Foley Hoag LLP

SUMMARY

In the final hours of the session, the Massachusetts Legislature passed sweeping economic development legislation which included, as section 173, what has come to be known as the Permit Extension Act. The purpose of the Permit Extension Act is to recognize that the economic downturn has meant that projects that were otherwise “shovel-ready” may have difficulty in the short-run obtaining financing. If we want to help the economy get back on its feet, we shouldn’t make those projects have to go through the Massachusetts state and local permitting gauntlet again, just because the financing problems may have meant that permits would expire before the develop can get in the ground.  [more... ]

SUMMARY

On July 6, 2010, the United States Environmental Protection Agency (“EPA”) released a proposed rule designed to address the transport of certain air pollutants across state boundaries. Once finalized, the proposed rule, dubbed the “Transport Rule”, would replace the Clean Air Interstate Rule (“CAIR”), promulgated in 2005. Although still in effect, in 2008 CAIR was remanded to EPA by the U.S. Court of Appeals for the District of Columbia Circuit in North Carolina v. EPA. EPA anticipates that the Transport Rule will be finalized in the late spring of 2011. [more... ]

SUMMARY

In early February, the Securities and Exchange Commission published an interpretive release (Release Nos. 33-9106 and 34-61469) about public company disclosures related to climate change. The Commission has previously stated that it is not making new law, nor is it taking a position on any aspect of the debate concerning climate change. Instead, the release summarizes the current state of that debate, reminds companies of the existing regulatory scheme requiring disclosures concerning environmental and climate matters, and then — in what is clearly the most helpful part of this fairly short release — enumerates and describes the kinds of disclosures that the Commission believes would be, and should be, captured by the current regulatory system.

SUMMARY

The U.S. Securities and Exchange Commission (SEC) issued interpretive guidance yesterday which requires publicly traded companies to consider the impacts of climate change – both the physical damage it could cause, as well as the economic impacts of domestic and international greenhouse gas emissions-reduction rules – and disclose those risks to investors.

SUMMARY

The narrow passage by the House of Representatives of H.R. 2454, the American Clean Energy and Security Act of 2009 [.pdf], by a vote of 219-212 on Friday, June 26, marks the first time that major legislation on global warming has passed either house of Congress.  The Bill, which is 1,428 pages long, includes many key concepts from the draft introduced by Representatives Henry Waxman and Edward Markey in May, as well as a number of revisions and additions that ensured its passage. 

Attention now turns to the Senate, which, according to statements by key committee members and Obama Administration officials, will likely not reach a vote on global warming legislation until this fall, at the earliest.  Should the Bill fail to pass in the Senate, greenhouse gas emissions may still be regulated through other methods, such as state and regional climate change initiatives and possibly direct regulation by the EPA through the Clean Air Act, under its endangerment finding.

SUMMARY

Monday’s Supreme Court’s decision in Burlington Northern v. United States (.pdf) will significantly affect the outcome of many pending and future Superfund disputes. The opinion’s two principal holdings narrow the scope and extent of many parties’ liability at Superfund sites and breathe new life into defenses that had long been given little credence by the United States EPA and the courts. First, in a major departure from prior lower court decisions, the Court held that a defendant must actually intend that waste be disposed of before it can be found liable as an arranger under § 107(a)(3) of CERCLA. Second, it expanded the circumstances under which a party could show that the harm attributable to it is divisible from other harms at a site and thereby avoid joint and several liability. In this part of the decision, the Court held that imposition of joint and several liability was inappropriate because the District Court had permissibly and reasonably apportioned liability of the landowner based on the percentage of the site that it owned and the time period during which operations that led to contamination occurred on that parcel. Prior lower court decisions imposed a much higher burden on a party attempting to show why it should not be jointly and severally liable, which in turn frequently made minor contributors to site conditions responsible for the entire cost of cleanup.

SUMMARY

The Environmental Protection Agency (EPA) has officially opened the 60-day comment period on a proposed rule that would impose greenhouse gas emissions reporting requirements on industrial facilities that emit more than 25,000 tons of CO₂ equivalents per year.  The proposed rule (.pdf) was released March 10 (see our Client Alert for more information), but was not published in the Federal Register until April 10.

