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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
EPA Designates PFAS as Hazardous Substances; EPA Is More Confident Than I Am that the Sky Isn't Falling
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.”…
CERCLA Has Never Been a "Polluter Pays" Statute
Blog November 17, 2022
CERCLA Has Never Been a "Polluter Pays" Statute
Environment and Energy Report (subscription required) had a story today about growing opposition to EPA's proposal to list two PFAS compounds, PFOA and PFOS, as hazardous substances under CERCLA.  Here's what really caught my eye about the opposition.  The National Association of Clean Water Agencies opposes the proposal.  They think it inconsistent with EPA's historical implementation of CERCLA: EPA's proposed designations…
Yes, Virginia, Selling a Building Known to Contain PCBs Can Constitute An Arrangement for Disposal
Blog April 15, 2019
Yes, Virginia, Selling a Building Known to Contain PCBs Can Constitute An Arrangement for Disposal
Some cases just make you wonder what people were thinking.  I'm not  sure even Donald Trump would have tried to get away with what Dico, Inc., tried to get away with. In 1994, EPA issued an administrative order, requiring Dico to address PCBs in insulation in buildings it owned in Des Moines, Iowa.  Without informing EPA, Dico sold the buildings.  Dico did not inform the buyer of the buildings about either the presence of PCBs or the EPA order…
The Arbitrary and Capricious Standard Remains in the Eye of the Beholder
Blog August 31, 2017
The Arbitrary and Capricious Standard Remains in the Eye of the Beholder
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…
Stop the Presses. Superfund is Stupid.
Blog February 11, 2016
Stop the Presses. Superfund is Stupid.
I know that pointing out CERCLA's stupidity has something of a dog bites man quality, but sometimes Superfund's stupidity bears repeating.  Today's exhibit?  New York v. Next Millenium Realty, in which Judge Feuerstein held – rightly, I am compelled to note – that New York's natural resources damage claim was timely, because the site at issue had been added to the National Priorities List less than three years before the suit was filed…
Determining An Intent To Dispose Under CERCLA Remains a Puzzlement
Blog December 11, 2015
Determining An Intent To Dispose Under CERCLA Remains a Puzzlement
Determining when a person has “arranged” for the disposal of a hazardous substance has long been difficult.  The Supreme Court brought some clarity to the issue in Burlington Northern, when it said that: While it is true that in some instances an entitys knowledge that its product will be leaked, spilled, dumped, or otherwise discarded may provide evidence of the entitys intent to dispose of its hazardous wastes…
CERCLA Remains Ridiculous: A Remedy In Operation For 18 Years Is Short Term
Blog October 21, 2015
CERCLA Remains Ridiculous: A Remedy In Operation For 18 Years Is Short Term
Far too frequently, we are reminded just how hard judges must work to save CERCLA from itself.  The decision last week in California River Watch v. Fluor Corporation is the most recent compelling example. Fluor Corporation has been performing response actions at a site, including operating a soil vapor extraction system, since no later than 1997.  Fluor's remedial action plan was not approved until 2011 and a modified RAP was approved in 2014…
CERCLAs Statutory Liability Defenses How Strict Is CERCLA Liability?
Blog May 05, 2014
CERCLAs Statutory Liability Defenses How Strict Is CERCLA Liability?
It was no surprise that the Second Circuit in In re September 11 Litigation recently affirmed the lower courts ruling that contamination caused by the 9/11 attacks was within CERCLAs Act of War defense.  Although CERCLA is often said to impose strict liability regardless of fault, the Second Circuits decision indicates that CERCLAs liability scheme was not intended to reach contamination that was caused entirely by the hostile acts of others: The attacks wrested from the defendants all……
CERCLAs Broad Sweep of Liability For Owners
Blog November 21, 2013
CERCLAs Broad Sweep of Liability For Owners
Some decisions are valuable not because they make new law but because they reaffirm well known principles of law.  City of Banning v. Dureau is one such decision.  There, a federal district court in California ruled that an owner of real property was strictly liable under CERCLA for the release of hazardous substances on her property and could not escape CERCLA liability by arguing that she was ignorant of the conditions giving rise to the release…
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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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