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Environment & Energy Insights (September 2025)
Print PDFWelcome to the September edition of Nutter’s Environment & Energy Insights, a periodic update of current trends in environment and energy law. This month we cover:
- EPA intends to defend PFAS CERCLA regulations.
- Massachusetts court extends Dover Amendment protections to Energy Storage Systems.
EPA will defend certain regulations pertaining to PFAS compounds.
As we have discussed before in this space, one of the most confounding issues in recent years has been the on again, off again attempts at regulation of a “forever chemicals” (known as per- or polyfluoroalkyl substances of PFAS). However, in a potentially clarifying moment, EPA announced recently that it will defend the Biden-era regulation of certain PFAS compounds.
As you will recall, in the Spring of 2024, EPA announced that it would begin to regulate two of the most prevalent “forever chemicals” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). As a result, a broad range of industrial and municipal actors were subjected to potential CERCLA liability, spurring legal challenges to the new regulations. EPA stated an intent to pursue those who produced and profited from the production of PFAS, but this offered no protection to passive receivers of PFAS from lawsuits brought by third parties, an issue that would require congressional action to address, and the question of how EPA would wield its enforcement discretion in practice remained an open one.
Following the 2024 presidential election, the change in administration created even greater uncertainty, calling into question whether EPA would move forward with the PFAS policies set in motion under the Biden Administration. In one related case, Chamber of Commerce of the US v. EPA, EPA requested that the court place the lawsuit on hold while the Trump Administration reviewed the regulation. In perhaps a surprising turn of events, EPA filed a motion to lift the hold in the case, and current EPA Administrator Lee Zeldin issued a statement that EPA intends to hold polluters accountable. Zeldin also indicated a desire to provide certainty to passive receivers, while acknowledging that congressional action would be required to fully address concerns.
Challenges to the new EPA PFAS regulations remain unresolved, but it now appears that EPA intends to move forward with regulating PFAS under CERCLA, and the new EPA leadership has affirmed its intent to exercise its enforcement discretion to pursue those who produced and profited from the production of PFAS, rather than passive receivers.
Protections under the Dover Amendment may extend to battery energy storage systems.
In a case of first impression, Duxbury Energy Storage, LLC v. Town of Duxbury Zoning Bd. of Appeals, the Land Court recently held that battery energy storage systems (“BESS”) are entitled to the same protections as solar energy under the Dover Amendment because they are “structures that facilitate the collection of solar energy.” The Dover Amendment’s Solar Energy Provision states:
No zoning ordinance or by-law shall prohibit or unreasonably regulate…the building of structures that facilitate the collection of solar energy, except as where necessary to protect the public health safety or welfare.
G.L. c. 40A, § 3. The Duxbury case involved a proposed 5-megawatt BESS that would connect to an adjacent Eversource distribution line and draw energy from an unsegregated mix of grid energy. The Commonwealth’s current “grid mix” comprises energy from a variety of sources including wind, solar, fossil fuels, or hydroelectric power, none of which can be distinguished by their generation source. However, according to the decision, 20-25% of electricity on the grid is derived from solar energy. The Duxbury zoning by-law did not specifically allow for the construction of BESS in any zoning district, nor did it fall within any of the available use categories.
After first determining that the proposed BESS qualified as a “structure,” the court held that the BESS constituted “the building of structures that facilitate the collection of solar energy” and was thus protected by the Solar Energy Provision of the Dover Amendment. The court found that even though the energy mix the BESS would draw from included energy produced by other sources, the fact that “some portion of the energy collected and stored will be solar” meant that the BESS would directly help “facilitate the collection” of solar energy. The court further found that the BESS would facilitate the expansion of solar energy, because its ability to store solar energy would expand the amount of solar energy available to integrate into the grid by reducing the curtailment/waste of excess solar energy produced. The court concluded that without energy storage, Massachusetts cannot build enough solar energy systems to achieve its carbon neutrality goals. Thus, the [BESS] Project, by directly addressing solar curtailment and enabling greater solar integration on the grid, also “facilitates the collection of solar energy” by supporting the Commonwealth’s decarbonization objectives.
The Duxbury decision is currently being appealed.
This advisory was prepared by Matthew Connolly, Alexander Eddinger, Joseph Jannetty, and Matthew Snell in Nutter’s Environment and Energy practice group. If you would like additional information, please contact any member of our practice group or your Nutter attorney at 617.439.2000.
This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.
