This week, Inside EPA (subscription required) ran a story indicating that EPA is trying to figure out how to juggle some increasingly expensive cleanups with shortfalls in Superfund tax revenue. The story notes that EPA is adding expensive new sites to the National Priorities List, while also anticipating new costs resulting from PFAS regulation and
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Update on RGGI in Pennsylvania
In 2022, Pennsylvania became the 12th member of the Regional Greenhouse Gas Initiative (“RGGI”). Pennsylvania joined RGGI pursuant to a 2019 executive order and a subsequent rulemaking promulgated by the state’s Department of Environmental Protection (“DEP”) and Environmental Quality Board (“EQB”).
Later that year, various parties—including power producers, coal mine owners, and labor unions (collectively,…
The D.C. Circuit Vacates Most of EPA’s SSM SIP Call; Generators Breath a Sigh of Relief
Earlier this month, the District of Columbia Court of Appeals vacated most of EPA’s startup, shutdown, and malfunction SIP Call. The Court’s rationale boils down to EPA’s failure to make a predicate finding that the SIP call was “necessary or appropriate to meet the [CAA’s] applicable requirements.” Without plumbing the depths of the Clean Air…
The SJC Provides New Guidance to Litigants in Anti-SLAPP Cases; I’m not Optimistic
Last week, in Bristol Asphalt v. Rochester Bituminous Products, the SJC jettisoned two prior decisions and revised its directions to lower courts regarding how to handle “special motions to dismiss” under Massachusetts’ so-called “Anti-SLAPP” statute. If you don’t know what SLAPP stands for, you can just stop reading now.
The purpose of the Anti-SLAPP…
How Brown is Brown Enough? An Update on the IRA ITC Adder for Brownfield Sites
It is now almost 18 months since Congress enacted the Inflation Reduction Act. One of the IRA’s provisions was an adder to the ITC for renewable energy projects located in an “energy community”. One way to be in an energy community is to be a brownfield. The IRA defined a brownfield simply as a facility…
EPA Lowers the PM2.5 NAAQS: Goldilocks Can Sleep Soundly
Yesterday, EPA finalized a rule lowering the primary annual National Ambient Air Quality Standard for PM2.5 to 9.00 ug/m3. This is a significant reduction from the current 12.00 ug/m3 standard and a victory for environmentalists, even though they had advocated for larger reduction.
There is substantial evidence supporting the reduction, both in the legal and…
One More Problem with the Climate Superfund Act
In my discussion yesterday of the shortcomings of the Climate Superfund Act, I actually ignored arguably its biggest flaw.
While the Act certainly looks much like a tax, I failed to point out that the Act omits what is typically the biggest selling point of a carbon tax – its impact on prices and consumption…
The Original Superfund Worked So Well; Let’s Replicate It to Deal with Climate Change!
As I’ve noted many times, criticizing CERCLA is like shooting fish in a barrel. Apparently, however, my criticism is not universally shared. According to WBUR, some legislators around the country are so pleased with how well CERCLA works that they have proposed a “Climate Superfund Act,” replicating CERCLA in order to fund climate…
Each Federal Agency Should Use Its Judgment in Determining the Social Cost of Carbon — How’s That Going to Work Out?
Late last month, the Interagency Working Group on Social Cost of Greenhouse Gases quietly released a three-paragraph memo on how agencies should determine the social cost of greenhouse gas emissions. I hesitate to call it “guidance.” Here’s the operative language:
As agencies consider applying the SC-GHG in various contexts, agencies should use their professional judgment…
The Energy Policy and Conservation Act – Still – Preempts Berkeley’s Ban on New Natural Gas Connections
Last week, the 9th Circuit voted against rehearing en banc its decision from last April finding the City of Berkeley’s ban on natural gas connections in new construction to be preempted by the Energy Policy and Conservation Act. Judge Friedland, joined by seven other judges (and three senior judges!) dissented from the denial, writing a…