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
Category Archives: Uncategorized
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 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
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
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
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 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
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!)
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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