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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.

The 5th Circuit Rejects EPA's Nonattainment Designations in Texas; Don't Blame Loper Bright
Blog May 27, 2025
On May 16, in Texas v. EPA, the 5th Circuit Court of Appeals rejected EPA’s nonattainment designation for two counties in Texas…
Massachusetts Launches Cumulative Impact Analysis Regulations for Air Quality Permits Near Environmental Justice Populations
Blog April 05, 2024
Massachusetts has become the first state to require analysis of cumulative impacts for certain air quality permits in or near communities with environmental justice populations. On March 29, 2024, the Massachusetts Department of Environmental Protection released highly anticipated amendments to its air pollution regulations as required by the environmental justice provisions of the 2021 Climate Roadmap Act…
Does EPA Have Authority to Promulgate Cumulative Risk Assessment Guidance?
Blog September 18, 2023
Last week, Inside EPA (subscription required) reported that the Texas Commission on Environmental Quality has basically informed EPA that EPA may not promulgate guidance on cumulative risk assessments because of questions about its legal authority to require CRAs.  If EPA plans to interpret such environmental regulations as providing EPA with the authority to require that states consider CRAs in its decision making, including CRAs that may include nonchemical stressors…
Guidance Is Still Not the Same as Regulation
Blog August 18, 2023
Earlier this week, the 10th Circuit Court of Appeals vacated EPA's disapproval of Wyomings regional haze plan for the PacifiCorp's Wyodak power plant.  The basis for the disapproval was an issue near and dear to my heart.  In rejecting Wyomings SIP, EPA repeatedly pointed to Wyomings failure to comply with EPA's guidelines for determining Best Available Retrofit Technology, even though the guidelines were not enforceable regulations…
The Social Cost of Greenhouse Gases Is Increasing  But Is Uncertainty Over the Measurement of Climate Impacts Artificially Depressing the Number?
Blog July 17, 2023
Yesterday, Climatewire (subscription required) released a peer review letter on EPA's Social Cost of Greenhouse Gases (SC-GHG), which got a fair bit of press last year, because EPA's metric was $190/ton, even though the Biden administration was using the $51/ton figure originally developed by the Obama administration.  The peer reviewers' views can be distilled down to two major points: It's a really solid piece of work that provide a solid technical foundation for the SC-GHG…
Red States Still Have Nothing to Complain About Regarding the Social Cost of Carbon
Blog April 05, 2023
Today, the 5th Circuit Court of Appeals dismissed for lack of standing claims by a number of states challenging the Biden Administration's Interim Estimates of the Social Cost of Carbon.  The Court had telegraphed this outcome last spring when it vacated a District Court injunction against use of the Interim Estimates, noting that: The Government Defendants are likely to succeed on the merits because the Plaintiff States lack standing…
CEQ Issues NEPA Climate Guidance
Blog January 13, 2023
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…
Implementing Maui Remains a Case-by-Case Affair, at Least for Now
Blog September 20, 2021
Last week, EPA withdrew guidance issued in the waning days of the Trump Administration interpreting the Supreme Court decision in County of Maui v. Hawaii Wildlife Fund.  As the masochists who follow the torturous case law we call Clean Water Act jurisprudence are well aware, SCOTUS ruled in Maui that discharges from point sources to groundwater that are the “functional equivalent” of a direct discharge to surface water are required to obtain NPDES permits…
Can "Guidance" Ever Be Binding?
Blog August 09, 2021
Last week, the 9th Circuit Court of Appeals rejected a challenge to EPA guidance that suggested a new statistical method, the Test of Significant Toxicity, for determining the toxicity of discharges subject to NPDES permits.  The Court found that, because it was “nonbinding guidance,” it was not final agency action and was thus not subject to judicial review under the Administrative Procedure Act. May I ask my legal colleagues to wrap their heads around the concept of “nonbinding……
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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.