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Environmental Civil Procedure Energy & Utilities

Read need-to-know updates, commentary, and analysis on Environmental issues written by leading professionals.

D.C. District Court Determines that Dakota Access Environmental Assessment was Inadequate

On June 14, 2017, the District Court for the District of Columbia issued a decision in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. The Court found that the Army Corps of Engineers (“the Corps”) had not...more

Life, Liberty, and…IPRs? SCOTUS to Weigh in on Constitutionality of Inter Partes Review Proceedings

by Bryan Cave on

Today, the Supreme Court granted certiorari in Oil States Energy Services v. Greene’s Energy Group, No. 16-712 (June 12, 2017), to decide whether post-grant proceedings created under the America Invents Act (“AIA”) are...more

U.S. Fifth Circuit Greenlights Contribution Action for Purely Economic Damages Under Oil Pollution Act (OPA)

by Liskow & Lewis on

In Settoon Towing, L.L.C. v. Marquette Transportation Company, L.L.C., No. 16-30459 (5th Cir. Jun. 9, 2017), the United States Fifth Circuit Court of Appeals held for the first time that a Responsible Party under the Oil...more

Court Reissues LCFS Opinion Per ARB Petition For Reconsideration

by Latham & Watkins LLP on

As discussed in a previous post, the California Court of Appeal for the Fifth Appellate District (Court of Appeal) ruled on April 10, 2017 that the California Air Resources Board (ARB) had failed to properly follow a writ of...more

Ozark Society Lacks Standing To Pursue Injunctive Relief

In Ouachita Watch League, et al., v. U.S. Forest Service, et al., decided May 30, the U.S. Court of Appeals for the Eighth Circuit dismissed for lack of jurisdiction an appeal of the District Court’s ruling that the plaintiff...more

Treaty Obligations to Protect Fish Habitat From Degradation Upheld

by Perkins Coie on

In July 2016, the U.S. Court of Appeals for the Ninth Circuit held that the state of Washington violated tribal treaty obligations by building and maintaining barrier culverts that block 1,000 linear miles of streams suitable...more

Nevada Solar Project Survives Ninth Circuit Review Despite Impacts to Tortoise Connectivity

by Nossaman LLP on

On May 18, 2017, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s summary judgment decision in favor of the Secretary of the Department of the Interior and other federal officials in an...more

Stability For Calif. Cap-And-Trade Program, For Now

The future of California’s cap-and-trade program looks a little brighter, thanks to a 2-1 vote of the Court of Appeal for the Third Appellate District on April 6. The decision, which held that the cap-and-trade program is...more

Challenge to California's Cap-and-Trade Emission Allowances Auction Rejected on Appeal

by Jones Day on

On April 6, 2017, the California Court of Appeal, in a 2–1 decision, upheld the sale of greenhouse gas ("GHG") emission allowances in California's cap-and-trade program. California Chamber of Commerce v. State Air Resources...more

California Environmental Law & Policy Update - May 2017

by Allen Matkins on

Environmental and Policy Focus - EPA, clean energy spared Trump's ax in $1.1 trillion budget deal - Bloomberg - May 1 - Environmental programs marked for termination or deep cuts by President Donald Trump got a...more

Fifth Circuit Tosses Coastal Damage Tort Lawsuit Against Oil and Gas Companies

by Beveridge & Diamond PC on

Illustrating the challenges in using Louisiana tort suits to address large-scale environmental issues, the U.S. Court of Appeals for the Fifth Circuit dismissed claims seeking relief for alleged coastal damage from oil and...more

Texas Supreme Court Tosses Untimely Damages Claims, Leaves Open Possibility of Injunctive Relief

by Beveridge & Diamond PC on

Highlighting the importance of proving a factual timeline in a statute of limitations analysis, the Texas Supreme Court held that a cattle ranch owners’ claims related to alleged contamination from long-dormant oil and gas...more

Texas Supreme Court Discusses Primary Jurisdiction For Environmental Contamination Claims

On April 28, the Texas Supreme Court, affirming the Court of Appeals of Texas, First District, sitting in Houston, issued a unanimous ruling in the case of Forest Oil Corporation v. El Rucio Land and Cattle Company, Inc., et...more

Not “Too Big to Fail.” Too Big to Comply.

