NEWS

The U.S. Environmental Protection Agency (EPA) has issued a Draft Guidance Memorandum following the recent U.S. Supreme Court decision in County of Maui v. Hawaii Wildlife Fund.  139 S.Ct. 1164 (2019).  This Guidance Memo attempts to give regulators and source owners additional clarity as to when the functional equivalent test should be applied. 

The United States District Court for the D.C. Circuit has denied an environmental advocacy group’s motion to reconsider the Court’s 2018 ruling giving Environmental Protection Agency’s (EPA) discretion as to how to establish a new “total maximum daily load” (“TMDL”) for trash in the Anacostia River.  Plaintiff Natural Resources Defense Council (“NRDC”) argued little progress had been made since the Court’s 2018 ruling and that EPA should be required to establish a TMDL within one year.

The U.S. District Court for the Northern District of California has dismissed a Clean Air Act (CAA) complaint asserting EPA must reassess risks of hazardous pollution sources whenever it requires technological upgrades for them.  Citizens for Pennsylvania's Future et al. v. Wheeler, No. 19-cv-2004, 2020 WL 3481425 (N.D. Cal. June 26, 2020).  In a matter of first impression, the Court rejected the environmental groups' argument that the CAA, 42 U.S.C.A. § 7412(d)(2) requires the agency to reassess hazardous air pollution risks within eight years of any revision of emissions standards.

The 9th Circuit U.S. Court of Appeals has affirmed the right of state and local governments to sue Volkswagen over tampering with emissions devices on their vehicles after they were sold.  The decision reverses the lower court’s dismissal of the claims and opens the door for more litigation.  In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prod. Liab. Litig., No. 18-15937, 2020 WL 2832121 (9th Cir. June 1, 2020).

The United States Court of Appeals for the D.C. Circuit has ruled EPA acted improperly when it suspended restrictions on the use of hydrofluorocarbons (HFCs) to replace ozone-depleting substances (ODSs).  Natural Resources Defense Council v. Wheeler, No. 18:1172 (D.C. Cir. April 2020).  EPA did this without going through notice-and-comment procedures, which is what the Natural Resources Defense Council challenged and won.

The United States Court of Appeals for the Fourth Circuit has affirmed a District Court order remanding to state court a suit filed by the City of Baltimore seeking to hold oil companies accountable for climate change.  In 2018, the Mayor and City Council of Baltimore filed suit against major oil companies in state court. The complaint alleged that the oil companies contributed to climate change by extracting, producing, promoting and selling fossil fuels, while deceiving the public about the known harms of fossil fuel products. Baltimore brought eight state law claims against the oil company, including nuisance and trespass.

On January 23, 2020, the EPA and the U.S. Army Corps of Engineers released the Navigable Waters Protection Rule (NWPR) which redefines “waters of the United States” (WOTUS). This new rule adopts a more limited definition of WOTUS that are subject to the Clean Water Act.  The NWPR defines WOTUS to include only four categories of waters: (1)  territorial seas and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide; (2) tributaries; (3) lakes and ponds, and impoundments of jurisdictional waters; and (4) adjacent wetlands. The NWPR confirms that groundwater is not subject to regulation under the Clean Water Act, which means water features connected only by groundwater are also not subject to regulation.

A federal district court in Ohio has endorsed the “constructive submission” doctrine as a way to require the EPA to set standards for polluted bodies of water when states neglect or refuse to set those standards. Environmental Law & Policy Center v. EPA, Docket No. 3:19-cv-00295 (November 13, 2019, N.D. Ohio). The Clean Water Act citizens suit, which was filed by two environmental groups, asks EPA to require Ohio’s EPA to adopt a legally sufficient and adequate Total Maximum Daily Load (TMDL) for western Lake Erie.

The United States District Court for the District of Massachusetts has ruled pollution from a Cape Cod resort that travels through groundwater into the Atlantic Ocean is not subject to Clean Water Act permitting requirements.  Conservation Law Foundation v. Longwood Venues & Destinations, Inc., No. 1:18-cv-11821 (November 26, 2019, D. Mass.).  The Complaint alleges treated wastewater seeps through the groundwater into Wychmere Harbor from a wastewater treatment facility at the Massachusetts Wychmere Beach Club on Cape Cod.  The Massachusetts Department of Environmental Protection found that the discharges were partially responsible for excessive nitrogen in the harbor.

