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New Developments in Environmental Law

SJC Rules Regulatory Taking Claim in Casino Dispute May Proceed to Discovery and Trial (but Not Impairment of Contract Claim)

Written by
/ Published Monday, 12 September 2022 13:03

An interesting, important and relatively rare decision from the Massachusetts Supreme Judicial Court is about regulatory taking (yes, Virginia, there is a valid claim for taking) and impairment of contract (no, sorry, there is no valid claim). 

Supreme Court Strikes Down the City of Boston’s Flag-Flying Practice at City Hall Plaza as Going Over a Bright Line Between Rightful Control of Government Speech and Relaxed Regulation of Private Speec

Written by
/ Published Monday, 12 September 2022 12:52

In the case of Shurtleff v. City of Boston, 596 US ___ (May 2, 2022), the U.S. Supreme Court held that the City of Boston’s flag-raising program did not constitute government speech. Consequently, the City’s refusal to allow the petitioners to fly their flag because of its religious viewpoint violated the Free Speech Clause of the First Amendment to the US Constitution. Let’s see how this regulatory analysis works. 

Outdoor Advertising, the First Amendment, and Free Speech: The Supreme Court Refines the Case of Reed v. Gilbert by its Decision in Austin v. Reagan

Written by
/ Published Monday, 12 September 2022 12:42

The City of Austin, Texas regulates signs that advertise things not located on the same premises as the sign, and signs directing readers to offsite locations, all known as “off-premises signs.” The City’s sign code prohibited construction of new off-premises signs, but gave existing signs vested rights and treated on-premises signs liberally.

Supreme Judicial Court Instructs Conservation Commissions on Home Rule Wetland Protection Power: Use It or Lose It

Written by
/ Published Thursday, 25 August 2022 15:16

The Appeals Court in 2016 had taught the lesson well, but many boards, attorneys and clients apparently missed that class, so the Supreme Judicial Court has instructed us again, this time in a masterclass. 

SJC Gives Shot in The Arm for Commercial Solar Developments Under Local Zoning

Written by
/ Published Sunday, 24 July 2022 08:16

Tracer Lane II Realty, LLC v. City of Waltham, decided by the Massachusetts Supreme Judicial Court on June 2, 2022, was eagerly awaited by municipalities and solar project sponsors alike. The citation is Tracer Lane II Realty, LLC v. City of Waltham, No. SJC-13195 (Mass. Jun. 2, 2022). Real estate, environmental and energy attorneys and their clients take note.

New EPA Advisories Set Limits on “Forever Chemicals” as Studies Link PFAS to Serious Health and Environmental Harms

Written by
/ Published Thursday, 14 July 2022 07:55

“Forever chemicals”—which include polyfluoroalkyl substances (PFAS), perfluorooctanoic acid (PFOA), and perfluorooctanoic sulfonic acid (PFOS)—are found in hundreds of everyday products. Human bodies and the natural environment are incapable of breaking these chemicals down.

21-Day Timing Provisions in the Wetlands Act Are Obligatory and Pre-Empt Local Wetland Bylaws

Written by
/ Published Thursday, 14 April 2022 11:08

Local wetlands bylaw (or ordinance) jurisdiction over projects in and near resource areas depends on Conservation Commission compliance with the 21-day deadlines for commencing public hearings and issuing decisions on Notices of Intent (NOI). Indeed, you may safely regard those timing provisions in the state Wetlands Protection Act (the Act) as binding on the Commission, with failure to meet them potentially fatal to any decision the Commission may render. 

Sudbury v. MBTA Case Applies Doctrine of Prior Public Use to Inter- and Intra-Governmental Land Transfers, Not to Private

Written by
/ Published Tuesday, 22 March 2022 15:53

A legal doctrine established prior to Article 97 protects public lands dedicated to a public use from being used for other purposes without legislative authorization, meaning a bill in the General Court passed by majority vote. This is the doctrine of Prior Public Use. Although it pre-dates Article 97, the Prior Public Use doctrine continues to serve as a kind of traditional backup to Article 97 for public land dedicated to a public use.

Regulatory Takings: Ripeness: Exhaustion and Finality

Written by
/ Published Wednesday, 29 December 2021 15:17

Takings jurisprudence requires that courts know the extent of a regulation’s interference with property rights prior to making any adjudication on its validity. Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985)

Infrastructure Investment and Jobs Act to Spend Billions on Our Infrastructure

Written by
/ Published Wednesday, 29 December 2021 14:59

The Infrastructure Investment and Jobs Act (IIJA)is a $1.2 trillion investment, a good portion of which is for modernizing the energy grid, reducing reliance on carbon-based energy, and protecting areas most vulnerable to climate change and extreme weather.

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