Environmental Conflict of Laws

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EPA Asks STB to Resolve Preemption Question

The Administrator of Region IX of the Environmental Protection Agency (EPA) has petitioned the Surface Transportation Board (STB) for a declaratory order to address whether locomotive idling rules issued by the South Coast...more

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

Fracking Heats Up in California: Moratoria and Earthquakes

The last several weeks have seen some interesting developments suggesting an increase in temperature in the debate over hydraulic fracturing, or “fracking,” in California. First, a couple of jurisdictions took actions...more

Law Prof: The Clean Air Act Needs a Reboot  [Video]

Feb. 24, 2014 -- Professor David Schoenbrod talks about some of the inadequacies of The Clean Air Act along with potential solutions to the problem....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

Pennsylvania Supreme Court Declares Portions of Marcellus Shale Act Unconstitutional, Upholds Local Regulation of Oil and Gas...

On December 19, 2013, in Robinson Township v. Commonwealth of Pennsylvania et al., the Pennsylvania Supreme Court declared portions of Act 13 of 2012 (Act 13), commonly known as the “Marcellus Shale Act,” unconstitutional. As...more

PA Supreme Court Holds Portions of Oil and Gas Act Unconstitutional

The Pennsylvania Supreme Court recently held that several provisions of Act 13 of the Pennsylvania Oil and Gas Act are unconstitutional as it gives Marcellus Shale and natural gas drillers unfettered access to drilling...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

Colorado Oil and Gas Association Files Suit Against Fracking Bans

On December 3, 2013, the Colorado Oil and Gas Association (“COGA”) filed suits challenging citizen-passed initiatives that ban oil and gas activities in the cities of Fort Collins and Lafayette. The ordinance passed by the...more

A Summary of the Protecting States’ Rights to Promote American Energy Security Act (H.R. 2728)

On November 20, 2013, the House passed Protecting States’ Rights to Promote American Energy Security Act (H.R. 2728), giving state law primacy over federal regulation of hydraulic fracturing. The key provisions of the bill...more

House Passes Legislation Which Would Prohibit Department of the Interior from Enforcing Federal Fracturing Regulations

On November 20, 2013, the House of Representatives passed H.R. 2728, Protecting States’ Rights to Promote American Energy Security Act, which was introduced by Representative Bill Flores (R-Texas)...more

White House Threatens Veto Of House Bill Giving States Primacy Over Federal Regulation Of Hydraulic Fracturing On Federal Lands

On November 20, the U.S. House of Representatives began floor debate on a bill giving state law primacy over federal regulation of hydraulic fracturing on federal lands: H.R. 2728 (“Protecting States’ Rights and Preventing...more

House of Representatives to Consider Legislation Relating to Hydraulic Fracturing

The House of Representatives plans to consider two bills relating to hydraulic fracturing next week. The first of the two, H.R. 2728, Protecting States’ Rights to Promote American Energy Security Act, was introduced by...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

Judge Upholds DOGGR's Application of UIC Fracking Exemption

Last week, a judge in Alameda County Superior Court denied the Center for Biological Diversity’s motion for summary judgment in a case arguing that DOGGR is obligated to regulate hydraulic fracturing activities under the...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

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

The Atomic Energy Act Preempts Vermont’s Efforts To Close Vermont Yankee: Sometimes, Legislative Intent Is Just Too Clear To...

Last week, in Entergy v. Shumlin, the 2nd Circuit Court of Appeals largely struck down Vermont’s efforts to close Vermont Yankee. Although three separate Vermont statutes were at issue, and Entergy made both preemption and...more

We Still Don’t Need No Stinkin Cooperative Federalism: The D.C. Circuit Court of Appeals Holds that GHG Sources Require PSD...

Last Friday, I posted about the limits to EPA’s cooperation with states in the name of “cooperative federalism” under the Clean Air Act. On the same day, in Texas v. EPA, the D.C. Circuit Court of Appeals only emphasized my...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

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