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environmental
EPA DENIES ALABAMA’S COAL ASH DISPOSAL PLAN

On August 3, 2023, the Environmental Protection Agency (“EPA”) issued a proposed denial of Alabama’s permit program to manage coal ash in landfills and surface impoundments. The EPA claims Alabama’s program is significantly less protective of people and waterways than required by federal regulations. This is the first time the EPA has proposed denying a state coal ash permit program. The decision may be finalized after a 60-day comment period.

environmental
INDUSTRY, ENVIRONMENTAL GROUPS, AND POLITICAL PARTIES DISAGREE ABOUT FEASIBILITY AND REACH OF EPA’S PROPOSED NEW VEHICLE EMISSIONS FOR 2027-2032

On April 12, 2023, the EPA and Biden Administration proposed new rules governing emissions from new vehicles manufactured in the United States between 2027 and 2032. The EPA bases its authority to enact the regulations on section 202(a) of the Clean Air Act. The Biden administration previously laid the groundwork for more stringent vehicle emissions standards by order titled, Executive Order on Strengthening American Leadership in Clean Cars and Trucks, signed on August 5, 2021. That Order set a non-binding target of making 50% of new passenger cars, SUVs, and light trucks net zero emissions vehicles by 2030. The proposed rule goes beyond that.

environmental
SUPREME COURT NARROWS SCOPE OF THE CLEAN WATER ACT

On May 25, 2023, the United States Supreme Court ruled in Sackett v. Environmental Protection Agency, 143 S. Ct. 1322 (2023) to narrow the scope of the Clean Water Act’s (“CWA”) regulations governing wetlands. The Court held that for wetlands to be regulated under the CWA, the wetlands must be connected to traditional navigable waters and have a continuous surface connection with that water. Id. at 1344. The Court interpreted the CWA’s applicability of the term “waters of the United States” to include “only those relatively permanent, standing or continuously flowing bodies of waters.” Id. at 1336. To fall under federal regulation, wetlands must be "indistinguishable from waters of the United States." Id. at 1341. This decision significantly reduces the power of the Environmental Protection Agency (“EPA”) to regulate the nation’s wetlands and waterways.

environmental
PRESIDENT BIDEN’S RECENT EXECUTIVE ORDER FURTHERS ENVIRONMENTAL JUSTICE POLICIES

On April 28, 2023, President Biden signed an executive order entitled “Executive Order on Revitalizing Our Nation’s Commitment to Environmental Justice for All” (“the Order”). The purpose of the Order is to renew a pledge made in Executive Order 12898 of February 11, 1994 (“the 1994 Order”) and more effectively implement the tenets in the prior executive order. The Order also works in conjunction with other executive orders President Bien has implemented during his time in office. April’s Order describes its purpose as more evenly distributing the human-environmental impact of government and business on people across race, income levels, and other demographic considerations. The Order describes a basic framework by which this is to be accomplished through regulatory and executive agencies.

environmental
DOJ FILES COMPLAINT AGAINST NORFOLK SOUTHERN FOR OHIO DERAILMENT

On March 30, 2023, the United States Department of Justice (“DOJ”) filed suit against railway operator Norfolk Southern Corporation for violations under the Clean Water Act (“CWA”) and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) in connection with a train derailment in East Palestine, Ohio. The February 3, 2023, derailment resulted in at least eleven train cars containing hazardous substances colliding with one another and catching on fire.

environmental
EPA PROPOSES NEW PRIMARY DRINKING WATER STANDARDS FOR CERTAIN PFAS CHEMICALS UNDER THE SAFE DRINKING WATER ACT

On March 14, 2023, the EPA announced proposed National Primary Drinking Water Regulations for six PFAS chemical compounds. The rule would limit the amount of PFOA perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) to four parts per trillion (or ng/L) in drinking water across the nation.  Perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, “GenX chemicals”), perfluorohexane sulfonic acid (PFHxS), and perfluorobutane sulfonic acid (PFBS) would be regulated at a combined amount according to a complex formula; the EPA will likely provide an online tool by which providers may input the concentrations of these chemicals they find to determine whether they are in compliance.

environmental
3M WILL DISCONTINUE PFAS MANUFACTURING

On December 20, 2022 3M, Inc. announced it would discontinue manufacturing of per and polyfluoroalkyl substances (“PFAS”) by the end of 2025. 3M is one of the world’s largest manufacturers of PFAS, accounting for $1.3 billion in annual sales revenue. 3M plans to scale down its PFAS manufacturing prior to the 2025 discontinuation date.

