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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

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

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

Texas Supreme Court Declines to Address Recovery for Stigma Damages in the Absence of a Permanent Physical Injury to Property

In a closely watched case, the Texas Supreme Court recently declined to address the issue of a right to recover damages for “stigma” in the absence of a permanent physical injury to property. (Houston Unlimited, Inc. v. Mel...more

Environmental Alert: "Clearly Allocate Risk of Change Interpretations in Transactions"

When buyers request that sellers warrant compliance with environmental law, sellers need to appreciate that agency interpretation or agency enforcement discretion may have played a role in the seller’s apparent ongoing...more

CERCLA Contribution and Trust Funds: A Matter for State Law

The Second Circuit Court of Appeals in New York recently held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, does not require contribution from...more

Update on 2013 Amendments to the Oregon Environmental Cleanup Assistance Act

In June 2013, the Governor of Oregon signed into law Senate Bill 814, which created sweeping reforms on environmental claims handling regulations and available remedies for insureds facing liability for cleanup of...more

Mixed Result In A Louisiana Legacy Pollution Case

The Dietz family sued several lessees for injunctive relief and restorative damages arising out of leases on two non-contiguous tracts in Acadia Parish. In Dietz, et al. v. Superior Oil Company, et al the trial court granted...more

Texas High Court Set to Hear Appeal on Viability of Post-Cleanup Stigma Damages in Environmental Contamination Claim

In an issue of first impression in Texas, the state’s highest court will hear arguments in December 2013 in a case involving a party’s claim to recover stigma damages following the cleanup of environmental contamination to...more

Third Circuit Decision Allowing CERCLA Contribution Claim Based On Settlement Of State-Law Liability Sets Up Split With Second...

A panel of the United States Court of Appeals for the Third Circuit decided an important precedential decision last week expanding the right to seek contribution for cleanup costs under the Comprehensive Environmental...more

More on Old NSR Claims: Injunctive Relief Remains Available Against Original Owners Foolish Enough Not to Have Sold

As we noted last week and last month, the 3rd and 7th Circuits have ruled that violations of the obligation to undertake NSR review prior to implementing major modifications are not continuing, but are instead one-time...more

Ninth Circuit Opinion Highlights Vapor Intrusion Risks and Challenges Faced by Brownfields Developers and Their Lenders

A recent ruling by the United States Court of Appeals for the Ninth Circuit illustrates the challenges faced by developers of contaminated properties and their lenders, as well as the extraordinary risks associated with...more

Washington Legislature Passes Significant Changes To The Model Toxics Control Act

During the waning hours of the legislative session, the Washington State Legislature passed Substitute Senate Bill 5296 (SSB 5296) by large majorities and Governor Inslee signed the bill without changes. ...more

Oregon Senate Bill 814 Regarding Environmental Claims Handling Regulations Signed into Law

On June 10, 2013, the governor of Oregon signed into law Senate Bill 814, creating sweeping reforms on environmental claims-handling regulations and available remedies for insureds facing liability for cleanup of contaminated...more

What To Do When You Are Issued A CERCLA Injunction To Perform A $1.5 Billion Cleanup — Lower Fox River Superfund Update

In a 78 page decision in the Lower Fox River Superfund case issued last month, the federal court issued an injunction against NCR Corp. and three other PRPs requiring them to perform a $1.5 billion remedy. No company ever...more

Senate Bill 814 Proposes Sweeping and Retroactive Changes to Environmental Claims Handling in Oregon

On March 13, 2013, the Oregon legislature introduced Senate Bill 814 to create sweeping reforms on environmental claims handling regulations and available remedies for insureds facing liability for cleanup of contaminated...more

Senate Bill 814 Proposes Sweeping and Retroactive Changes to Environmental Claims Handling in Oregon

On March 13, 2013, the Oregon legislature introduced Senate Bill 814 to create sweeping reforms on environmental claims handling regulations and available remedies for insureds facing liability for cleanup of contaminated...more

Mistakes Have Consequences – British Petroleum’s Settlement

Three years ago, Tilting told tales of oil spill legal problems suffered by Forrest Gump, Bubba Gump Shrimp Company, Wok Ann chu-gumm Seafood Restaurants, Chef Red Fishy and Bishop Carp. Tilting predicted class action...more

BP Settlement Claim

After years of litigation, BP Exploration & Production, Inc. and BP America Production Company (collectively, "BP") entered a class-wide settlement ("BP Settlement") that covers most businesses located in the Gulf Coast...more

Limitation Periods for Environmental Cost Recovery Claims in BC Abolished

The government of B.C. recently passed legislation that will eliminate any limitation period previously applicable to actions to recover the costs of environmental remediation under the Environmental Management Act, S.B.C....more

Bankruptcy Loses Arguments for Special Relief Under Prepetition Agreements for Environmental Liability

A recent case from the U.S. District Court for the Southern District of New York addressed the recurring conflict between the goals of bankruptcy law, which seeks to give debtors a fresh start, and the goals of federal and...more

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