Civil Procedure Environmental Energy & Utilities

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Is It Too Late to Just Throw Superfund to the Curb?

Last week, Judge Paul Borman of the Eastern District of Michigan, allowed a motion by the United States for judgment on the pleadings, dismissing a third-party complaint brought against the United States by Michigan...more

Missouri Federal Court Cuts Claims in Pipeline Property Damage Action

Underscoring the need for plaintiffs to show concrete proof of harm in suits alleging property damage, a federal district court dismissed a suit alleging that an oil pipeline contaminated farmland in Missouri. See Henke v....more

U.S. District Court in Pennsylvania Dismisses Majority of Water Well Contamination Claims Against Oil Drilling Company

Earlier this month, U.S. District Judge John E. Jones III in the Middle District of Pennsylvania completely adopted the “extremely thorough, well-reasoned” recommendations of a U.S. Magistrate Judge and dismissed almost all...more

High Court Finds Plausible Showing of Amount in Controversy Sufficient to Remove Action

In a decision that may make it somewhat easier for defendants to remove putative class actions from state to federal court, the U.S. Supreme Court ruled that defendants in such cases do not need to offer evidence in their...more

Analysis: Early closure of the ROCs regime ruled lawful

The Government’s decision to close the Renewables Obligations Certificates (ROC) subsidy scheme for larger solar PV installations (above 5MW) two years early, and the grace periods introduced to mitigate the effects of the...more

Environmental Alert: "Texas Supreme Court Declines to Determine Effect of Permit in Subsurface Trespass Case"

The Supreme Court of Texas upheld a jury verdict finding that a landowner did not suffer trespass from a wastewater injection well located on adjacent property. Environmental Processing Systems, L.C., v. FPL Farming Ltd.,...more

Locke Lord QuickStudy: EPA Stakes Out Approach to Address GHG Permitting for Authorized Sources Affected

On December 19, 2014 the Environmental Protection Agency (EPA) issued two memoranda outlining the Agency’s planned response to the Supreme Court’s June 2014 decision in Utility Air Regulatory Group (UARG) v. Environmental...more

New Jersey Supreme Court: No Statute of Limitations for Private Claims for Contribution Under NJ Spill Act

Following principles of strict statutory construction and refusing to “unsettle a decades-long understanding in this State,” on January 26, 2015, the New Jersey Supreme Court unanimously ruled that there is no statute of...more

General Permits Are Also Entitled to a Permit Shield

On Tuesday, the 6th Circuit Court of Appeals held that the “permit shield” provisions of the Clean Water Act protected ICG hazard from Sierra Club claims that effluent from ICG Hazard’s Thunder Ridge mine caused exceedances...more

Energy Management Patent Triggers a Covered Business Method Review

Faced with a patent threat, renewable energy and climate change companies may have a new defense option – a Covered Business Method (CBM) proceeding. Ushered in less than 2 years ago as part of comprehensive patent reform...more

In New York, Failing to Timely Notify Insurance Carriers of a Pollution Incident May Cost You

On January 8, 2015, in Travelers Indem. Co. v. Orange & Rockland Utilities, Inc., the New York Appellate Division upheld a decision finding that Orange & Rockland Utilities Inc.’s notice to Travelers Indemnity Co. of...more

Reversing Course, EPA Tightens Its RCRA Hazardous Waste Recycling Rules

After years of relative easing in its interpretation of the Resource Conservation and Recovery Act rules that govern industrial recycling, the Environmental Protection Agency is now taking a harder line. A recently issued...more

Supreme Court Denies Review of Ninth Circuit Delta Smelt Decision

On Monday, January 12, 2015, the U.S. Supreme Court denied two petitions seeking review of a Ninth Circuit decision upholding limits on water diversions from the Sacramento-San Joaquin Delta to protect the endangered Delta...more

Commonwealth Court Rejects Constitutional Challenge to Natural Gas Production on State-Owned Lands and Use of Lease Funds in...

The Commonwealth Court of Pennsylvania has dismissed a lawsuit filed by the Pennsylvania Environmental Defense Foundation (PEDF) to declare unconstitutional and enjoin natural gas extraction from State park and forest land....more

Claims Administration and Handling in Mass Tort Cases: Lessons from Deepwater Horizon

In mass casualty and toxic tort litigation, an effective means of providing prompt and efficient compensation to victims can benefit all stakeholders. Claimants receive prompt payment for lost property or business expenses,...more

San Diego MPO's Analysis Of RTP's Greenhouse Gas Emissions Rejected

In a decision with implications for all transportation projects in California, the California Court of Appeal held that the analysis of greenhouse gas emissions from transportation projects in a metropolitan transportation...more

Does the Public Trust Doctrine Apply to Groundwater? The California Supreme Court May Decide

The California Supreme Court is currently considering a petition that raises an important and novel issue of California water law: whether the public trust doctrine applies to groundwater. The public trust doctrine holds that...more

International Organisations: Immunity From Suit And Legal Process

An international organisation is not a State, and is only afforded immunity to the extent granted by statute. It is relatively uncommon for international organisations to come before the English courts, though economically...more

Ninth Circuit Panel Holds NMFS Biological Opinion regarding California Water Projects Passes Legal Muster

As numerous news outlets reported, see L.A. Times and S.F. Chronicle, the United States Court of Appeals for the Ninth Circuit issued a decision reversing a lower court and affirming a biological opinion and reasonable and...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

Fish Two, Water Withdrawals Zero: The 9th Circuit Affirms Another Biological Opinion

On Monday, the 9th Circuit Court of Appeals dealt another blow to traditional operation of the massive water projects that supply California’s Central Valley. The Court reversed those parts of a District Court opinion that...more

Construction E-Note - December 2014

In this issue: - Construction Expected to Increase in 2015 - What Now? Why Maryland's Decision to Recognize the International Green Construction Code May Signal a Major Shift in the Means Utilized to Implement...more

Proof and Causation Matter: District Court Declines to Penalize ExxonMobil in Texas Citizen Suit

On Wednesday, Judge David Hittner, of the District Court for the Southern District of Texas, in a decision long enough to require two separate pdfs, declined to impose an injunction or penalties (plaintiffs sought...more

Illinois Supreme Court Agrees to Decide FutureGen Clean Coal Dispute

In the closing days of its November term, the Illinois Supreme Court agreed to decide an issue of potentially enormous consequence to a major Illinois utility, agreeing to review an order of the Illinois Commerce Commission...more

Fourth District’s Split Decision Further Complicates CEQA Requirements Surrounding GHG Impact Analysis and Mitigation Measures –...

Cleveland National Forest Foundation v. San Diego Association of Governments (11/24/14, D063288) - In a split decision on November 24, 2014, the Fourth District California Court of Appeal invalidated the program EIR...more

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