environmental
SUPREME COURT MAY BRING CLARITY TO WETLANDS PROTECTED UNDER CLEAN WATER ACT IN SACKETT V. ENVIRONMENTAL PROTECTION AGENCY

The Supreme Court heard oral argument in Sackett v. Environmental Protection Agency on October 3, 2022. Sackett involves property owners challenging an EPA compliance order determining that a property on which the Sacketts intended to build a home was a wetland as defined in the Clean Water Act (CWA). Sackett v. U.S. Env't Prot. Agency, 8 F.4th 1075, 1079 (9th Cir. 2021), cert. granted in part sub nom. Sackett v. Env't Prot. Agency, 211 L. Ed. 2d 604, 142 S. Ct. 896 (2022).

environmental
EPA ANNOUNCES BAN ON HYDROFLOUROCABONS

On December 9, 2022, the U.S. Environmental Protection Agency (EPA) proposed a rule restricting the use of hydrofluorocarbons (HFCs). In a prepublication document, the EPA proposed the restriction of HFCs in refrigeration, air conditioning, heat pumps, foam blowing, and aerosols by 2025. The restriction would only apply if more environmentally friendly alternatives are available.

environmental
NORTH CAROLINA SUPREME COURT RULES THAT STATE CAN BRING COMPANIES INTO STATE COURT FOR LIABILITIES RELATED TO PAST PFAS PRODUCTION IN EXCEPTION TO GENERAL RULE
In State ex rel. Stein v. E. I. du Pont de Nemours & Co., the North Carolina Supreme Court considered whether two companies spun off from E.I. DuPont de Nemours and Company (“DuPont”) could avoid personal jurisdiction in cases regarding claims involving the release of PFAS by asserting that those companies had never done business in North Carolina. 2022 WL 16703256, *1 (Nov. 4, 2022).
environmental
ELEVENTH CIRCUIT RULES THAT FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT DOES NOT PREEMPT STATE LAW CLAIMS IN MONSANTO ROUNDUP LITIGATION

In Carson v. Monsanto Company, No. 21-10994 (11th Cir. 2022), the Eleventh Circuit ruled on July 12, 2022, that the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) did not preempt a failure to warn claim brought under Georgia law. Plaintiff’s failure to warn claim arose from claims of malignant fibrous histiocytoma that he alleges was from exposure to glyphosate, the active chemical in the Roundup brand of pesticide produced by defendant Monsanto. Plaintiff claimed that Roundup’s label failed to adequately warn of the harmful nature of glyphosate under Georgia law.

environmental
NATIONWIDE OIL AND GAS LEASE PAUSE SURVIVES FIFTH CIRCUIT RULING, BUT LIKELY DOES NOT SURVIVE INFLATION ACT

On January 27, 2021, President Biden signed Executive Order 14008, which was meant to develop policies to combat climate change. Exec. Order No. 14008, 86 Fed. Reg. 7,619 (January 27, 2021). One such policy set forth in Section 208 of the Order sought to:

"pause new oil and natural gas leases on public lands or in offshore waters pending  completion of a comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices in light of the Secretary of the Interior’s broad stewardship responsibilities over the public lands and in offshore waters, including potential climate and other impacts associated with oil and gas activities on public lands or in offshore waters."


environmental
CLIMATE ACT IMPOSES NEW FEES ON METHANE EMISSIONS FROM OIL AND GAS WELLS

On August 12, 2022, Congress passed the Inflation Reduction Act, which includes $369 billion in spending on climate action. The Act introduces a “waste emissions charge,” which makes companies who produce, transport, or store oil and gas pay for methane that leaks from their facilities into the atmosphere. The charge will start at $900.00 per metric ton of methane and rise to $1,500.00 per metric ton by 2026. The Act is the first time the federal government has directly imposed a charge, fee, or tax on greenhouse gas emissions.

environmental
SUPREME COURT APPLIES AND EXPOUNDS UPON THE MAJOR QUESTIONS DOCTRINE IN EPA CASE

The Supreme Court recently decided a case related to the Clean Power Plan, an Obama-era regulatory scheme that would apply to the energy industry across the country. The main holding of the opinion in West Virginia v. EPA focused on the degree to which an administrative agency may assert power over the states, and by extension the economy, by congressional grant. In other words: how much authority may an administrative agency assert without an explicit statutory grant of the powers it is trying to assert over a specific process.

environmental
EPA ANNOUNCES NEW DRINKING WATER HEALTH ADVISORIES FOR PFAS ‘FOREVER CHEMICALS’

