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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.

Montana Protects a Constitutional Right to a Stable Climate: Will Any Other States Follow Suit?
Blog December 19, 2024
Montana Protects a Constitutional Right to a Stable Climate: Will Any Other States Follow Suit?
The Montana Supreme Court affirmed a lower court ruling in favor of plaintiffs in a climate case based on certain provisions of the Montana constitution…
Post-Sackett, Who Will Speak for the Clean Water Act?
Blog December 29, 2023
Post-Sackett, Who Will Speak for the Clean Water Act?
Earlier this month, in Lewis v. United States the 5th Circuit issued a decision interpreting the Supreme Court's decision in Sackett v. EPA.  The 5th Circuit decision is a model of clarity and demonstrates what I'll call the good side of Sackett.  And clarity is definitely the right word here.  One might say clarity is the holy grail that critics of EPA's and the Corps' efforts to interpret WOTUS have focused on…
Supreme Court Curtails Federal Wetlands Protections; Developers Still Must Consider State and Local Wetlands Laws
Blog May 31, 2023
Supreme Court Curtails Federal Wetlands Protections; Developers Still Must Consider State and Local Wetlands Laws
On May 25, 2023, the Supreme Court issued its long-awaited decision in Sackett v. Environmental Protection Agency, which significantly narrowed the Clean Water Act's (“CWA”) test for determining whether wetlands are protected “waters of the United States” and the federal permitting requirements for development projects in covered wetlands areas. The Court's Ruling The Supreme Court's ruling has two basic parts: It adopts Justice Scalia's plurality opinion in Rapanos v…
EPA and the Corps Promulgate a "Durable" WOTUS Rule - Proving Only That There Is a Difference Between Hope and Expectation
Blog January 04, 2023
EPA and the Corps Promulgate a "Durable" WOTUS Rule - Proving Only That There Is a Difference Between Hope and Expectation
Last week, EPA and the Army Corps finally published their long-awaited rule defining “Waters of the United States.”  Will the WOTUS rule finally provide the clarity for which we have been waiting, allowing the rule to be as “durable” as the agencies claim, or will it instead be dead on arrival, made irrelevant by the upcoming Supreme Court decision in Sackett, which many observers expect will significantly narrow the scope of jurisdiction under the Clean Water Act?…
Might the WOTUS Saga Drag On For a While Longer?
Blog October 03, 2022
Might the WOTUS Saga Drag On For a While Longer?
The Supreme Court heard oral argument today in the Sackett case, in which the Sacketts are hoping that SCOTUS will finally issue a clear decision narrowing the scope of jurisdiction under the Clean Water Act.  I have stayed out of the SCOTUS prediction game because I find such speculation to be a waste of time.  I generally agree with the position of Roy Kent on Ted Lasso…
What's Up With the Supreme Court?
Blog January 27, 2022
What's Up With the Supreme Court?
As everyone knows, the Supreme Court has teed up West Virginia v. EPA, which challenges EPA's authority to regulate greenhouse gases, and Sackett v. EPA, which challenges EPA's authority to define what constitutes a water of the United States.  Betting money does not favor EPA in either case. I don't have any inside authority on what will happen and I don't really have thoughts that haven't been expressed by others…
EPA Proposes to Use Science to Identify Waters of the United States. Im Shocked, Shocked.
Blog November 23, 2021
EPA Proposes to Use Science to Identify Waters of the United States. Im Shocked, Shocked.
Last week, EPA and the Army Corps proposed a new rule to define what constitutes “waters of the United States.”  Déjà vu all over again. Under the proposal, the agencies: are exercising their discretionary authority to interpret “waters of the United States” to mean the waters defined by the longstanding 1986 regulations, with amendments to certain parts of those rules to reflect the agencies' interpretation of the statutory limits on the scope of the “waters of the United States” and……
Local Regulation of Fossil Fuel Pipelines (or The Little City That Could)
Blog November 04, 2021
Local Regulation of Fossil Fuel Pipelines (or The Little City That Could)
With all the attention focused on the Keystone pipeline and the disputes over local regulation of fracking, it's easy to overlook the small city of South Portland, Maine (population 26,000), which just prevailed in the First Circuit in a challenge to its regulation of an international oil pipeline that originates in Montreal and ends in South Portland Harbor.  (Full disclosure: I represented the city in this case.) When Portland Pipeline Corporation (“PPLC”)(whose parent company was owned……
The Trump WOTUS Rule Is Vacated; Now We Know What's Next
Blog September 08, 2021
The Trump WOTUS Rule Is Vacated; Now We Know What's Next
Last week, I reported that Judge Rosemary Marquez had vacated the Trump administration's Navigable Waters Protection Rule.  I also asked “what's next”?  EPA and the Army Corps have now answered that question, at least for the short run.  In a brief announcement on EPA's web page, EPA stated that: the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further……
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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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