The United States Supreme Court heard oral arguments on November 6, 2019, in Hawai’i Wildlife Fund v. County of Maui, a groundwater case that challenges the scope of the Clean Water Act (“CWA”).  831 F.3d 754 (9th Cir. 2018).  The Ninth Circuit previously held that where a point source discharge to groundwater is fairly traceable to a navigable water, it falls within the jurisdiction of the Act.

The Maui County Council has voted to settle a Ninth Circuit U.S. Court of Appeals Clean Water Act (“CWA”) case scheduled for oral argument before the United States Supreme Court on November 6, 2019.  County of Maui v. Hawaii Wildlife Fund et al., Case No. 18-260.  The case was one of three pending before the U.S. Supreme Court seeking a determination of whether the CWA’s regulatory power is limited to regulating direct releases from discrete and defined sources into federally protected water or extends to indirect releases via groundwater.

The Eleventh Circuit has determined the U.S. Environmental Protection Agency (EPA) does not have to withdraw from a partnership with Alabama that allows the state to issue permits under the Clean Water Act (CWA), even though environmental groups have claimed Alabama’s program has failed to comply with the federal law’s requirements over the years.  Cahaba Riverkeeper et al. v. U.S. Environmental Protection Agency, Case No. 17-11972 (11th Cir.).

The United States Supreme Court recently held that land may only be designated a “critical habitat” for an endangered species if that same land is first a “habitat” for an endangered species.  In Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, 139 S. Ct. 361 (2018), the Supreme Court evaluated the United States Fish and Wildlife Service’s (“the Service”) designation of certain land in Louisiana as a critical habitat for the dusky gopher frog, which is classified as an endangered species.

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 may interpret the failure of a state to timely submit TMDLs as a “constructive submission” of a list of no TMDLs.

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 (4th Cir. 2018). In a split panel decision, the Appeals Court held that citizens may bring suit alleging a violation of the CWA when the point source of pollution is no longer releasing the pollutant, but the pollutant continues to be discharged into surface waterways via groundwater.

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 resources.

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).

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 Monsanto and its related corporations, Solutia, Inc. and Pharmacia, were liable for property damage caused by PCB-laden caulk installed in a Massachusetts middle school in the 1960s. 

The United States District Court for the Southern District of Indiana has ruled that an insurer must bear the costs of a remediation agreement entered into voluntarily by the policyholder without the insurer’s knowledge or consent.  Southern Pilot Ins. Co. v. Matthews Auto Repair, Inc., 2017 BL 425647; No. 17-cv-01027 (S.D. Ind., November 29, 2017).  In 2016, an environmental investigation revealed toxic waste on Matthews Auto’s property.  Subsequently, Matthews Auto entered into a voluntary remediation agreement with the Indiana Department of Environmental Management ( “IDEM”) without notifying its insurer.

The Circuit Court of Appeals for the Sixth Circuit has held that residents of Flint, Michigan, may pursue class claims against state actors in state court. Mays v. City of Flint, 47 E.L.R. 20112, No. 16-2484, (6th Cir., September 11, 2017).  In January 2016, several plaintiffs filed a class-action lawsuit in state court alleging they had been harmed since April 2014 by the toxic condition of the Flint water supply. In April 2016, defendants sought removal under 28 U.S.C. §1442, the federal-officer removal statute, and 28 U.S.C. §1441, which allows removal of state court actions that involve substantial federal questions. State officials from the Michigan Department of Environmental Quality (MDEQ) claimed they were being sued for actions they took while acting under the direction of EPA, which delegated primary enforcement authority to the MDEQ to implement the Safe Water Drinking Act in Michigan.

The Ninth Circuit Court of Appeals vacated a District Court’s summary judgment in favor of the defendant in a contribution action under CERCLA, finding mining company Asarco timely brought a claim to recoup compensation from Atlantic Richfield.  Asarco, LLC v. Atlantic Richfield Co., No.14-35723 (9th Cir., August 10, 2017).   CERCLA § 113(f) provides that after a party has, pursuant to a settlement agreement, resolved its liability for a “response” action or the costs of such an action, that party may seek contribution from any person who is not a party to the settlement. 

The United States District Court for the District of Columbia has ruled the Environmental Protection Agency does not have authority under the Clean Air Act to force companies that use hydrofluorocarbons (“HFCs”) in products like spray cans, automobile air conditioners and refrigerators to replace the HFCs with an EPA-approved alternative.  The EPA enacted the rule in 2015, responding to research showing HFCs contribute to climate change.  Mexichem Flour Inc. and Arkema Inc. challenged the rule’s legality.