On June 15, 2022, the U.S. Environmental Protection Agency (EPA) released new drinking water health advisories for per- and polyfluoroalkyl substances (PFAS). The EPA also announced $1 billion in funding to address PFAS and other emerging contaminants in drinking water.

environmental
JUSTICE DEPARTMENT BEGINS COMPREHENSIVE ENVIRONMENTAL JUSTICE STRATEGY

On May 5, 2022, Attorney General Merrick Garland and EPA Administrator Michael Regan released a memorandum entitled: “Actions to Advance Environmental Justice.” The memorandum from the Office of the Attorney General announces three actions to “secure environmental justice for all Americans.”

environmental
ELEVENTH CIRCUIT COURT OF APPEALS HOLDS LOSS OF AESTHETIC PLEASURE IN VIEWING WETLAND SUFFICIENT TO ESTABLISH STANDING

In Glynn Env't Coal., Inc. v. Sea Island Acquisition, LLC, 26 F.4th 1235 (11th Cir. 2022), environmentalist Jane Fraser (“Fraser”) alleged that Sea Island Acquisition, LLC (“Sea Island”) filled wetlands with outside materials, diminishing her aesthetic interest in recreation and enjoyment of the natural beauty of the wetland. The Eleventh Circuit Court of Appeals held that Fraser’s allegations against Sea Island were sufficient to establish an injury in fact and therefore Fraser had standing to bring her claim.

environmental
DISTRICT COURT ISSUES INJUNCTION IN REGARD TO BIDEN ADMINISTRATION EXECUTIVE ORDER RELATED TO GREENHOUSE GAS EMISSIONS

In Louisiana v. Biden, 2022 WL 438313 (E.D. La. 2022), the States of Louisiana, Alabama, Florida, Georgia, Kentucky, Mississippi, South Dakota, Texas, West Virginia, and Wyoming moved for a preliminary injunction to enjoin enforcement of an executive order that reinstated the Interagency Working Group on Social Costs of Greenhouse Gas Emissions (“IWG”) and ordered the IWG to publish interim estimates for the social costs of greenhouse gas emissions for agencies to use when monetizing the value of changes in greenhouse gas emissions resulting from regulation and other relevant agency actions.  The issues before the District Court were: (1) whether the states had standing; (2) whether the asserted claims were subject to judicial review; and (3) whether the states satisfied the requirements to obtain a preliminary injunction.

environmental
FIFTH CIRCUIT AFFIRMS THE DISMISSAL OF RESIDENTIAL ASSOCIATION’S LAWSUIT AGAINST CITY FOR SELLING ALLEGEDLY CONTAMINATED LAND TO RESIDENTS

The Residents of Gordon Plaza, Inc. (“Gordon Plaza”) filed suit under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B), against the Mayor of New Orleans LaToya Cantrell and the City of New Orleans (the “City”) for the City’s alleged targeting of African American residents for the sale of residential units without disclosing that the location had been previously used as a landfill.  The lawsuit was dismissed due to an ongoing “removal” actions being taken by the Court, which created a RCRA statutory bar to Gordon Plaza’s Complaint.

environmental
THE FOURTH CIRCUIT COURT OF APPEALS HOLDS FEDERAL QUESTION JURISDICTION DOES NOT EXIST WHERE PLAINTIFF BRINGS ONLY STATE LAW CLAIMS DEMANDING RELIEF IN ADDITION TO EPA REMEDIES

In W. Virginia State Univ. Bd. of Governors v. Dow Chem. Co., No. 20-1712, 2022 WL 90242 (4th Cir. Jan. 10, 2022), the Fourth Circuit Court of Appeals held that it lacks federal jurisdiction over state law claims brought by West Virginia State University Board (“WSVU”) against Dow Chemical Company, Bayer Corporation, Bayer CropScience LP, Bayer CropScience Holding, Inc., Rhone-Poulenc, Inc., Rhone-Poulenc AG Co., Rhone-Poulenc AG Company, Inc., and Aventis CropScience USA, LP for pollution of groundwater on the WSVU campus.

environmental
ON MATTER OF FIRST IMPRESSION, NORTHERN DISTRICT COURT OF ALABAMA HOLDS THAT REMEDIATION COSTS ARE RECOVERABLE, EVEN WHERE THEY EXCEED DIMINUTION OF VALUE DAMAGES, WHERE THERE IS A LEGAL DUTY TO REMEDIATE

