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Policyholders Win Again: The New Jersey Supreme Court Voids Insurance Policy Anti-Assignment Clauses in Occurrence-Based Insurance...

The New Jersey Supreme Court recently affirmed the Appellate Division’s decision in Givaudan Fragrances Corp. v. Aetna Cas. & Sur. Co., finding that an anti-assignment clause in an occurrence-based insurance policy does not...more

Applying Product Liability Theory, Washington State Sues for PCB Damages

In an effort to use product liability theories to hold manufacturers culpable for environmental releases, the Attorney General of Washington State sued PCB manufacturer Monsanto in state court in December. See Complaint,...more

California Court Blocks Local Measure Banning Ground Application of Biosolids

In a victory for municipalities that recycle biosolids to farmland, Los Angeles’ sanitation district prevailed in its suit against a Kern County initiative banning land application of biosolids. See County Sanitation Dist....more

Ninth Circuit Rules Injury from Future Water Rights Restrictions Too Speculative for Article III Standing

On February 21, 2017, the U.S. Court of Appeals for the Ninth Circuit held that the San Luis & Delta-Mendota Water Authority and Westlands Water District (collectively, “Water Contractors”) lacked Article III standing to...more

Environmental Litigation and Toxic Torts Update – Mountain/West Coast Case Law Highlights

Ninth Circuit Finds “Threatened” Designation For Bearded Seals Proper Based On New Long-Term Projections - Alaska Oil and Gas Ass’n et al. v. Pritzker et al., 840 F.3d 671, 2016 U.S. App. LEXIS 19084 (9th Cir. 2016)....more

Fifth Circuit Issues Contentious Dissent Over Designation of Louisiana Land

On June 13, 2016, the U.S. Court of Appeals for the Fifth Circuit, in a 2-1 decision, held that the U.S. Fish and Wildlife Service (FWS) had properly included approximately 1,500 acres in Louisiana as designated critical...more

Fifth Circuit Limits Reverse False Claims Act Liability

On December 13, 2016, in United States ex rel Simoneaux v. E.I. DuPont de Nemours & Co., No. 16-30141, 2016 WL 7228813 (5th Cir. Dec. 13, 2016), the Fifth Circuit rejected an expansive construction of “reverse” false claims...more

Six 5th Circuit Judges Oppose USFS’s Critical Habitat Designation: Sounds Like Certiorari to Me

The 5th Circuit Court of Appeals just denied en banc review in a case involving the Fish & Wildlife Service’s designation of critical habitat for the dusky gopher frog. There are only 100 of these “shy” frogs left, and none...more

Can the ‘Long-Ago’ Nature of Conduct Bar Punitive Damages — Even for Recent Injuries?

Does the statute of limitations bar a claim for punitive damages if the conduct occurred outside the limitations period, but the plaintiff’s injuries occurred within it? An Illinois federal judge recently confronted this...more

Second Circuit Offers Policyholders Painful Reminder on Giving Notice of Claims: Don’t Wait, Use Correct Addresses, and Be...

In January 2017, the Second Circuit ruled that policyholders must actually or presumptively give their insurers notice of specific policies under which they seek coverage—mailing a notice of the claim may not be enough....more

Supreme Court Grants Certiorari in Clean Water Rule Case Jurisdictional Challenge

On January 13, 2017, the US Supreme Court granted certiorari for an appeal that will allow the Court to determine the proper jurisdiction for litigation challenging the Clean Water Rule (the Final Rule). The federal Clean...more

Fourth Circuit Upends NPDES Permit Shield

The United States Court of Appeals for the Fourth Circuit recently upheld a lower court’s determination that a West Virginia mining company was not shielded from liability by its NPDES permit. The mining company’s permit...more

Cap and Trade Auction Credits: Taxes, Regulatory Fees or “Something Else”? California Third District Court of Appeal Hears...

A three-judge panel of the California Court of Appeal for the Third District heard oral argument last week in the longstanding companion cases challenging the legality of AB 32’s cap and trade auctions. California Chamber of...more

On Remand from Supreme Court, Hawkes Wins Challenge to Army Corps’ Wetland Determination

As described on this site last year, the Supreme Court first affirmed the right to challenge wetlands jurisdictional determinations by the Army Corps of Engineers. On remand, plaintiff Hawkes Company, a peat mining company...more

To Practice “Environmentalism” Is Not A “Religious” Right

Something light for your Monday morning. On January 23, the U.S. District Court for the Northern District of Oklahoma issued a ruling dismissing the plaintiff’s pro se complaint that the recycling practices of the Tulsa...more

EPA Wins Another Round In PSD Litigation: More Evidence that the Program Is Flawed.

Last Monday, in a comprehensive, 189-page opinion, Judge Rodney Sippel ruled that Ameren Missouri had violated EPA’s PSD regulations by failing to get permits for upgrades in 2007 and 2010 at its Rush Island facility. As I...more

Commonwealth Court Rejects DEP’s Interpretation of The Clean Streams Law

On January 11, the Commonwealth Court of Pennsylvania decided the case of EQT Production Company v. Department of Environmental Protection of the Commonwealth of Pennsylvania, and granted EQT Production Company’s (EQT)...more

Wash. Supreme Court Rejects Limited Scope of the Ocean Resources Management Act

On January 12, the Supreme Court of the State of Washington issued a unanimous ruling holding that both the Court of Appeals and the state’s Shorelines Hearing Board (Board) had erroneously interpreted the state’s Ocean...more

WOTUS Rule on Hold in Sixth Circuit

Today, the U.S. Sixth Circuit Court of Appeals granted a request to hold the pending challenge to EPA’s Waters of the United States rule in temporary suspension. The case will be on hold while the Supreme Court decides...more

Retail and Consumer Products Law Roundup - January 2017

False Ad Suit Survives When Consumers "Swept Into" Purchase - Why It Matters - A California Court of Appeal found that plaintiff consumers had raised triable issues of fact on whether they suffered damages in...more

Second Circuit Upholds EPA’s Water Transfers Rule

The U.S. Court of Appeals for the Second Circuit upheld the U.S. Environmental Protection Agency’s Water Transfers Rule last week. Catskill Mountains Chapter of Trout Unlimited, et al. v. EPA, et al. 14-1823, 14-1909,...more

The Conservative Case For Chevron Deference

With GOP control of Congress and the White House, conservatives appear to have Chevron deference in their crosshairs. Put simply, I don’t get it. There are at least two good reasons why conservatives should prefer Chevron...more

VW's $4.3BN Plea to Obstruction for Botched Litigation Hold

One of three counts in Volkswagen’s recent $4.3 billion guilty-plea was for obstruction of justice arising from a litigation-hold botched by house counsel. As VW prepared to admit the defeat-device problems to US...more

California Supreme Court Denies Review in Expedited CEQA Litigation over Golden State Warriors Arena Project Approval

On January 17, 2017, the California Supreme Court denied the losing appellants’ petition for writ of supersedeas, stay request, and petition for review of the First District Court of Appeal’s decision in Mission Bay Alliance...more

Pennsylvania Court Issues Groundbreaking Decision Limiting the Government’s Ability to Assess Penalties for Alleged “Continuing...

The Pennsylvania Commonwealth Court has ruled that once an unpermitted discharge ceases, violations under The Clean Streams Law cease, even when pollution continues to persist in waters of the Commonwealth. While this places...more

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