Civil Procedure, Environmental Law

California Environmental Law and Policy Update - May 20, 2013

by David D. Cooke, Emily L. Murray, Sandi L. Nichols | Allen Matkins Leck Gamble Mallory & Natsis... on 5/22/2013

Environmental and Policy Focus - Federal omission in closing oyster farm broke law, court told - Los Angeles Times - May 14: The U.S. Interior Department violated federal law by failing to conduct an...more

Why Trial Courts Are Reluctant To Exclude Scientific Evidence in Toxic Tort Cases

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 5/21/2013

Environmental litigation, particularly toxic tort litigation, inevitably turns on scientific evidence about causation. Beginning with the Supreme Court’s Daubert decision in 1993, trial courts have repeatedly been admonished...more

The Direction of CEQA “Reform” Under Proposed SB 731: One Step Up and Three Steps Back?

by Arthur F. Coon | Miller Starr Regalia on 5/20/2013

There has been a lot of buzz around proposed SB 731, which is working its way through the State Legislature and will be heard Monday, May 20, in the Senate Appropriations Committee. Notwithstanding the hype and hopes, I think...more

Jarndyce v. Jarndyce Has Nothing On Comer v. Murphy Oil: The Fifth Circuit Court of Appeals Affirms Dismissal

by Seth Jaffe | Foley Hoag LLP - Environmental Law on 5/17/2013

Readers of this blog will recall the bizarre history of Comer v. Murphy Oil. In 2005, Plaintiffs brought tort claims against major GHG emitters, claiming that those emissions, by causing global warming, led to plaintiffs’...more

The EPA Reaches Back in Time: Appeals Court Allows Government to Veto 404 Permits Issued Years Earlier

by James Potter | Nexsen Pruet, PLLC on 5/16/2013

Both public and private landowners have to obtain Section 404 discharge permits for the discharge of dredged materials from navigable waters. The Army Corps of Engineers is the permitting authority for the Section 404...more

California Governor Proposes Reforms to Proposition 65, Seeks To Prevent Abuse of Statute by "Unscrupulous Lawyers"

by Nancy Sher Cohen, Shawn Ledingham, Jr, Gail Port | Proskauer Rose LLP on 5/14/2013

California Governor Edmund Brown has added his voice to a number of California legislators calling for an overhaul of the state's Safe Drinking Water and Toxic Enforcement Act of 1986 – better known as Proposition 65 (the...more

Appeal Court Confirms That Innocent Party Must Clean Up Pollution

by Jack Coop, Jennifer Fairfax, Daniel Kirby, Paul Morassutti, Lindsay Rauccio, Patrick Welsh | Osler, Hoskin & Harcourt LLP on 5/13/2013

In a decision in Kawartha Lakes (City) v. Ontario (Environment), on May 10, 2013, the Ontario Court of Appeal unanimously dismissed the appeal of the City of Kawartha Lakes (the City), which sought to overturn a decision of...more

Public Agency May Begin Eminent Domain Proceedings Before Completing CEQA Review, But May Not Actually Acquire The Property Until...

by William T. Chisum, Jon E. Goetz, Jeffrey L. Massey, Leslie Z. Walker | Kronick, Moskovitz, Tiedemann & Girard on 5/13/2013

A racetrack landowner challenged a regional park district’s plan to condemn part of the property for construction of a bayside trail, asserting that the park district was required under eminent domain law and the California...more

Federal Court Provides Guidance on Adequacy of Consultation About Environmental Assessments of Major Resource Projects

by Jeremy Barretto, Thoma Gelbman, Suzanne MacMillan | Osler, Hoskin & Harcourt LLP on 5/8/2013

On April 23, 2013, the Federal Court of Canada released its decision dismissing an application commenced by the Conseil des Innus de Ekuanitshit (the Applicant) to judicially review the Order in Council (OIC) issued on the...more

Ontario Court Dismisses “Speculative” Challenge to a Prospective Wind Turbine Project

by Jack Coop, Jennifer Fairfax, Daniel Kirby, Lindsay Rauccio, Patrick Welsh | Osler, Hoskin & Harcourt LLP on 5/7/2013

In Wiggins v. WPD Canada Corporation, the Ontario Superior Court of Justice dismissed the plaintiffs’ claims for injunctive relief and $16.6 million in damages against a prospective (not yet approved) wind turbine project,...more

Court Dismisses Suit For Failure To Strictly Comply With 60-Day Notice Requirement

by David Miller | Nossaman LLP on 5/7/2013

In Klamath Siskyou Wildlands Center v. MacWhorter, 1:12-cv-1900 (pdf), the United States District Court for the District of Oregon granted a motion to dismiss plaintiffs’ suit alleging that the U.S. Forest Service (USFS)...more

Texas Supreme Court Rules in Southern Crushed Concrete that Texas Clean Air Act Preempts City of Houston Land Use Ordinance

by Jacob Arechiga, Steven Dimitt, Michael Knapek, Peter Wahl | Jackson Walker on 5/3/2013