Plaintiff KMG-Bernuth, Inc., (“KMG”) operates a pentachlorophenol (“penta”) plant in Tuscaloosa which produces and stores liquid penta, an industrial wood preservative.  Penta is a hazardous pesticide subject to Environmental Protection Agency (“EPA”) regulations.  Defendant Ranger Environmental Services, LLC's (“Ranger”) is an industrial cleaning and environmental services company based in Tuscaloosa, Alabama. 

environmental
ELEVENTH CIRCUIT RESOLVES FORTY YEAR OLD BATTLE TO RESTORE THE OCKLAWAHA RIVER BY CONCLUDING IT LACKS SUBJECT MATTER JURISDICTION TO REVIEW AGENCY ENFORCEMENT DECISIONS

In 1971, President Richard Nixon cancelled construction of the Cross Florida Barge Canal in order to prevent permanent damage to the Ocklawaha River.  By the time the Canal construction was cancelled, nearly one-third of the project was completed.  The Rodman Dam (now the Kirkpatrick Dam) blocked the Ocklawaha River and created the Rodman Reservoir.  The creation of the reservoir flooded approximately 9,000 acres of forest and significantly damaged the Ocklawaha River.

environmental
CAN TEXAS PREVENT RESIDENTS FROM ACCESSING A PUBLIC BEACH

On October 11, 2021, Community group SaveRGV (“SaveRGV”) sued the Texas General Land Office, Texas Land Commissioner George P. Bush and Cameron County (“Texas”) for allegedly violating the state constitution. SaveRGV alleges that, by frequently and unpredictably closing a nearby beach for SpaceX to launch rockets at a nearby facility, Texas is violating its constitution. SaveRGV, v. Texas General Land Office et al., 2021-DCL-05887.

environmental
MISSISSIPPI PROPERTY OWNERS NOT REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES BEFORE THE MISSISSIPPI STATE OIL AND GAS BOARD PRIOR TO BRINGING SUIT

In Petro Harvester Oil & Gas Co., LLC v. Baucum, No. 2019-IA-01442-SCT, 2021 WL 3418398 (Miss. Aug. 5, 2021), Mississippi property owners Tay and Deidra Baucum brought an action against Petro Harvester Oil & Gas Company (“Petro Harvester”) for improper use of its oil-disposal well located on neighboring land.  The Baucums brought trespass, public and private nuisance, and negligence claims against Petro Harvester, alleging that for decades the company engaged in systematic and illegal dumping and disposal of oil field petroleum waste and drilling waste on Petro Harvester’s property and Baucum’s property.

environmental
LESS SHRIMP FOR LOUISIANA FOLLOWING RECENT REGULATION

On August 11, 2021, Louisiana’s Attorney General filed a complaint against the National Marine Fisheries Service (“NMFS) to prevent implementation of recent regulations amending 50 C.F.R. § 223 related to sea turtle conservation. Louisiana State v. Department of Commerce et al, U.S. District Court for the Eastern District of Louisiana, No. 2:21-cv-01523.  The new rule requires certain shrimp fisherman to install a device on their fishing nets to help prevent the incidental bycatch of endangered sea turtles. Sea Turtle Conservation; Shrimp Trawling Requirements, 84 Fed. Reg. 70,048 (Dec. 20, 2019) (to be codified at (to be codified at 50 C.F.R. § 223).

environmental
UNITED STATES SUPREME COURT HOLDS BOTH STATE AND PRIVATE PROPERTY CAN BE CONDEMNED BY A CERTIFICATE HOLDING NATURAL GAS COMPANY

In PennEast Pipeline Company, LLC v. New Jersey, the Supreme Court of the United States (SCOTUS) defended the federal government’s ability to delegate its eminent domain power to a natural gas company.  No. 19-1039, 2021 WL 2653262, (U.S. June 29, 2021). 

The Natural Gas Act (“NGA”) was passed by Congress in 1938 to regulate the sale and transportation of natural gas across state lines.  NGA requires a natural gas company to obtain a certificate from the Federal Energy Regulatory Commission (“FERC”) in order to build an interstate gas pipeline.  The certificate reflects that construction of the pipeline “is or will be required by the present or future public convenience and necessity.” 15 U.S.C. § 717f(e). 

environmental
FEDERAL COURT REMANDS UNFAIR TRADE PRACTICES LAWSUIT AGAINST EXXON

The United States District Court for the District of Connecticut has granted the state’s remand motion in its case against Exxon Mobil for allegedly misleading the public about connections between its products and climate change, as well as alleged interference with the marketplace for renewable energy and “greenwashing.”  Connecticut v. Exxon Mobil Corp., No. 3:20-cv-1555 (June 9, 2021).

