Environmental Civil Remedies Residential Real Estate

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The Construction Advantage – Issue 10

Wyoming Supreme Court Concludes Contractor to Pay For Damages In Excess of Original Project Cost - An opinion released in a mid-August from the Wyoming Supreme Court concluded that repair damages were appropriate in a...more

Federal Court Determines Low Levels of Carcinogens PCE and TCE Insufficient to Establish Private RCRA Cause of Action Absent...

Further underscoring the importance of expert testimony to support environmental claims, the United States District Court for the District of New Jersey in Leese v. Lockheed Martin Corp., et al., No. 11-5091 (JBS/AMD), 2014...more

Federal Court Rejects Homeowners’ Expert’s Valuation of Alleged Diminution in Value Due to Environmental Contamination

In a recent environmental contamination case, a New Jersey federal judge rejected an expert valuation of alleged diminution in value on Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) grounds. In Leese, et al. v....more

Duped Subcontractor Can’t Recover From Landowner Payments Owed by General Contractor Under CERCLA

On March 18, 2014, the U.S. Court of Appeals for the Second Circuit resolved a dispute of apparent first impression regarding the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The...more

Court Rejects Statute Allowing Court Ordered Entry Onto Private Property by Public Agencies for Pre-Acquisition Testing

California Eminent Domain Law allows public agencies to obtain a court order permitting access onto private property to conduct pre-acquisition testing and inspections. These tests and inspections can help an agency...more

United States Supreme Court Rules in Favor of Real Property Owner in Federal Constitutional Takings Case

The Supreme Court of the United States published an important land use case on June 25, 2013, which provided a partial victory for a real property owner, based on the denial of a permit by a Florida permitting agency. The...more

Supreme Court decision will impact land-development projects nationwide

In a decision that will impact land-development projects nationwide, the U.S. Supreme Court held this week that the government may not condition a land-use permit on mitigation requirements that do not have an essential...more

U.S. Supreme Court Rules For Property Owner In Important Takings Case

In a 5-4 decision, the U. S. Supreme Court expanded the reach of the requirement that there be a “nexus” and “rough proportionality” between the impacts of a proposed development and governmental conditions imposed on the...more

Denying Land-Use Approval if a Land Owner Will Not Pay for Mitigation Efforts Triggers Heightened Constitutional Scrutiny - U.S....

If a governmental authority denies approval of a land-use permit because an applicant refuses to spend money on a government project, such as a mitigation project, the government must defend its denial under heightened...more

The Intersection of Subrogation and Environmental Law — The Ninth Circuit’s Tyranny of Logic over Common Sense

In a decision that exalts casuistry over common sense, the Ninth Circuit recently held that an insurer who reimbursed $2.4 million in CERCLA response costs to its policyholder had no subrogation rights against the potentially...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

First Circuit Affirms Pro-Rata Damages Verdict in Boston Gas

What you need to know: The US First Circuit Court of Appeals affirmed the trial court’s pro-rata, time-on-the-risk allocation of damages from environmental contamination in the long-running Boston Gas case. The court...more

EPA Issues New Superfund Guidance

Settlement plays a fundamental role in the Environmental Protection Agency’s (“EPA”) Superfund enforcement program. Potentially Responsible Parties (“PRPs”) seeking to resolve their liability through the settlement process...more

CERCLA and Original Sin -- Who Has to Pay For Other People's Contamination

In an environmental dispute between innocents involving a Church and a downgradient property owner, a federal court recently found the Church, although without original sin, was less innocent and should bear all the costs of...more

FHFA Proposes Rule for PACE Programs

On June 15, the FHFA, as required by a preliminary injunction from the Northern District Court of California, issued a notice of proposed rulemaking on state and local energy retrofit financing arrangements known as Property...more

UPDATE: Exhaustion-Of-Administrative-Remedies Requirement Applies If There Is A Public Hearing Before An Agency Determines A...

The California Supreme Court recently held that the exhaustion-of-administrative-remedies requirement found in Public Resources Code § 21177, subdivision (a), applies where a public agency determines that a proposed project...more

“Supreme Court Will Review CEQA Categorical Exemption Exception In Berkeley Hillside Preservation Case”

On May 23, 2012, the California Supreme Court by unanimous vote granted respondents’ and real parties’ petition for review of the First District Court of Appeal’s published decision in Berkeley Hillside Preservation, et al....more

First District Holds CEQA Does Not Apply To Napa County Ordinance Clarifying Its Ministerial Lot Line Adjustment Practice, And...

In a case addressing important issues affecting local agencies and landowners (disclaimer: I represented the County of Napa in the trial court and on appeal), the First District (Division 4) Court of Appeal on April 20, 2012...more

Sackett v. EPA: Property Owners May Challenge EPA Orders

The United States Supreme Court has unanimously ruled that Environmental Protection Agency (EPA) administrative orders under the Clean Water Act are subject to pre-enforcement judicial review. However, the Supreme Court’s...more

Supreme Court Opens District Courts to Challenges of Clean Water Act Compliance Orders

The United States Supreme Court issued a decision yesterday in the case Sackett v. Environmental Protection Agency. The Sackett case is an important development for property owners because the Court held that a compliance...more

RCRA Citizen Suits Are Still Constitutional

2012 is shaping up to be the Year of the Commerce Clause. Not only is the Commerce Clause at the center of the Supreme Court ‘s impending review of the Affordable Care Act later this spring; it is also at the heart of a...more

Sackett v. EPA – Supreme Court to Decide Whether Pre-Enforcement Review of Compliance Orders Allowed

On Monday, the United States Supreme Court heard oral argument on Sackett v. Environmental Protection Agency (docket no. 10-1062). At issue is whether a party who was issued a pre-enforcement compliance order from the...more

Words Matter in Environmental Cleanup Standards

In New York State Superfund Coalition, Inc., v. New York State Department of Environmental Conservation, the highest court in New York recently put its own gloss on the long-standing environmental issue of "How Clean is...more

Marzulla Law Legal Report - July 29, 2011

In This Issue: - Federal Government Admits To Liability In Land Takings: The Otay And Bassett Cases Sometimes the evidence of a taking is so overwhelming that even the federal government has to concede liability....more

Under CERCLA, "Owner" Means Owner When Cleanup Costs Are Incurred, Not When Reimbursement Is Sought

On July 22, the Ninth Circuit Court of Appeals held that under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA," commonly referred to as the "Superfund" law), the owner of a contaminated...more

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