Environmental Toxic Torts

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Fourth Circuit Continues Trend toward Narrowing Scope of CERCLA Arranger Liability

Action Item: With federal courts moving toward limiting arranger liability under CERCLA, companies that sell new or used products containing hazardous substances should heed the guidance of those courts and take certain...more

Is Injunctive Relief Available Against Former Owners? At Least One Judge Thinks So.

As we noted in 2013, two different Courts of Appeal had ruled that injunctive relief is not available in PSD/NSR enforcement cases against former owners. Both United States v. Midwest Generation and United States v. EME...more

An Introductory Guide to Rev 973 v. Mouren-Laurens Et Al

Loeb & Loeb LLP represents a group of approximately 45 potentially responsible parties (PRPs) in the Rev 973 litigation, though the number is constantly changing as additional parties join the group. The following is an...more

RCRA Is a Mess

In a potentially significant opinion last week, in Little Hocking Water Association v. DuPont, Judge Algenon Marbley gave hope to citizen plaintiffs everywhere, with a remarkably expansive reading of the imminent and...more

Expert Testimony May Be Required To Establish CERCLA Innocent Landowner Defense

On January 20, 2015, the United States District Court for the Eastern District of California in Coppola v. Smith, 2015 U.S. Dist. LEXIS 5127, addressed the application of CERCLA’s innocent landowner defense against a somewhat...more

EU Court limits the scope of environmental liability for new owners of polluted land

The Court of Justice of the European Union (the “CJEU”) has shed light on the application of the “polluter pays” principle in the context of the EU’s Environmental Liability Directive. The judgment, handed down on 4 March...more

Scanning The Post-Burlington Northern CERCLA Landscape

Since the U.S. Supreme Court issued its landmark decision in Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009), holding that a party must “take intentional steps to dispose of a hazardous...more

Insurance Recovery Law - February 2015 #2

Separate Contract Serves to Limit Insurance Coverage for Deepwater Horizon Spill, Texas Supreme Court Rules - Why it matters: The Texas Supreme Court rejected BP’s $750 million claim for coverage under Transocean...more

Proposed Assembly Bill 356 Would Require Additional Groundwater Monitoring by Oil & Gas Operators

California Assemblymember Das Williams (D-Carpinteria) has introduced an oil and gas bill to ensure that the state comes into compliance with the Class II underground injection (“UIC”) requirements under the federal Safe...more

CERCLA’s Confusion Between Section 107 and Section 113

Over a decade after the Supreme Court’s decision in Cooper Industries v. Aviall, the divide between CERCLA Section 107 cost recovery claims and Section 113 contribution claims remains unsettled. PRPs incurring response costs...more

Wrap-Up of Federal and State Chemical Regulatory Developments, February, 2015

EPA OEI Office Announces Transfer Of TRI Program To OPPT: On January 22, 2015, U.S. Environmental Protection Agency (EPA) Office of Environmental Information (OEI) announced that EPA has begun the process of transferring the...more

Missouri Federal Court Cuts Claims in Pipeline Property Damage Action

Underscoring the need for plaintiffs to show concrete proof of harm in suits alleging property damage, a federal district court dismissed a suit alleging that an oil pipeline contaminated farmland in Missouri. See Henke v....more

Federal Court Holds That “Each and Every Exposure” Theory is Inadmissible

The “single fiber” theory, well known to asbestos litigants and practitioners, is an attempt to circumvent “substantial factor” causation requirements, positing that any exposure to asbestos constitutes an underlying cause of...more

U.S. District Court in Pennsylvania Dismisses Majority of Water Well Contamination Claims Against Oil Drilling Company

Earlier this month, U.S. District Judge John E. Jones III in the Middle District of Pennsylvania completely adopted the “extremely thorough, well-reasoned” recommendations of a U.S. Magistrate Judge and dismissed almost all...more

Eleventh Circuit Reinstates Groundwater Contamination Case Dismissed on Lone Pine Order

In a case that may provide some plaintiffs with protection from early Lone Pine orders, the Eleventh Circuit reversed a trial court’s dismissal of a groundwater contamination case for failure to sufficiently state claims...more

North Carolina’s Amended Repose Law Fails to Save Barred Toxic Tort Claim

Notwithstanding the intent of the North Carolina legislature, a federal court ruled that the state’s recently amended law exempting groundwater contamination suits from a 10-year statute of repose did not save a latent toxic...more

New York Federal Court Finds that CERCLA’s Petroleum Exclusion Covers Benzene Derived from Gasoline Degradation

In White Plains Housing Authority v. Getty Properties Corp., No. 13-cv-6282, 2014 WL 7183991 (S.D.N.Y. Dec. 16, 2014), the district court applied the petroleum exclusion of the Comprehensive Environmental Response,...more

Arkansas Federal Court Denies Class Certification in Property Damage Suit

Exemplifying the reluctance of many courts to allow toxic tort cases to proceed as class actions, a federal judge in Arkansas denied certification of a putative class of neighboring landowners who claimed the Defendant’s...more

Fifth Circuit Relieves Company of "Arranger" Liability under CERCLA

In Vine Street LLC v. Borg Warner Corp., No. 07-40440, the Fifth Circuit held that, in light of the U.S. Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009), BorgWarner...more

New Jersey Supreme Court Rules No Time Bar for Spill Act Contribution Claims

In a unanimous decision on January 26, 2015, the Supreme Court of New Jersey, in Morristown Associates v. Grant Oil Co., overturned two lower-court decisions and held that the six-year statute of limitations for damage to...more

DRM client wins important case precluding termination of insurer insolvency before contingent or unliquidated claims can be...

The Vermont Supreme Court has ruled in In Re Ambassador Ins. Co., 2015 VT 4 (Vt. Jan. 23, 2015) that the liquidator of Ambassador Insurance acted unreasonably in setting a December 31, 2013 bar date for policyholder claims...more

Case Settled! New Jersey Supreme Court Says No Time Limits to Spill Act Contribution Claims

Action Item: Defendants can no longer assert a statute of limitations defense to claims of contribution under the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq. (“Spill Act”). ...more

Recent Cases on Clean Air Act Preemption of Common Law Torts Upend Conventional Wisdom

Two recent appellate-level decisions allowing state common law tort claims against an intrastate emitting source to avoid Clean Air Act (CAA) preemption have surprised many CAA litigators. The outcome in both Bell v....more

Toxic Tort and Environmental Litigation: District Court Finds Expert Proof Insufficient to Prove Causation (1/15)

Causation is often the biggest hurdle a plaintiff must clear in proving a toxic tort case. For that reason, it would be expedient if a plaintiff could get to trial on the issue of causation merely by showing that...more

The Need For Expert Evidence To Make Out An Innocent Landowner Defense Under CERCLA

As every litigator knows, evidence almost always tells a story that is untidy and riddled with loose ends. This was illustrated by a recent innocent landowner case in California — Coppola v. Smith. There, a company had...more

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