environmental
HOLCIM REACHES SETTLEMENT OVER ALLEGED ILLEGAL LEACHATE DISCHARGES

On April 28, 2021, the Department of Justice lodged a proposed consent decree with the United States District Court for the Northern District of New York in the lawsuit entitled United States and State of New York v. Holcim (US) Inc., CV No. 1:21-cv-490.  The United States and the State of New York filed the action for injunctive relief and civil penalties pursuant to Sections 309(b) and (d) of the Clean Water Act (“CWA”), 33 U.S.C. §1319(b) and (d), and Article 17 of the New York Environmental Conservation Law (“ECL”) against Holcim (US) Inc., for illegal discharges of leachate pollutants. 

environmental
SUPREME COURT DISMISSES FLORIDA’S CASE AGAINST GEORGIA OVER WATER USE IN THE APALACHICOLA CHATTAHOOCHEE FLINT RIVER BASIN

In an April 1, 2021 ruling, the U.S. Supreme Court unanimously dismissed Florida’s claims against Georgia in a long-running dispute over the use of water in the Apalachicola-Chattahoochee-Flint (ACF) river basin. State of Florida v. State of Georgia, 141 S.Ct. 1175 (2021).  The court rejected Florida’s request for an order requiring Georgia to reduce its use of water in the Apalachicola - Chattahoochee - Flint River Basin (“Apalachicola River Basin”), affirming the Special Master’s finding that Florida did not meet its burden of proof in establishing Georgia's water use caused serious harm to Florida's oyster fisheries or river wildlife and plant life.

environmental
NAVIGABLE WATERS PROTECTION RULE DOES NOT REQUIRE DISMISSAL OF CWA CASE

This Clean Water Act (CWA) case arose from the 2007 disposal of fill from Defendants’ property (containing purported wetlands) allegedly into “waters of the United States.”  United States v. Acquest Transit LLC, No. 09-CV-55S, 2021 WL 809984, at *13 (W.D.N.Y. Mar. 3, 2021).  The underlying issue is whether that property contained wetlands that are part of “waters of the United States” to be governed by the CWA.  The CWA applies to “navigable waters” which, in turn, are defined as the “waters of the United States,” 33 U.S.C. § 1362(7).

environmental
MISSISSIPPI FEDERAL DISTRICT COURT RULES SUPREME COURT DECISION IN MAUI DOES NOT APPLY TO TOXIC SPILL IN CLEAN WATER ACT CASE

Plaintiffs in Melton Properties, et al. v. Illinois Central Railroad, 2020 WL 7335018 (N.D. Miss.) recently argued the Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), overrules the 5th Circuit’s precedent in Hamker v. Diamond, 756 F.2d 392 (5th Cir. 1995). Plaintiffs are property owners or farmers near the site of a train derailment that caused a toxic spill.  On application for rehearing, Plaintiffs asked the Court to reinstate their previously dismissed claims.

environmental
UNITED STATES SUPREME COURT WILL HEAR A CASE SEEKING GUIDANCE ON THE APPLICABLE STATUTE OF LIMITATIONS IN A CERCLA CONTRIBUTION CASE

The U.S. Supreme Court has agreed to hear litigation concerning which section of the law, and their different statutes of limitations, parties must use when seeking to recoup Superfund cleanup costs.  The case, Guam v. United States, Case No. 20-382, is slated to be heard in the Court’s upcoming term.

environmental
EPA ISSUES GUIDANCE MEMORANDUM ON COUNTY OF MAUI’S FUNCTIONAL EQUIVALENT TEST

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. 

environmental
SEVENTH CIRCUIT WILL DECIDE SUPREME COURT IMPACT ON GROUNDWATER DISPUTE
The United States Court of Appeals for the Seventh Circuit will soon have the opportunity to apply the U.S. Supreme Court’s recent County of Maui v. Hawaii Wildlife Fund ruling to a long-running dispute between an environmental group and the owner of a coal-fired power plant. 140 S.Ct. 1462 (2020).  The case is Prairie Rivers Network v. Dynegy Midwest Generation, LLC, No. 18-3622 (7th Cir.), and at issue is whether Dynegy is liable under the Clean Water Act (CWA) for alleged discharges from coal ash ponds through groundwater into a local river.
environmental
D.C. CIRCUIT REFUSES TO IMPOSE DEADLINE ON EPA TO SUBMIT TMDL

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.

