Environmental Civil Procedure

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California Supreme Court Denies Review in Expedited CEQA Litigation over Golden State Warriors Arena Project Approval

On January 17, 2017, the California Supreme Court denied the losing appellants’ petition for writ of supersedeas, stay request, and petition for review of the First District Court of Appeal’s decision in Mission Bay Alliance...more

Pennsylvania Court Issues Groundbreaking Decision Limiting the Government’s Ability to Assess Penalties for Alleged “Continuing...

The Pennsylvania Commonwealth Court has ruled that once an unpermitted discharge ceases, violations under The Clean Streams Law cease, even when pollution continues to persist in waters of the Commonwealth. While this places...more

Tenth Circuit: Asarco’s Settlement in Bankruptcy Proceeding Does Not Bar CERCLA Contribution Claim

A unanimous panel held that Asarco’s settlement in bankruptcy for its “share of response costs” did not preclude it from later bringing a CERCLA contribution claim....more

Class Action Quarterly Update - Fall 2016

Class action filings during the fall of 2016 continued to be dominated by Telephone Consumer Protection Act (“TCPA”) cases. As of October 1, 2016, nearly 150 cases have been filed; these filings are both daily in frequency...more

Potential Expansion of MTCA to More Owners/Operators of Contaminated Properties in Washington

The Washington State Court of Appeals recently held the Department of Natural Resources (DNR) liable as an operator or owner of a contaminated site under the Model Toxics Control Act, RCW 70.105D (MTCA), in Pope Resources, LP...more

New circuit split raises questions about ‘permit shield’ defense in Clean Water Act cases

Can a discharger violate a general narrative state water quality standard incorporated into its national pollutant discharge elimination system (“NPDES”) permit when the permit does not contain specific numeric effluent...more

Tenth Circuit: Judicial Estoppel Should Not Bar Asarco’s Latest Claims for Cost Recovery At CERCLA Mining Site

On January 3, the U.S. Court of Appeals for the Tenth Circuit issued a ruling reversing the district court’s decision that Asarco could not proceed with its claims for cost recovery at a Utah Comprehensive Environmental...more

Battle Brewing Over “Continuing Violations” Theory?

OSHA has just published a Final Rule restating its interpretation of the “continuing violations” theory. There are now two Circuit Court of Appeals rulings that disagree with this interpretation: AKM LLC dba Volks Contractors...more

California Federal Court Holds that U.S. Securities Laws Apply to Sponsored, Unlisted ADRs

The U.S. District Court for the Northern District of California held on January 4, 2017 that the federal securities laws apply to U.S. transactions in sponsored, but unlisted, American Depositary Receipts (“ADRs”) for a...more

Recently Proposed Pollution Notice Rule Struck as Invalid

The Division of Administrative Hearings ("DOAH") recently struck down the Florida Department of Environmental Protection's ("FDEP") proposed Public Notice of Pollution Rule 62-4.161 ("the Rule") in response to a petition...more

District Court Reviews Definition of “Gross Negligence” in Oil Pollution Act Reimbursement Action

On December 22, the U.S. District Court for the District of Columbia issued an opinion in Water Quality Insurance Syndicate v. U.S., which reversed the Coast Guard’s National Pollution Funds Center’s (NPFC) finding of gross...more

Federal Court of Appeal Says There is No Duty to Consult on Legislation

Does the Crown have a duty to consult when contemplating and introducing legislation that may adversely impact aboriginal rights? In its recent decision in Canada (Governor General in Council) v. Courtoreille, the Federal...more

Italian Constitutional Court declares the question of constitutional legitimacy on the “Spalma-Incentivi” Decree ‘groundless’

On December 7, 2016 the Italian Constitutional Court (the “Constitutional Court”) rejected the appeal filed by four solar energy operators against Art. 26, paragraphs 2 and 3 of Italian Law Decree no. 91, dated June 24, 2014,...more

California Sues Federal Government Alleging Inadequate Environmental Review of Offshore Drilling Proposal

In one of her last major legal actions before leaving office as California’s Attorney General, Kamala Harris, along with the California Coastal Commission (jointly the “Attorney General”), filed suit against various federal...more

Reliance on 1998 EIR Under CEQA Upheld Based on Substantial Evidence

In The Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency, et al., California's First District Court of Appeal is the first appellate court to apply the California Supreme Court's...more

December 2016: Energy Litigation Update

Update on Clean Power Plan. In August 2015, the Environmental Protection Agency (“EPA”) finalized a new set of standards, now known as the Clean Power Plan (the “Plan”), aimed at reducing carbon emissions from fossil-fuel...more

EPA Wins a Round Against CLF in Residual Designation Authority Litigation

Earlier this week, Judge Mary Lisi, of the District Court of Rhode Island, dismissed the Conservation Law Foundation’s Residual Designation Authority law suit against EPA. CLF had asked the Court to order EPA to require...more

District Court’s NEPA Judgment Vacated In Case Rendered Moot

On December 13, the U.S. Court of Appeals for the Fourth Circuit decided the case of Catawba Riverkeeper Foundation, et al., v. North Carolina Department of Transportation, et al. The Fourth Circuit concluded that, “[b]ecause...more

New Mexico Department of Game and Fish Challenges U.S Fish and Wildlife’s Release of Mexican Wolves

Pending before the U.S. Court of Appeals for the Tenth Circuit is the U.S. Fish and Wildlife Service’s (“Service”) appeal from a district court decision enjoining the Service from releasing Mexican wolves into New Mexico...more

9th Circuit Rejects NEPA Challenges To Planned 1.9-Mile Underground Light Rail Extension Project in Downtown LA

On December 6, the U.S. Court of Appeals for the Ninth Circuit, in the case of Japanese Village, LLC v. Federal Transit Administration, et al., affirmed the district court’s grant of summary judgement to the government...more

The Ninth Circuit Kills GMO Pesticide Regulations in Hawaii Counties

On November 18, 2016, the Ninth Circuit issued five rulings rejecting three Hawaii counties’ attempts to regulate pesticides and genetically modified crops, finding that the regulations were preempted by state and federal...more

Does MassDEP Have Authority to Regulate Electric Generating Emissions Under Section 3(d) of the GWSA? I’m Not So Sure.

As I have previously noted, I sympathize with the difficulties faced by MassDEP in trying to implement the SJC decision in Kain. However, that does not mean that MassDEP can simply take the easy way out. After rereading...more

District of New Hampshire Denies Remand Under CAFA’s Local Controversy Exception

On November 30th, in Brown v. Saint-Gobain Performance Plastics Corp., United States District Judge Joseph Laplante of the District of New Hampshire denied plaintiffs’ motion to remand two related class action lawsuits based...more

EPA Surrenders in the Regional Haze Dispute With Texas

As I noted when the 5th Circuit Court of Appeals stayed EPA’s disapproval of Texas’s regional haze plan, EPA had pretty much no chance of winning. Although the parties then stayed the litigation to talk settlement, EPA...more

Environmental Groups Sue Federal Agencies Again in Unending Legal Battle Over Offshore Oil Development

On November 11, 2016, the Environmental Defense Center (“EDC”) and Santa Barbara Channelkeeper jointly filed suit against several federal agencies including the Bureau of Ocean Energy Management and the Bureau of Safety and...more

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