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...more
On April 8, the White House issued an Executive Order aimed at “Protecting American Energy from State Overreach.” While the direct effects from this Executive Order are hard to assess, the Trump Administration clearly intends...more
On Monday morning, the Supreme Court denied certiorari in Juliana v. United States. The cert. denial leaves in place the 9th Circuit Court of Appeals decision that ordered the case dismissed for lack of standing. At least for...more
We previously reported on New York State’s enactment of the Climate Change Superfund Act (the “Climate Superfund Act” or the “Act”), groundbreaking legislation that seeks to recover $75 billion from fossil fuel producers for...more
3/12/2025
/ Climate Action Plan ,
Climate Change ,
Constitutional Challenges ,
Corporate Counsel ,
Energy Sector ,
Environmental Justice ,
Environmental Litigation ,
Environmental Policies ,
Greenhouse Gas Emissions ,
Infrastructure ,
Legislative Agendas ,
New York ,
Oil & Gas ,
Superfund
I’ve always taken the position that, no matter how much I disagree with the President, the Senate should confirm his executive branch nominees (nominations to the Judicial Branch are different, since judges don’t work for the...more
3/4/2025
/ Administrative Procedure Act ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Executive Orders ,
Federal Budget ,
Government Agencies ,
Nominations ,
Permits ,
Pollution Control ,
Regulatory Agenda ,
Regulatory Authority ,
Regulatory Oversight ,
Regulatory Reform ,
Trump Administration
As readers of this space will have noted, geothermal energy is one of the few renewable sources treated positively by early Trump Administration efforts to attain “energy dominance.” Given the favorable treatment of...more
President Trump began his second term by issuing a barrage of executive orders, memoranda, and other directives, many of which targeted U.S. energy policy and the federal employees who implement it. Trump had campaigned on...more
1/24/2025
/ Clean Energy ,
Climate Action Plan ,
Climate Change ,
Energy & Climate Debates ,
Energy Policy ,
Energy Sector ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Fossil Fuel ,
Inflation Reduction Act (IRA) ,
Infrastructure ,
Offshore Wind ,
Paris Agreement ,
Permits ,
Renewable Energy ,
Solar Energy ,
Tax Credits ,
Trump Administration ,
Wind Power
On January 14, 2025, President Biden signed an Executive Order to advance the United States’ leadership in artificial intelligence (AI) infrastructure. This comprehensive directive underscores the critical role of AI in...more
1/17/2025
/ Artificial Intelligence ,
Clean Energy ,
Data Centers ,
Department of Energy (DOE) ,
Energy Sector ,
Environmental Policies ,
Executive Orders ,
Geothermal Energy ,
Infrastructure ,
National Security ,
Renewable Energy
Last week, we posted about New York State’s enactment of the Climate Change Superfund Act. We promised to continue to monitor developments concerning climate superfund legislation and to update readers as necessary. It’s been...more
1/14/2025
/ California ,
Carbon Emissions ,
CERCLA ,
Climate Action Plan ,
Climate Change ,
Energy Policy ,
Energy Sector ,
Environmental Litigation ,
Environmental Policies ,
Greenhouse Gas Emissions ,
Public Health ,
State and Local Government
With the incoming Trump administration poised for an attack on federal environmental regulations, states are quickly emerging with actions on climate change. On December 26, 2024, New York Governor Kathy Hochul signed into...more
1/10/2025
/ Carbon Emissions ,
Clean Air Act ,
Climate Change ,
Energy Sector ,
Environmental Justice ,
Environmental Policies ,
Fossil Fuel ,
Greenhouse Gas Emissions ,
Infrastructure ,
State and Local Government ,
Superfund
Earlier this week, the Montana Supreme Court affirmed a lower court ruling in favor of plaintiffs in a climate case based on certain provisions of the Montana constitution. Specifically, the court ruled that:
- The...more
12/20/2024
/ Citizen Suits ,
Climate Action Plan ,
Climate Change ,
Environmental Impact Statements ,
Environmental Litigation ,
Environmental Protection Agency (EPA) ,
Greenhouse Gas Emissions ,
Injunctions ,
Montana ,
MT Supreme Court ,
Permits ,
State Constitutions
Earlier this week, in what almost certainly has to be the most fractured appellate decision in the history of the United States courts, the 5th Circuit Court of Appeals, sitting en banc, affirmed via per curiam decision the...more
Last week, EPA released two final rules under TSCA. The first rule bans all uses of trichloroethylene (TCE). The ban is subject to several temporary exemptions for certain uses under § 6(g) of TSCA. The second rule bans...more
