Law and Environment

FEBRUARY 8, 2024

Yesterday, EPA finalized a rule lowering the primary annual National Ambient Air Quality Standard for PM2.5 to 9.00 ug/m 3. This is a significant reduction from the current 12.00 ug/m 3 standard and a victory for environmentalists, even though they had advocated for larger reduction. There is substantial evidence supporting the reduction, both in the legal and the common sense understanding of this term.

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Law and Environment

JANUARY 30, 2024

In my discussion yesterday of the shortcomings of the Climate Superfund Act, I actually ignored arguably its biggest flaw. While the Act certainly looks much like a tax, I failed to point out that the Act omits what is typically the biggest selling point of a carbon tax – its impact on prices and consumption behavior. Putting a tax on the future consumption of fossil fuels raises their price and decreases consumption.

Fossil Fuels 130

Fossil Fuels Law Climate Change 130

Law and Environment

JANUARY 29, 2024

As I’ve noted many times , criticizing CERCLA is like shooting fish in a barrel. Apparently, however, my criticism is not universally shared. According to WBUR , some legislators around the country are so pleased with how well CERCLA works that they have proposed a “Climate Superfund Act,” replicating CERCLA in order to fund climate resiliency projects as well as projects to repair damages caused by climate change.

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Law and Environment

JANUARY 26, 2024

Late last month, the Interagency Working Group on Social Cost of Greenhouse Gases quietly released a three-paragraph memo on how agencies should determine the social cost of greenhouse gas emissions. I hesitate to call it “guidance.” Here’s the operative language: As agencies consider applying the SC-GHG in various contexts, agencies should use their professional judgment to determine which estimates of the SC-GHG reflect the best available evidence, are most appropriate for particular analyti

Greenhouse 100

Greenhouse Government Law Climate Change 100

Law and Environment

JANUARY 9, 2024

Last week, the 9 th Circuit voted against rehearing en banc its decision from last April finding the City of Berkeley’s ban on natural gas connections in new construction to be preempted by the Energy Policy and Conservation Act. Judge Friedland, joined by seven other judges (and three senior judges!) dissented from the denial, writing a lengthy opinion fairly explicitly directed at judges from other Courts of Appeal that might hear cases addressing similar bans.

Natural Gas 130

Natural Gas Conservation Regulations Law 130

Law and Environment

DECEMBER 29, 2023

Earlier this month, in Lewis v. United States the 5 th Circuit issued a decision interpreting the Supreme Court’s decision in Sackett v. EPA. The 5 th 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.

Clean Water Act 130

Clean Water Act Pollution Control 2012 Government 130

Law and Environment

DECEMBER 20, 2023

On December 15, 2023, IRS published Notice 2024-06 , a brief but important guidance on Section 40B, the Inflation Reduction Act (“IRA”) tax credit for sustainable aviation fuel (“SAF”). The guidance establishes a safe harbor for SAF that generates RINs under the federal Renewable Fuel Standard program (“RFS”). It also announces that the Department of Energy (“DOE”) will release an updated GREET model in early 2024 that meets Section 40B’s requirements for determining SAF’s lifecycle greenhouse

Clean Air Act 130

Clean Air Act 2024 Biofuels Fossil Fuels 130

Law and Environment

DECEMBER 20, 2023

On December 19, 2023, the U.S. Department of Energy (DOE) released long-awaited final guidance on its process to designate National Interest Electric Transmission Corridors (commonly referred to as “NIETCs,” pronounced NIT-sees). Once designated, these corridors will bolster federal permitting authority over transmission projects in areas most in need of additional capacity.

Electricity 130

Electricity 2024 2023 Law 130

Law and Environment

DECEMBER 20, 2023

Last month, I advised plastics manufacturers to prepare for more litigation. Although I am generally loath to speculate, it already looks as though this prediction is coming true. Earlier this month, PennEnvironment and Three Rivers Waterkeeper filed suit against BVPV Styrenics and its parent company. BVPV manufactures expandable polystyrene at its facility in Monaca, Pennsylvania.

