Environmental Civil Procedure Civil Remedies

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Illinois Supreme Court Declines to Apply Environmental Injunction Retroactively

In July 2004, the Illinois legislature amended the state Environmental Protection Act to authorize the Attorney General to seek “an injunction, prohibitory or mandatory, to restrain violations . . . or to require such other...more

Washington District Court Holds that CERCLA Displaces Federal Common Law Public Nuisance Claims

A Washington district court has recently held that the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) displaces federal common law public nuisance claims for damages. (Anderson v. Teck...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

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

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

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

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

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

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

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

California Trial Court Orders New Trial On Claim that Recology Violated CFCA

A California trial court recently overturned a jury verdict finding Recology San Francisco liable for violating the California False Claims Act (CFCA) and granted Recology’s motion for a new trial. The court’s ruling comes...more

Minnesota Federal Court Clarifies Pleading Standard in Vapor Contamination Case

In an opinion that may help clarify the jurisdictional and pleading requirements for plaintiffs seeking damages and injunctive relief for alleged injuries from vapor intrusion, the federal district court in Minnesota denied a...more

New Jersey Landowner Forfeits Damages by Allowing Defendant to Remediate

In what may be a cautionary tale for owners of contaminated property, a New Jersey appellate court has ruled that a landowner forfeited any claim to property damages when he allowed the responsible party to perform...more

Texas High Court Finds Expert Opinion on Stigma Damages Too Speculative

Clarifying when expert testimony on alleged diminution in property value becomes legally sufficient to support a so-called “stigma” claim, the Texas Supreme Court struck down a $350,000 jury verdict based on environmental...more

Federal Court Orders DOT to Respond to Sierra Club’s Unsafe Tank Car Lawsuit

A Federal Court has ordered the Department of Transportation (DOT) to respond to a lawsuit filed by three environmental organizations—Earthjustice, Sierra Club and ForestEthics—in which the parties asked the court to order...more

Kansas Appellate Court Disallows Strict Liability Claims for Refinery’s Alleged Discharge of Pollutants

In City of Neodesha v. BP Corporation North America, Inc., 2014 WL 4116576, which involved BP’s successful defense of claims relating discharges from its refinery, the Court of Appeals of Kansas affirmed the denial of the...more

Seventh Circuit Uses Fed. R. Civ. P. 60(b)(5) to Reopen 23-Year Old Judgment

Federal Rule of Civil Procedure 60(b)(5) allows a party to move for relief from a final judgment on the ground that “it prospectively is no longer equitable.” Motions under Rule 60(b)(5) must be made “within a reasonable...more

District of Arizona Rethinks NEPA’s Zone of Interests in Light of Recent Supreme Court Opinion on “Prudential” Standing

On September 30, 2014, the United States District Court for the District of Arizona (Campbell, D.J.) issued an order in Yount v. Salazar, Nos. 11-8171 et al., 2014 WL 4904423 (D. Ariz. Sept. 30, 2014). As part of this order,...more

Public Agency May Recover the Cost of Supplementing Administrative Record

In CEQA litigation, the party challenging the project can either request that the agency prepare the record of proceedings (“Record”), or prepare the Record itself, subject to certification by the lead agency. In either case,...more

Attorney Labor For Preparing CEQA Administrative Record Is Recoverable Cost Where Specialized Knowledge Required, Holds Fourth...

In a partially-published opinion filed September 29, 2014, the Fourth District Court of Appeal affirmed an order and judgment permitting the County of San Diego to recover actual labor costs incurred for an attorney and...more

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