Environmental Energy & Utilities Civil Remedies

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EPA Releases Annual Environmental Enforcement Results

December 18, 2014, marked the release of the U.S. Environmental Protection Agency’s (EPA) annual environmental enforcement and compliance results. See News Release, U.S. Environmental Protection Agency, EPA Announces 2014...more

Louisiana Town Files Second Suit to Block Oil and Gas Well

The Town of Abita Springs filed a suit on December 1, 2014, seeking a declaratory judgment to block the drilling of an oil and gas well about 40 miles north of New Orleans into the Tuscaloosa Marine Shale. Earlier this year,...more

FERC Issues Annual Enforcement Report

On November 20, the Federal Energy Regulatory Commission’s (FERC) Office of Enforcement issued its Report on Enforcement, detailing its activities in 2014. These activities continued to focus on three areas...more

Ninth Circuit Rejects Use of Preemptive Litigation to Validate Federal Approvals

Shell Gulf of Mexico, Inc., v. Center for Biological Diversity, (11/12/14, No. 13-35835) The Ninth Circuit has rejected a “novel litigation strategy” that Shell Gulf of Mexico, Inc., employed in an effort to preempt a...more

Judge Barbier BP Attempt to Limit Clean Water Act Fines

On September 4, 2014, District Court Judge Carl Barbier issued his “Findings of Fact and Conclusions of Law – Phase One Trial” in the Deepwater Horizon oil spill litigation. In his 153 page opinion, Judge Barbier found BP...more

Energy Newsletter - November 2014

In This Issue: - First AIPN Model Contract for Unconventional Resource Operations - A Cautionary Tale: English Courts Further Depart from a Traditional Approach to Liquidated Damages in Unaoil v...more

Federal Court Orders DOT to Respond to Sierra Club’s Unsafe Tank Car Lawsuit

A Federal Court has ordered the Department of Transportation (DOT) to respond to a lawsuit filed by three environmental organizations—Earthjustice, Sierra Club and ForestEthics—in which the parties asked the court to order...more

Kansas Appellate Court Disallows Strict Liability Claims for Refinery’s Alleged Discharge of Pollutants

In City of Neodesha v. BP Corporation North America, Inc., 2014 WL 4116576, which involved BP’s successful defense of claims relating discharges from its refinery, the Court of Appeals of Kansas affirmed the denial of the...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

Significant Victory for Defendants in Sierra Club Pollution Suit

In Sierra Club v. Energy Future Holdings Corp., No. W-12-CV-108 (W.D. Tex. August 29, 2014), a Texas federal judge recently awarded $6.4 million in attorneys’ fees and costs to the defendants in a pollution suit brought by...more

District of Arizona Rethinks NEPA’s Zone of Interests in Light of Recent Supreme Court Opinion on “Prudential” Standing

On September 30, 2014, the United States District Court for the District of Arizona (Campbell, D.J.) issued an order in Yount v. Salazar, Nos. 11-8171 et al., 2014 WL 4904423 (D. Ariz. Sept. 30, 2014). As part of this order,...more

Deepwater Horizon Oil Spill Legal Update: Judge Makes Findings of Gross Negligence and Negligence

While the Deepwater Horizon oil spill has largely disappeared from the news headlines, for the parties involved in the litigation, the legal machinations, particularly with respect to liability, have a long way still to...more

Yes, Virginia, It Is Possible To Win A Fee Award Against An Environmental NGO

Last week, Judge Walter Smith, Jr., ordered the Sierra Club to pay more than six million dollars – yes, you read that correctly – to Energy Future Holdings and Luminant Generation, after finding that the Sierra Club’s Clean...more

Federal Court of Appeals Rules that California Water District May Recover Expectancy Damages from the United States

Opinion Reverses Trial Court, and Bureau of Reclamation May Owe Additional Damages for Breach of Water Supply Contract - A recent federal appellate decision may clear the way for water purveyors to collect damages when...more

Water District Shorted by Federal Government May Recover Expectancy Damages

A federal appellate court may have made it possible for water purveyors to collect additional damages from the U.S. Bureau of Reclamation when water deliveries are shortened due to an inexcusable breach of contract. The...more

Fifth Circuit Reins In Trend of Expanding ESA Liability for Remote Harm

The Fifth Circuit's recent decision in The Aransas Project v. Shaw, No. 13-40317 (5th Cir. June 30, 2014), clarified two points relating to the element of causation in claims under the Endangered Species Act (ESA). ...more

District Court Denies Motion to Enjoin Delta Water Transfers

Last Friday, the U.S. District Court for the Eastern District of California denied a motion brought by environmental groups to enjoin a water transfer project in the Sacramento-San Joaquin River Delta (Delta). Plaintiffs...more

Proximate Cause and Foreseeability Are Required Elements of Endangered Species Act Liability: Fifth Circuit Reverses Injunction...

The Fifth Circuit Court of Appeals has reversed an injunction that would have prohibited the Texas Commission on Environmental Quality (“TCEQ”) from issuing new water withdrawal permits affecting an estuary where...more

Court of Appeal Upholds State Water Board Regulation Targeting Frost-Prevention Activities of Vineyards in Mendocino and Sonoma...

In Light v. State Water Resources Control Board (Opinion filed 6/16/2014), California’s First Appellate District upheld a State Water Resources Control Board (SWRCB) regulation that will potentially limit the amount of water...more

One Step Closer… Fifth Circuit Affirms BP Loss on CWA Liability Regarding Gulf Spill

The Deepwater Horizon spill in the Gulf of Mexico occurred over four years ago, accompanied by numerous stories trumpeting the fact that BP would likely pay as much as $25 billion to the United States in civil penalties...more

Kids Get Their Day in Court on Climate Change

On June 11, the Oregon Court of Appeals held that two teens are entitled to a judicial declaration of whether there exists a “public trust” obligation in state officials to “protect the State’s atmosphere as well as the...more

California Environmental Law and Policy Update - June 2014

Environmental and Policy Focus: California is ahead of EPA on climate rules - Los Angeles Times - Jun 5: In 2006, when California adopted AB 32, its landmark global warming law, it acted virtually alone. Now, the state...more

Indiana Federal Court Reconsiders Prior Ruling and Dismisses Untimely Claims for Injunctive Relief Under the Clean Air Act

In United States v. United States Steel Corp., __F.Supp.2d__, 2014 WL 1577837 (N.D. Ind. Apr. 18, 2014), an Indiana district court judge granted the defendant’s motion for reconsideration, candidly admitted he was wrong the...more

North Dakota Court Dismisses Flaring Cases

You might recall that North Dakota achieved nationwide notoriety when photos of flaring Bakken wells visible from space circulated around the news. According to the U. S. Department of Energy...more

Texas Supreme Court Issues Opinion with Implications for Power Purchase Agreements

The Texas Supreme Court recently issued an opinion with implications for negotiating terms in power purchase agreements in the renewable energy market. In FPL Energy LLC, et al. v. TXU Portfolio Management Co., LP, the Court...more

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