Foley Hoag LLP

SUMMARY

Extenders for a series of key tax credits aimed at supporting the development of renewable energy generating facilities were passed today by the House 263 to 171 as part of the financial rescue bill, H.R. 1424 (the “Bill”), aimed at addressing the recent credit crisis. The renewable energy production tax credit (“PTC”) gives qualified facilities placed into service by a statutory cutoff date a tax credit equal to 1.5 cents per kilowatt hour of electricity generated. The PTC cutoff date had been set for January 1, 2009, and legislation to extend that cutoff date had been stalled in Congressional negotiations. The PTC extenders were among the amendments added by the Senate, which took up the Bill after the House failed to pass its version of a financial rescue bill on September 29, 2008. The President is expected to sign the Bill.

SUMMARY

The operators of the Regional Greenhouse Gas Initiative, or RGGI Inc., announced yesterday  that all of the 12,565,387 CO^₂ allowances offered for sale in the first RGGI auction on September 25, 2008 were purchased at $3.07 per allowance. This is above the auction reserve price of $1.86 per allowance, and below recent prices on the Chicago Climate Futures Exchange.

SUMMARY

The Green Communities Act (the “Act”) authorized the Department of Energy Resources (“DOER”) to promulgate regulations implementing Massachusetts’ new renewable portfolio standard (RPS) and alternative energy portfolio standard (APS) programs.  To meet the deadlines established by the Act, DOER is currently accepting comments on (1) the feasibility of regulations governing renewable energy credit (REC) imports, (2) Class I and Class II RPS regulations, and (3) APS regulations.  The Act gives DOER only a brief window of time to make its determinations and promulgate regulations, so stakeholders wishing to participate in this process should take immediate action to formulate and submit comments.

SUMMARY

On August 7, 2008, Massachusetts Governor Deval Patrick signed the "Global Warming Solutions Act," which will impose the most stringent greenhouse gas (GHG) reduction requirements in the nation. The Act creates Chapter 21N, which mandates a reduction of GHG emissions of 10% to 25% below 1990 levels by 2020 and 80% below 1990 levels by 2050, with intermediate caps for 2030 and 2040. Although the details for implementing these caps will not be known until regulations are promulgated, the emission reductions required to meet these caps must be measurable and enforceable.

Whereas most existing GHG reduction programs in the United States focus on the electric generating sector, this Act empowers the Executive Office of Energy and Environmental Affairs (EEA) to regulate a wide variety of sources across the commonwealth, and sets in motion the regulatory process to enforce an economy-wide cap on GHGs. Failure to meet the required reductions can result in administrative civil penalties for violators as high as $25,000 per day.

SUMMARY

In a notice published in the August 1, 2008 Federal Register, the United States Environmental Protection Agency (“EPA”) announced that it will begin following a new approach to applying its policy on Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations (65 Fed. Reg. 19618) (“Audit Policy”) to new owners that wish to make a “clean start” at newly acquired facilities. EPA will begin applying the Interim Approach to Applying the Audit Policy to New Owners (the “Interim Approach”) in order to encourage new owners to audit newly acquired facilities and to disclose, correct and prevent to recurrence of instances of environmental noncompliance.

SUMMARY

Massachusetts substantially changed its energy portfolio programs on July 2, 2008, when Governor Deval Patrick signed into law the state’s long-awaited energy bill, the Green Communities Act (the “Act”). The changes include replacing the existing renewable energy portfolio standard (“RPS”) program with a two-tiered RPS program and creating a new alternative energy portfolio standards (“APS”) program to promote lower emission, non-renewable power generation technologies. The changes give the Department of Energy Resources (“DOER”) (formerly the “Division of Energy Resources”) additional influence over the development of renewable energy in Massachusetts and create new market opportunities for businesses in the energy technology and renewables sector.

SUMMARY

Three recent Massachusetts Supreme Judicial Court (“SJC”) decisions have clarified two areas of uncertainty relative to the Massachusetts Comprehensive Permit Statute, Mass. Gen. Laws Chapter 40B. The SJC has provided much-needed guidance as to (1) when municipalities can challenge Subsidized Housing Inventory (SHI) calculations, and (2) when developers are entitled to challenge comprehensive permit conditions. These decisions are of importance to anyone involved in the development, financing, or permitting of affordable housing projects in Massachusetts.

In two related cases decided on May 27, 2008, the SJC ruled that a municipality must exhaust its administrative remedies before bringing a court action contesting the Department of Housing and Community Development (DHCD)’s calculation of the municipality’s SHI. In the third case, decided on June 10, 2008, the SJC ruled that developers cannot successfully challenge conditions attached by local zoning boards to comprehensive permits unless they can demonstrate that those conditions render the proposed project uneconomic.

