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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.

NSR Enforcement Lives On (For Now) A Split Decision for Ameren
Blog August 27, 2021
NSR Enforcement Lives On (For Now) A Split Decision for Ameren
The 8th Circuit Court of Appeals has largely affirmed a District Court order finding that Ameren Missouri violated the NSR provisions of the Clean Air Act in making major modifications to its Rush Island facility.  The Appeals Court did reject the District Court's requirement that Ameren Missouri make improvements at its nearby Labadie facility that was not in violation of the CAA. I have three thoughts about the decision…
I Love It When SCOTUS Reminds Me How Clear and Unambiguous CERCLA Is
Blog May 25, 2021
I Love It When SCOTUS Reminds Me How Clear and Unambiguous CERCLA Is
Yesterday, the Supreme Court ruled that only settlements that explicitly resolve liability under CERCLA trigger the contribution provisions of section 113 of CERCLA.  I have previously commented on the Court's tendency to treat CERCLA as much more straightforward and unambiguous than practitioners have understood it to be.  The Court's approach to section 113 in yesterday's decision followed this now well-worn path.  In a short, sweet, and unanimous decision…
It's Still Good to Be King; SCOTUS Continues to Interpret CERCLA In Ways Unrecognizable to Practitioners
Blog April 20, 2020
It's Still Good to Be King; SCOTUS Continues to Interpret CERCLA In Ways Unrecognizable to Practitioners
I have previously discussed how nice it must be for Supreme Court justices to reach judicial decisions from on high, without getting their collective hands dirty worrying about the practical consequences of their decisions.  The same has always been true with respect to SCOTUS decisions concerning CERCLA, which has seemed far simpler to SCOTUS than to us poor lawyers who have to actually make it work. Exhibit A for this argument is the latest SCOTUS Superfund decision…
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…
Its Better to Be the Plaintiff Than the Defendant in Massachusetts Superfund Cases
Blog January 22, 2018
Its Better to Be the Plaintiff Than the Defendant in Massachusetts Superfund Cases
In the early days of Superfund, defense lawyers used to joke that all government lawyers had the same oral argument script.  It was three sentences long. Good afternoon, your honor.  My name is _____ and I represent the government in this case.  We win. Lawyers in Massachusetts rightly feel that that pretty much remains the state of affairs in Massachusetts, at least for private cost recovery or property damage claims…
The Statute of Limitations Narrows a Bit More on PSD Violations: Sierra Club Suffers a Self-Inflicted Wound
Blog March 10, 2016
The Statute of Limitations Narrows a Bit More on PSD Violations: Sierra Club Suffers a Self-Inflicted Wound
The law is full of fine distinctions.  Today's example?  A divided 10th Circuit panel affirmed dismissal of the Sierra Club's citizen suit claims against Oklahoma Gas and Electric concerning alleged PSD violations at OGE's Muskogee plant because the Sierra Club did not sue within five years of the commencement of construction – even though Sierra Club did sue within five years of the completion of construction…
CERCLA Remains Ridiculous: A Remedy In Operation For 18 Years Is Short Term
Blog October 21, 2015
CERCLA Remains Ridiculous: A Remedy In Operation For 18 Years Is Short Term
Far too frequently, we are reminded just how hard judges must work to save CERCLA from itself.  The decision last week in California River Watch v. Fluor Corporation is the most recent compelling example. Fluor Corporation has been performing response actions at a site, including operating a soil vapor extraction system, since no later than 1997.  Fluor's remedial action plan was not approved until 2011 and a modified RAP was approved in 2014…
Perhaps EPAs NSR Enforcement Initiative Is Now Dead? EPA Loses Another
Blog August 31, 2015
Perhaps EPAs NSR Enforcement Initiative Is Now Dead? EPA Loses Another
Last year, after a string of defeats for EPA in its NSR enforcement initiative, I suggested that the initiative was in trouble, but that EPA was probably not yet ready to concede defeat.  After the latest blow, earlier this month, EPA has to be reconsidering.  I assume that EPA won't give up completely until it has lost everywhere or the Supreme Court has weighed in, but the NSR initiative is definitely on life support at this point…
CERCLAs Three Year Statute of Limitations for Contribution Applies To Non-CERCLA Settlements
Blog August 27, 2014
CERCLAs Three Year Statute of Limitations for Contribution Applies To Non-CERCLA Settlements
Parties which settle environmental liability in a judicially approved settlement have three years from the date of that settlement in which to seek contribution even if the settlement is not a CERCLA settlement.  That is the holding in a recent federal case in Montana, ASARCO LLC v. Atlantic Richfield Company.  There, ASARCO had entered into a 1998 consent decree under RCRA and the Clean Water Act to remediate a contaminated site that for over a century had been used as a lead smelting……
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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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