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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.

FERC Proposes to Implement Expanded Transmission Siting Authority
Blog December 19, 2022
FERC Proposes to Implement Expanded Transmission Siting Authority
On December 15, 2022, the Federal Energy Regulatory Commission (“FERC”) issued a notice of proposed rulemaking in which the Commission proposes to implement its newly clarified authority under the 2021 Infrastructure Investment and Jobs Act (“IIJA”) to issue permits if a state denies an applicant's request to site transmission facilities in a designated National Interest Electric Transmission Corridor (“National Corridor”). Such change has potential—in certain cases—to tilt the balance of……
IRA Side Deal on Permitting Raising Ire
Blog September 12, 2022
IRA Side Deal on Permitting Raising Ire
In order to pass the Inflation Reduction Act (“Act”) last month, a deal was struck with Sen. Joe Manchin (D-WV) to create separate legislation to reform federal energy project permitting.  Now that the Act has been signed into law, Senate Democrats are making good on their promise but, as might be expected, not all parties are supportive. The reforms (and funding necessary to effectuate them) are proposed to be included as part of a Continuing Resolution that must be passed to prevent a……
EPA Proposes A Section 401 "Improvement Rule" - Now That's a Low Bar
Blog June 06, 2022
EPA Proposes A Section 401 "Improvement Rule" - Now That's a Low Bar
Last week, EPA released its proposed “Clean Water Act Section 401 Water Quality Certification Improvement Rule”.  The proposed rule would make a number of significant changes to the rule promulgated by EPA in 2020. I'm going to focus on one in particular, because it could be a good test of just how far the current Supreme Court is willing to go to limit the authority of the executive branch…
FERC Proposes to Reform Transmission Planning; It's Not a Small Task
Blog May 04, 2022
FERC Proposes to Reform Transmission Planning; It's Not a Small Task
Late last month, FERC issued a notice of proposed rulemaking.  Its intent is to “remedy deficiencies in the Commission's existing regional transmission planning and cost allocation requirements.”  In short, it's time for a 21st Century grid that actually accommodates changes in how electricity is being generated. I'm not sure I can improve much on FERC's own summary of the NOPR: the proposal would require public utility transmission providers to (1) conduct long-term regional transmission……
The D.C. Circuit Again Requires FERC to Consider the Environmental Impacts of Downstream Use of Gas: How Big a Deal Is It?
Blog March 16, 2022
The D.C. Circuit Again Requires FERC to Consider the Environmental Impacts of Downstream Use of Gas: How Big a Deal Is It?
Last week, the District of Columbia Court of Appeals again rejected a FERC NEPA review for failure to assess the climate impacts resulting from the downstream use of natural gas supplied by a gas pipeline upgrade project approved by FERC.  The Court found that FERC was too quick to conclude that those downstream impacts could not reasonably be evaluated. How big a deal is this?…
FERC Cannot Avoid the Social Cost of Carbon By Arguing That It is Not Universally Accepted
Blog August 05, 2021
FERC Cannot Avoid the Social Cost of Carbon By Arguing That It is Not Universally Accepted
On August 3, the District of Columbia Court of Appeals held that FERC could not avoid use of the social cost of carbon in assessing the impacts of natural gas projects by arguing that “there is no universally accepted methodology.”  Given the growing recognition of the significant role FERC is going to have in combatting climate change, it's an important decision.  FERC acknowledged that construction and operation of the projects under review would “contribute incrementally to future……
States Really, Really, Must Act on Water Quality Certification Applications Within One Year
Blog March 30, 2021
States Really, Really, Must Act on Water Quality Certification Applications Within One Year
The saga of judicial efforts to enforce the one-year limit on state review of applications for water quality certifications under Section 401 of the Clean Water Act shows no sign of reaching a conclusion. First, in Hoopa Valley Tribe v. FERC, the D.C. Circuit held that an agreement between the applicant and the state pursuant to which the applicant repeatedly withdrew and resubmitted its 401 application could not escape the statutory time limit on state review…
FERC Considers GHG Emissions in a Gas Pipeline Review - Everyone Is Unhappy
Blog March 19, 2021
FERC Considers GHG Emissions in a Gas Pipeline Review - Everyone Is Unhappy
According to EE News (subscription required), FERC yesterday, for the first time, assessed the impacts of a gas pipeline's downstream GHG emissions.  (As of this writing, the decision is not yet available on FERC's web site.) Former chair James Danly was unhappy, calling the decision “legally infirm.”  I question Commissioner's judgment on this one. Neil Chatterjee provided the Republican vote in favor, saying that he made a pragmatic decision…

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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.

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