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Some CEQA Reminders From The Third District: Urban Decay Requires Actual Mitigation When Identified By EIR As A Significant...

In a lengthy opinion filed February 28, 2014, and ordered partially published on April 1, 2014, the Third District Court of Appeal reversed the Yolo County Superior Court’s judgment denying a CEQA writ petition challenging...more

EPA Endorses Upgraded All Appropriate Inquiry Standard

Buyers of real estate and their lenders are familiar with the Phase I Environmental Site Assessment. Originally developed in the 1980s in response to the CERCLA statute, the Phase I protocol has been refined over the years. ...more

California Court Denies Summary Judgment on Known Conditions Exclusion

In its recent decision in Lennar Mare Island v. Steadfast Ins. Co., 2014 U.S. Dist. LEXIS 26405 (E.D. Cal. Feb. 28, 2014), the United States District Court for the Eastern District of California had occasion to consider the...more

Mixed Result In A Louisiana Legacy Pollution Case

The Dietz family sued several lessees for injunctive relief and restorative damages arising out of leases on two non-contiguous tracts in Acadia Parish. In Dietz, et al. v. Superior Oil Company, et al the trial court granted...more

Time-Barred Claim . . . Or Is It? Supreme Court Agrees To Review Fourth Circuit State Statute of Repose Case

As reported on the Ogletree Deakins Environmental Law blog in July of 2013, a divided panel of the Fourth Circuit Court of Appeals held that the Comprehensive Environmental Response, Compensation and Liability Act (CERLCA or...more

“Spot Zoning” Found Permissible Where Small Parcel Given Greater Rights than Surrounding Properties and New Zoning Served the...

The Orange County Board of Supervisors (“Board”) approved a proposed senior citizen living community (“Project”) on a seven-acre parcel, creating a new zoning definition for senior residential housing and rezoning the parcel...more

Contaminated but Remediated Soil and Cortese Listing Does Not Compel Preparation of EIR

As 2013 came to a close, the California court of appeal in Parker Shattuck Neighbors v. Berkeley City Council (1st Dist., Div. 4, 12/30/13, A136873) ___Cal.App.1st___, 2013, upheld the City of Berkeley’s decision not to...more

CEQA-In-Reverse Case Opening Brief Filed In California Supreme Court

The California Building Industry Association (CBIA) laid out its case that CEQA contains no general directive requiring analysis of the existing environment’s impacts on a future project in a 50-page opening brief filed in...more

Expert Testimony Recommending Vapor Intrusion Study is Insufficient Evidence of Health Effects, Does Not Trigger Need for EIR

After the Berkeley City Council (“City”) approved a mixed-use commercial and residential project on the site of a former car dealership and service garage, a community group sued, claiming that pre-existing contamination on...more

Enforcing CERCLA’s Three Year Statute of Limitations for Removal Actions

Although courts are sometimes reluctant to enforce them, there really are hard stops in CERCLA, particularly the three year statute of limitations for recovery of costs incurred in a removal action. ...more

First District “Doubts” CEQA Operates In Reverse, Upholds Mitigated Negative Declaration For Urban Infill Project Despite Soil and...

In an opinion recently ordered published, the First District Court of Appeal extensively reviewed the relevant case law and expressed skepticism that CEQA would operate in reverse to require analysis of potential impacts on a...more

PA Tax Law News: December 2013 -- Assessment Of Environmentally Contaminated Real Estate

The Pennsylvania Commonwealth Court’s recent decision in Harley-Davidson Motor Company v. York County Board of Assessment Appeals (Pa. Cmwlth. Ct. decided on October 30, 2013), demonstrates the importance of establishing a...more

Texas High Court Set to Hear Appeal on Viability of Post-Cleanup Stigma Damages in Environmental Contamination Claim

In an issue of first impression in Texas, the state’s highest court will hear arguments in December 2013 in a case involving a party’s claim to recover stigma damages following the cleanup of environmental contamination to...more

Third District Holds CEQA Does Not Require Recirculation Based On Staff-Recommended Alternative Raised After Preparation of Final...

In a recent decision extensively analyzing and applying CEQA’s rules on alternatives analysis, recirculation, and a petitioner’s burden to show agency error, the Third District Court of Appeal affirmed the Nevada County...more

New Alternative Does Not Trigger Recirculation of Draft EIR Unless Considered "Significant New Information"

In South County Citizens for Smart Growth v. County of Nevada, the Third Appellate District held that South County Citizens for Smart Growth’s (“Smart Growth”) claim that the County of Nevada violated CEQA by failing to...more

Wetland Projects: The Legality of Certain MDDEFP Requirements is Confirmed

On October 18, 2013, the Court of Appeal of Quebec reversed the Superior Court of Quebec’s decision in the Atocas de l’érable inc. case, quashing directive no. 06-01, used by the ministre du Développement durable, de...more

Winery Zoning Ordinance Allowing Establishment of Boutique Wineries Without Discretionary Permits Survives CEQA Challenge

A county prepared an environmental impact report (“EIR”) and adopted a zoning ordinance allowing the development of small wineries “by right,” without a discretionary permit. A citizens group opposed to the ordinance sued,...more

CERCLA, RCRA, and Vapor Intrusion: Does What Happens in Vegas Really Stay in Vegas?

In Voggenthaler v. Maryland Square LLC, 724 F.3d 1050 (9th Cir. 2013), the defendants argued that contamination that happened in Vegas, stayed in Vegas, and therefore the Commerce Clause barred the application of CERCLA. The...more

Second Circuit Clarifies “Removal” vs. “Remedial” Action Under CERCLA

In the CERCLA context, knowing whether a cleanup action is a “removal” or “remedial” action is crucial to the length of time allowed for the cleanup, the amount of money that may be spent on the cleanup, and the statute of...more

CERCLA Preempts State-Law Claims Arising Out Of Petroleum Contamination

In what appears to be a first, a federal district court has held that the “Petroleum Exclusion” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) preempts state-law contribution claims...more

Six-Year Statute of Limitations Applies to Spill Act Contribution Claim

On August 23, 2013, the New Jersey Appellate Division held that the general six-year statute of limitations for property damage applies to a private claim for contribution under the Spill Compensation and Control Act,...more

Insurance Recovery Law -- Sep 19, 2013

Pollution Claims–Apparently Here to Stay - With the advent of the “absolute” pollution exclusion in commercial general liability (“CGL”) policies in the mid-1980s, many in the insurance industry predicted that...more

Illinois Supreme Court to Debate Appeals from a Pollution Control Facility Certification Order

Tomorrow morning in Chicago, the Illinois Supreme Court will hear oral argument in The Board of Education of Roxana Community Unit School District No. 1 v. The Pollution Control Board, which presents an important question of...more

CEQA, Sausages, And The Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions

In a flurry of eleventh-hour activity following Senate President Pro Tem Darrell Steinberg’s withdrawal of SB 731 from consideration (see 9/13/13 post “Steinberg Drops Statewide CEQA Reform Bill (SB 731) After Meeting with...more

Third District Holds CEQA Analysis of GHG Emissions Was Inadequately Quantified To Support EIR’s Mitigation Conclusion in Friends...

In a partially published opinion filed August 19, 2013, the Third District Court of Appeal reversed a judgment denying a writ petition challenging a Wal-Mart Supercenter that would replace an existing Wal-Mart store....more

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