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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
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 grou
environmental
KIDS’ CLIMATE CHANGE SUIT TEMPORARILY DELAYED IN NINTH CIRCUIT
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
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 surro
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 an
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 exp
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
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, c
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 Environmen
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 factor
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
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 t
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 infecti
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 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.  
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.  
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