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“Not the Stuff of Science”: “Differential Etiology” Causation Opinions Fail Daubert in 7th Circuit Toxic Tort Case

The Seventh Circuit Court of Appeals has affirmed a district court’s grant of summary judgment in an environmental toxic tort case, holding that the testimony of all three of plaintiffs’ causation experts – James Dahlgren,...more

California Environmental Law & Policy Update - August 2015 #4

Environmental and Policy Focus - Federal judge in South Dakota issues eleventh-hour order blocking implementation of EPA/COE’s new definition of 'waters of the United States': The Hill - Aug 27: A federal judge in North...more

Perhaps EPA’s NSR Enforcement Initiative Is Now Dead? EPA Loses Another

Last year, after a string of defeats for EPA in its NSR enforcement initiative, I suggested that the initiative was in trouble, but that EPA was probably not yet ready to concede defeat. After the latest blow, earlier this...more

District Court Enjoins Federal Regulations Revising Scope of Clean Water Act Jurisdiction

North Dakota v. U.S. Environmental Protection Agency, No. 3:15-cv-00059 (D.N.D. Aug. 27, 2015) - A federal judge, Ralph R. Erickson, in North Dakota today granted several states’ request for a preliminary injunction to...more

EARL e-News: Update on New Clean Water Act Rule - Updates on Environmental, Administrative and Regulatory Law

On August 27, 2015, a federal District Court Judge in North Dakota issued a preliminary injunction blocking the implementation of the newly promulgated “Waters of the U.S. rule (WOTUS) (one day before the rule was to take...more

Controversial Waters of the U.S. Rule Blocked in 13 States

The WOTUS rule is concerning to many industry sectors because it would significantly expand Clean Water Act (CWA) jurisdiction for the agencies. In particular, the rule would extend jurisdiction to broad definitions of...more

WOTUS Litigation Update: Confusion Breeds Confusion

Perhaps it is poetic justice. The litigation over the final Waters of the United States (WOTUS) rule is as disjointed and confusing as the rule itself. Following a key court ruling yesterday, the WOTUS rule is now...more

Ninth Circuit Denies Requests to Stay Use of Enlist Duo Herbicide During Judicial Review

On August 11, 2015, the U.S. Court of Appeals for the Ninth Circuit denied a motion for a stay pending review filed on December 18, 2014, by the Natural Resources Defense Council (NRDC), as well as a subsequent stay motion...more

Legislation Revamping California Groundwater Adjudications Marches Forward

AB 1390 aims in unprecedented fashion to expedite procedures and processes for groundwater adjudications, which, in California, are known to take one or two decades before reaching a final judgment. The bill would add various...more

Court Rejects 30 Year Eagle Permit Rule on NEPA Grounds

On August 11, 2015, the US District Court for the Northern District of California remanded a US Fish & Wildlife Service’s (FWS) 2013 final rule that had extended the maximum duration of eagle take programmatic permits under...more

Ninth Circuit Finds ESA 60-Day Notice "Adequate" and Resurrects Challenge to Suction Dredge Mining Suit

On August 10, 2015, the U.S. Court of Appeals for the Ninth Circuit reversed a district court order dismissing an Endangered Species Act ("ESA") lawsuit on the grounds plaintiffs provided inadequate notice. Klamath-Siskiyou...more

15 States Seek Stay of Clean Power Plan Compliance Deadlines

Litigation over the Environmental Protection Agency’s (EPA) recently issued “Clean Power Plan” (CPP) has already begun. On August 13, 2015, 15 States (the “States”) filed an emergency petition in the United States Court of...more

California Drought Prompts Bout Among Regulators and Farmers

As the drought drags on and lawns grow brown across California, a battle is raging over the scope of the State Water Resources Control Board’s authority to restrict the diversion of water from rivers, lakes and...more

California Environmental Law & Policy Update - August 2015 #2

Environmental and Policy Focus - 15 states sue to block enforcement of Obama administration climate change rules: Bloomberg - Aug 13: Fifteen states led by coal-rich West Virginia – but not including California - asked...more

30-year Eagle Take Permit Term Remanded on Procedural Grounds

On August 11, 2015, the United States District Court for the Northern District of California found that the U.S. Fish and Wildlife Service ("Service") had inappropriately relied on a categorical exclusion under the National...more

Appellate Court Notes

Supreme Court Advance Release Opinions: SC19203 - Tilcon Connecticut, Inc. v. Commissioner of Environmental Protection - Applicant sought a water diversion permit for some of its quarries for water used in its rock...more

Court Invalidates 30-Year Permit Provisions of U.S. Fish and Wildlife Service’s Eagle Permit Rule on NEPA Grounds

As we discussed in a post from May 2014, the American Bird Conservancy (“ABC”) in 2014 filed a lawsuit challenging the U.S. Fish and Wildlife Service’s (“USFWS”) 2013 revisions to its eagle permit rule, alleging violations of...more

Uncertainty of Legislative Earmarks Not Enough to Deem Mitigation Infeasible

California Supreme Court Takes on CEQA Issue in State College Expansion Project - State agencies cannot declare mitigation infeasible for construction projects on the grounds that the California Legislature has not — and...more

California Environmental Law & Policy Update - August 2015

Environmental and Policy Focus: Coastkeeper's suit against water agency dismissed - San Diego Union-Tribune - Jul 31: A San Diego superior court judge ruled against an environmental group on July 30, rejecting its...more

UPDATE: CEQA’s Mitigation Requirement: California Supreme Court Agrees With EnviroStructure!

Last February, I wrote about the California State University Board of Trustees’ (CSU) unique stance concerning their responsibilities under the California Environmental Quality Act (CEQA). CSU agrees that like every other...more

Public Records in Massachusetts: Legislature looks to Improve Access and Top Court Clarifies Attorney-Client and Work-Product...

The combined efforts of Massachusetts’ highest court, its legislature, and the Governor’s office are clarifying and modernizing Massachusetts public records law, which is considered by some to be one of the weakest in the...more

EARL e-News: The Uncertain Status of “Stigma Damages” for Property Claims in South Carolina - Updates on Environmental,...

In Chestnut, et al v. AVX Corporation, Appellate Case 2012-212143 (S.C. Supreme Court August 5, 2014), the State Supreme Court was faced with the issue of whether “stigma damages” could apply for environmental contamination...more

Cal State University Cannot Avoid Off-Site Traffic Mitigation Payments Because the Legislature Failed to Approve Funds

City of San Diego v. Board of Trustees of the California State University - Why It Matters: The California Supreme Court has clarified language from its prior decision in City of Marina v. Board of Trustees of California...more

California Supreme Court Holds that State Agencies May Not Escape CEQA Mitigation Requirements Based on Failure of the Legislature...

In a decision that enhances the ability of local interests to obtain mitigation funds from state agencies, the California Supreme Court held that the California Environmental Quality Act ("CEQA") requires the Board of...more

Land Use & Natural Resources Case Law Update Second Quarter 2015

Banning Ranch Conservancy v. City of Newport Beach - 236 Cal.App.4th 1341 - This case involved the City of Newport Beach’s approval of a mixed-use development project on land located within the coastal zone. Banning...more

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