Clean Water Act 130

Clean Water Act Law 130

Law and Environment

NOVEMBER 28, 2023

An article in Science published last week indicates that the mortality risk from exposure to PM 2.5 from coal-fired electric generating units is roughly twice as high as the risk posed by PM 2.5 from other sources. According to the article, there were roughly 460,000 excess deaths in the United States from 1999-2020 resulting from exposure to PM 2.5 from coal-fired EGUs.

Regulations 130

Regulations 2008 2010 Electricity 130

Law and Environment

NOVEMBER 17, 2023

Earlier this week, New York State Attorney General Letitia James filed suit against PepsiCo. At the core of the case are allegations that PepsiCo.’s widespread use of single-use plastics has created or contributed to a public nuisance in the Buffalo River. I don’t doubt that plastic-related conditions in the Buffalo River constitute a public nuisance.

Regulations 130

Regulations Waste Law Natural Resources 130

Law and Environment

NOVEMBER 7, 2023

Last week, Inside EPA (subscription required) reported that EPA will reopen CERCLA cleanups due to the presence of PFAS on a case-by-case basis. The article reported on the gnashing of teeth among the regulated community at the prospect of seeing a significant number of sites reopened. As a card-carrying member of the regulated community, I am prone to teeth-gnashing as well.

Regulations 130

Regulations Conservation Law 130

Law and Environment

NOVEMBER 3, 2023

Late last month, in Munoz v. Intercontinental Terminals Company , the 5 th Circuit Court of Appeals held that the liability provisions of CERCLA and the Oil Pollution Act do not overlap and that, consequently, where oil and hazardous substances commingle, the sole remedy is under CERCLA. As the Court correctly noted, it has long been the case under CERCLA that petroleum commingled with hazardous substances is subject to CERCLA jurisdiction as a hazardous substance.

Oil Pollution Act 130

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Law and Environment

OCTOBER 30, 2023

Earlier today, the Connecticut Department of Energy & Environmental Protection (“DEEP”) issued an RFP for up to 2 GW of offshore wind. The RFP solicits bids to enter into long-term power purchase agreements for energy, renewable energy certificates (RECs), and related environmental attributes. Responses to the RFP will be evaluated by various state agencies and the electric distribution companies (“EDCs”), with the ultimate selection to be made by the Commissioner of DEEP.

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Renewable Energy Natural Resources Environmental Protection 2024 147

Law and Environment

OCTOBER 26, 2023

Yesterday, Massachusetts Climate Chief Melissa Hoffer issued a report detailing how “to implement the Healey-Driscoll Administration’s whole-of-government approach to addressing the climate crisis.” The report identifies trends, barriers, and gaps in Massachusetts climate policy, establishes guiding principles for whole-of-government climate action, and offers recommendations to strengthen the “climate-related practices and policies of executive department agencies.

Government 130

Government Fossil Fuels 2024 Clean Energy 130

Law and Environment

OCTOBER 13, 2023

This morning, the Department of Energy decided how it will allocate up to $7 billion of Bipartisan Infrastructure Law (“BIL”) funding set aside for establishing regional Hydrogen Hubs. (For more information on the Hubs, see our post HERE ). The funding could be critical to jump-starting the country’s clean hydrogen economy. It will support projects for clean hydrogen production, distribution, and end-use within the Hub regions.

Renewable Energy 130

Renewable Energy Law Greenhouse Electricity 130

Law and Environment

OCTOBER 2, 2023

Last week, a number of Democratic Senators filed an amicus brief in Loper Bright Enterprises v. Raimondo , arguing that the Supreme Court should not overrule Chevron. The first heading under the argument section of the brief is that: CHEVRON … IS UNDER ATTACK IN THIS CASE BY PRO-CORPORATE SPECIAL INTERESTS My first point is to ask whether, as a matter of strategy, an argument based on opposing “pro-corporate special interests” is likely to succeed before a SCOTUS that is largely sympathetic to

Law 130

Law 130

Law and Environment

SEPTEMBER 22, 2023

On September 21, 2023, the Biden administration outlined plans to expand federal agencies’ consideration of the social cost of carbon—a metric for the economic cost of each additional ton of carbon dioxide emitted to the atmosphere. This announcement tilts the balance of cost-benefit analyses in favor of activities that reduce greenhouse gas emissions, and it could have widespread effects for entities that receive federal funding or are subject to federal regulation.