SUMMARY

A recent decision by the Massachusetts Court of Appeals on standing to sue may have important implications for projects seeking to qualify to sell renewable energy credits (RECs) in Massachusetts. In Indeck Maine Energy vs. Commissioner of the Division of Energy Resources, the Court held that a renewable energy company that sells RECs pursuant to Massachusetts’ renewable portfolio standard program (RPS) has standing to challenge the Massachusetts Division of Energy Resource’s (DOER’s) decision to qualify a competitor in the REC market. The Commonwealth has only met its RPS goals through the sale of RECs one year since the program began in 2003, and the Indeck decision may make achieving that goal even more difficult in the future.

SUMMARY

Law to affect permitting of energy facilities and commercial developments .

On May 28, 2008, Massachusetts Governor Deval Patrick signed the Oceans Act of 2008. This legislation makes Massachusetts the first state in the nation to create a uniform mechanism for managing projects and uses in ocean areas. The Act requires the development of a comprehensive plan for the management of Massachusetts's ocean resources (“the Plan”), focused on balancing the need for both commercial uses of the ocean and conservation of its resources. Prior to the Act, regulation of ocean activities in the Commonwealth was divided between numerous state agencies, each with its own jurisdictional and regulatory standards.

SUMMARY

On June 16, 2008, the SJC issued its much-anticipated decision in Michael D. Bank et al v. Thermo Elemental, Inc. et al., clarifying that line-by-line compliance with “every detail” of the Massachusetts Contingency Plan (MCP) is not a prerequisite to recovery of any of the response costs incurred by a property owner via the cost-recovery provisions of the MCP in MGL Chapter 21E.  The SJC also confirmed that attorneys fees incurred in implementing a site cleanup – as opposed to litigation-related attorneys’ fees – are recoverable as response costs under Chapter 21E.

SUMMARY

While the debate over federal climate change regulation continues, several US states and regions have enacted their own programs. One of the first to act was Massachusetts, which in 2001 promulgated carbon limitations applicable to six existing power plants. Those regulations established an emission limit of 1,800 pounds of carbon per MWh and sharply limited the use of many types of carbon credits to meet the specified carbon targets. The regulations also allowed Massachusetts Department of Environmental Protection (“DEP”) to invoke a “safety value” if DEP determined that the Massachusetts requirements could not otherwise be achieved. Earlier this month, DEP determined just that and opened up its carbon markets. Although this individual action affects only a few sources and only for emissions generated in 2008, it is indicative of some of the regulatory flexibility that will be needed as regulators and regulated sources begin to grapple with the practicalities of climate change regulation. Most interested observers believe that climate change regulation will only continue to increase, but precisely how that process will unfold remains to be seen.

SUMMARY

Established in December 1980 by the partners of law firm Foley Hoag, The Foley Hoag Foundation is a private foundation that seeks to combat racism, especially among youth, in the City of Boston. The Foundation awards grants to organizations working to improve the racial climate in Boston by addressing issues of diversity and racism. Grantee organizations achieve their goals through a variety of means, including arts and cultural activities, youth leadership and recreational programs. Other grantees provide advocacy assistance, enabling individuals to confront racism through legal or political action. Some grantee organizations work to prepare young children to live in the reality of a multicultural society, others engage teens, and a few target a primarily adult constituency.

The Foley Hoag Foundation was the first—and remains the only— foundation to focus exclusively on the improvement of race relations in Boston. The trustees are fortunate to have the unqualified endorsement of Foley Hoag, which has provided an enormous amount of financial, administrative and moral support.

SUMMARY

Two recent developments, one by the Massachusetts Department of Environmental Protection (“MassDEP”) and one by ASTM International (“ASTM”), underscore the importance of addressing indoor air contamination that results when soil or groundwater contamination migrates as vapor.  On the regulatory side, MassDEP has emphasized its focus on this issue by issuing a flurry of draft guidance and procedures.  From an industry perspective, ASTM recently released a new industry standard for assessing indoor air contamination at properties that are the subject of real estate transactions.  As MassDEP’s draft standards are regulatory in nature and appear stricter than the ASTM standard, the ASTM standard may be of limited relevance here in Massachusetts.  However, it may serve to set the standard of care in states where Superfund regulations on this topic are not as detailed as those in Massachusetts.

SUMMARY

Yesterday, the U.S. Environmental Protection Agency published its long-anticipated formal determination on California's request to waive federal preemption of its automobile emissions standards for greenhouse gas emissions ("GHGs"). Although the ultimate fate of the EPA's determination will almost certainly be decided by the courts, the dispute between California and the EPA highlights the tension between state and federal efforts to regulate GHGs.