environmental
THIRD CIRCUIT HOLDS CERCLA CONTRIBUTION CLAIMS NOT EXTINGUISHED BY STATE CLEANUP SETTLEMENT
The U.S. Court of Appeals for the Third Circuit has ruled a potentially responsible party’s (PRP) settlement with New Jersey resolving its state-law liability in connection with contamination at a municipal landfill did not protect it from third-party lawsuits seeking contribution toward expenditures made by EPA on the same site.  New Jersey Department of Environmental Protection v. American Thermoplastic Corp., Nos. 18-2865 and 19-2243 (3rd Cir. September 8, 2020).  The opinion highlights CERCLA § 113(f)(2), which provides “[a] party who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.”  The opinion also emphasizes CERCLA § 104 cooperative agreements in the context of settlements.
environmental
COURT DISMISSES CASE SEEKING EPA REVIEW OF EMISSIONS RISKS

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.

environmental
NINTH CIRCUIT HOLDS CLEAN AIR ACT DOES NOT PREEMPT ANTI TAMPERING LAWS AGAINST POST SALE VEHICLES

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).

environmental
UNITED STATES SUPREME COURT ISSUES RULING IN CLEAN WATER ACT CASE
On April 23, 2020, the United States Supreme Court issued its decision in County of Maui v.  Hawaii Wildlife Fund, No. 18-260, addressing whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source, but are conveyed to navigable waters by a nonpoint source, such as groundwater.  The Court found the CWA may require a permit when there is a direct discharge, or a functional equivalent of a direct discharge, of pollutants from a point source into navigable waters.
environmental
D.C. CIRCUIT REINSTITUTES EPA RESTRICTIONS ON HFCs AS OSDs

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.





environmental
FOURTH CIRCUIT COURT OF APPEALS AGREES BALTIMORE CLIMATE SUIT BELONGS IN STATE COURT

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.





environmental
EPA AND U.S. ARMY CORPS OF ENGINEERS RELEASE NAVIGABLE WATERS PROTECTION RULE REDEFINING WATERS OF THE UNITED STATES

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.





environmental
OHIO COURT APPLIES CONSTRUCTIVE SUBMISSION DOCTRINE TO CWA CASE

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.





environmental
DISTRICT COURT RULES EPA’S INTERPRETATION OF CLEAN WATER ACT PERMITTING REQUIREMENTS IS REASONABLE

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.





environmental
SCOTUS HEARS ORAL ARGUMENT IN COUNTY OF MAUI CLEAN WATER CASE

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.






environmental
MAUI COUNTY VOTES TO SETTLE CLEAN WATER ACT CASE PENDING REVIEW BEFORE THE UNITED STATES SUPREME COURT

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.





environmental
ELEVENTH CIRCUIT RULES ALABAMA’S NPDES PERMITTING PARTNERSHIP WITH EPA CAN CONTINUE

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.).





environmental
FEDERAL COURT JUDGE REDUCES $75 MILLION VERDICT AGAINST ROUNDUP TO $20 MILLION
A United States District Court Judge for the Northern District of California has reduced an $75 million punitive damages award against Monsanto Company to $20 million in the nation’s first federally-tried Roundup case.  Hardeman v. Monsanto, 3:16-cv-00525 (N.D. Cal., July 15, 2019).  In reducing the award, the Court stated Monsanto deserves to be punished, but that the punitive damages award was constitutionally impermissible.




environmental
D.C. CIRCUIT UPHOLDS RCRA’S TRANSFER-BASED EXCLUSION FOR RECYCLED SOLID WASTE
The D.C. Circuit has upheld an EPA rule that classifies as "recycled" certain hazardous material sent to a third-party reclamation facility and thus exempt from the Resource Conservation and Recovery Act (RCRA) regulations governing discarded waste.  California Communities Against Toxics, et al., v. EPA, et al., No. 18-1163 (D.C. Cir., July 2, 2019).




environmental
U.S. SUPREME COURT GRANTS REVIEW OF MONTANA SUPERFUND SITE RULING
The U.S. Supreme Court has granted a petition for writ of certiorari to review questions regarding clean-up activities required by the U.S. Environmental Protection Agency (“EPA”) under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).  Atlantic Richfield Co. v. Christian, No. 17-1498.  In the suit, Atlantic Richfield seeks to overturn a decision by the Montana Supreme Court which allows private landowners to challenge the EPA’s cleanup plan at one of the nation’s largest Superfund sites.




