Civil Procedure Environmental Conflict of Laws

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California Superior Court Denies PANNA Petition for Writ of Mandate

On June 16, 2015, the California Superior Court for the County of Almeda denied the petition of the Pesticide Action Network North America, et al. (PANNA) for a writ of mandate to direct the California Department of Pesticide...more

Preliminary Injunction Arguments Pour Into Litigation Against BLM’s Final Fracking Rule

Since our last update on federal litigation in Wyoming challenging the Bureau of Land Management’s (BLM) final rule to regulate hydraulic fracturing on public lands, the flurry of activity continues in advance of the June 23...more

Louisiana Court Rules that Migration of Chemicals from Spill Not a “Continuing Tort”

In a case that may make it more difficult for plaintiffs to maintain years-old toxic tort cases in Louisiana, a state appellate court ruled that a 1983 chemical spill did not constitute a “continuing tort.” ...more

Calif. Appellate Court Endorses Averaging Lead Exposure in Food and Beverage Prop. 65 Disputes

In a rare published decision concerning California’s expansive Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as “Prop 65,” the California Court of Appeal on March 17, 2015, dealt companies a victory in...more

Washington District Court Holds that CERCLA Displaces Federal Common Law Public Nuisance Claims

A Washington district court has recently held that the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) displaces federal common law public nuisance claims for damages. (Anderson v. Teck...more

CEQA Update: Three New Court of Appeal Decisions Issued; Key Supreme Court Rulings Expected (and the Sacramento Kings are on a...

2015 is shaping up to be another active year for CEQA judicial review. After taking an extended holiday break, the Courts of Appeal have recently published three decisions, two of which reinforce existing case law on how to...more

Washington Federal Court Finds Nuisance Claims Displaced by CERCLA

Expanding the reach of the federal displacement doctrine and the U.S. Supreme Court’s decision in AEP v. Connecticut, a federal district court for the first time held that the Comprehensive Environmental Response,...more

North Carolina’s Amended Repose Law Fails to Save Barred Toxic Tort Claim

Notwithstanding the intent of the North Carolina legislature, a federal court ruled that the state’s recently amended law exempting groundwater contamination suits from a 10-year statute of repose did not save a latent toxic...more

Prairie Dogs vs. Congress

A recent ruling by a Utah federal judge, although directed at the Endangered Species Act (ESA), may have far-reaching implications on Congress' commerce clause powers. In a first-of-its-kind ruling, U.S. District Judge Dee...more

The Federal Surface Transportation Board Finds California Environmental Quality Act Preempted as Applied to High-Speed Rail...

In a surprising decision, Surface Transportation Board Decision, Docket No. FD35861, December 12, 2014 (“Docket”), the Federal Surface Transportation Board (“Board”) ruled that the application of the California Environmental...more

Supreme Court's Petition Denial in Clean Air Act Pre-emption Case Reinforces Threat From Common Law Claims

The United States Supreme Court denied a petition for certiorari earlier this month after the Iowa Supreme Court held in June that the plaintiffs' nuisance claims were not pre-empted by the Clean Air Act (CAA) in Freeman v....more

“Making CEQA A Federal Case? Recent Actions of California’s Supreme Court and the Federal Surface Transportation Board Set Up A...

Controversy has dogged the California high speed rail project since before its inception with the 2008 passage of Proposition 1A, the bond measure providing the project’s initial funding. The controversy has not abated in the...more

Federal Preemption May Be The Key For Calif. Railroads

Railroad operators across the U.S. are seeing a bright future due to the resurgence in freight rail traffic. Intermodal (i.e., cargo container) shipping is booming. In 2013, intermodal volume on the major railroads totaled...more

Beveridge & Diamond Wins Preemption Decision in Washington State Court of Appeals

Appellate litigators in Beveridge & Diamond’s District of Columbia office, working with the Washington Department of Ecology, secured a unanimous decision from the Washington Court of Appeals striking down a county ban on...more

Kentucky Federal Court Holds Tort Claims Not Preempted by Clean Air Act

State common law tort claims based on air emissions from a power plant are not preempted by the federal Clean Air Act (CAA), according to the U.S. District Court for the Western District of Kentucky. The court agreed to...more

Third Circuit Affirms District Court Decision Invalidating New Jersey’s Long-Term Capacity Pilot Program

On September 11, 2014, a three-judge panel of the U.S. Court of Appeals for the Third Circuit unanimously affirmed an October 2013 decision of the U.S. District Court for the District of New Jersey that New Jersey’s Long-Term...more

Colorado State Court Strikes Down a Second City-Wide Fracking Ban

A Colorado state judge recently struck down a city’s voter-approved moratorium on hydraulic fracturing, or “fracking.” This marks the second time a Colorado judge has quashed a city’s fracking ban within a matter of two...more

California High Speed Rail Dodges Legal Bullet

In Town of Atherton v. CA High Speed Rail Authority, No. C070877 (Cal. Ct. App. 3d Dist., July 24, 2014), the Third Appellate District upheld the High-Speed Rail Authority’s (HSRA) Program Environmental Impact Report/ Program...more

Of High Speed Rails and Litigation Snails: The Train Rolls On As Third District Rejects Additional CEQA Challenges To High-Speed...

While CEQA actions are statutorily designed as special proceedings with priority over other civil actions, and thus mandated to be heard and resolved expeditiously, when complex or controversial projects with dedicated...more

Toxic Tort & Product Liability Quarterly Volume 7, Number 3

PREEMPTION - Supreme Court Says CERCLA Does Not Preempt Repose Defense for Tort Claims - The U.S. Supreme Court has put to rest a longstanding legal question affecting the deadline for plaintiffs to bring toxic tort...more

Supreme Court Says CERCLA Does Not Preempt Repose Defense for Tort Claims

The U.S. Supreme Court has put to rest a longstanding legal question affecting the deadline for plaintiffs to bring toxic tort and contamination claims stemming from certain contaminated sites. CTS Corp. v. Waldburger, No....more

New York Court of Appeals Upholds Local Fracking Bans

The New York Court of Appeals, in a 5-2 decision, held that the New York State Oil, Gas and Solution Mining Law (“OGSML”) does not preempt municipal zoning authority. The Court explained that land use regulation is among the...more

Oregon’s Statute of Repose May Block Common Law Environmental Claims

Oregon’s 10-year statute of repose may now play a bigger role in environmental lawsuits in the wake of the U.S. Supreme Court’s ruling that the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA),...more

New York's Highest Court Holds that Zoning Laws of New York Towns Banning Fracking Are Enforceable — A Brief Analysis of the Oral...

A non-profit, Food & Water Watch, reports that 421 measures against fracking have been passed by state and local governments and that communities across the nation are lobbying their local and state elected officials because...more

Supreme Court Rules CERCLA Does Not Preempt State Statute of Repose

In CTS Corp. v. Waldburger, 13-339, 2014 WL 2560466 (U.S. June 9, 2014), the United States Supreme Court held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as Superfund)...more

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