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District Court Dismisses Challenge to Biological Opinions In Light of Circuit Court’s Exclusive Jurisdiction

Primarily relying on precedent from the U.S. Court of Appeals for the Ninth and D.C. Circuits, the U.S. District Court for the District of Maine recently dismissed an Endangered Species Act (ESA) lawsuit challenging two...more

ESA Mega-Settlement Part II: CBD Files Notice of Intent to Sue Over 417 Species

The Center for Biological Diversity (“CBD”) filed on August 23, 2016 a Notice of Intent to sue the U.S. Fish & Wildlife Service (“FWS” or “the Service”) over missed Endangered Species Act (“ESA”) 12-month finding deadlines...more

Court’s Tentative Decision Sides in Favor of DOGGR in CBD’s Wastewater Injection Lawsuit

As reported in a previous blog post, Earthjustice, on behalf of the Center for Biological Diversity (“CBD”), filed a lawsuit against the California Division of Oil, Gas, and Geothermal Resources (“DOGGR”) in May 2015. The...more

The Eleventh Circuit Stays Challenge to the Clean Water Rule

On August 16, 2016, the United States Court of Appeals for the Eleventh Circuit, which is located in Atlanta, issued its stay of proceedings in the challenge before that circuit to the Clean Water Rule that was filed in the...more

Real Estate and Land Use - August 2016

Court of Appeal Holds EIR Inadequately Analyzed Energy Impacts - Ukiah Citizens for Safety First v. City of Ukiah et al. (248 Cal.App.4th 256) (partially published) - Why It Matters: The California Court of Appeal...more

Sixth Circuit Upholds Criminal Restitution

An earlier case, decided by the U.S. Court of Appeals for the Sixth Circuit on June 3, 2016, is noteworthy because it resulted in an opinion affirming the government’s use of the criminal restitution laws to require a...more

Alabama Joins Challenge to EPA's Rule Limiting Emissions from the Oil and Natural Gas Industry

Alabama has joined several other states in a petition filed with the U.S. Court of Appeals for the D.C. Circuit seeking to challenge the Environmental Protection Agency’s final rule regulating emissions standards for certain...more

The Social Cost of Carbon Passes Its First Judicial Test

Earlier this week, the 7th Circuit affirmed the Department of Energy’s new energy efficiency requirements for commercial refrigeration equipment. This is a big deal in its own right, simply because the numbers are really...more

First Parish Coastal Zone Lawsuit to Proceed to Decision Falls for Failure to Exhaust Administrative Remedies

The first of 40 coastal permitting lawsuits to proceed to disposition has been dismissed for failure to exhaust administrative remedies. In a ruling released today, Judge Enright of the 24th JDC for Jefferson Parish...more

Recent Environmental and Administrative Law Decisions by Federal and State Courts

The state and federal appellate courts have issued a surprising number of significant rulings in a variety of environmental and administrative law controversies in late July and early August: - On August 8, the U.S....more

Despite Pollution Exclusion, Insurer On Hook for Contamination in Indiana

Seyfarth Synopsis: The Northern District of Indiana rejected the insurer’s assertion that its pollution exclusion clauses unambiguously included all contaminants. Indiana, unlike other jurisdictions, is pro-insured when...more

Cabot Oil & Gas Continues to Fight $4.24 Million Federal Court Jury Verdict on Landowners’ Nuisance and Negligence Claims

After a recent round of post-trial motion briefing in Ely v. Cabot Oil & Gas Corp., Case No. 3:09-cv-02284-MCC (M.D. Pa.), it appears one of the most heavily publicized landowner lawsuits against an exploration and...more

A Foolish Consistency Is the Hobgoblin of Little Minds: So Said Emerson, So Says EPA

On Wednesday, EPA issued a final rule amending its “Regional Consistency Regulations.” The new rule provides that EPA will only follow adverse judicial decisions in the areas of the country where such judicial decisions are...more

Aerial Emissions Are Not “Disposal” Under CERCLA

Last year, we told you about a district court case in which air emissions from a lead smelter that ultimately settled on the land and in a water body gave rise to liability under the Comprehensive Environmental Response,...more

EAB Upholds EPA Cancellation of Flubendiamide Registrations

On July 29, 2016, the Environmental Appeals Board (EAB or Board) issued its Final Decision and Order (Order) upholding the Administrative Law Judge (ALJ) Initial Decision and an earlier order denying Bayer CropScience LP and...more

Chevron Deference Lives! EPA’s Boiler Rule (Mostly) Survives Review

On Friday, the D.C. Circuit largely upheld EPA’s Boiler MACT rule. The industry challenges were a complete washout. The environmental petitioners won one significant victory and a number of smaller ones....more

Ninth Circuit Holds Air Emissions Not Covered by CERCLA

Decision finds operator of a lead and zinc smelter not liable as an “arranger” under CERCLA for aerial deposition of heavy metals. On July 27, a panel of the US Court of Appeals for the Ninth Circuit unanimously held...more

New Ninth Circuit Decision Precluding CERCLA Liability for Airborne Emissions

Yesterday, the Ninth Circuit Court of Appeals issued in the long-running Pakootas v. Teck Cominco Metals, Ltd. litigation another important decision further defining the scope of liability under the federal Comprehensive...more

No Doubting Thomases Allowed!

Expert appraisers have testified that the proposed development will not adversely affect values of properties adjacent to this new development. Nevertheless, the testimony does not seem right to you. You remember the Great...more

New York Extends Statute of Limitations for Personal Injury Damages Caused by Contamination from Superfund Sites

On July 21, 2016, New York Governor Cuomo signed into law New York State Assembly Bill No. A09568, which amends the statute of limitations for filing actions to recover damages for personal injury caused by contamination...more

No Deference to State Settlements Under CERCLA? No Problem!

I will confess that I do enjoy being correct. In 2014, the 9th Circuit Court of Appeals refused to defer to a state agency determination of the procedural and substantive fairness of a CERCLA consent decree. Various parties...more

Discovery Rule Does Not Postpone Accrual of CEQA Cause of Action; Events Specified In CEQA Statute of Limitations Provide...

In a short but significant published opinion filed July 19, 2016, the First District Court of Appeal affirmed the San Francisco County Superior Court’s judgment of dismissal following the sustaining of demurrers (without...more

Federal Court of Appeal: Government Failed to Adequately Consult with First Nations on Northern Gateway

On June 23, 2016, the Federal Court of Appeal delivered the Northern Gateway Project another procedural setback in its decision on Gitxaala Nation v Canada (2016 FCA 187). In a 2-to-1 split decision, the court overturned the...more

Forecast is Hazy For EPA’s Regional Haze Oversight Authority

Earlier this month, the 5th Circuit Court of Appeals stayed EPA’s disapproval of the Texas and Oklahoma regional haze state implementation plans, as well as EPA’s promulgation of its own federal implementation plan. The...more

Three Strikes and Mingo Logan Is Out: The D.C. Circuit Affirms EPA Withdrawal of Approval of Mountaintop Removal Disposal Sites

In 2013, the D.C. Circuit affirmed EPA’s authority to withdrawal approval of mountaintop mining disposal sites, even after the Army Corps has issued a Section 404 permit. In 2014, the District Court rejected Mingo Logan’s...more

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