Update on RGGI in Pennsylvania
Foley Hoag LLP - Law and the Environment
by Joshua Rosen
1d ago
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
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The D.C. Circuit Vacates Most of EPA’s SSM SIP Call; Generators Breath a Sigh of Relief
Foley Hoag LLP - Law and the Environment
by Seth Jaffe
2w ago
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
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The SJC Provides New Guidance to Litigants in Anti-SLAPP Cases; I’m not Optimistic
Foley Hoag LLP - Law and the Environment
by Seth Jaffe
3w ago
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
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How Brown is Brown Enough? An Update on the IRA ITC Adder for Brownfield Sites
Foley Hoag LLP - Law and the Environment
by Seth Jaffe
1M ago
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
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EPA Lowers the PM2.5 NAAQS: Goldilocks Can Sleep Soundly
Foley Hoag LLP - Law and the Environment
by Seth Jaffe
1M ago
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
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One More Problem with the Climate Superfund Act
Foley Hoag LLP - Law and the Environment
by Seth Jaffe
2M ago
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
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The Original Superfund Worked So Well; Let’s Replicate It to Deal with Climate Change!
Foley Hoag LLP - Law and the Environment
by Seth Jaffe
2M ago
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
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Each Federal Agency Should Use Its Judgment in Determining the Social Cost of Carbon — How’s That Going to Work Out?
Foley Hoag LLP - Law and the Environment
by Seth Jaffe
2M ago
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 to determine which estimates of the SC-GHG reflect the best available evidence, are most appropriate for particular analytical contexts, and best facilitate sound decision-making. I know about states as the labo ..read more
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Department of Energy Releases Final Guidance on Designation of National Interest Electric Transmission Corridors
Foley Hoag LLP - Law and the Environment
by Kevin Chen
3M ago
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, DOE has statutory authority to designate NIETCs in transmission-constrained or congested geographic areas, within which the Federal Energy Regulatory Commission (FERC) may issue ..read more
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Another Study Regarding the Health Impacts of PM Emissions From Power Plants: What Impact Will It Have On Regulation and Litigation?
Foley Hoag LLP - Law and the Environment
by Seth Jaffe
4M ago
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 PM2.5 from coal-fired EGUs.  Prior models would have indicated roughly half that number.  I’m not qualified to opine on the technical merits of the study, but it does suggest a number of implications.  First, in significant part, this ..read more
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