environmental
CALIFORNIA JURY AWARDS 2 BILLION IN FAVOR OF COUPLE IN ROUNDUP CANCER TRIAL
A California jury has awarded a $2.055 billion verdict in favor of a California couple, finding Monsanto’s product Roundup likely caused the couple’s cancer.  Pilliod v. Monsanto Co., Case No. RG-1786272 (Cal. Super. Ct., Alameda Division).  This is Bayer AG’s third consecutive Roundup trial loss since mid-2018 in cases involving claims the product caused cancer.




environmental
EIGHTH CIRCUIT UPHOLDS 11 MILLION DOLLAR CERCLA JUDGMENT OVER SALE OF CONTAMINATED BUILDING
The Eighth Circuit for the U.S. Court of Appeals has upheld an $11 million judgment entered against two subsidiaries of Titan International (collectively “Titan”) by a lower court which ruled Titan had improperly sold contaminated buildings to avoid cleanup.  United States v. Dico, Inc., No. 17-3462 (8th Circuit 2019).  The Court’s holding affirms the lower court’s judgment that Titan violated the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA).




environmental
UNITED STATES SUPREME COURT GRANTS CERTIORARI IN NINTH CIRCUIT CWA CASE
The United States Supreme Court has granted certiorari in County of Maui, HI v. Hawaii Wildlife Fund, et al., No. 18-260, a Ninth Circuit case, as to the question of whether the Clean Water Act (“CWA”) requires a permit when pollutants originate from a point source discharge, but are conveyed to navigable waters by a nonpoint source, such as groundwater.  The Court will determine whether the National Pollution Discharge Elimination System (NPDES) program’s reach is limited, covering only “direct” discharges to navigated waterways...




environmental
TEXAS SUPREME COURT HOLDS JOINT VENTURE LIABILITY CAP INAPPLICABLE TO DEFENSE COSTS
On January 25, 2019, the Texas Supreme Court issued a unanimous ruling reversing the lower court’s holding regarding an insurers’ obligation to pay a significant amount of legal defense costs that resulted from its liability in the Deepwater Horizon oil spill. See Anadarko Petroleum Corp. v. Houston Casualty Co., No. 16-1013 (Tex. Jan. 25, 2019). The Court ruled that a joint-venture liability cap in an insurance policy did not limit coverage for Anadarko’s defense expenses related to the Deepwater Horizon oil spill where the provision only capped “liability”—an undefined term.
environmental
NIGHTTIME NEARS FOR DUSKY GOPHER FROG?

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.





environmental
SUPREME COURT ASKS SOLICITOR GENERAL TO WEIGH IN ON TWO CLEAN WATER ACT CASES
The United States Supreme Court has asked the Solicitor General to weigh in on two petitions for writ of certiorari -- one Fourth Circuit case, Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), and the other a Ninth Circuit case, Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018).  The issue is whether the scope of the Clean Water Act extends to pollutants that travel through groundwater before reaching navigable waters.




environmental
KIDS’ CLIMATE CHANGE SUIT TEMPORARILY DELAYED IN NINTH CIRCUIT
The trial in a climate change lawsuit brought by 21 youths has been stayed after the Ninth Circuit Court of Appeals granted the government’s request that it consider halting the case.  Juliana v. United States, No. 18-73014 (November 8, 2018), was filed in 2015 and contends the federal government pursued energy policies that caused climate change even though it has known for more than fifty years that carbon emissions destabilize the climate, and that the failure to protect future generations from the effects of climate change violated their generations’ constitutional right to live in a “climate system capable of sustaining human life.”




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 similar ruling by the 4th Circuit, which found discharge of arsenic from a coal ash storage site through groundwater into surrounding waters did not violate the CWA and did not require a NPDES permit.  Sierra Club v. Virginia Electric & Power Co., No. 17-1895 (4th Cir., September 12, 2018).




environmental
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 panel reversed a lower court's finding that Dominion Virginia Power could be liable for leaks from coal ash dumps at Chesapeake Energy Center, which closed in 2014.  The Court held Dominion's coal ash landfill and settling ponds did not qualify as a "point source" under the Clean Water Act because the arsenic flowed from sites through groundwater before reaching the Elizabeth River and Deep Creek.



environmental
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 al., Case No. CGC16550128.  The verdict included $250 million in punitive damages, $2.3 million for past and future economic losses, and $37 million for pain, suffering and loss of life expectancy.
environmental
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 may interpret the failure of a state to timely submit TMDLs as a “constructive submission” of a list of no TMDLs.





environmental
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 punitive damages awards to reduce the $50 million reward to $3.25 million.