A West Virginia federal judge rejected a proposed $151 million deal reached by American Water Works and Eastman Chemical that would have settled class claims arising from a 2014 coal-processing chemical spill, but indicated the agreement is salvageable.   Good et al. v. American Water Works Co. Inc. et al., Case No. 2:14-cv-01374, (S.D. W. Va., July 6, 2107). The chemical, called methylcyclohexane methanol, or crude MCHM, caused nausea, vomiting and eye irritations that led to infections after it entered the water supply in January 2014.

A New York Appellate Court has ruled a hazardous materials exclusion did not relieve an insurer of its obligation to defend a recycling plant operator from claims the Plant is spreading a foul odor.  Hillcrest Coatings, Inc. v. Colony Ins. Co., 2017 NY App. Div. LEXIS 4519 (NY 4th Dept. June 9, 2017).  The five-judge panel partially upheld the lower court decision finding the insurer had a duty to defend because the source of the odor behind the underlying suit against Hillcrest Coatings is not necessarily hazardous materials. 

A Mississippi federal court has held expert testimony regarding health risks posed by exposure to the disposal of a hazardous waste is admissible, even though plaintiffs did not assert claims for personal injuries.  Hollingsworth v. Hercules, Inc., 2:14-cv-KS-MTP (S. D. Miss. Jan. 3, 2017).  The testimony was offered by two experts for the defendant, a company that operated a chemical plant in Hattiesburg, Mississippi from the 1920s until 2009.

The United States District Court for the Eastern District of New York has held that Defendants responsible for dumping hazardous waste in a town park are not liable under CERCLA because they did not know of the hazardous nature of the material dumped.   Town of Islip v. Datre, 47 E.L.R. 20049 (E.D.N.Y. 2017).

The United States Court of Appeals for the Fourth Circuit has ruled CERCLA’s discovery rule applies to toll West Virginia’s statutes of limitations only where the plaintiff has a viable CERCLA claim.  Blankenship v. Consolidation Coal Company, et al., No. 15-2480 & 2482 (4th Cir., March 7, 2017).

In Ebert v. General Mills, 823 F.3d 472 (8th Cir. 2016), the United States Court of Appeals for the Eighth Circuit held the United States District Court of Minnesota’s entry of an Order certifying a proposed class of plaintiffs in an environmental pollution case was an abuse of discretion because “the class lacks the requisite commonality and cohesiveness to satisfy Rule 23.” The case was remanded to the District Court with directions to revisit the issues in conformity with the Court’s holding.  

 Between 1978 and 2002, PCS and its predecessor sent equipment to facilities in North Carolina for repairs.  During the repairs, PCBs were released.  In 2003, the EPA launched an investigation of the site.  The EPA settled with potentially responsible parties following its investigation.  

The United States District Court for the Eastern District of California held the owner of a farm violated the Clean Water Act when he allowed wetlands on his property to be tilled.  Duarte Nursery, Inc. v. United States Army Corps of Engineers, No. 2:13-cv-02095-KJM-AC (June 10, 2016).  John Duarte, president of Duarte Nursery, purchased approximately 2,000 acres of real estate in Tehama County, California, in 2012.  There had been no farming activity on the land since 1988. 

In a unanimous decision, the U.S. Supreme Court ruled on May 31, 2016, that property owners could file suit against the U.S. Army Corps of Engineers over the agency’s determination that their land contains “waters of the United States” covered by the Clean Water Act.   Army Corps of Engineers v. Hawkes Co., 578 U.S. – (2016). The decision makes it easier for landowners to challenge the decision of federal regulators that the use of property is restricted by the Clean Water Act.

In May 2016, the U.S. Supreme Court denied Exxon’s petition for writ of certiorari seeking review of a $236 million trial judgment against it in a groundwater contamination case in New Hampshire.  The Court’s refusal to review the issues raised by Exxon leaves in place a verdict Exxon claims violates its due process rights.  

The 9th Circuit U.S. Court of Appeals has affirmed the right of state and local governments to sue Volkswagen over tampering with emissions devices on their vehicles after they were sold.  The decision reverses the lower court’s dismissal of the claims and opens the door for more litigation.  In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prod. Liab. Litig., No. 18-15937, 2020 WL 2832121 (9th Cir. June 1, 2020).