Last year, the 5th Circuit Court of Appeals vacated the decision by District Judge David Hittner not to impose any penalties on ExxonMobil for violations alleged in a Clean Air Act citizens’ suit concerning ExxonMobil’s...more

Downstream drama: Iowa utility can’t recover damages from county drainage districts

by Thompson Coburn LLP on

The complex issues affecting agriculture and related industries came into sharp focus recently with an Iowa Supreme Court decision that considered whether one government entity can sue another for damages related to water...more

Louisiana’s Subsequent Purchaser Rule Bars Property Owner’s Claims

On April 18, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s ruling in a Louisiana case that dismissed the plaintiff’s claims for property damage based on contamination caused to his property by...more

U.S. Fifth Circuit Affirms Application of the Subsequent Purchaser Doctrine in Oilfield Contamination Case, Recognizes “Clear...

by Liskow & Lewis on

In Guilbeau v. Hess Corporation, the United States Fifth Circuit Court of Appeals unanimously affirmed the application of Louisiana’s subsequent purchaser doctrine to bar a plaintiff’s claims for property damage resulting...more

It’s Wise to Make Certain that Contracts Properly Allocate Future Environmental Compliance Costs

Last week, the 6th Circuit Court of Appeals ruled that AEP, which entered into a consent decree requiring it to install certain pollution controls at its Rockport 1 and 2 power plants, could not force the owner of those...more

California Court Chastises Air Resources Board over LCFS but Preserves 2017 Status Quo

by Latham & Watkins LLP on

In two recent posts, we discussed how California’s Low Carbon Fuel Standard (LCFS) had been thrown into a state of potential upheaval by two interrelated legal challenges commonly known as POET I and POET II, including a...more

GHG Allowance Auctions are Not a Tax; Key Element of State’s Cap-and-Trade Program Upheld

California Chamber of Commerce, et al. v. California Air Resources Board, et al., Case No. C075930 (Cal. Ct. App. 3d. Dist., 2017). On April 6, the California Court of Appeal for the Third District issued its...more

Stretching Sovereign Immunity: The New Jersey High Court Immunizes the State from New Jersey Spill Act Liability for Pre-1977...

by Blank Rome LLP on

Action Item: The New Jersey Supreme Court’s decision in NL Industries, Inc. v. State of New Jersey will frustrate the equitable allocation of cleanup costs at sites involving pre-1977 discharges where the State would...more

Exxon Case Against AGs Transferred to New York: Judge Kinkeade Fires a Parting Shot

On Wednesday, Judge Ed Kinkeade ordered that Exxon Mobil’s suit against NY Attorney General Eric Schneiderman and Massachusetts Attorney General Maura Healey be transferred to the Southern District of New York.  The AGs must...more

DC Circuit Case May Test Continuing Validity of FERC Delegations of Authority to Agency Staff Once Its Quorum Disappeared

by Stinson Leonard Street on

On February 7 and March 7, 2017, we wrote about how the Federal Energy Regulatory Commission (FERC) is operating without a legal quorum of three members and how the lack of a quorum might affect the validity of FERC staff...more

California State Court Poised to Destabilize Low Carbon Fuel Standard

by Latham & Watkins LLP on

Big changes appear to be imminent for California’s Low Carbon Fuel Standard (LCFS). As discussed in greater detail in our recent post, the LCFS currently is the subject of two interrelated legal challenges commonly known...more

State of Texas Sues Federal Government to Prompt Action on Yucca Mountain

by McDermott Will & Emery on

The state of Texas sued the federal government on March 14, 2017, under the Nuclear Waste Policy Act of 1982, stating that the executive branch failed to comply with the Act’s mandate that the federal government establish a...more

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