the AOC. … More