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Beveridge & Diamond’s 100 lawyers in seven U.S. offices focus on environmental and natural resource law, litigation and dispute resolution. We help clients around the world resolve critical environmental and sustainability issues relating to their products, facilities, and operations. 

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Showing 40 posts in Land Use. View our practice description for Land Use.

NGOs Challenge Department of Interior’s New Interpretation of “Incidental Take” Liability Under Migratory Bird Treaty Act

National environmental groups recently filed a pair of new lawsuits in New York federal district court seeking to expand the scope of liability for “incidental take” under the Migratory Bird Treaty Act (“MBTA”).[1]  The litigation seeks to overturn recent legal and policy guidance issued by the United States Department of the Interior (“DOI”) and Fish and Wildlife Service (“FWS”) which provided greater regulatory certainty by limiting those agencies’ enforcement actions under the MBTA to claims of intentional harm to migratory birds.  If the new lawsuits prevail, many industries may once again face potential criminal liability for day-to-day operations posing a risk of unintentional effects on migratory birds.  The lawsuits are also a reminder that courts remain split on the scope of MBTA liability, that MBTA enforcement policy may shift between administrations, and that other statutes still make avian protection a key component of environmental planning and compliance at many facilities. Read More ›

Supreme Court Poised to Overrule Requirement that Takings Claims be Filed In State Court

Signaling a possible sea change in takings law, the United States Supreme Court has accepted for review the Third Circuit’s decision in Rose Mary Knick v. Scott Township, Pennsylvania,  862 F.3d 310 (3d Cir. 2017), cert. granted,  2018 WL 1143827  (March 5, 2018).  The Court will reconsider its 1985 holding in Williamson County v. Hamilton Bank, 473 U.S. 172,  that required property owners to exhaust State court remedies in order to pursue a federal takings claim. A Pennsylvania property owner is asking the Court to overrule Williamson County’s State litigation ripeness doctrine so that citizens may bring a takings claim for just compensation under the U.S. Constitution directly in federal court.  Read More ›

Court Reaffirms Standard for Injury Sufficient to Maintain Standing to Challenge Zoning Permit Modification

The Massachusetts Appeals Court reaffirmed that the injury sufficient to maintain standing to challenge the modification of a special permit turns on the harm stemming from the original project, not the incremental harm between pre- and post-modification changes. In Aiello v. Planning Board of Braintree, 91 Mass. App. Ct. 354 (2017), the Appeals Court reversed the Land Court’s decision that the plaintiff lacked standing because he could not show such incremental harm and remanded the approval of a special permit for an enhanced commercial use to the local planning board for reconsideration.   Read More ›

Top Massachusetts Court clarifies 9/11-era Public Records Exemption

The Massachusetts Supreme Judicial Court ruled that the public records exemption passed after the September 11, 2001 terrorist attacks protecting critical infrastructure documents from disclosure is to be interpreted narrowly, sending a public records case brought by People for the Ethical Treatment of Animals (PETA) back to the trial court for further proceedings.  Read More ›

Court Mandates Full Payment of 40B Application Fee for Complete Application

Municipality Successfully Invokes Safe Harbor Due to Late Payment

Ruling that a developer who files a comprehensive permit application without paying the full filing fee “does so at its peril,” the Court in Zoning Board of Appeals of Hanover v. Housing Appeals Committee, 90 Mass. App. Ct. 111 (2016), found that the local board of appeals properly considered the developer's application with the benefit of the “safe harbor” which the town had achieved in the interim period between the partial and full payment of the fee. As a result, the Court reversed the Housing Appeals Committee’s (HAC) order that the local board issue a comprehensive permit for a 200-unit rental project. In sum, the “safest procedure” for a developer is to concurrently pay the full fee and file a motion to reduce it. Read More ›

Impacts of the 2016 U.S. Election on Environmental Law, Policy, and Enforcement

The 2016 election results will have wide-ranging impacts on the future direction of environmental law, policy, and enforcement in the U.S.  With 100 lawyers in offices around the U.S. focused on environmental and natural resource law and litigation, Beveridge & Diamond helps clients navigate legal and business risks arising from this evolving legal landscape. Read More ›

Off to Court We Go: Petitioners Challenge EPA’s Small MS4 General Permit for Massachusetts

The storm of debate and criticism over the terms and conditions of the U.S. Environmental Protection Agency’s (EPA) General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts (the Small MS4 General Permit or Permit) has shifted to the judicial arena.  In July, the first of several petitions for review of the final Small MS4 General Permit was filed in the D.C. Circuit Federal Court of Appeals, followed by four more challenges filed in the First Circuit Federal Court of Appeals.  Notwithstanding the initiation of litigation, Massachusetts municipalities should be continuing to develop their plans and organizing their resources to effectively implement the Small MS4 General Permit, which becomes effective in July 2017.  Read More ›

EPA Issues Update to Settlement Penalty Policy for Industrial Stormwater Violations

Some violators of federal industrial stormwater requirements will likely pay significantly higher penalties under new guidance issued by U.S. EPA.  The new guidance, “Supplemental Guidance to the 1995 Interim Clean Water Act Settlement Penalty Policy for Violations of the Industrial Stormwater Requirements” (the 2016 Supplemental Guidance), provides agency staff with guidance on how to calculate a minimum settlement penalty for unauthorized discharges of industrial stormwater, violations of EPA or state-issued NPDES industrial stormwater permits, and other violations of Clean Water Act stormwater requirements applicable to industrial activity.  The 2016 Supplemental Guidance sets forth a more sophisticated and detailed approach to calculating settlement penalties as compared to the 1995 Interim Policy.  While the effects of the new guidance are not entirely clear, it is likely that it will result in higher penalties for larger and more sophisticated companies compared to smaller companies for the same violations.  Read More ›

Mass DEP Proposes Changes to Air Program

In August 2016, the Massachusetts Department of Environmental Protection (MassDEP) proposed several changes to its air regulations as part of its efforts to streamline regulations and reduce unnecessary regulatory burdens under Executive Order 562.  These changes will affect a wide range of industrial and commercial facilities.  Read More ›

Breaking News: MassDEP Issues Vapor Intrusion Guidance

This week, MassDEP issued its long-awaited final “Vapor Intrusion Guidance:  Site Assessment, Mitigation and Closure,” which is available here.  This 126-page document, which is based on the October 2014 draft that received substantial public comment, provides guidance on how to assess, remediate, and close vapor intrusion sites under state cleanup regulations that were substantially revised in June 2014, as we described in a previous alert.  Stay tuned:  we will provide a full analysis in a future alert.