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

Oil Pollution Act Waste Law 130

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.

Renewable Energy 147

Renewable Energy Natural Resources Environmental Protection Electricity 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 Clean Energy 2024 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.

Carbon Dioxide 130

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 Technology Technology Clean Energy 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.

Endangered Species Act 130

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.

Fossil Fuels 243

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.

Climate Change 130

Climate Change Greenhouse Regulations 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 Politics 2024 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.

2013 130

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

2026 130

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.

2017 100

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.

Climate Change 130

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.

Ozone 100

Ozone Law Regulations 100

Law and Environment

JUNE 8, 2023

Greenwire (subscription required) reported yesterday that more than 150 wildfires in Quebec have blanketed large swaths of the United States with unhealthy levels of particulate matter. Indeed, as of 9:00 AM on Thursday, June 8, New York City has the worst air quality of any metropolitan area in the world. Some businesses are advising workers to stay home.

Air Pollution 130

Air Pollution Climate Change Cooling Law 130

Law and Environment

MAY 31, 2023

On May 25, 202 3, 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 adopted Justice Scalia’s plurality opinion in Rapanos v.

Law 130

Law Clean Water Act Regulations Ocean 130

Law and Environment

MAY 23, 2023

[ This is the third post in our Hydrogen Blog Series. Read the first post here and the second post here ] One of the biggest hurdles for clean hydrogen is high costs. The Department of Energy graph below says it all. Today, a kilogram of hydrogen produced by electrolysis costs around $5 to $7. When compared to the estimated $1 to $2 per kilogram for conventionally produced hydrogen with carbon capture and storage, it’s easy to see why most industries likely won’t adopt hydrogen produced via

Law 130

Law Recycling Technology Technology 130

Law and Environment

MAY 12, 2023

After weeks of hints and leaks, yesterday morning (May 11, 2023), EPA proposed a new rule regulating emissions from power plants. The proposed rule would apply to new and existing gas plants and existing coal plants—new coal plants are separately regulated—and promises to significantly cut carbon and other harmful air pollutant emissions from fossil plants over the next two decades and beyond.

Greenhouse 130

Greenhouse Clean Air Act Air Pollution Natural Gas 130

Law and Environment

MAY 11, 2023

Yesterday, the Biden-Harris administration outlined in a fact sheet its priorities for permitting reform to accelerate the build-out of America’s energy infrastructure “faster, safer, and cleaner.” The fact sheet provides an endorsement of the Building American Energy Security Act of 2023, establishes several major objectives for permitting reform, provides several recommendations to streamline federal permitting processes, and urges Congress to include the objectives and recommendations as part

Clean Energy 130

Clean Energy Renewable Energy Carbon Dioxide 2030 130

Law and Environment

MAY 4, 2023

[ This is the second post in our Hydrogen Blog Series. Read the first post here. ] In the first post, I alluded to the technical issues hydrogen developers are considering. Here we’ll look at how hydrogen is produced and what it will be used for. How is hydrogen produced today? We make hydrogen mainly using steam methane reforming (“SMR”). SMR requires steam, heat, and pressure to convert methane (in natural gas) to hydrogen and carbon monoxide.

Carbon Monoxide 130

Carbon Monoxide Fossil Fuels Carbon Dioxide Nuclear Power 130

Law and Environment

MAY 3, 2023

Earlier this week, the Supreme Court accepted cert. in Lopez Bright Enterprises v. Raimondo , which presents a straightforward challenge to the continuing viability of Chevron. The question presented was: Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.

Law 130

Law 130

Law and Environment

APRIL 24, 2023

On April 13, 2023, the Commissioners of the Nuclear Regulatory Commission (NRC) voted to approve a proposal that will accelerate the commercialization of fusion energy in the United States. Specifically, the NRC determined that fusion energy be regulated under the Nuclear Regulatory Commission’s byproduct material framework contained in 10 C.F.R. Part 30 , “Rules of General Applicability to Domestic Licensing of Byproduct Material.

Regulations 130

Regulations Nuclear Power 2027 2009 130

Law and Environment

APRIL 20, 2023

We’re launching this blog series to help readers keep pace with the fast-moving world of clean hydrogen. Each week or so we’ll post an article on different legal, regulatory, and technical opportunities and challenges facing companies who are developing or exploring clean hydrogen projects. We need a comprehensive approach to tackling climate change, one that targets all sectors of the economy.

Renewable Energy 130

Renewable Energy Biofuels Clean Energy Carbon Emissions 130

Law and Environment

APRIL 18, 2023

On Monday, the 9 th Circuit Court of Appeals held that the City of Berkeley ordinance entitled “Prohibition of Natural Gas Infrastructure in New Buildings” was preempted by the Energy Policy and Conservation Act. The relevant language in the EPCA provides as follows: no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product.

Natural Gas 130

Natural Gas Regulations Law Conservation 130

Law and Environment

APRIL 12, 2023

Yesterday, the Bureau of Land Management announced that it has given final approval to the TransWest Express transmission line, a 732-mile project that will move electricity from a large wind farm in Wyoming to an interconnection point near Las Vegas. Most of the electrons will ultimately provide power to California. According to EnergyWire (subscription required), the notice to proceed was issued a mere 18 years after the project was first initiated.

2028 130

2028 Electricity Law Renewable Energy 130

Law and Environment

APRIL 7, 2023

On Thursday, the Office of Management and Budget released proposed revisions to “Circular A-4”. It also released a separate preamble , explaining its thinking and asking for comment on certain identified issues. Circular A-4 is almost certainly the most important document that most people have never heard of, since it governs how federal agencies conduct cost-benefit analysis of potential federal actions.

Regulations 130

Regulations Climate Change 2023 Government 130