Constitutional Law › Environmental Law › Civil Procedure

Climate Change Legal Theories: The Atmospheric Public Trust Doctrine Moves Another Step Forward

One of the shibboleths of those following climate change litigation is the idea that new legal theories will be surfaced, fired in the furnace of litigation and then forged as the vehicle for addressing climate change in the...more

First District Holds CEQA Remedies Provision Allows Park District’s Eminent Domain Action To Proceed Pending Preparation of...

In Golden Gate Land Holdings LLC v. East Bay Regional Park District (4/12/13 1st Dist., Div. 5) _____ Cal.App.4th _____, 2013 WL 1491547, the First District Court of Appeal explored the scope and proper application of CEQA’s...more

DISPUTE RESOLUTION: Business Litigation Important Texas Water Rights Case Could Affect Oil & Gas Activities as Well by Brannon...

The Texas Supreme Court recently issued an important decision on a groundwater rights question that had gone unanswered for more than a century. In Edwards Aquifer Authority v. Day, the Court held that Texas property owners...more

Supreme Court Hears Arguments In Clean Water Act Case

The Supreme Court had oral arguments last Monday (December 3) in Decker v. Northwest Environmental Defense Center, just after EPA the previous Friday (November 30) surprisingly issued a new rule clarifying that a NPDES permit...more

Appellate Court Upholds Statutory Due Diligence Requirement and Finds Ownership Status after Declaration of Taking

Liability based on property ownership under New Jersey’s Spill Compensation and Control Act (“Spill Act”) and its impact on condemnation cost recovery suits were the subject of an interesting decision last month in New...more

How Far Can Government Go When it Comes to Permit Conditions?

The United States Supreme Court recently agreed to hear a case brought by a property owner who challenged permit conditions imposed by the St. Johns River Water Management District for permits to develop a portion of the...more

Earth Matters - October 2012: Save the Pine Bush Revisited: Appellate Court Provides a Common Sense Limitation

In the August 2010 issue of Earth Matters, we reported on the Court of Appeals’ decision in Matter of Save the Pine Bush v. Common Council of City of Albany, 13 N.Y.3d 297 (2009) (“Save the Pine Bush”), which liberalized the...more

The Third Climate Change Liability Suit Fights to Stay Alive: Plaintiffs in Kivalina v. ExxonMobil Seek Rehearing

The plaintiffs in the climate change liability suit, Native Village of Kivalina v. ExxonMobil, won’t go quietly. Last Thursday, Plaintiffs filed with the Ninth Circuit Court of Appeals a petition for rehearing en banc...more

MassDEP Issues Its Decision on the Palmer Bio-mass Facility: Right on the Merits, Wrong on Standing

I finally had an opportunity to review the recent Final Decision in In the Matter of Palmer Renewable Energy, concerning the proposed Palmer biomass facility. Last week, MassDEP Commissioner Ken Kimmell affirmed the...more

Ninth Circuit Dismisses "Fall X2" Appeal for Mootness

On August 23, 2012, the United States Court of Appeals for the Ninth Circuit issued an order in San Luis & Delta Mendota Water Authority, et al. v. Salazar, et al., Appeal No. 11-17143, granting Appellees' motion to dismiss...more

Ninth Circuit Dismisses Challenge to Injunction in Delta Smelt Case

The United States Court of Appeals for the Ninth Circuit has granted a motion by appellees to dismiss an appeal pursued by the Natural Resources Defense Council and other organizations from an interim order enjoining one...more

Supreme Court to Hear Two Significant Clean Water Cases

The Supreme Court has agreed to review two Ninth Circuit Court of Appeals Clean Water Act (“CWA”) cases. Both cases involve the extent to which certain releases are properly categorized as point source discharges and must...more

JWJ Industries, Inc. v. Oswego County

Decision Granting TRO and Preliminary Injunction against County Flow Control Law

The United States District Court in Syracuse has issued a preliminary injunction against Oswego County to prohibit it from enforcing the 2011 Flow Control Law against JWJ Industries, Inc. and Jeff Holbook. The Court...more

Mississippi Federal Court Sacks Climate Change Lawsuit for a Second Time

The U.S. District Court for the Southern District of Mississippi once again dismissed claims that the oil and coal industries are liable for property damaged by Hurricane Katrina, finding both that the plaintiffs failed to...more

Subject Matter Jurisdiction Under RCRA: Testing the Limits of the Commerce Clause in a Citizens' Suit

Courts have traditionally construed federal jurisdiction of environmental statutes expansively, consistent with their remedial intent. However, recent opinions in Voggenthaler v. Maryland Square, LLC, Case 2:08-cv-1618 (D....more

Arizona Supreme Court Denies Goldwater Institute's Appeal in Lawsuit Over REST Rules

Without comment, the Arizona Supreme Court yesterday declined to hear an appeal of the Court of Appeals' decision in the legal battle over the state's Renewable Energy Standard and Tariff (REST) rules. The appeal was sought...more

We're People Too: Corporation Have Standing to File CEQA Citizen Suits

Corporations now have the ability to file citizen suits to assert public interests without facing heightened scrutiny by the courts. The California Supreme Court ruled that a coalition of plastic bag manufacturers and...more

Paper or Plastic? Common Sense Prevails in High Court’s CEQA Decision

In a closely watched decision, the California Supreme Court upheld Manhattan Beach’s ordinance banning the use of plastic bags. The decision is significant because it changes the standing requirements for corporations...more

U.S. Supreme Court Tosses Federal Nuisance Claims in Climate Change Lawsuits

The U.S. Supreme Court threaded the needle in its 8-0 decision in AEP v. Connecticut. The Court unanimously ruled that the Environmental Protection Agency's greenhouse gas rulemaking under authority of the Clean Air Act has...more

McAfee & Taft RegLINC - May 2011: New guidance on identifying waters protected by the Clean Water Act By Robert J. Joyce

On April 27, EPA issued a draft of its controversial new Guidance on Identifying Waters Protected by the Clean Water Act (“Guidance”). The guidance is the latest effort by EPA and the Army Corps of Engineers (the “Agencies”)...more

Wolfsen Land & Cattle Co. v. United States

Environmental Groups Denied Intervention in Takings Case

The Pacific Coast Federation of Fishermen's Association and the Natural Resource Defense Council were denied intervention in a takings case arising out of the San Joaquin River Restoration Settlement Act. The takings case,...more

Illinois Supreme Court Sets Civil Argument Schedule for May

On Friday the Illinois Supreme Court published its Call of the Docket [pdf] for the May term, and the Court will hear oral argument in five civil cases. The cases, with the issue or issues presented in each, are: May...more

Federal Appeals Court Upholds Dismissal of Lawsuit Seeking to Prevent Village's Acquisition of Utility Assets

Article on 7th Circuit opinion upholding the dismissal of a lawsuit seeking to prevent the Village of Rockton's acquisition of utility assets. This article was written by Dave Scriven-Young, an attorney with Peckar &...more

Comment: Connecticut v. American Electric Power Co.

This comment discusses Connecticut v. American Electric Power Co. (“AEP”), in which the Court of Appeals for the Second Circuit announced that the federal common law of nuisance could potentially provide the basis...more

Webster v. United States

Order denying motion for reconsideration

Takings case involving that National Park Service was dismissed for failure to timely file the lawsuit, and the remaining claims were transferred to a federal district court in the Western District of Washington. But this...more