On Tuesday, in Ohio v. EPA, the D.C. Circuit Court of Appeals denied several challenges to EPA’s decision to restore California’s authority under § 209(b) of the Clean Air Act to regulate emissions from motor vehicles.  It’s definitely a win for EPA.  And while I’m leery of my ability to predict what this Supreme Court will do, if I had to guess, I’d say that even this SCOTUS will affirm EPA’s authority.  However, I don’t think either EPA or the states and NGOs that intervened on EPA’s side should get too excited about this decision.  It’s important to remember that this l ..read more

Massachusetts has become the first state to require analysis of cumulative impacts for certain air quality permits in or near communities with environmental justice (EJ) populations. On March 29, 2024, the Massachusetts Department of Environmental Protection (MassDEP) released highly anticipated amendments to its air pollution regulations as required by the environmental justice provisions of the 2021 Climate Roadmap Act. The changes require certain facilities located in or near EJ populations to perform a cumulative impact analysis (CIA) prior to the issuance of certain air emissions permits ..read more

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 more stringent lead cleanup levels.  Can we just face facts and acknowledge that Superfund as presently constituted simply doesn’t work?  It wouldn’t even be fair to say that Superfund is broken, because it’s never worked; there wa ..read more

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 “Petitioners”)—filed a lawsuit in the state’s Commonwealth Court alleging that Pennsylvania’s participation in RGGI was unconstitutional. The Petitioners had asserted that the RGGI rulem ..read more

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 Act’s intricacies, it will give some sense of the nuances of the Act that the Court reached this decision while at the same time rejecting the Petitioners’ argument that EPA: must make factual findings about adverse effects resulting from th ..read more

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 statute is, in brief, to prevent large corporations from stifling petitioning activities by citizen groups.  Unfortunately, the statute is both vague and overbroad, resulting in it becoming “a frequent subject of [SJC] jurisprud ..read more

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 that meets the definition of a brownfield under CERCLA.  And what does that mean?  I defined it pretty simply in the title of our blog post about the brownfield adder:  “It’s good to be a brownfield site – as long as it’s not too brown.”  In other words ..read more

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 the common sense understanding of this term.  The evidence in support of a lower standard has been piling up for some time.  The 9.00 ug/m3 limit is within the range recommended by the Clean Air Science Advisory Committee ..read more

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 behavior.  Putting a tax on the future consumption of fossil fuels raises their price and decreases consumption.  However, the Climate Superfund Act taxes production that’s already occurred.  It thus fails to send the price signal necessary to decrease fossil fuel consumpti ..read more

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 resiliency projects as well as projects to repair damages caused by climate change.  Nearly identical legislation has been introduced in a number of states, including Vermont and Massachusetts. I am so taken aback by these proposals as to be almost ..read more