Residential Real Estate Environmental Civil Procedure

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Another Lead-Related Crisis: East Chicago, Indiana

Last week, we began following the news about East Chicago, Indiana, where dangerously high levels of lead and arsenic have been found in the soil of a public affordable housing community and nearby elementary school affecting...more

Wetlands Determinations - Uncertainty for the Clean Water Rule?

On May 31, 2016, the United States Supreme Court issued its decision in United States Army Corps of Engineers v. Hawkes Co., Inc. holding that approved judicial determinations as to the presence of wetlands issued by the...more

Supreme Court Rules Landowners Can Challenge Jurisdictional Determinations

On May 31, 2016, in a unanimous ruling, the U.S. Supreme Court held in USACE v. Hawkes Co. that approved jurisdictional determinations (“JD”) are final actions which can be reviewed by the courts. Under the Clean Water Act a...more

Eighth Circuit Reverses Class Certification in Vapor Intrusion Litigation

On May 20, 2016, the U.S. Court of Appeals for the Eighth Circuit reversed class certification in a case involving residential vapor intrusion claims, in Ebert et al. v. General Mills, Inc., No. 15-1735 (8th Cir. May 20,...more

Clean Water Act Client Alert: US Supreme Court Concludes US Army Corps of Engineers Wetland "Jurisdictional Determinations"...

Earlier this week, the US Supreme Court unanimously concluded that wetland determinations by the US Army Corps of Engineers (“Corps”) under the Clean Water Act constitute final agency action, meaning that landowners can...more

Insurers Take Notice: Ninth Circuit Rules that EPA Request Letter Triggers Duty to Defend

On May 11, 2016, the Ninth Circuit Court of Appeals ruled that a general liability insurer owed a duty to defend an environmental matter even though no suit had technically been filed. Ash Grove Cement Co v. Liberty Mutual...more

8th Circuit Court Finds Class Action Inappropriate to Resolve Neighborhood Claims for Damages Arising From Environmental...

Seyfarth Synopsis: The Eighth Circuit found that a class action could not be sustained in an environmental pollution case because “the class lacks the requisite commonality and cohesiveness to satisfy Rule 23.”...more

U.S. Supreme Court Puts the Brakes on Corps’ Wetlands Determinations

On May 31, 2016, in a (surprising) 8–0 decision, Chief Justice John Roberts, writing for the full Supreme Court, issued a ruling that will have far-reaching effects on landowners, real estate developers, farmers, oil and gas...more

Are Corps Jurisdictional Decisions Final Agency Action? It Appears So. Is This a Good Thing?

According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government. Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are...more

Tenth Circuit holds that environmental contamination case doesn’t require remand under Class Action Fairness Act’s “local...

Although the Class Action Fairness Act of 2005 (CAFA) permits most significant class actions to be heard in federal court, the law requires district courts to remand so-called “local controversies” to state court. A “local...more

Horse Of A Different Color: CEQA Does Not Require EIR Due To Psychological And Social Impacts From Closure Of Beloved Equestrian...

In a March 4, 2016 published opinion, the Fourth District Court of Appeal reversed the trial court’s judgment requiring an EIR for a small 12-home rural subdivision project based on the “psychological and social” impacts of...more

In the Heart of the Rainy Season: The New (Stayed) Clean Water Rule Covers Vernal Pools in California

After years of drought, the El Niño storms have been bringing much-needed rain and snow to California–albeit in quantities significantly less than we hoped for thus far. In addition to the anticipated snow packs, flowing...more

Developers Dodge Bullet with Northern Long-Eared Bat

Developers have to deal with a number of environmental issues. These include stormwater management and potential impacts to wetlands, historic resources, and threatened and endangered species. The northern long-eared bat is...more

Motion to Amend CEQA Action Judgments to Make Additional Judgment Debtor Liable For Million Dollar Fee Award Not Barred By...

In a published opinion filed January 26, 2016, the Court of Appeal for the Fourth Appellate District (Division 2) reversed a trial court’s order denying CEQA plaintiffs’ motion to amend judgments entered four (4) years...more

Appellate Court Notes

Supreme Court Advance Release Opinions: SC19481 - JP Morgan Chase Bank, N.A. v. Mendez - After a foreclosure sale auction took place, the defendant property owner appeared for the first time and filed a motion to...more

When CEQA Violations Are An Afterthought: Fourth District Upholds Trial Court’s Independent Judgment Determination That City Of...

CEQA and land use law in California go together like a hand in a glove. Due to CEQA’s broad scope and exacting substantive and procedural requirements, it is relatively easy to plead a cause of action for CEQA violations in...more

California Supreme Court Rejects CEQA Guideline Requiring Analysis of the Existing Environment’s Impacts on a Proposed Project

A unanimous California Supreme Court has held that the California Environmental Quality Act (CEQA) generally does not require an analysis of how existing environmental conditions will impact a project’s future users or...more

“Reverse CEQA” Reversed: California Supreme Court Rejects CEQA Analysis of Impacts of the Environment on the Project

In California Building Industry Association v. Bay Area Air Quality Management District (December 17, 2015) (Case No. S213478) (CBIA v. BAAQMD), the California Supreme Court rejected a requirement for so-called “reverse CEQA”...more

Risky “Business as Usual”: The California Supreme Court Upholds the BAU Approach to CEQA Climate Impact Analysis, but Sets a High...

In Center for Biological Diversity v. Dept. of Fish and Wildlife,1 the California Supreme Court upheld the “Business as Usual” (BAU) approach for analyzing greenhouse gas (GHG) emissions under the California Environmental...more

California Supreme Court Decision Regarding Newhall Ranch Development Could Significantly Impact Developments

California Supreme Court Overturns Environmental Impact Report Related to Proposed Residential Development - In a much-anticipated decision, Center for Biological Diversity v. California Department of Fish and Wildlife,...more

California Supreme Court Rules Mitigation Measures Constitute Take of Fully Protected Species

On November 30, 2015, the California Supreme Court issued its much-anticipated decision in Center for Biological Diversity v. California Department of Fish & Wildlife, Case No. S217763 (Nov. 30, 2015). The decision comes at...more

Real Estate and Land Use - November 2015

CEQA Baseline Can Consider Historic Levels of Use - North County Advocates v. City of Carlsbad (2015)—Cal.App.4th—Case No. D066488: Why It Matters: This case addresses an important issue under CEQA relating to the...more

EARL e-News: The Uncertain Status of “Stigma Damages” for Property Claims in South Carolina - Updates on Environmental,...

In Chestnut, et al v. AVX Corporation, Appellate Case 2012-212143 (S.C. Supreme Court August 5, 2014), the State Supreme Court was faced with the issue of whether “stigma damages” could apply for environmental contamination...more

Insurance Recovery Law - July 2015 #2

California Court: Rejected Demand Within Policy Limits Not Necessary for Bad Faith Claim - Why it matters: Insurers must proceed with caution when they become aware that a settlement within policy limits is possible,...more

Property Tax And Valuation Topics - Summer 2015

The Environment and Property Taxes - It seems that many stakeholders are trying to deal with climate change. Connecticut’s hundreds of miles of coastline along the Long Island Sound include many low-lying areas...more

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