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Carbon Dioxide Greenhouse Atmosphere Law 130

Law and Environment

SEPTEMBER 20, 2023

Earlier this month, Judge William Young dismissed for lack of standing claims brought by the Conservation Law Foundation alleging that bus companies violated anti-idling regulations. The opinion is important, because it does not make life easy for citizen plaintiffs and it provides something of a roadmap for defendants to follow in challenging plaintiffs’ standing.

Clean Air Act 130

Clean Air Act Air Pollution Law Conservation 130

Law and Environment

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, then TCEQ requests that E

Regulations 130

Regulations Law 130

Law and Environment

SEPTEMBER 5, 2023

Last month, Judge John Hunderaker held that the Endangered Species Act requires EPA to consult with the Fish and Wildlife Service and the National Marine Fisheries Service before issuing recommended water quality criteria. He also vacated EPA’s 2016 chronic freshwater criterion for cadmium. The case is potentially important for a number of reasons.

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Endangered Species Act 2016 Law Regulations 130

Law and Environment

AUGUST 21, 2023

[ This post is part of our Hydrogen Blog Series. Read the rest of the series here. ] The Department of Energy (“DOE”) held a webinar on Friday, August 18, 2023 on the U.S. government’s national hydrogen strategy. The main announcement was the formation of the Hydrogen Interagency Taskforce, or “HIT,” but the webinar was otherwise light on details regarding the status of key federal hydrogen programs, such as the Inflation Reduction Act’s (“IRA”) hydrogen production tax credit , the Hydrogen Hu

Natural Gas 130

Natural Gas Clean Energy Technology Technology 130

Law and Environment

AUGUST 18, 2023

Earlier this week, the 10 th Circuit Court of Appeals vacated EPA’s disapproval of Montana’s 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 Montana’s SIP, EPA repeatedly pointed to Montana’s failure to comply with EPA’s guidelines for determining Best Available Retrofit Technology, even though the guidelines were not enforceable regulations.

Regulations 130

Regulations Clean Air Act Technology Technology 130

Law and Environment

AUGUST 17, 2023

As more advisory services, investment companies, and public companies have publicized their Environmental, Social, and Governance (ESG) goals, the U.S. Securities and Exchange Commission (SEC) has proposed a set of new rules intended to create a consistent, comparable, and reliable source of information regarding climate change impacts and sustainability efforts to inform and protect investors while facilitating further innovation in this evolving area.

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Carbon Emissions 2023 Clean Air Act Carbon Dioxide 130

Law and Environment

AUGUST 15, 2023

Yesterday, the plaintiffs prevailed in the Montana climate litigation. Time will tell whether the decision will end up being seen as a watershed moment or just a blip. In trying to answer that question, it does seem worth briefly reviewing what the case was actually about and what the decision says. First, it’s important to acknowledge that the decision’s formal reach is limited.

Climate Change 130

Climate Change Atmosphere Natural Resources Law 130

Law and Environment

AUGUST 4, 2023

Greenwire (subscription required) reported this week that the Fish & Wildlife Service Recovery Plan for the Oregon spotted frog estimates that the cost to achieve recovery of the frog will be roughly $2.7 billion over 40 years. This post isn’t about the Oregon spotted frog or even about the Endangered Species Act as a whole. (I’ve blogged multiple times about how flawed the NAAQS-setting process is from a cost-benefit point of view.

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Endangered Species Act Law 130

Law and Environment

AUGUST 3, 2023

On July 31, 2023, Boston Mayor Michelle Wu signed an executive order ending the use of fossil fuels in new construction and major renovations of city-owned buildings. Although city buildings comprise a small percentage of overall carbon emissions in Boston, the new executive order aligns with larger efforts to decarbonize both publicly and privately owned buildings throughout Boston.

