Environmental Civil Procedure

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Abuse of Discretion Not Shown By Court’s Failure To “Show Its Arithmetic” in Significantly Reducing Claimed Attorney Fees in CEQA...

In Save Our Uniquely Rural Community Environment v. County of San Bernardino, __ Cal.App.4th ___, 2015 WL 1259781 (4th Dist., Div. 2, 2015) (SOURCE) , the Fourth District Court of Appeal affirmed the trial court’s decision...more

Opponents of EPA’s Proposed Clean Power Plan Face Tough Questions From the Court

The U.S. Court of Appeals for the District of Columbia Circuit heard oral argument on the first legal challenges to EPA’s “Clean Power Plan” on April 16, 2015. The plan is a proposed rule under Section 111(d) of the Clean Air...more

California Appellate Court Affirms Judgment in Favor of Food Company on Claims of Lead Exposure

In an important victory for defendants doing business in California, the California Court of Appeal recently affirmed a trial court’s decision holding that the defendants did not violate Proposition 65, California’s toxics...more

MassDEP Provided Substantial Discretion to Interpret Legislative Mandate in Global Warming Solutions Act

Just how much discretion will the courts give to the MassDEP to interpret legislative intent when it implements legislative directives such as a requirement to develop rules under the Global Warming Solutions Act? The...more

California Environmental Law & Policy Update - April 2015 #3

Environmental and Policy Focus - Army Corps jurisdictional determinations subject to pre-permit judicial review, Eighth Circuit says - Allen Matkins - Apr 13: EPA and Army Corps of Engineers imposition of federal...more

Finality! Common Sense Prevails Over Wetlands Jurisdictional Determinations

“All good things come to those who wait,” certainly is not an expression that applies to property owners who receive wetlands jurisdictional determinations (JD) from the Army Corps of Engineers with which they disagree. ...more

Municipalities Lose First Round in Bid to Hold PCB Manufacturers Liable For Environmental Impacts

Two Massachusetts municipalities are down but not out in their attempts to hold manufacturers of PCBs responsible for the environmental effects of PCB-containing products decades later. ...more

Troubles for Town’s Wind Turbine

In the long-running dispute between the Town of Falmouth and the neighbors to the Town’s wind turbine that powers the municipal wastewater treatment facility (WWTF), score one for the neighbors. ...more

Eighth Circuit Creates Circuit Split By Holding Jurisdictional Determinations Under The Clean Water Act Constitute "Final Agency...

On April 10, 2015, the United States Court of Appeals for the Eighth Circuit held that the issuance of a jurisdictional determination (JD) by the U.S. Army Corps of Engineers (Corps) pursuant to the Clean Water Act (CWA)...more

In re Murray Energy - the First Clean Power Plan Donnybrook

Friday morning found us at the E. Barrett Prettyman Courthouse in Washington, hoping to take in the oral argument before the DC Circuit in the first (of what is certain to be many) challenge to the Clean Power Plan: In re...more

Landowners, Developers Win Big In Wetlands Case

Building on a 2012 U.S. Supreme Court decision, the Eighth Circuit ruled on April 10th that Clean Water Act jurisdictional determinations made by the U.S. Army Corps of Engineers can be challenged in a “pre-enforcement”...more

Proposed California Bill Seeks to (Finally) Define “Knowing and Intentional” Element of Proposition 65

On February 23, 2015, Assemblyman Bill Quirk (D-Hayward) introduced legislation that would definitively define the term “knowing and intentional” that is contained in the actual text of Proposition 65 (Prop 65). There has...more

No Statute of Limitations for Private Contribution Claims Under New Jersey’s Spill Act

Selling a piece of commercial property often requires much negotiation and planning, and generally represents the culmination of a result of a well-reasoned business decision. And at the conclusion of the deal—and depending...more

Non-Settling CERCLA Defendants Beware: Ninth Circuit Provides Lower Courts with Discretion to Allocate Liability Using Equitable...

There is a split of authority on how credits for settlements under the Comprehensive Response, Compensation and Liability Act (“CERCLA”) are allocated to non-settlors. Some courts have applied the proportionate share...more

Winners Beware – Fourth District Upholds Trial Court’s Discretion To Drastically Reduce Successful CEQA Plaintiff’s Fees In...

In an opinion filed March 18 and belatedly ordered published on April 13, 2015, the Fourth District Court of Appeal upheld a trial court’s discretion to award only $19,176 in attorneys’ fees under Code of Civil Procedure §...more

Suit by “Interested,” Neighboring Municipalities to Enforce SEQRA Requirements Does Not “Impose or Implement” a Land Use...

On March 27, 2015, the Southern District of New York granted summary judgment in favor of all defendants in the consolidated action Bernstein v. Wesley Hills, 08-CV-156; 12-CV-8856 (KMK), (the “Wesley Hills” Action). The...more

In Big Defense Win, Appellate Court Affirms that Proposition 65 Exposure Level Can Be Based on Average Consumption Over Time

In an important victory for defendants doing business in California, the California Court of Appeal recently affirmed a trial court’s decision holding that the defendants did not violate Proposition 65 (Prop 65), California’s...more

Army Corps Jurisdictional Determinations Subject to Pre-Permit Judicial Review, Eighth Circuit Says

EPA and Army Corps of Engineers imposition of federal Clean Water Act requirements can now be challenged in court without waiting for the agencies to bring an enforcement action, at least in the Eighth Circuit. On April 10,...more

Perhaps a Corps Jurisdictional Interpretation is Final Agency Action After All

After Sackett, the question on everyone’s mind was “How far does it go?” The first test of that question was the decision by the 5th Circuit Court of Appeals – not known as a bastion of liberalism – in Belle Company v. Corps...more

Federal Court Strikes Down HCP: No Piggybacks Under Section 10

While decisions dealing with lawsuits alleging violations of section 7 or section 9 of the Endangered Species Act (ESA) are rather common, it is far less common for courts to address suits under section 10. In fact, in any...more

EPA Really Has A Lot Of Discretion In Deciding Whether to Promulgate Water Quality Standards

When a number of citizen groups petitioned EPA to determine that it is necessary under the Clean Water Act to promulgate water quality standards for nutrient pollution in the Mississippi River Basin and the Northern Gulf of...more

Citadel Drops Lawsuit Against San Benito Fracking Ban

On Friday, April 3, Citadel Exploration filed a request for dismissal in its suit against San Benito County’s Measure J.  Measure J was passed in the November 2014 election and is a ban on high-intensity petroleum operations,...more

Maryland Appellate Court: County Stormwater Permit Violates CWA and State Law - Ruling Throws into Question Numerous State-Issued...

The Maryland Court of Special Appeals (CSA) issued a significant decision in Maryland Department of the Environment, et al. v. Anacostia Riverkeeper, et al., holding that the Municipal Separate Storm Sewer Permit (MS4) issued...more

Second District Holds First Tier CEQA Analysis Suffices For Regional Board’s Setting of Novel TMDL For Lake Bed Sediment

In a short published opinion, the Second District Court of Appeal rejected federal Clean Water Act, state Porter Cologne Water Quality Control Act, and CEQA challenges to a regional board’s Basin Plan Amendment establishing a...more

Ninth Circuit Addresses Several CERCLA Issues of First Impression in the Circuit

In AmeriPride Services Inc. v. Texas Eastern Overseas Inc., the Ninth Circuit examined several issues under CERCLA, some of which were issues of first impression in the Circuit, including: - Whether a district court...more

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