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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.

Its Good to Be a Brownfield Site - As Long As It's Not Too Brown
Blog September 01, 2022
Its Good to Be a Brownfield Site - As Long As It's Not Too Brown
Tucked away in the recesses of the Inflation Reduction Act is a provision that reminds everyone why they love Superfund so much.  On its face, it's simply an incentive for renewable energy development, giving an adder to the amount of the investment tax credit (ITC) or production tax credit (PTC) to which certain renewable energy projects would otherwise be entitled, if they are located in an “energy community”…
The Law Is An Ass, RCRA Edition
Blog October 14, 2021
The Law Is An Ass, RCRA Edition
Late last month, the 9th Circuit Court of Appeals ruled that a public water supplier could be liable in a citizens' suit brought under the imminent and substantial endangerment provisions of RCRA, where the plaintiff alleged that the groundwater used by the supplier had been contaminated by the disposal of hexavalent chromium by a wood treatment facility upgradient of the supplier's well field. Blaming the victim doesn't quite cover this…
Injunctions In RCRA Citizen Suits - Broad, But Not Infinite
Blog March 12, 2019
Injunctions In RCRA Citizen Suits - Broad, But Not Infinite
Two recent cases illustrate the potential scope of, and the potential limitations on, injunctive relief in RCRA citizen suits.  First up, Schmucker v. Johnson Controls. Contamination was detected at the Johnson Controls manufacturing facility in Goshen, Indiana.  In response, Johnson Controls performed substantial remediation under the auspices of the Indiana Department of Environmental Management's Voluntary Remediation Program.  Nonetheless, significant contamination remains at the site…
Carbon Free Boston - Or How to Save the World in a Few Easy Steps
Blog January 29, 2019
Carbon Free Boston - Or How to Save the World in a Few Easy Steps
Boston's Green Ribbon Commission has just released Carbon Free Boston, which outlines a pathway to a carbon-free city by 2050.  It's a thoughtful and careful report.  My immediate reaction was two-fold.  Of course we have to do all this and of course this will be nearly impossible. The transmittal letter to Mayor Walsh acknowledges the immensity of the undertaking: The report's analysis makes clear the great magnitude of the change needed to achieve carbon neutrality…
Are Discharges to Groundwater Potentially Subject to the Clean Water Act? A Circuit Split Tees It Up.
Blog September 26, 2018
Are Discharges to Groundwater Potentially Subject to the Clean Water Act? A Circuit Split Tees It Up.
The Sixth Circuit ruled earlier this week that discharges to groundwater are not subject to Clean Water Act jurisdiction.  We now have the requisite circuit split, opening the possibility of Supreme Court review.  For those who might still be open-minded, I commend both the majority and dissenting opinions in the 6th Circuit; they are each as clear and as persuasive as they could be. Although I have long thought that it does not make sense to regulate discharges to groundwater under the……
A Leaking Settling Pond Is Not A Point Source
Blog September 14, 2018
A Leaking Settling Pond Is Not A Point Source
On Wednesday, the 4th Circuit Court of Appeals reversed a District Court ruling and rejected the Sierra Club's citizen suit against Virginia Electric Power alleging that releases of arsenic from a coal ash landfill and settling ponds at its Chesapeake Energy Center power plant violated the Clean Water Act and the plant's NPDES permit.  Notably, the issue that most concerned me at the time of the District Court opinion…
EPA To Rename OSWER: How About The Office That Should Be Eliminated As Soon As Possible?
Blog October 30, 2015
EPA To Rename OSWER: How About The Office That Should Be Eliminated As Soon As Possible?
According to the Daily Environment Report (subscription required), EPA is going to change the name of the Office of Solid Waste and Emergency Response to the Office of Land and Emergency Management.  What a grand name; surely it is an improvement. I don't think that this quite rises to the level of rearranging deck chairs on the Titanic (though I certainly have clients who would not object if OSWER sank without a trace)…
Obamas Climate Action Plan: Next Step, Landfill Methane
Blog August 18, 2015
Obamas Climate Action Plan: Next Step, Landfill Methane
Having gotten the Clean Power Plan out the door, EPA has moved on to another target of President Obama's Climate Action Plan:  landfill methane emissions.  Late last week, EPA proposed both new emission guidelines for existing landfills and a supplemental proposal to modify the new source performance standards for new or modified landfills.  The landfill rule is a somewhat easier lift than the Clean Power Plan…
If Congress Wants to Limit EPAs Discretion, Perhaps It Should Do a Better Job Legislating
Blog June 05, 2015
If Congress Wants to Limit EPAs Discretion, Perhaps It Should Do a Better Job Legislating
Earlier this week, the D.C. Circuit Court of Appeals rejected both industry and environmental group petitions challenging EPA's determination of what is a solid waste in the context of Clean Air Act standards for incinerators and other combustion units.  It wasn't actually a difficult case, but it does provide a lesson for Congress.  When the technical nature of EPA's decisions was layered on top of the fundamental deference given EPA's interpretation of the statute under Chevron…
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Blog Editors

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.

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