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Fossil Fuels Carbon Emissions Clean Energy Law 243

Law and Environment

AUGUST 2, 2023

Earlier this week, the 9 th Circuit Court of Appeals affirmed EPA’s NPDES permit issued to San Francisco’s Oceanside sewer system. San Francisco had challenged the permit on the ground that EPA does not have authority to impose narrative prohibitions related to compliance with water quality criteria. Here is the primary section subject to challenge: Discharge shall not cause or contribute to a violation of any applicable water quality standard for receiving waters adopted by the Regional Wate

Clean Water Act 130

Clean Water Act Regulations Law 130

Law and Environment

AUGUST 2, 2023

On July 28, 2023, the Council on Environmental Quality (CEQ) proposed reforms to the National Environmental Policy Act (NEPA) regulations governing how federal agencies review the environmental effects of major federal projects. The proposed rules follow amendments to NEPA itself that were enacted in June 2023 through the Fiscal Responsibility Act of 2023 , which addressed, among other things, the federal debt ceiling.

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Climate Change Regulations Greenhouse 2023 130

Law and Environment

AUGUST 1, 2023

The White House Environmental Justice Advisory Council recently weighed in on EPA’s decision whether to lower the National Ambient Air Quality Standards for PM 2.5 and ozone. Specifically, with respect to PM 2.5 , WHEJAC recommended that the annual primary standard be lowered to 8.0 ug/m 3 and the annual daily standard be lowered to 25.0 ug/m 3. Both recommendations are lower than what EPA has proposed.

Ozone 130

Ozone 2024 Politics 2025 130

Law and Environment

JULY 31, 2023

I’ve posted previously about the importance of extreme heat among the impacts of climate change. Much of the popular literature focuses, rightly, on the public health impacts. Without at all minimizing the public health impacts, I thought it worth noting that there is an increasing scientific literature on the impacts of extreme heat on economic productivity.

Climate Change 130

Climate Change Sea Level 2030 Law 130

Law and Environment

JULY 27, 2023

Early this afternoon, Governor Janet Mills signed into law LD 1895 , legislation directing the state to procure up to 3 GW of offshore wind by 2040. The final version of the procurement bill emerged after several weeks of negotiations between the Governor, legislature, industry, fisheries interests, labor groups, and environmental advocates. Now that the bill is signed into law, Maine is the seventh U.S. state to pursue a competitive solicitation of offshore wind energy.

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2013 Ocean Technology Technology 130

Law and Environment

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.

Greenhouse 100

Greenhouse Climate Change Politics Law 100

Law and Environment

JULY 10, 2023

On June 26, 2023, the Cambridge City Council voted to amend the city’s Building Energy Use Disclosure Ordinance (BEUDO) to require large non-residential buildings to reach net zero greenhouse gas emissions by 2035 and mid-size non-residential buildings to do so by 2050. The BEUDO amendment sets one of the most ambitious municipal net zero building targets in the country and establishes a new benchmark for climate-focused cities—yet questions remain as to whether these goals can actually be achie

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2026 Renewable Energy 2030 2018 130

Law and Environment

JUNE 29, 2023

Key Takeaways: On June 21, 2023, the Massachusetts Supreme Judicial Court (“SJC”) issued a ruling in Mark A. Adams v. Schneider Electric USA, Inc. , SJC-13352 (2023), addressing the so-called “cat’s paw” theory of liability and concluding that an employer can still be found liable for violating Massachusetts’ employment discrimination statute where there is evidence that a mid-level manager, directed to lay off employees, furthered a discriminatory corporate policy without knowingly doing so.

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2017 2023 Law Electricity 100

Law and Environment

JUNE 28, 2023

The Wharf District Council recently released its “ District Protection and Resiliency Plan.” My immediate reaction is just a quiet OMG regarding the size of the task. Of course, that’s no excuse for inaction and I found the plan to be quite compelling. The Wharf District runs from Christopher Columbus Park to the Congress Street bridge. Its landward boundary is basically Congress Street.

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Climate Change Politics Law 130

Law and Environment

JUNE 16, 2023

Last week, the EPA Clean Air Science Advisory Committee provided EPA its review of EPA’s Policy Assessment for the Reconsideration of the National Ambient Air Quality Standard for ozone. As expected, CASAC has disagreed with the recommendation of EPA technical staff to retain the current 70 ppb standard. Instead, CASAC recommends a significantly lower ozone NAAQS of 55-60 ppb.

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