Administrative Agency Environmental Civil Remedies

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Federal Court Denies Joint Motion For Consent Decree Regarding The Marbled Murrelet

In American Forest Resources Council v. Ashe, 1:12-cv-00111 (D.D.C. Mar. 30, 2013), the United States District Court for the District of Columbia denied a joint motion for a consent decree regarding the critical habitat...more

What is the "relevant parcel" in a regulatory takings case?

In Lost Tree Village Corporation v. United States, the Federal Circuit addressed this question head on, concluding, to the surprise of no one, that the answer will largely depend upon the unique facts in each case. ...more

Energy And Environmental Law Alert: Feds Continue Aggressive Enforcement Of Emissions Limits For Power Plants

On January 4, 2013, the Wisconsin Public Service Corporation agreed to pay more than $300 million as part of a settlement reached with the EPA and the Justice Department regarding alleged violations of the Clean Air Act. The...more

Toxic Tort and Environmental Law Update: January 2013 - New Jersey Supreme Court Clarifies Requisite Nexus for Liability Under...

In New Jersey Dept. of Environmental Protection v. Dimant, 212 N.J. 153 (2012), the New Jersey Supreme Court held that the New Jersey Department of Environmental Protection (NJDEP) must establish, by a preponderance of the...more

CEQA Standing Reform: Could Statutory Standing Requirements Feasibly Be Tightened To Bar Anti-Competitive Lawsuits Motivated By...

Meaningful CEQA reform is a topic much discussed by politicians and stakeholders, but its realization remains elusive. For example, in-fill exemptions are fettered with multitudes of complex and convoluted conditions and...more

Sierra Club Ready To Sue On Alleged Air Quality Violations

As required under the federal Clean Air Act, the Sierra Club has filed a “notice of intent to sue” alleging at least 1330 air quality violations by DTE Energy coal-fired power plants: St. Clair, Belle River, and Trenton...more

Winning the Superfund Remedy Fight in Court: Don’t Count On It

Remedy decisions are almost always won or lost at the agency level. Once the ROD issues, a PRP’s chance of having the selected remedy overturned in court is slim to none – a point that was driven home in a recent decision in...more

California Drops the Hammer on First Carbon Auction Despite New Lawsuit

The California Air Resources Board (CARB) proceeded today with the inaugural carbon allowance auction for its impending “cap-and-trade” greenhouse gas (GHG) emissions regulation program, despite a lawsuit filed yesterday by...more

Chamber Challenges Today’s GHG Emissions Auction in California

California’s largest business lobby filed a lawsuit yesterday seeking to invalidate California’s first greenhouse gas (GHG) emissions allowance auction scheduled for today....more

CARB Sued on Cap and Trade Revenues on Eve of First Auction

It has been rumored for weeks that a Cap and Trade lawsuit was imminent. The questions were: who would file the lawsuit, when, and on what grounds? Those questions were answered, at least in part, today. The case is...more

CEQA Remedies Clarified

Preserve Wild Santee v. City of Santee Finds That CEQA Allows Courts to Issue Limited Fix-It Tickets for CEQA Deficiencies in EIRs Rather Than Decertifying the Entire EIR and Invalidating All Related Project Approvals. ...more

IOGA-WV Spearheads Effort to Protect Independent Producers and Challenges EPA Air Rules

On October 15, 2012, IOGA-WV, the Independent Petroleum Association of America (“IPAA”) and five other state-level oil and gas associations filed suit in the D.C. Circuit Court of Appeals challenging the U. S. Environmental...more

W.Va. Supreme Court Affirms Award of Attorneys’ Fees and Expenses Against WVDEP In Surface Mine Board Appeals

By a per curiam (“for the Court”) decision issued on October 19, 2012, the West Virginia Supreme Court of Appeals ruled that the West Virginia Department of Environmental Protection (“WVDEP”) is obligated to pay the Hominy...more

CERCLA and Original Sin -- Who Has to Pay For Other People's Contamination

In an environmental dispute between innocents involving a Church and a downgradient property owner, a federal court recently found the Church, although without original sin, was less innocent and should bear all the costs of...more

State of New Jersey Unsuccessful in Trying to Expand Environmental Liability

Any company handling hazardous substances in New Jersey must be aware that while the state was recently unsuccessful in expanding liability for damages under the Spill Act, the Supreme Court clarified what constitutes a...more

McAfee & Taft RegLINC - July 2012: Industry groups voice concern over OSHA’s change to HazCom standard by Heidi Slinkard Brasher

Several industry groups – including the American Petroleum Institute, CropLife America, American Tort Reform Association, National Oilseed Processors Association, and American Chemistry Counsel – have petitioned a federal...more

McAfee & Taft RegLINC - July 2012: Lead in ammunition by Chris Paul

A number of environmental organizations filed suit against the EPA for failure to act on a March 2012 petition related to lead ammunition (Trumpeter Swan Society v. EPA, D.D.C. 6/07/12). Article authored by McAfee &...more

Parties Must Exhaust Administrative Remedies Before Challenging Even A CEQA Exemption

The California Supreme Court recently reinforced the CEQA requirement that a party must exhaust administrative remedies even where the public agency finds a project exempt from CEQA, if the agency (a) gave notice of the...more

FHFA Proposes Rule for PACE Programs

On June 15, the FHFA, as required by a preliminary injunction from the Northern District Court of California, issued a notice of proposed rulemaking on state and local energy retrofit financing arrangements known as Property...more

UPDATE: Exhaustion-Of-Administrative-Remedies Requirement Applies If There Is A Public Hearing Before An Agency Determines A...

The California Supreme Court recently held that the exhaustion-of-administrative-remedies requirement found in Public Resources Code § 21177, subdivision (a), applies where a public agency determines that a proposed project...more

South Carolina Legislature Acts to Protect Businesses from Citizens Lawsuits

On June 6, 2012 South Carolina’s General Assembly ratified and Governor Nikki Halley signed into law a bill that repeals a 2011 ruling from the State Supreme Court. In Georgetown County League of Women Voters v. Smith Land...more

Court Rejects Attempt to Expand RCRA to Diesel Exhaust

On May 29, 2012, the Central District of California dismissed a lawsuit filed by a number of environmental groups seeking to apply the Resource Conservation and Recovery Act (“RCRA”) to any gaseous emissions that have the...more

Two Strikes Against Common Law Approaches to Climate Change: The Atmosphere Is Not A Public Trust

Yesterday, the District Court for the District of Columbia dismissed the so-called “public trust” climate change law suit. I will certainly give the plaintiffs in these cases credit for both originality and persistence. Legal...more

“Supreme Court Will Review CEQA Categorical Exemption Exception In Berkeley Hillside Preservation Case”

On May 23, 2012, the California Supreme Court by unanimous vote granted respondents’ and real parties’ petition for review of the First District Court of Appeal’s published decision in Berkeley Hillside Preservation, et al....more

A Win for Texas: Fifth Circuit Finds EPA’s Disapproval of State Implementation Plan Arbitrary and Capricious

The Fifth Circuit Court of Appeals vacated the U.S. Environmental Protection Agency’s (EPA) disapproval of Texas’ State Implementation Plan (SIP), finding that the EPA’s action was arbitrary and capricious. In Luminant...more

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