SUMMARY

As the next step in implementing the economy-wide cap on greenhouse gas emissions mandated by the Global Warming Solutions Act (GWSA), the Massachusetts Department of Environmental Protection (DEP) issued proposed amendments to 310 CMR 7.71 (.pdf), which create comprehensive regulations regarding the mandatory reporting of greenhouse gases in Massachusetts. (See our December 18 Environmental Alert for more information on the emergency regulations, implemented in December). The public hearing on the proposed amendments is scheduled for April 30, and comments are due May 11. The third phase of regulations, regarding how emissions will be capped and reduced by 10-25% by 2020 and 80% by 2050 as required by the GWSA, will be promulgated in 2011. 

The proposed regulations are similar in some respects to the existing emergency regulations, but they include important new provisions relating to reporting by electricity sellers, mandatory third party verification of submissions, and voluntary emission reports.

SUMMARY

The Environmental Protection Agency (EPA) yesterday proposed regulations [.pdf] which create the first nationwide system for reporting emissions of CO₂ and other greenhouse gases emitted by major sources in the US. The proposed regulations were promulgated pursuant to the FY2008 Consolidated Appropriations Act [.pdf], which was signed into law in December 2007, and which instructs the EPA to require mandatory reporting of greenhouse gas emissions in all sectors of the economy. Approximately 13,000 facilities will be subject to the rule, accounting for 85% to 90% of greenhouse gases emitted in the U.S. Despite this large percentage, most small businesses will not be subject to the rule, as the primary threshold is set at 25,000 metric tons of CO₂ equivalent, an amount equal to the emissions from 2,200 homes, 58,000 barrels (2.4 million gallons) of oil, or 131 rail cars of coal. This reporting threshold is higher than many of the proposed or final regional greenhouse gas thresholds. For example, it is five times larger than the threshold in the Massachusetts regulations at 310 CMR 7.71, and well above the Western Climate Initiative reporting threshold of 10,000 tons.

SUMMARY

Strong support from the Obama Administration, and billions in financial incentives from Congress, point to rapid growth opportunities for businesses in the smart grid space.  Passage of the American Recovery and Reinvestment Act [.pdf] (“ARRA”) on February 17, 2009 injects billions of dollars into the development and deployment of smart grid technologies.  However, businesses need to know more than just how much money Congress appropriated: knowing how these appropriations will reach the market, and how ARRA’s programs will interact with other energy policy issues, is essential to take advantage of this unprecedented level of federal energy investment.

SUMMARY

Rulemaking Process to Begin in Earnest in 2009

On December 5, 2008 the Massachusetts Department of Environmental Protection (DEP) announced draft emergency regulations that will put in motion the economy-wide cap on greenhouse gas emissions created by the Global Warming Solutions Act (GWSA), a law calling for 80% reductions of greenhouse gasses by 2050. The GWSA became law on August 7, 2008. (See our August 15 Environmental Alert for more information.)

SUMMARY

On November 17, 2008, the Massachusetts Department of Environmental Protection (“MassDEP”) announced a proposed new set of regulations to implement a statewide stormwater management program. Whereas current stormwater regulations focus on the operators of municipal stormwater systems and owners of certain construction and industrial sites, the proposed regulations would also enlist private property owners of impervious surfaces (roadways, parking lots, roofs, etc.) of five acres or more in stormwater management. These proposed rules are intended to reduce nonpoint sources of pollution, but will have significant effects on commercial property owners.

SUMMARY

As soon as January 1, 2009, new construction or gut renovation of a healthcare facility in Massachusetts may need to meet green building standards.

On September 24, 2008, the Massachusetts Department of Public Health ("DPH") approved new guidelines (the "Guidelines") that incorporate the Leadership in Energy and Environmental Design-Health Care ("LEED-HC") and Green Guide for Health Care ("GGHC") green building standards into the Determination of Need ("DoN") process. The Guidelines will apply to all DoN applications filed on or after January 1, 2009 (for hospitals and clinics) or July 1, 2009 (for nursing homes). [continues...]

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.