Environmental Liability

News & Analysis as of

New Jersey Appellate Court Limits Measure of Damages for Contaminated Properties

On August 27, 2014, the Superior Court of New Jersey ruled in favor of Puritan Oil against a New Jersey property owner, finding that where the oil company had already taken steps to remedy contamination it caused on...more

Editorial: Drowning in Place: Local Government Costs and Liabilities for Flooding Due to Sea-level Rise

Many areas of Florida are experiencing increased tidal flooding due to sea-level rise (SLR). Florida has experienced eight to nine inches of SLR over the past 100 years. The roughly four and one-half inches of rise in the...more

Time for the Courts to go Green

The Supreme People’s Court has set up an environmental tribunal and clarified in its new Opinions which parties are able to pursue cases, the courts of first instance and the rules on litigation fees and funds. In...more

Trial Judge Concludes The Deepwater Horizon Spill Caused By BP’s Gross Negligence And Willful Misconduct

On September 4, 2014 the federal district judge overseeing the multidistrict litigation resulting from the Deepwater Horizon oil spill issued long-awaited rulings as to liability. The court concluded that BP is subject to...more

Responsible Mercury Management Post-MEBA

Several domestic industries have historically produced elemental mercury as either a main product or a byproduct of their operations. This mercury has typically been sold to third parties that have utilized it in the...more

NPDES Permits Are Construed Narrowly Against the Permittee

In July, we noted that the Clean Water Act’s permit shield defense would be construed narrowly, applying only where a permittee had clearly disclosed that the relevant pollutant to the agency. This week, in Alaska Community...more

CERCLA’s Three Year Statute of Limitations for Contribution Applies To Non-CERCLA Settlements

Parties which settle environmental liability in a judicially approved settlement have three years from the date of that settlement in which to seek contribution even if the settlement is not a CERCLA settlement. That is the...more

The Wait Is Over: Liable Parties Can Now Seek Early Contribution Claims Without New Jersey Department of Environmental Protection...

The recent Supreme Court of New Jersey ruling in Magic Petroleum v. Exxon Mobil demonstrates a trial court’s ability to allocate liability to “dischargers” while maintaining the role of the state’s Department of...more

OPR Proposes to Increase CEQA’s Costs, Complexity, and Litigation Risks with SB 743 Implementation

On August 6, 2014, the Governor's Office of Planning and Research (OPR) issued proposed revisions to the California Environmental Quality Act (CEQA) guidelines implementing SB 743 – the Sacramento Kings arena bill – carried...more

Real Estate and Land Use - August 2014

Chula Vista Citizens for Jobs and Fair Competition, et al. v. Donna Norris, et al. - Why it matters: With land use issues and development projects increasingly the subject of local ballot initiatives, it is imperative...more

The Absolute Pollution Exclusion May Not Be That “Absolute”

The Absolute Pollution Exclusion (“APE”) contained in current general liability insurance policies excludes coverage for costs related to the cleanup of environmental pollution. Insurance companies have taken the position...more

Draft ISO 14001:2015 Standard Available for Public Comment

The revision of the ISO 14001 standard is now open for public comment, with the final standard publication expected in 2015, affecting over 280,000 certified organizations worldwide. Once final, the standard is expected to be...more

Other 2014 Environmental and Land Use Legislation: Fracking, Brownfields, State Land Conservation, Private Easements, Wood Burning...

The General Assembly passed noteworthy bills on six diverse environmental and land use subjects. Hydraulic Fracturing Waste - A deceptively simple bill concerning hydraulic fracturing waste, PA 14-200, emerged...more

Youngstown, Ohio, Contractor Sentenced to 28 Months in Prison for Wastewater Dumping Scheme

We previously reported on the federal criminal and State of Ohio enforcement actions arising from the release of tens of thousands of gallons of hydraulic fracturing waste into a Youngstown, Ohio, area tributary by Hard Rock...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

New Jersey Supreme Court Allows Early Contribution Claims Under the Spill Act

Parties sued by the New Jersey Department of Environmental Protection (“DEP”) for remediation now have an immediate right to seek contribution from other potentially responsible parties. Following last week’s unanimous ruling...more

Environmental Alert: "Clearly Allocate Risk of Change Interpretations in Transactions"

When buyers request that sellers warrant compliance with environmental law, sellers need to appreciate that agency interpretation or agency enforcement discretion may have played a role in the seller’s apparent ongoing...more

Collateral Estoppel Bars Copy-Cat Environmental Plaintiff in New Case After Judgment

Roberson v. City of Rialto (4th Dist., Div. 2, 5/21/2014, E058187) - The Fourth District Court of Appeal affirmed a judgment denying a petition for writ of mandate to invalidate project approvals for the construction...more

Fourth Circuit Affirms Liability for Selenium Discharges - Rejects Permit Shield Defense

By a published decision released on July 11, 2014, the U.S. Court of Appeals for the Fourth Circuit affirmed a district court decision out of the Western District of Virginia finding that A & G Coal Corporation (“A & G”)...more

Morristown Associates v. Grant Oil

In 2006, Morristown Associates filed a suit against multiple heating companies and the previous owners of a dry cleaning business to seek payment for the costs they incurred redeveloping the property. They cited the source...more

CERCLA Contribution and Trust Funds: A Matter for State Law

The Second Circuit Court of Appeals in New York recently held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, does not require contribution from...more

North Carolina Legislators Look to Criminalize Disclosure of Fracking Fluids

As many states and the federal government look towards calling for greater disclosure and regulation of the chemicals used in hydraulic fracturing, state senators in North Carolina appear to be pushing against the tide in...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

Supreme Court’s CEQA Docket Expands With Grant of Review in Newhall Ranch Case

On July 9, 2014, the California Supreme Court granted the petition for review filed by Plaintiff/Respondent Center for Biological Diversity (CBD) in Center for Biological Diversity, et al. v. Department of Fish and Game...more

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Apportionment

The U.S. Court of Appeals used the recent case of PCS Nitrogen Inc. v. Ashley II of Charleston LLC to decide when it is appropriate to rule in favor of apportionment under CERCLA. In this case, 43 acres of land in...more

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