Environmental Civil Procedure Conflict of Laws

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Delayed Discovery Cannot Cure Defective Pre-Litigation Investigations for Proposition 65 Suits

A California appellate court recently determined that a consumer group’s failure to conduct required pre-litigation investigations of several restaurant chains’ alleged Proposition 65 violations warranted dismissal of the...more

Time-Barred Claim . . . Or Is It? Supreme Court Agrees To Review Fourth Circuit State Statute of Repose Case

As reported on the Ogletree Deakins Environmental Law blog in July of 2013, a divided panel of the Fourth Circuit Court of Appeals held that the Comprehensive Environmental Response, Compensation and Liability Act (CERLCA or...more

Litigation Over Hydraulic Fracturing in New York Rolls On, As Arguments Are Made To High Court The Same Week A New Lawsuit Emerges...

On December 16, 2013, the Town of Dryden, New York filed its merits brief with the New York Court of Appeals, arguing that state law does not preempt the Town’s local zoning ordinance purporting to ban hydraulic fracturing....more

Another Judicial Assault On GHG Emissions

The federal courts barred federal common law nuisance actions to obtain money damages or injunctive relief. American Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011)(holding nuisance claims seeking injunctive relief...more

Whatever Happened To State Law Carbon Dioxide Liability Claims? Still No Music After Bell

“Therefore, the Court declines to assert supplemental jurisdiction over the remaining state law claims which are dismissed without prejudice to their presentation in a state court action.” So ends the last analytical...more

Depublication of Controversial CEQA Common Interest Case Denied by Supreme Court, Leaving Troublesome Split of Authority

On October 16, 2013, 60 days after the request was submitted, the California Supreme Court denied Infill Builders’ request to depublish Citizens for Ceres v. Superior Court (5th Dist. 2013) 217 Cal.App.4th 889, a decision...more

CERCLA Preempts State-Law Claims Arising Out Of Petroleum Contamination

In what appears to be a first, a federal district court has held that the “Petroleum Exclusion” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) preempts state-law contribution claims...more

Third Circuit Holds “Source State” Common Law Tort Claims Not Preempted by Federal Clean Air Act

In an opinion filed on Tuesday, August 20, 2013, the U.S. Court of Appeals for the 3rd Circuit held that the federal Clean Air Act (CAA) does not preempt common law tort claims grounded in state law and brought against a...more

Time-Barred Claim? Fourth Circuit Invalidates State Statute of Repose in Contamination Cases

On July 10, 2013, a divided panel of the Fourth Circuit Court of Appeals held that the Comprehensive Environmental Response, Compensation and Liability Act (CERLCA or Superfund), the federal law redressing disposal of...more

City of Ceres: California Appeals Court CEQA Decision Complicates Whether Agencies' Communications with Developers Are Privileged

On July 8, 2013, the Fifth District of the California Court of Appeal issued Citizens for Ceres v. Super. Ct. of Stanislaus County (Case No. F065690 (Cal. Ct. App. 5th, July 8, 2013)) (Ceres), a perplexing opinion holding...more

No Common Interest In CEQA Compliance Prior To Project Approval, Holds Fifth District In City of Ceres Decision That Conflicts...

In a partially-published appellate writ decision filed July 8, 2013, the Fifth District Court of Appeal held that while CEQA’s administrative record statute (Pub. Resources Code, § 21167.6) does not impliedly abrogate the...more

Court of Appeals to Hear Fracking Ban Case?

Last week, Norse Energy filed its Notice of Appeal to the New York State Court of Appeals. ...more

New York Appeals Court Upholds Zoning Laws Banning Hydrofracking over State Oil and Gas Laws

In Norse Energy Corporation USA v. Town of Dryden, et al. and Cooperstown Holstein Corporation v. Town of Middlefield, the Third Department upheld local ordinances banning all activities related to the exploration for and the...more

Texas Supreme Court Rules in Southern Crushed Concrete that Texas Clean Air Act Preempts City of Houston Land Use Ordinance

On February 15, 2013, the Texas Supreme Court reversed the rulings of both a trial court and lower appellate court and found in favor of Southern Crushed Concrete in holding that a City of Houston ordinance placing location...more

Native Village Of Kivalina Files Its Petition For Certiorari - A Five-Year Climate Change Litigation Marathon That Has Yet To...

One day short of five years since the case was originally filed, on February 25, 2013 the plaintiffs in Native Village of Kivalina v. ExxonMobil Corp. attempt once more to get out of the starting blocks, this time with a...more

U.S. District Court Holds that Federal Clean Air Act Preempts Pennsylvania State Law Common Law Tort Claims

On October 12, 2012, the U.S. District Court for the Western District of Pennsylvania issued an opinion and order in Kristie Bell v. Cheswick Generating Station, GenOn Power Midwest, L.P., No. 2:12-cv-929, holding that state...more

Paris International Litigation Bulletin no. 4

This quarterly bulletin provides an overview of newly applicable legal provisions, recent case law and more generally the recent news in international litigation viewed from France....more

Justice Liu Authors Four Unanimous Opinions by the California Supreme Court

As the summer got started, and his first year on the bench nearly completed, Justice Liu produced four unanimous opinions on wide ranging issues of California law, including arbitration, preemption work product and...more

Public Trust Climate Litigation: On Life Support, But Still Breathing For Now

Last month, Judge Robert Wilkins dismissed the federal public trust climate change law suit, Alec L. v. Jackson. Judge Wilkins ruled on two alternative grounds. First, he held that there was no federal public trust doctrine....more

Florida Water Quality Standards in Flux Due to Challenges at Federal and State Level; UPDATED: Administrative Ruling issued June...

The final standards that set numeric limits/criteria regarding the amount of nutrient pollution allowed in Florida’s lakes, rivers, streams, and springs are being challenged in federal court. These Water Quality Standards for...more

Second Appellate District Approves Use of Projected Future Baseline to Measure Environmental Impacts in L.A. Light Rail Case

On Tuesday, the Second District Court of Appeal issued its decision in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, ruling that a lead agency’s use of projected future conditions to measure the...more

Court Upholds Use of Future CEQA Baseline, Contravening Sunnyvale and Madera

On April 17, 2012, the Court of Appeal for the Second Appellate District upheld the use of a 2030 baseline for an Environmental Impact Report’s (EIR) traffic and air quality analysis in Neighbors for Smart Rail v. Exposition...more

Clean Water Act Orders Subject to Pre-Enforcement Review

Supreme Court decision determines that the Clean Water Act's statutory scheme does not preclude judicial review of EPA's jurisdiction in enforcement cases. In a much-anticipated decision, Sackett v. EPA, 566 U.S. ______...more

Sackett v. Environmental Protection Agency

SCOTUS Opinion in Sackett v. EPA

Full text copy of the Supreme Court's unanimous decision in Sackett v. EPA, allowing landowners judicial review when faced with compliance orders from EPA regarding violations of the Clean Water Act....more

Chevron v. Naranjo, et al.

Second Circuit Opinion Dismissing Chevron's Attempt to Bar Enforcement of Ecuador Judgment.

The U.S. Court of Appeals for the Second Circuit in New York issued an opinion explaining its decision to overturn a district court injunction barring enforcement of the judgment outside of Ecuador. Chevron filed suit in...more

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