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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.

Supreme Court to Decide Case That Could Redefine Boundaries of Judicial and Environmental Review of Federal Permit Applications
Blog March 11, 2026
Supreme Court to Decide Case That Could Redefine Boundaries of Judicial and Environmental Review of Federal Permit Applications
When a federal agency applies for a permit, has it made a “final” decision that courts can review, or is it just one step in a longer regulatory process?…
The Law Is An Ass, RCRA Edition
Blog October 14, 2021
The Law Is An Ass, RCRA Edition
Late last month, the 9th Circuit Court of Appeals ruled that a public water supplier could be liable in a citizens' suit brought under the imminent and substantial endangerment provisions of RCRA, where the plaintiff alleged that the groundwater used by the supplier had been contaminated by the disposal of hexavalent chromium by a wood treatment facility upgradient of the supplier's well field. Blaming the victim doesn't quite cover this…
EPA Guidance on Remedial Work During the COVID-19 Emergency
Blog April 13, 2020
EPA Guidance on Remedial Work During the COVID-19 Emergency
I hope that I am not struck down for saying this, but EPA's guidance on doing remedial work during the COVID-19 emergency is reasonable and appropriate.  At the risk of oversimplifying, it basically has two requirements: Consider the benefits to be obtained by performing the work, and prioritize work intended to eliminate or abate serious hazards that are imminent, such as immediate risks to indoor air or drinking water supplies…
EPA Weighs In On Whether Discharges to Groundwater Can Be Subject to the CWA - You Wont Be Surprised at the Answer
Blog April 17, 2019
EPA Weighs In On Whether Discharges to Groundwater Can Be Subject to the CWA - You Wont Be Surprised at the Answer
On Monday, EPA issued an Interpretive Statement concluding that point source discharges to groundwater are never subject to NPDES permitting requirements.  EPA did a good job marshalling its arguments – much better than this EPA has done in a number of similar situations. I have previously noted the difficulties associated with regulating point source discharges to groundwater under the NPDES program…
Injunctions In RCRA Citizen Suits - Broad, But Not Infinite
Blog March 12, 2019
Injunctions In RCRA Citizen Suits - Broad, But Not Infinite
Two recent cases illustrate the potential scope of, and the potential limitations on, injunctive relief in RCRA citizen suits.  First up, Schmucker v. Johnson Controls. Contamination was detected at the Johnson Controls manufacturing facility in Goshen, Indiana.  In response, Johnson Controls performed substantial remediation under the auspices of the Indiana Department of Environmental Management's Voluntary Remediation Program.  Nonetheless, significant contamination remains at the site…
Are Discharges to Groundwater Potentially Subject to the Clean Water Act? A Circuit Split Tees It Up.
Blog September 26, 2018
Are Discharges to Groundwater Potentially Subject to the Clean Water Act? A Circuit Split Tees It Up.
The Sixth Circuit ruled earlier this week that discharges to groundwater are not subject to Clean Water Act jurisdiction.  We now have the requisite circuit split, opening the possibility of Supreme Court review.  For those who might still be open-minded, I commend both the majority and dissenting opinions in the 6th Circuit; they are each as clear and as persuasive as they could be. Although I have long thought that it does not make sense to regulate discharges to groundwater under the……
A Leaking Settling Pond Is Not A Point Source
Blog September 14, 2018
A Leaking Settling Pond Is Not A Point Source
On Wednesday, the 4th Circuit Court of Appeals reversed a District Court ruling and rejected the Sierra Club's citizen suit against Virginia Electric Power alleging that releases of arsenic from a coal ash landfill and settling ponds at its Chesapeake Energy Center power plant violated the Clean Water Act and the plant's NPDES permit.  Notably, the issue that most concerned me at the time of the District Court opinion…
Massachusetts Innovates Again, This Time With New Climate Change Litigation
Blog October 05, 2016
Massachusetts Innovates Again, This Time With New Climate Change Litigation
As an MIT grad and loyal resident (Go Sox!), I'm always happy to see stories about Massachusetts' role in the innovation economy.  Last week, news arrived of more innovation in Massachusetts – this time on the legal front.  CLF sued Exxon Mobil for not adapting its Everett storage terminal to harden it against the effects of climate change. I've previously raised the possibility that…
EPA To Rename OSWER: How About The Office That Should Be Eliminated As Soon As Possible?
Blog October 30, 2015
EPA To Rename OSWER: How About The Office That Should Be Eliminated As Soon As Possible?
According to the Daily Environment Report (subscription required), EPA is going to change the name of the Office of Solid Waste and Emergency Response to the Office of Land and Emergency Management.  What a grand name; surely it is an improvement. I don't think that this quite rises to the level of rearranging deck chairs on the Titanic (though I certainly have clients who would not object if OSWER sank without a trace)…
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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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