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Law and the Environment

Our blog provides perspective on developments in environmental law and policy - which developments may matter to you, and how and why they matter. Whether you are a manufacturer or a power plant developer, a renewable energy developer or hoping to be a renewable energy consumer, this blog offers commentary on current issues that are important to your business.

EPA Designates PFAS as Hazardous Substances; EPA Is More Confident Than I Am that the Sky Isn't Falling
Blog April 21, 2024
Last Friday, EPA formally designated perfluorooctanoic acid and Perfluorooctanesulfonic Act – including their salts and structural isomers! – as hazardous substances under CERCLA. I cannot really quarrel with the underlying decision to list PFOA and PFOS. Given the developing evidence about the risks that they pose, it’s difficult to argue that they are not in fact “hazardous substances.”…
Oil and Hazardous Substances; Never the Twain Shall Meet
Blog November 03, 2023
Late last month, in Munoz v. Intercontinental Terminals Company, the 5th Circuit Court of Appeals held that the liability provisions of CERCLA and the Oil Pollution Act do not overlap and that, consequently, where oil and hazardous substances commingle, the sole remedy is under CERCLA. As the Court correctly noted, it has long been the case under CERCLA that petroleum commingled with hazardous substances is subject to CERCLA jurisdiction as a hazardous substance…
EPA Proposes to List PFOA and PFOS as Hazardous Substances:  What Could Possibly Go Wrong?
Blog August 26, 2022
EPA announced today that it is proposing to list PFOA and PFAS as hazardous substances under CERCLA.  EPA appears to be sanguine about how the listing will play out in the real world. EPA is focused on holding responsible those who have manufactured and released significant amounts of PFOA and PFOS into the environment. EPA will use enforcement discretion and other approaches to ensure fairness for minor parties who may have been inadvertently impacted by the contamination…
I Love It When SCOTUS Reminds Me How Clear and Unambiguous CERCLA Is
Blog May 25, 2021
Yesterday, the Supreme Court ruled that only settlements that explicitly resolve liability under CERCLA trigger the contribution provisions of section 113 of CERCLA.  I have previously commented on the Court's tendency to treat CERCLA as much more straightforward and unambiguous than practitioners have understood it to be.  The Court's approach to section 113 in yesterday's decision followed this now well-worn path.  In a short, sweet, and unanimous decision…
Asbestos.  Lead Paint.  MTBE.  PFAS?
Blog June 19, 2019
Late last month, New Hampshire filed two law suits seeking to recover a variety of costs and damages it alleges have resulted from contamination caused by releases of PFAS.  It's a wide ranging suit; New Hampshire asserted claims for negligence, defective design, failure to warn, trespass, and damage to public trust assets, among others. And what relief does the state seek?  Not much.  It merely seeks that the court enter a judgment: Finding Defendants liable…
How Wrong Does a District Court Have to Be to Abuse Its Discretion?
Blog October 11, 2017
The 9th Circuit Court of Appeals has reversed a District Court decision allocating 100% of CERCLA response costs at a San Diego Superfund site to TDY Holdings, which operated an aeronautical manufacturing plant from 1939 to 1999.  TDY has sought contribution from the United States, which was the source of the vast majority of TDY's business, and which directed TDY to use certain hazardous substances…
The Arbitrary and Capricious Standard Remains in the Eye of the Beholder
Blog August 31, 2017
In a very interesting – and extremely rare – case, Emhart Industries has successfully defended itself against a unilateral administrative order issued by EPA under CERCLA, on the ground that key decisions made by EPA were arbitrary and capricious.  The decision, concerning the Centredale Manor Restoration Project Superfund Site, is worth a read for CERCLA practitioners, even though it weighs in at 108 pages…
No Deference to State Settlements Under CERCLA?  No Problem!
Blog July 26, 2016
I will confess that I do enjoy being correct.  In 2014, the 9th Circuit Court of Appeals refused to defer to a state agency determination of the procedural and substantive fairness of a CERCLA consent decree.  Various parties and commentators promptly began, if I may say so, to run around like chickens with their heads cut off.  However, I remained calm.  I stated then: I'm assuming that…
Complaints Are Not Totally Meaningless:  A CERCLA Plaintiff Must Allege Disposal Against a Former Owner
Blog March 04, 2016
I know it may surprise some litigators, but occasionally the allegations in a complaint do matter.  In Garrett Day v. International Paper, the Court dismissed CERCLA claims brought by the current owner of a former paper mill located in Dayton, Ohio, against alleged former owners.  The opinion covers a lot of issues, but the most important is the distinction between “release” and “disposal” under CERCLA…
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ABOUT

In today’s fast changing world, almost all of us get our news – including our news about developments in environmental law and policy – electronically. This blog is not intended to be a substitute for the BNA™, or Greenwire™, or Google™, although we do hope that we will be able on occasion to let you know about issues that haven’t yet come to your attention.

What we really want to accomplish is to be able to provide some perspective on those developments. We’ll try to tell you which developments may matter to you. And why they matter. And how they matter. Whether you are a manufacturer or a power plant developer, whether you are a renewable energy developer or hoping to be a renewable energy consumer, whether you are a municipality or public agency or university, we want to comment on current issues in a way that is useful to you in your business.

Frankly, this blog also provides us with the opportunity to introduce you to Foley Hoag’s Environmental Practice Group. Our practice has been New England’s preeminent environmental practice for the past twenty years. We have the depth and capacity to handle the wide array of environmental issues that can arise in the course of your business. We will work with you to resolve any environmental issues that must be addressed in order for you to achieve your business goals – from permitting new projects to cost-effective cleanup of urban Brownfields properties to implementation of cost-effective due diligence in the support of acquisitions to navigating the emerging world of climate change regulations.

We will also assist you in the defense and prosecution of environmental litigation. As a result of our service to our clients, we have attained a national reputation in environmental matters. Our lawyers have built an impressive record resolving environmental disputes at the negotiating table and in the courtroom, and a number of our cases have produced precedents of national importance.

The scope of this blog will be commensurate with the scope of our practice. We’ll cover climate change, renewable energy, hazardous and solid waste, clean air and water, sustainability and green design. You name it, if it’s got an acronym attached to it, we’ll cover it.

As the headline indicates, we want to inform, update, comment, and discuss. In other words, while we’re going to enjoy posting, we’ll enjoy the blog more – and its usefulness will increase – if we hear from you also. Please comment on the blog entries. Let us know about developments we missed or implications of our discussions that we did not consider.

We look forward to the conversation.