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Federal Environmental Law at this Moment: Earth Day 2024 Featured

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EPA in April listed two ubiquitous “forever” PFAS chemicals -PFOA and PFOS- as hazardous substances under Superfund (CERCLA), triggering reporting, testing, cleanup, and monitoring responsibilities for arrangers, transporters, treaters, disposers and other Potentially Responsible Parties (PRPs), including manufacturers, users, and property owners under Superfund’s strict, joint and several, and retroactive liability.

The listing will affect site assessments, Due Diligences, Innocent Landowners, existing and closed Superfund sites and those buying or selling dirty property.

Earlier in April EPA announced final drinking water standards under the Safe Drinking Water Act (SDWA) for six PFAS compounds. These Maximum Contaminant Levels (MCLs) mean that public water systems (PWSs) must now sample for, monitor, and remove chemicals that typically require new treatment treatments and methods. The states are following the federal lead.

Environmental justice considerations are being added to staffing, programs, rulemaking, permitting, enforcement, cleanups, grants, and education. The Biden administration has prioritized justice and equity across all federal agencies through funding initiatives, personnel, policies, enhanced public participation, and other EJ-related efforts. The Inflation Reduction Act (IRA) and Bipartisan Infrastructure Law have significant funding for EJ-related initiatives.

The Supreme Court is an obstacle to progress as relates to environmental law, overturning precedent by way of the “Major Questions Doctrine” — allowing courts to reject agency claims of a regulatory authority when the underlying claim of authority concerns an issue of “vast economic and political significance” and when Congress has not clearly empowered the agency with authority over the issue.

Cases like Sackett v. EPA and West Virginia v. EPA under the Major Questions Doctrine have the effect of lessening protection of wetlands and wetland resources by limiting what can constitute “waters of the U.S.” (Sackett) as well as ruling against plans to better regulate greenhouse gas emissions (West Virginia).

The Chevron Doctrine under the Administrative Procedure Act is under attack, at risk of being overturned in the Supreme Court in the case of Loper Bright Enterprises v. Raimondo. This could remove agency deference to decide on matters initially governed by the Legislature but later needing clarification due to legislative language being ambiguous.

If Chevron is reversed, it would be a major change in administrative law, inviting new legal challenges to agency regulations. Complex issues usually left to specific agencies like EPA to flesh out because of the agency’s specialized knowledge would be left to the discretion of the judiciary. This would mean the courts would presume that Congress does not delegate such issues to agencies. This could target some long-established environmental laws.

 

Read 377 times Last modified onTuesday, 23 April 2024 10:25
Gregor I. McGregor, Esq.

GREGOR I. McGREGOR, Esq. is the founder of New England’s oldest environmental law firm McGregor & Associates, PC in Boston, formed in 1975 and now McGregor Legere & Stevens,PC (formerly McGregor & Legere PC). The firm handles all aspects of environmental law, land use, real estate, and related litigation. The firm is a founding member of the Environmental Law Network (ELN), an alliance of specialty law firms, in the United States and abroad, sharing their legal expertise and practical experience for the benefit of their clients. Mr. McGregor enjoys Martindale-Hubbell’s highest rating for attorneys (AV).

In 45 years of environmental practice, Mr. McGregor's cases in court broke new ground in the law of Environmental Impact Statements under the National Environmental Policy Act (NEPA) and Massachusetts Environmental Policy Act (MEPA), wetland and floodplain protection under the Massachusetts Wetlands Protection Act, hazardous waste cleanup liability and cost-recovery under the Massachusetts Superfund, reduced taxes and tax exemptions for qualified land conservation transactions, constitutional protections for open space and parkland, Home Rule environmental ordinances and bylaws of cities and towns, law enforcement and contempt remedies, and the constitutional doctrine of Regulatory Takings.

Before 1975, Mr. McGregor was an Assistant Attorney General of Massachusetts and the first chief of the Attorney General’s Division of Environmental Protection. In that capacity he advised and represented the Commonwealth during the formative years of Massachusetts environmental statutes, agencies, regulations, enforcement and cases in court.

Mr. McGregor is editor of the two-volume treatise on Massachusetts Environmental Law, published by Massachusetts Continuing Legal Education, Inc.(MCLE). He is co-chair of MCLE’s annual Environmental, Land Use, and Energy Law Conference and MCLE’s Real Estate and Environmental Law Curriculum Advisory Committee. He received from MCLE in 2013 its Scholar-Mentor Award recognizing his dedication to legal scholarship and leadership.

Mr. McGregor chairs the Environmental Committee of the Real Estate Bar Association for Massachusetts (REBA) and serves as a member of the REBA Board of Directors. He is an active member of the Massachusetts Municipal Lawyers Association (MMLA), which honored him for his career contributions to legal education and effective advocacy on the Home Rule Doctrine. At the National CLE Conference in Vail, CO, Mr. McGregor co-chairs an annual seminar on Environmental Law, Land Use, Energy & Litigation for attorneys from across the United States.

Mr. McGregor is a long time member of the board of directors of the Massachusetts Association of Conservation Commissions (MACC) having served as Board President twice. He has handled several cases for MACC as amicus and is a regular presenter at their annual meeting.

Mr. McGregor is a graduate of Dartmouth College and Harvard Law School.

View Attorney McGregor's Case List >>

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