News & Insights

Practice Area: Environmental

Sixth Circuit Rejects Hydrological Connection Theory As Basis For Cwa Liability

The 6th U.S. Circuit Court of Appeals has ruled the Clean Water Act (CWA) does not apply to pollutants that travel through groundwater before entering navigable waters.  Tennessee Clean Water Network, et al. v. Tennessee Valley Authority (TVA), Case No. 17-6155 (6th Cir., September 24, 2018).  The ruling comes less than two weeks after a…
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Energy Company’s Coal Ash Ponds Not Subject To Clean Water Act

The 4th U.S. Circuit Court of Appeals has ruled discharge of arsenic from a coal ash storage site through groundwater into surrounding waters does not violate the U.S. Clean Water Act and does not require a NPDES permit.  Sierra Club v. Virginia Electric & Power Co., No. 17-1895 (4th Cir., September 12, 2018).  A three-judge…
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Jury Awards $289 Million In First Monsanto Round Up Case

A California State Superior Court jury has found Monsanto’s Roundup and Ranger Pro herbicides contributed to a school groundskeeper’s lymphoma and awarded the plaintiff a combined $289 million in compensatory and punitive damages in a landmark suit against the company, which has denied links between its herbicides and cancer for decades.  Johnson v. Monsanto, et…
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Fourth Circuit Weighs In On Clean Water Act’s Constructive Submission Doctrine

In Ohio Valley Environmental Coalition (OVEC) v. Pruitt, 893 F.3d 225 (4th Cir. 2018), the Fourth Circuit Court of Civil Appeals rejected the District Court’s application of the “constructive submission” doctrine, which applies when a state disregards its obligations to submit Total Maximum Daily Loads (TMDLs) required by federal law.   Under this doctrine, a Court…
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Court Reduces $50 Million Punitive Damages Award In Hog Farm Nuisance Case

A federal judge in North Carolina has reduced a $50 million punitive damages award in a nuisance suit against a hog farm that stored the animal waste in open-air lagoons and sprayed it on nearby fields.  McKiver, et al. v. Murphy-Brown, LLC, 7:14-CV-180 (May 7, 2018, E.D.N.C.).  The Court relied on North Carolina’s law capping…
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Fourth Circuit Holds Indirect Discharges Actionable Under Cwa As Ongoing Violation

The Fourth Circuit reversed a District Court’s dismissal of a lawsuit over a Kinder Morgan Energy Partners LP subsidiary’s gasoline pipeline spill in South Carolina, holding the Clean Water Act covers claims that the spill contaminated nearby creeks and wetlands after traveling through groundwater.  Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637…
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Sixth Circuit Declines To Pierce Corporate Veil In Cercla Suit

In Duke Energy Florida, LLC v. Firstenergy Corp., CV No. 17-3024, April 10, 2018, the Sixth Circuit refused to pierce the corporate veil to determine which corporate entity would be liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., for costs associated with cleaning up hazardous waste…
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New Jersey Announces $196 Million In Mtbe Settlements

Shell, BP and Sunoco have agreed to pay $196.5 million to resolve New Jersey’s contamination claims over a gasoline additive that seeped into groundwater throughout the state.  The case is the first to be finalized since voters approved a constitutional amendment prohibiting money from such lawsuits being diverted away from cleanup and restoration of natural…
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Epa Approval Of Tmdls Does Not Require It To Make Permitting Determinations

The United States Court of Appeals for the First Circuit has affirmed a lower court’s decision that the Environmental Protection Agency is under no obligation to require permits of landowners contributing to violations of state-developed Total Maximum Daily Loads (“TMDLs”).  Conservation Law Foundation v. EPA, 48 ELR 20013 (1st Cir. 2018). In this consolidated appeal,…
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First Circuit Finds Monsanto Not Responsible For Pcb Remediation At Westport School

The United States Court of Appeals for the First Circuit affirmed the District Court’s entry of summary judgment on all remaining claims in an action filed by the Town of Westport against Monsanto Company, Solutia, Inc., and Pharmacia.  Town of Westport v. Monsanto Company, Case No. 17-1461 (December 8, 2017).  In the suit, Westport alleged…
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