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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.

We’re From the Government and We’re Here to Help You; NPDES Permit Flexibility Edition
Blog September 19, 2024
We’re From the Government and We’re Here to Help You; NPDES Permit Flexibility Edition
Inside EPA reported this week that a group of Democratic state attorneys general have filed an amicus brief supporting EPA’s appeal of a 9th Circuit Court of Appeals decision holding that EPA had authority to include in NPDES permits “narrative prohibitions on discharges that cause or contribute to violations of applicable water quality standards."…
Post-Sackett, Who Will Speak for the Clean Water Act?
Blog December 29, 2023
Post-Sackett, Who Will Speak for the Clean Water Act?
Earlier this month, in Lewis v. United States the 5th Circuit issued a decision interpreting the Supreme Court's decision in Sackett v. EPA.  The 5th 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…
Does EPA Have Authority to Include Narrative Criteria in NPDES Permits? Yes, For Now.
Blog August 02, 2023
Does EPA Have Authority to Include Narrative Criteria in NPDES Permits? Yes, For Now.
Earlier this week, the 9th 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……
EPA and the Corps Promulgate a "Durable" WOTUS Rule - Proving Only That There Is a Difference Between Hope and Expectation
Blog January 04, 2023
EPA and the Corps Promulgate a "Durable" WOTUS Rule - Proving Only That There Is a Difference Between Hope and Expectation
Last week, EPA and the Army Corps finally published their long-awaited rule defining “Waters of the United States.”  Will the WOTUS rule finally provide the clarity for which we have been waiting, allowing the rule to be as “durable” as the agencies claim, or will it instead be dead on arrival, made irrelevant by the upcoming Supreme Court decision in Sackett, which many observers expect will significantly narrow the scope of jurisdiction under the Clean Water Act?…
EPA Proposes A Section 401 "Improvement Rule" - Now That's a Low Bar
Blog June 06, 2022
EPA Proposes A Section 401 "Improvement Rule" - Now That's a Low Bar
Last week, EPA released its proposed “Clean Water Act Section 401 Water Quality Certification Improvement Rule”.  The proposed rule would make a number of significant changes to the rule promulgated by EPA in 2020. I'm going to focus on one in particular, because it could be a good test of just how far the current Supreme Court is willing to go to limit the authority of the executive branch…
EPA Proposes to Use Science to Identify Waters of the United States. Im Shocked, Shocked.
Blog November 23, 2021
EPA Proposes to Use Science to Identify Waters of the United States. Im Shocked, Shocked.
Last week, EPA and the Army Corps proposed a new rule to define what constitutes “waters of the United States.”  Déjà vu all over again. Under the proposal, the agencies: are exercising their discretionary authority to interpret “waters of the United States” to mean the waters defined by the longstanding 1986 regulations, with amendments to certain parts of those rules to reflect the agencies' interpretation of the statutory limits on the scope of the “waters of the United States” and……
The Trump 401 Certification Rule is Vacated Does Anyone Actually Care If Section 401 Works?
Blog October 27, 2021
The Trump 401 Certification Rule is Vacated Does Anyone Actually Care If Section 401 Works?
Late last week, Judge William Alsup vacated the Trump-era EPA amendments to the regulations governing water quality certifications under section 401 of the Clean Water Act.  EPA had requested remand, and made clear that it disagreed with the amendments promulgated in 2020, but it opposed vacatur. Whatever one's view of the merits of the 2020 rule, from the court's perspective, faced with EPA's current statements indicating substantial disagreement with significant elements of the 2020 rule…
Maui's "Functional Equivalent" Test: Courts Are Still Feeling Their Way
Blog September 29, 2021
Maui's "Functional Equivalent" Test: Courts Are Still Feeling Their Way
Earlier this month, the 9th Circuit vacated the District Court judgment in a Clean Water Act citizens' suit, because the basis for the judgment had been undermined by the Supreme Court decision in Maui.  The decision is not a surprise, given that Maui explicitly rejected the prior 9th Circuit test for when discharges to groundwater are subject to the NPDES permitting regime…
Implementing Maui Remains a Case-by-Case Affair, at Least for Now
Blog September 20, 2021
Implementing Maui Remains a Case-by-Case Affair, at Least for Now
Last week, EPA withdrew guidance issued in the waning days of the Trump Administration interpreting the Supreme Court decision in County of Maui v. Hawaii Wildlife Fund.  As the masochists who follow the torturous case law we call Clean Water Act jurisprudence are well aware, SCOTUS ruled in Maui that discharges from point sources to groundwater that are the “functional equivalent” of a direct discharge to surface water are required to obtain NPDES permits…
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Blog Editors

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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