Environmental Civil Procedure

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Aurora Energy Decision Deems Discharges Prohibited, Leaves Open Question of Permit Shield Applicability

On September 3, 2014, the United States Court of Appeals for the Ninth Circuit issued its opinion in Alaska Community Action on Toxics v. Aurora Energy Services, LLC, holding that the Clean Water Act General Permit for...more

EPA Proposes to Eliminate Affirmative Defenses for Many Clean Air Act Violations

The U.S. Environmental Protection Agency (EPA) issued a proposed rule on September 5, 2014 that would prevent states from including affirmative defenses in their Clean Air Act state implementation plans (SIPs) for emissions...more

Environmental Review Required for Subdivision Map Approvals

On September 9, the Third District Court of Appeal held that tentative subdivision map approvals "always have at least the potential to cause" a direct or indirect physical change in the environment and thus are categorically...more

Court of Appeal Confirms Subdivision is a CEQA Project

In Rominger v. County of Colusa (2014) (September 9, 2014, C073815) __ Cal.App.4th___, the Court of Appeal reversed the trial court and held that a tentative subdivision map is a project under the California Environmental...more

60-Day Notices for Phthalate DINP Can Begin on December 12, 2014

As previously reported, Diisononyl phthalate (DINP) was added to the Proposition 65 list on December 12, 2013. This means under the Proposition 65 regulations that plaintiffs can begin serving companies with Proposition 65...more

Tentative Map Approval Is CEQA “Project”, Holds Third District In Published Opinion Also Addressing Prejudicial Error, Agency...

In a lengthy published decision filed September 9, 2014, the Third District Court of Appeal affirmed in part and reversed in part the trial court’s judgment denying a writ petition challenging Colusa County’s adoption of a...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

Time for the Courts to go Green

The Supreme People’s Court has set up an environmental tribunal and clarified in its new Opinions which parties are able to pursue cases, the courts of first instance and the rules on litigation fees and funds. In...more

Some PURPA Qualifying Facilities are More Qualified Than Others

In a fascinating decision last week, a divided panel of the 5th Circuit Court of Appeals held that the Texas Public Utilities Commission had authority to limit the universe of “Qualifying Facilities” under the Public...more

Fifth Circuit Allows Texas Commission to Limit PURPA Sales

On September 8, 2014, the U.S. Court of Appeals for the Fifth Circuit dealt a blow to Exelon Corp. (“Exelon”), rejecting challenges by various Exelon wind-generating entities to a Texas Public Utility Commission (PUCT)...more

Fifth Circuit Holds that Texas Public Utility Commission Can Limit Ability of Intermittent Wind Generators to Sell Their Power...

On September 8, 2014, the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”), in a 2-1 decision, reversed an opinion by the United States District Court for the Western District of Texas (“District Court”)...more

No Need To Wait For NJDEP’s Approval When Seeking Contribution For Site Cleanups

Parties that find themselves responsible for the remediation of contaminated property in New Jersey do not have to wait for the New Jersey Department of Environmental Protection (“NJDEP”) to approve a final cleanup plan...more

Ruling on Discovery Disputes in “SolarCity” Cash Grant Litigation

On August 29, 2014, Judge Bruggink heard oral argument and ruled on plaintiffs’ motion to compel the production of documents and information requested from the Department of the Treasury (“Treasury”) regarding plaintiffs’...more

Yes, Virginia, It Is Possible To Win A Fee Award Against An Environmental NGO

Last week, Judge Walter Smith, Jr., ordered the Sierra Club to pay more than six million dollars – yes, you read that correctly – to Energy Future Holdings and Luminant Generation, after finding that the Sierra Club’s Clean...more

How Low Will They Go? A Lower Ozone NAAQS Begins to Have An Air of Inevitability

On Friday, EPA released its “Policy Assessment for the Review of the Ozone National Ambient Air Quality Standards.” EPA staff concluded: that it is appropriate in this review to consider a revised primary O3 standard level...more

California Federal District Court Grants Partial Dismissal to Suit Alleging Violations of the Endangered Species Act

Earlier this month, a federal district court in California partially granted motions to dismiss a second amended complaint filed by the Center for Biological Diversity and the Pesticide Action Network alleging that the...more

N.J. Federal Court Dismisses Environmental Suit Against Lockheed Martin for Lack of Health Threat

A New Jersey federal court recently dismissed an environmental suit against Lockheed Martin, rejecting the plaintiffs’ argument that any exposure to particular environmental contaminants is harmful. Leese v. Lockheed Martin...more

EPA Reinforces Standards to Use "Representative Data" After Sierra Club

On January 22, 2013, in Sierra Club v. EPA, the US Court of Appeals for the District of Columbia issued an opinion that addressed some Prevention of Significant Deterioration (PSD) permitting program issues. Following this...more

District Court Rules Grizzly Bears Trump Montana's Plan to Log Forest Lands to Fund Schools

On August 21, 2014, the United States District Court for the District of Montana remanded the Montana Department of Natural Resources and Conservation Forested State Trust Lands Habitat Conservation Plan (HCP) and suspended...more

U.S. Export-Import Bank Financing of Australian LNG Project Avoids Endangered Species Act Challenge – For Now

In the K&L Gates’ Global Government Solutions 2014 Annual Outlook, we reported on a case filed in the U.S. District Court for the Northern District of California raising questions about whether inter-agency consultations...more

CERCLA’s Three Year Statute of Limitations for Contribution Applies To Non-CERCLA Settlements

Parties which settle environmental liability in a judicially approved settlement have three years from the date of that settlement in which to seek contribution even if the settlement is not a CERCLA settlement. That is the...more

The Wait Is Over: Liable Parties Can Now Seek Early Contribution Claims Without New Jersey Department of Environmental Protection...

The recent Supreme Court of New Jersey ruling in Magic Petroleum v. Exxon Mobil demonstrates a trial court’s ability to allocate liability to “dischargers” while maintaining the role of the state’s Department of...more

Court Reluctantly Upholds Designation of Critial Habitat for Frog

Last week, the United States District Court for the Eastern District of Louisiana upheld the designation of approximately 1,544 acres of privately-owned timber land located in Louisiana as critical habitat for the dusky...more

Parkmerced Project Upheld Against CEQA and General Plan Inconsistency Challenges In San Francisco Tomorrow v. City and County of...

In a lengthy, mostly-unpublished opinion filed on August 14, 2014, the First District Court of Appeal affirmed the superior court’s judgment denying a writ petition challenging the Parkmerced Development Project. San...more

Is There a Duty to Defend Pollution Claims? It’s the Complaint, Stupid

This Spring, cases from Florida and Wisconsin reaffirmed the general proposition that a liability insurer’s duty to defend must be determined from the specific claims in the underlying complaint against the insured, and not...more

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