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
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Department of Energy Releases Final Guidance on Designation of National Interest Electric Transmission Corridors
On December 19, 2023, the U.S. Department of Energy (DOE) released long-awaited final guidance on its process to designate National Interest Electric Transmission Corridors (commonly referred to as “NIETCs,” pronounced NIT-sees). Once designated, these corridors will bolster federal permitting authority over transmission projects in areas most in need of additional capacity.
As we’ve previously noted…
IRS Releases Guidance on SAF Tax Credit and Signals Forthcoming Revisions to GREET Model for Determining Lifecycle GHG Emissions Reductions
On December 15, 2023, IRS published Notice 2024-06, a brief but important guidance on Section 40B, the Inflation Reduction Act (“IRA”) tax credit for sustainable aviation fuel (“SAF”). The guidance establishes a safe harbor for SAF that generates RINs under the federal Renewable Fuel Standard program (“RFS”). It also announces that the Department of…
More Litigation Concerning Plastic Pollution: Can Claims Be Both Novel and Traditional at the Same Time?
Last month, I advised plastics manufacturers to prepare for more litigation. Although I am generally loath to speculate, it already looks as though this prediction is coming true. Earlier this month, PennEnvironment and Three Rivers Waterkeeper filed suit against BVPV Styrenics and its parent company. BVPV manufactures expandable polystyrene at its facility in Monaca, Pennsylvania. …
Another Study Regarding the Health Impacts of PM Emissions From Power Plants: What Impact Will It Have On Regulation and Litigation?
An article in Science published last week indicates that the mortality risk from exposure to PM2.5 from coal-fired electric generating units is roughly twice as high as the risk posed by PM2.5 from other sources. According to the article, there were roughly 460,000 excess deaths in the United States from 1999-2020 resulting from exposure to…
Is Litigation the Solution to Plastic Pollution?
Earlier this week, New York State Attorney General Letitia James filed suit against PepsiCo. At the core of the case are allegations that PepsiCo.’s widespread use of single-use plastics has created or contributed to a public nuisance in the Buffalo River.
I don’t doubt that plastic-related conditions in the Buffalo River constitute a public nuisance. …
What Will Be the Real Consequences of an EPA Decision to List PFAS as Hazardous Substances Under CERCLA?
Last week, Inside EPA (subscription required) reported that EPA will reopen CERCLA cleanups due to the presence of PFAS on a case-by-case basis. The article reported on the gnashing of teeth among the regulated community at the prospect of seeing a significant number of sites reopened. As a card-carrying member of the regulated community, I…
Oil and Hazardous Substances; Never the Twain Shall Meet
Late last month, in Munoz v. Intercontinental Terminals Company, the 5th Circuit Court of Appeals held that the liability provisions of CERCLA and the Oil Pollution Act do not overlap and that, consequently, where oil and hazardous substances commingle, the sole remedy is under CERCLA.
As the Court correctly noted, it has long been…
Connecticut Issues RFP for 2 GW of Offshore Wind
Earlier today, the Connecticut Department of Energy & Environmental Protection (“DEEP”) issued an RFP for up to 2 GW of offshore wind. The RFP solicits bids to enter into long-term power purchase agreements for energy, renewable energy certificates (RECs), and related environmental attributes. Responses to the RFP will be evaluated by various state agencies and the…
New Report Details Massachusetts Whole-of-Government Approach to Climate Crisis
Yesterday, Massachusetts Climate Chief Melissa Hoffer issued a report detailing how “to implement the Healey-Driscoll Administration’s whole-of-government approach to addressing the climate crisis.” The report identifies trends, barriers, and gaps in Massachusetts climate policy, establishes guiding principles for whole-of-government climate action, and offers recommendations to strengthen the “climate-related practices and policies of executive department agencies.”…