On February 15, 2013, the Texas Supreme Court reversed the rulings of both a trial court and lower appellate court and found in favor of Southern Crushed Concrete in holding that a City of Houston ordinance placing location...more

Appeals Court Upholds Drilling Bans

by Thomas Puchner | Phillips Lytle - Renewable Energy on 5/3/2013

In twin decisions handed down today, the Supreme Court, Appellate Division, Third Department upheld two local zoning laws that prohibit activities related to oil and gas development (commonly referred to as “hydraulic...more

Missing CEQA Statute of Limitations Is Not Excusable Neglect, Third District Holds

by Arthur F. Coon | Miller Starr Regalia on 5/2/2013

In its terse, no-nonsense opinion in Alliance For the Protection of the Auburn Community v. County of Placer, et al. (2013) 215 Cal.App.4th 25, ordered published onApril 2, 2013, the Third District Court of Appeal affirmed a...more

U.S. District Court Dismisses ESA Section 7 Claims Brought Against The EPA

by Erik Beck | Nossaman LLP on 5/2/2013

In Center for Biological Diversity v. Environmental Protection Agency, the United States District Court for the Northern District of California dismissed with leave to amend a suit alleging that the Environmental Protection...more

Ninth Circuit Invalidates Consent Decree: Parties Must Go Back To The Drawing Board

by Ben Rubin | Nossaman LLP on 5/2/2013

On April 25, 2013, the United States Court of Appeals for the Ninth Circuit invalidated a consent decree that plaintiffs and three federal agency defendants asserted resolved a dispute spanning more than a decade. See...more

D.C. Appeals Court Says EPA May Revoke Fill Permit After It Has Been Issued

by Marc Bruner, Edgar Washburn | Perkins Coie on 5/1/2013

In addressing an important legal issue of first impression, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the U.S. Environmental Protection Agency’s “veto” authority under Section 404(c) of the...more

Update on CEQA Reform: Steinberg’s Quest for the “Elusive Middle Ground”

by Shaye Diveley, Miles H. Imwalle | Morrison & Foerster LLP on 5/1/2013

The last year witnessed what once appeared to be a groundswell of support for the “modernization” of the California Environmental Quality Act (“CEQA”), loosely meaning easing the burden of the process itself and minimizing...more

Surprise, Surprise, Surprise: An Agency Cannot Revise Regulations In a Consent Decree

by Seth Jaffe | Foley Hoag LLP - Environmental Law on 4/30/2013

In a decision that should not have come as a surprise to anyone, the 9th Circuit Court of Appeals ruled on Thursday, in Conservation Northwest v. Sherman, that the Bureau of Land Management and other agencies implementing the...more

CEQA Reform: The Cure May Be Worse Than The Disease

by Marc Bruner, Julie Jones, Barbara Schussman | Perkins Coie on 4/30/2013

According to the author’s April 23, 2013 press release, the amended version of Senate Bill 731 is a “comprehensive reform” of CEQA, “modernizing the law to aid California’s economic growth.” But a close review shows that the...more

Climate Change Legal Theories: The Atmospheric Public Trust Doctrine Moves Another Step Forward

by J. Wylie Donald | McCarter & English: Climate Change &... on 4/30/2013

One of the shibboleths of those following climate change litigation is the idea that new legal theories will be surfaced, fired in the furnace of litigation and then forged as the vehicle for addressing climate change in the...more

BP Unable To Block Oil Spill Claim Payments

by John Schifino | Burr & Forman on 4/29/2013

On March 15, 2013, BP asked United States District Court Judge Carl Barbier, Jr. to block the Deepwater Horizon claims administrator from awarding “business economic losses” that BP contends are “fictitious” claims for...more

Appeals Court Reinstates EPA “Veto” Over Corps’ Mining-Related Permit - Mingo Logan decision creates uncertainty in Clean Water...

by Denise Pettijohn, Christopher "Kip" B. Power, Robert Stonestreet | Dinsmore & Shohl LLP on 4/29/2013

In a surprising reversal, on April 23, 2013, the U.S. Court of Appeals for the District of Columbia Circuit overturned a lower court order issued on March 23, 2012, in the case of Mingo Logan Coal Company v. U.S. Envtl. Prot....more

Texas Court Allows Defamation Claim Against Landowner to Proceed

by Cassie J. Dallas | BakerHostetler on 4/26/2013

On Monday, Texas’s Second District Court of Appeals partially affirmed a District Court order allowing Range Resources Corporation’s (“Range”) defamation and business disparagement claims against a landowner to...more

Earth Matters - April 2013: Recent Decision Highlights Distinction Between Compliance With Multiple Environmental Programs

by Kimberly Barnashuk, Adam Walters | Phillips Lytle LLP on 4/26/2013

A recent New York Court of Appeals decision, Bronx Committee for Toxic Free Schools v. New York City School Construction Authority, 20 N.Y.3d 148 (2012), highlighted the interplay between the compliance process for the State...more

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Civil Procedure › Environmental Law