12/12/2024
/ CERCLA ,
Chemicals ,
Contaminated Properties ,
Contamination ,
Enforcement ,
Environmental Protection Agency (EPA) ,
Final Rules ,
Groundwater ,
Regulatory Agenda ,
Toxic Chemicals ,
Toxic Substances Control Act (TSCA)
Earlier this week, the Court of Appeals for the District of Columbia ruled that the National Environmental Policy Act does not authorize the Council on Environmental Quality to issue binding regulations governing how federal...more
Last November, I posted about litigation filed by New York State Attorney General Letitia James, asserting public nuisance and other claims against PepsiCo concerning contamination of the Buffalo River. At the time, I...more
As the election approaches, lawyers, clients, and those who don’t have enough to do are beginning to speculate about what the election might mean for the Supreme Court. In my little world, people are particularly concerned...more
11/4/2024
/ Administrative Law Judge (ALJ) ,
Chevron Deference ,
Climate Change ,
Energy Policy ,
Energy Sector ,
Environmental Policies ,
Federal v State Law Application ,
Legislative Agendas ,
Loper Bright Enterprises v Raimondo ,
Regulatory Agencies ,
SCOTUS
According to a story in Inside EPA (subscription required) last week, EPA’s promulgation on October 8, 2024, of its “2024 Lead and Copper Rule Improvements” has already led to disputes among stakeholders regarding what should...more
On October 16, 2024, the United States Supreme Court shot down requests from states and industry groups to stay the implementation of the Environmental Protection Agency’s (EPA) rule to reduce carbon emissions from coal-fired...more
10/17/2024
/ Carbon Capture and Sequestration ,
Clean Air Act ,
Climate Change ,
Energy Sector ,
Environmental Litigation ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Greenhouse Gas Emissions ,
Regulatory Agenda ,
Regulatory Requirements ,
Utilities Sector
Sometimes, a blog just has to be written. For those of us of a certain age, Sterling Hayden's speech as Jack D. Ripper in Dr. Strangelove concerning the Communist plot to fluoridate our water is iconic. Well, it turns out...more
10/2/2024
/ Administrative Procedure Act ,
Chemicals ,
Chevron Deference ,
Citizen Suits ,
Drinking Water ,
Environmental Litigation ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Judicial Review ,
Statutory Authority ,
Statutory Interpretation ,
Toxic Chemicals ,
Toxic Substances Control Act (TSCA)
Inside EPA (subscription required) reported this week that a group of Democratic state attorneys general have filed an amicus brief supporting EPA’s appeal of a 9th Circuit Court of Appeals decision holding that EPA had...more
In this Issue: Permitting Reform, the Supreme Court, EV’s, and Climate Week 2024 -
After nearly a decade as New York State’s environmental chief, I recently joined Foley Hoag to help the firm’s clients emerge as global...more
9/19/2024
/ Climate Change ,
Electric Vehicles ,
Electricity ,
Energy Policy ,
Energy Projects ,
Energy Reform ,
Energy Sector ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Greenhouse Gas Emissions ,
Regulatory Reform ,
Renewable Energy ,
Utilities Sector
For most of this century, I’ve been asked with some regularity whether Superfund was dead. I’ve always considered that question to be a victory of hope over expectation. Notwithstanding frequent criticism, frequently...more
Late last month, I noted that the overturning of Chevron did not mean the end of judicial deference to agency expertise. Earlier this week, a decision by the D.C. Circuit Court of Appeals provided some confirmation that...more
8/15/2024
/ Administrative Procedure Act ,
Air Pollution ,
Chevron Deference ,
Citizen Suits ,
Corporate Counsel ,
Environmental Protection Agency (EPA) ,
Government Agencies ,
Judicial Authority ,
Loper Bright Enterprises v Raimondo ,
Regulatory Authority ,
SCOTUS ,
Statutory Interpretation
Greenwire (subscription required) had an article yesterday with the breathless headline “Post-Chevron era tests courts’ readiness to tackle science.” The article noted that, in the recent Supreme Court decision in Ohio v....more
7/31/2024
/ Administrative Procedure Act ,
Chevron Deference ,
Environmental Protection Agency (EPA) ,
Government Agencies ,
Judicial Authority ,
Loper Bright Enterprises v Raimondo ,
Regulatory Authority ,
Scientific Evidence ,
SCOTUS ,
Section 706 ,
Statutory Interpretation
Yesterday, in SEC v. Jarkesy, the Supreme Court ruled that the defendants in a securities fraud case brought by the SEC were entitled to have the SEC’s claims for civil penalties decided by a jury. The question now is how...more