SUMMARY

Excerpt:

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Download the Foley Hoag Corporate Social Responsibility Brochure (.pdf)

SUMMARY

Massachusetts has significantly amended its waterways statute, Mass. Gen. Laws Chapter 91, clarifying the authority of the Department of Environmental Protection (DEP) to issue licenses for construction or development on “landlocked tidelands.” The amendments are important to anyone developing or owning property that is now or was formerly subject to the ebb and flow of the tides, even if that land was filled in decades or centuries ago.

In February 2007, the Massachusetts Supreme Judicial Court ruled in Moot v. Department of Environmental Protection that DEP acted without sufficient legislative authorization when it granted the developer of the NorthPoint project a license to develop a large parcel in Cambridge that was located partially on filled -- and now “landlocked” -- tidelands. Tidelands become landlocked, according to the definition provided in Chapter 91, when they are separated from “flowed” tidelands by a public way and filled in. Many tidelands thus landlocked have historically been built upon as reclaimed land; although the most prominent landlocked tideland in the Commonwealth is Boston’s Back Bay, landlocked tidelands exist in numerous other communities, including Gloucester, Salem, and New Bedford.

The Court agreed with the Moot plaintiffs, noting that Chapter 91 requires DEP to “preserve and protect” the public’s rights in tidelands, and that those public rights can only be relinquished or extinguished by the Legislature. The Court held that while DEP was authorized to license “non-water-dependant” uses of tidelands, it could only do so if such a use constituted a “proper public purpose.” While declining to determine what precisely constitutes a “proper public purpose,” the Court held that the failure to hold a public hearing regarding whether proper public purposes existed meant that DEP had failed to meet its statutory mandate. In particular, the Court explicitly invalidated the DEP regulations (310 Code Mass. Regs. § 9.00 et seq.) that categorically exempted “landlocked tidelands” from licensing and public review requirements.

Following the Court’s decision, there was extensive public concern that both ongoing and existing developments on landlocked tidelands -- which had proceeded pursuant to the Court-invalidated DEP regulations -- could themselves be declared in contravention of Chapter 91, thus complicating further development and potentially clouding hundreds of property titles. By some accounts, over 3,000 acres of landlocked tidelands currently exist within the Commonwealth. After lengthy discussions involving Governor Deval Patrick, the Legislature, and interest groups, the Legislature responded to the Moot decision by passing legislation meant to redress the authority of DEP to license and oversee development on the Commonwealth’s tidelands. This legislation, entitled “An Act Relative to the Licensing Requirements for Certain Tidelands,” was signed into law by Governor Patrick on November 15, 2007.

SUMMARY

Massachusetts has become one of the first states in the nation to require developers of certain projects to quantify and mitigate greenhouse gas (“GHG”) emissions. On October 19, 2007, the Executive Office of Energy and Environmental Affairs (“EEA”) issued the final MEPA Greenhouse Gas Emissions Policy and Protocol (“GHG Policy”), available here (.pdf). Projects subject to the policy for which developers submit an Environmental Notification Forms (“ENF”) or Expanded Environmental Notification Form (“EENF”) after October 31, 2007 must include GHG quantification and mitigation pursuant to this policy. The MEPA office will also review Notices of Project Change submitted after October 31st on an individual basis to determine whether the project will be required to comply with the policy.

The Massachusetts Environmental Policy Act (“MEPA”) requires developers of projects with significant direct air emissions or transportation impacts to prepare and file Environmental Impact Reports (“EIRs”). The GHG Policy does not make any changes regarding what projects are subject to the EIR filing requirement. Instead, it requires certain projects already subject to the EIR requirement to quantify the potential greenhouse gas (GHG) emissions caused by the project, and identify measures to avoid, minimize or mitigate such emissions.

Although the policy requires quantification of both GHG emissions and any proposed mitigation, the EEA has emphasized that 100% certainty in projections is not required. EEA has also stated that the GHG Policy is not intended to create a numerical GHG emission limit or reduction target. However, EEA has provided an appendix with a very detailed list of potential mitigation measures. Only time will tell how flexible EEA will actually be concerning what types of mitigation will be required under the GHG Policy.

SUMMARY

This guide is intended to provide foreign businesspeople with an introduction to the basic kinds of laws and regulations that affect the conduct of business in the United States, and particularly in the Commonwealth of Massachusetts. The level of detail is varied, reflecting the nature of the legal areas discussed. For example, environmental law and taxation are subjects of detailed and technical regulation, while labor relations are governed as much by custom and practice as by direct regulation.

SUMMARY

Chambers and Partners, a leading U.K.-based research and publishing company, has again included Foley Hoag and its individual lawyers in its popular Chambers USA: The Client's Guide. This year, eleven practice areas and 22 lawyers are represented.

A digital reprint is avalable for download (.pdf).

SUMMARY

Presentation at Massachusetts Continuing Legal Education seminar, "Brownfields: Legal and Practical Tips To Get A Good Deal Done"