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CERCLA’s Confusion Between Section 107 and Section 113

Over a decade after the Supreme Court’s decision in Cooper Industries v. Aviall, the divide between CERCLA Section 107 cost recovery claims and Section 113 contribution claims remains unsettled. PRPs incurring response costs...more

Beware of Citizen Suits for Storm Water Violations

In recent months several private organizations have sent letters to California businesses informing them that they are in violation of their storm water permits and threatening to sue them under the citizen suit provision of...more

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

Russia: Environmental Liability for Off-Shore Oil and Gas Operations

Russian off-shore subsoil use operations: status and perspectives - After Rosneft's recent discovery of substantial light oil and gas reserves at the Universitetskaya-1 well in the Kara Sea, regular development of...more

Undisclosed Change in Building Height Requires Supplemental EIR

Ventura Foothill Neighbors v. County of Ventura (12/15/14, 2d Civil No. B254120) - The Court of Appeal for the Second Appellate District of California has ruled that (i) a 20% increase in the actual height of a...more

New Jersey High Court Rejects Application of Six-Year Statute of Limitations to Spill Act Private Contribution Claims for...

In Morristown Associates v. Grant Oil Co., the New Jersey Supreme Court unanimously ruled that a six-year statute of limitations does not apply to private claims for contribution of costs incurred to remediate contaminated...more

The Need For Expert Evidence To Make Out An Innocent Landowner Defense Under CERCLA

As every litigator knows, evidence almost always tells a story that is untidy and riddled with loose ends. This was illustrated by a recent innocent landowner case in California — Coppola v. Smith. There, a company had...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

Equal Access To Justice Act: Why Prevailing On Only 1 Out Of 3 Claims In Oregon Forestry Case Can Still Be Quite Rewarding

Generally, a failure rate of two-thirds would indicate that what you are doing isn't profitable. However, when dealing with environmental law, that clearly isn't the case. In Cascadia Wildlands v. Bureau of Land Management,...more

Industry Challenging County and Municipal Bans on Multiple Fronts

Municipalities and counties have joined forces with environmental groups to halt hydraulic fracking and related well stimulation techniques. Environmental groups have filed suits under the National Environmental Policy Act...more

First District Publishes Decision Rejecting CEQA Challenges To Cal Fire’s Approval of Gualala Area Nonindustrial Timber Management...

In a decision filed December 2, and later ordered published on December 30, 2014, the First District Court of Appeal affirmed the Mendocino County Superior Court’s judgment denying a petition for writ of mandate challenging a...more

EPA Releases Annual Environmental Enforcement Results

December 18, 2014, marked the release of the U.S. Environmental Protection Agency’s (EPA) annual environmental enforcement and compliance results. See News Release, U.S. Environmental Protection Agency, EPA Announces 2014...more

High Speed Rail Moves Forward Without CEQA Review

The Surface Transportation Board (“STB”) issued a declaratory order in a 2-1 vote last Friday, finding that the California Environmental Quality Act (“CEQA”) is categorically preempted by federal law, as it relates to the...more

Policy Observer - December 2014

Giving and Receiving: Insuring Company-Sponsored Volunteerism: This is the time of year when we are reminded of the importance of giving. Many companies not only donate generously to nonprofits and community programs,...more

Louisiana Town Files Second Suit to Block Oil and Gas Well

The Town of Abita Springs filed a suit on December 1, 2014, seeking a declaratory judgment to block the drilling of an oil and gas well about 40 miles north of New Orleans into the Tuscaloosa Marine Shale. Earlier this year,...more

DTSC’s Lien Procedure Found to Violate Due Process

In Van Horn v. Department of Toxic Substances Control (“DTSC”), a California Court of Appeal found that DTSC’s procedure for imposing liens on property under the California “Superfund” law violates due process of law....more

New York District Court Holds Lessee Not Liable Under CERCLA as an Owner

A New York federal district court recently held that a lessee will not be found liable under CERCLA as an owner where the lessee does not possess sufficient indicia of ownership. (Next Millennium Realty, LLC v. Adchem Corp.,...more

FERC Issues Annual Enforcement Report

On November 20, the Federal Energy Regulatory Commission’s (FERC) Office of Enforcement issued its Report on Enforcement, detailing its activities in 2014. These activities continued to focus on three areas...more

Condemnation and Contamination: The Spectre of Double Liability

Agencies acquiring private property for a public project conduct thorough investigations to determine whether the property has environmental contamination. If contamination is found, the question arises whether evidence of...more

CERCLA Cost Recovery v. Contribution Again: It’s Still Unfair

Parties in CERCLA cases continue to deal with the consequences of the Supreme Court decisions in Aviall and Atlantic Research which essentially created two classes of PRPs: (1) PRPs who entered into CERCLA settlements with...more

What CEQA Gives, The Legislature Can Take Away: Third District Holds Special Legislation For Sacramento Kings Downtown Arena...

The Third District Court of Appeal, in a published opinion filed November 20, 2014, affirmed the trial court’s order denying plaintiffs’ application for a preliminary injunction seeking to halt construction of a massive new...more

Ninth Circuit Rejects Use of Preemptive Litigation to Validate Federal Approvals

Shell Gulf of Mexico, Inc., v. Center for Biological Diversity, (11/12/14, No. 13-35835) The Ninth Circuit has rejected a “novel litigation strategy” that Shell Gulf of Mexico, Inc., employed in an effort to preempt a...more

Opponents of Arena Project Foul Out

On November 20, 2014, the Third District Court of Appeal (Court) handed a partial victory to the City of Sacramento (City), rejecting petitioners' appeal and thereby authorizing the continued construction of the Sacramento...more

California Federal Court Dismisses CERCLA Claims and Strikes Request for Attorneys’ Fees

In N. Cal. River Watch v. Fluor Corp., __F.Supp.3d__, 2014 WL 4954638 (N.D. Cal. Oct. 2, 2014), a Northern California district court dismissed Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”)...more

Judge Barbier BP Attempt to Limit Clean Water Act Fines

On September 4, 2014, District Court Judge Carl Barbier issued his “Findings of Fact and Conclusions of Law – Phase One Trial” in the Deepwater Horizon oil spill litigation. In his 153 page opinion, Judge Barbier found BP...more

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