environmental
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 (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.





environmental
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 released at two manufactured gas plants in the early 1900s.  The processes used at the time to create gas for home consumption inevitably released harmful byproducts, including coal tar, into the local environment, causing groundwater contamination.




environmental
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 resources.





environmental
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).


environmental
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 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. 

environmental
INSURER BOUND BY INSURED’S PROMISE TO PARTICIPATE IN ENVIRONMENTAL CLEANUP

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.




environmental
WISCONSIN FEDERAL DISTRICT COURT ALLOWS PCB CITIZEN SUIT UNDER RCRA
The United States District Court for the Western District of Wisconsin has ruled that a citizen suit related to the release of polychlorinated biphenyls (PCBs) may be brought under the Resource Conservation and Recovery Act, (RCRA), even though PCBs are regulated under the Toxic Substances Control Act (TSCA).  Liebhart v. SPX Corp., No. 16-cv-700 (W.D. Wis., November 2, 2017).  Plaintiffs, who owned land adjacent to a factory used to produce electrical transformers in the 1950s, brought suit against SPX, alleging PCBs were released during demolition of the factory.  Plaintiffs claimed the release of PCBs during the demolition contaminated their property and caused Plaintiffs to suffer physical symptoms, such as acute sinusitis, vertigo and skin infections.

environmental
SIXTH CIRCUIT REMANDS FLINT WATER SUPPLY CLASS ACTION TO STATE COURT

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.




environmental
NINTH CIRCUIT PROVIDES GUIDANCE ON CERTAINTY AND FINALITY REQUIREMENTS IN CERCLA CONTRIBUTION ACTIONS

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. 




environmental
D.C. CIRCUIT STRIKES DOWN HYDROFLUOROCARBON BAN

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.




environmental
U.S. DISTRICT JUDGE REJECTS ELK RIVER CHEMICAL SPILL SETTLEMENT

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.




environmental
GENERAL LIABILITY INSURER HAS DUTY TO DEFEND ODOR CLAIM

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. 




environmental
EXPERT TESTIMONY ON HEALTH RISKS ADMISSIBLE DESPITE LACK OF CLAIMS FOR PERSONAL INJURY

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.




environmental
COURT DISMISSES CERLCA CLAIMS AGAINST CHURCH AND DISPOSAL COMPANY

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).




environmental
FOURTH CIRCUIT AFFIRMS RULING THAT CERCLA’S DISCOVERY RULE ONLY APPLIES WHERE THERE IS A VIABLE CERCLA CLAIM

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).


environmental
DUPONT AND CHEMOURS SETTLE MDL RELATED TO PFOAS
Chemours and DuPont, its former owner, have agreed to pay $671 million to resolve multidistrict litigation in Ohio federal court alleging DuPont improperly released cancer causing chemicals into the Ohio River. There were over 3,400 lawsuits in the multidistrict litigation pending against DuPont over the contamination. 
environmental
OHIO JURY AWARDS 12.5 MILLION VERDICT AGAINST DUPONT OVER PFAS
An Ohio federal court jury recently awarded $10.5 million in punitive damages to a man who said DuPont's chemical caused his cancer.  Plaintiff alleged his drinking water was contaminated by C8, a chemical used to make Teflon, from smokestack emissions at DuPont’s Washington Works plant.
environmental
EIGHTH CIRCUIT REFUSES TO CERTIFY CLASS IN CASE ALLEGING NEIGHBORHOOD CLAIMS FOR DAMAGES ARISING FROM TOXIC TORT VAPOR INTRUSION

In Ebert v. General Mills823 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.  

environmental
DISTRICT COURT FINDS NO DUTY TO DEFEND ENVIRONMENTAL CLAIMS

 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.  

environmental
PLOWING DEEMED POLLUTING UNDER CLEAN WATER ACT

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. 

environmental
UNITED STATES SUPREME COURT OPENS DOOR FOR LANDOWNERS TO CHALLENGE DECISIONS BY FEDERAL REGULATORS THAT USE OF PROPERTY IS RESTRICTED BY THE CLEAN WATER ACT

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.

environmental
UNITED STATES SUPREME COURT REFUSES TO HEAR EXXON’S PETITION FOR WRIT OF CERTIORARI BASED UPON ALLEGED DUE PROCESS VIOLATIONS

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.  

environmental
NINTH CIRCUIT HOLDS CLEAN AIR ACT DOES NOT PREEMPT ANTI TAMPERING LAWS AGAINST POST SALE VEHICLES

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).

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