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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.

How Much Deference to Agency NEPA Decisions After Seven County? Definitely
Blog January 08, 2026
How Much Deference to Agency NEPA Decisions After Seven County? Definitely More, But Not Infinite.
Judges inclined to support agency decision making would point to the deference given to agency decisions under the APA, while judges unsympathetic to the agency position would point to the limits on deference to the agencies…
FWS and NMFS Propose to Eliminate Habitat Loss From the Definition of "Harm" Under the ESA: Is This the "Best Meaning" of the ESA?
Blog April 24, 2025
FWS and NMFS Propose to Eliminate Habitat Loss From the Definition of "Harm" Under the ESA: Is This the "Best Meaning" of the ESA?
Earlier this week, my colleagues Adam Kahn and Kevin Chen posted about the proposed rule issued by the Fish and Wildlife Service and the National Marine Fisheries Service that would rescind the definition of “harm” under the Endangered Species Act to exclude adverse impacts on habitat…
Major Shift Proposed for Endangered Species Act Interpretation: Redefining “Harm”
Blog April 23, 2025
Major Shift Proposed for Endangered Species Act Interpretation: Redefining “Harm”
On April 17, 2025, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) issued a proposed rule to rescind the regulatory definition of “harm” under the Endangered Species Act (ESA)…
EPA Must Consult With Other Agencies Before Issuing Water Quality Criteria: Is This an Example of Congressional Use of Behavioral Economics?
Blog September 05, 2023
EPA Must Consult With Other Agencies Before Issuing Water Quality Criteria: Is This an Example of Congressional Use of Behavioral Economics?
Last month, Judge John Hunderaker held that the Endangered Species Act requires EPA to consult with the Fish and Wildlife Service and the National Marine Fisheries Service before issuing recommended water quality criteria.  He also vacated EPA's 2016 chronic freshwater criterion for cadmium.  The case is potentially important for a number of reasons.  First, it's a thorough analysis of standing in cases where the plaintiffs claim a procedural injury – here…
How Much Are We Willing to Pay to Save the Oregon Spotted Frog?
Blog August 04, 2023
How Much Are We Willing to Pay to Save the Oregon Spotted Frog?
Greenwire (subscription required) reported this week that the Fish Wildlife Service Recovery Plan for the Oregon spotted frog estimates that the cost to achieve recovery of the frog will be roughly $2.7 billion over 40 years.  This post isn't about the Oregon spotted frog or even about the Endangered Species Act as a whole.  (I've blogged multiple times about how flawed the NAAQS-setting process is from a cost-benefit point of view.)  It's not about whether $2.7 billion is a lot of money……
Our Environmental Statutes Are Broken
Blog November 30, 2022
Our Environmental Statutes Are Broken
Last week, the D.C. Circuit Court of Appeals granted a writ of mandamus to the Center for Biological Diversity, imposing a deadline on EPA to issue an “effects determination” concerning the potential impacts of the pesticide cyantraniliprole. This effects determination was supposed to be issued before EPA registered the pesticide.  Unfortunately, EPA did not do so.  Moreover, EPA acknowledged that it routinely registered pesticides without performing the required effects determination…
FWS and NOAA Decide That "Habitat" Should Not Be Defined By Regulation: I Hope This Is Good News
Blog June 24, 2022
FWS and NOAA Decide That "Habitat" Should Not Be Defined By Regulation: I Hope This Is Good News
This week, the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration issued a rule rescinding the rule issued in 2020 defining “habitat” for the purposes of determining what constitutes “critical habitat” under the Endangered Species Act.  You see, in a piece of expert legislative drafting in 1973, Congress defined the term “critical habitat” without defining “habitat” in the first place.  Sigh. This came to a head in 2018 in Weyerhaeuser v…
Sage Grouse Habitat Still Gets Priority in BLM Leasing Decisions
Blog May 27, 2020
Sage Grouse Habitat Still Gets Priority in BLM Leasing Decisions
Last week, Chief Judge Brian Morris of the Federal District Court for the District of Montana vacated an “Instruction Memorandum” issued by BLM in 2018 – and also vacated numerous oil and gas leases issued in reliance on the 2018 IM.  The 2018 IM changed the way BLM interpreted land management plans issued by BLM in 2015 in order to preserve sage grouse habitat, and avoid the necessity for listing the sage grouse as endangered under the ESA…
Can Cooperation Save the Monarch Butterfly?
Blog April 14, 2020
Can Cooperation Save the Monarch Butterfly?
In another (shocking) piece of good news from the Trump Administration, the Fish Wildlife Service last week announced a major agreement for the recovery of the monarch butterfly.  The agreement will be implemented by the University of Illinois – Chicago and will involve the participation of dozens of companies in the energy and transportation sectors. The key to the agreement is the Candidate Conservation Agreement with Assurance…
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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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