Environmental Liability

News & Analysis as of

Montana Court Enforces Oil and Gas Exploration Exclusion

In its recent decision in Palmer v. Northland Cas. Co., 2016 U.S. Dist. LEXIS 138556 (D. Mont. Oct. 5, 2016), the United States District Court for the District of Montana had occasion to consider the application of an oil and...more

Nuclear Liability in the UK: Implementation of the 2004 Protocols

On May 4, 2016, the Nuclear Installations (Liability for Damage) Order 2016 (the “2016 Order”) entered into force in the United Kingdom. The 2016 Order, which implements the 2004 Protocols1 to the Paris Convention and...more

New Jersey Court Confirms a PRP Letter Constitutes a “Suit” Triggering an Insurer’s Duty to Defend

A New Jersey Superior Court recently put to rest a tenuous coverage defense to which insurers stubbornly have clung in environmental coverage cases. The court held in Cooper Industries, LLC v. Employers Ins. of Wausau a...more

Court Dismisses Public Nuisance Claims Against Monsanto for Manufacture of PCBs

Last week, a federal court dismissed claims brought by three California cities against Monsanto that were aimed at forcing Monsanto to pay for polychlorinated biphenyl (“PCB”) contamination in San Francisco Bay. The...more

Significant Changes to Washington State’s Voluntary Cleanup Program

The Washington State Department of Ecology (Ecology) recently rolled out significant changes to its Voluntary Cleanup Program (VCP). The VCP covers the largest number of cleanup sites in Washington and is a key part of many...more

Foreclosing Residential Lenders Ignore Environmental Issues at Their Own Risk

Several years ago, we assisted a lender who foreclosed on rural residential property and then discovered that vandals had removed metal pipes from the basement of the house. That was bad enough, but the removed piping had...more

Aerial Emissions Are Not “Disposal” Under CERCLA

Last year, we told you about a district court case in which air emissions from a lead smelter that ultimately settled on the land and in a water body gave rise to liability under the Comprehensive Environmental Response,...more

Environmental Liabilities in Oil & Gas Sales Under Bankruptcy Code Section 363

Since the beginning of 2015, at least 77 companies in the oil and gas industry have sought bankruptcy relief in the United States. The flow of oil and gas company bankruptcies shows no sign of slowing down and, based on the...more

New Ninth Circuit Decision Precluding CERCLA Liability for Airborne Emissions

Yesterday, the Ninth Circuit Court of Appeals issued in the long-running Pakootas v. Teck Cominco Metals, Ltd. litigation another important decision further defining the scope of liability under the federal Comprehensive...more

Safety, Health and Environment Matters - Spring/Summer 2016

Following the outcome of a so-called Brexit referendum it is clear that a significant period of uncertainty will follow while this country works out its new trading arrangements with fellow European countries and the rest of...more

Circuit Courts Tackle Question of Agency Liability under the MBTA for Permitting of Wind Energy Facilities

On June 7, 2016, the U.S. Court of Appeals for the Ninth Circuit rejected plaintiffs’ claim, among others, that the U.S. Bureau of Land Management’s (BLM) violated the Migratory Bird Treaty Act (MBTA) by granting a...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

Insolvency and energy insights: The Redwater decision

The Alberta Court of Queen’s Bench decision in Redwater Energy Corporation Re, 2016 ABQB 278, written by Chief Justice Neil Wittmann, clarifies that the provisions of the Bankruptcy and Insolvency Act (BIA) addressing the...more

New Kansas Act Allows Relief for Purchase of Contaminated Property

On May 9, 2016, Kansas Governor Sam Brownback signed into law the Contaminated Property Redevelopment Act (the “Act”). The goal of this Act is to allow purchasers in Kansas to acquire real property with pre-existing...more

Expect Increased Environmental Regulatory Scrutiny in the Wake of the Flint Water Crisis

The regulated community should plan for an increased level of agency oversight, inspection and enforcement and increased public involvement. Although there has been much finger pointing as to which party or parties may...more

Environmental Notes - March 2016

U.S. Supreme Court to Decide Whether Jurisdictional Determinations May be Appealed - The U.S. Army Corps of Engineers determines the presence or absence of wetlands and other “waters of the United States” on a...more

Selling Property “As Is” Won’t Protect Seller From Superfund Liability

Everyone is familiar with the two little words - “as is” - that pop up in real estate contracts. The “as is” clause is a means of allocating risk between seller and buyer. Generally, a seller who sells property “as is” will...more

Maryland Court of Appeals Opens Door to New Class of Inverse Condemnation Claims

A property owner states a valid claim for inverse condemnation where the owner alleges that its property was taken by the government's failure to act in the face of an affirmative duty to act, the Maryland Court of Appeals...more

What Does the Health Care Industry Do Now When Disposing "Hazardous Waste" Pharmaceuticals?

Potentially affected health care facilities should evaluate current management practices, evaluate best management practices for regulated facilities, and develop a plan to prepare for and manage a regulatory inspection....more

CCLD Explains Indemnification For Assumed Contractual Liabilities

This is an important decision because it explains the specificity with which provisions indemnifying a party for liabilities under a separate contract must be stated. In this case, Glencore, which had sold an aluminum plant...more

The Best Protection: Safeguards in Purchasing Distressed Oil and Gas Assets

In the current environment of depressed prices for oil, natural gas and related liquids, oil and gas wells, leases and properties are coming on to the market for sale. These assets typically are made available through either...more

Eminent Domain: Be Careful What You Ask For

The condemnation of property for public works may not always be as clean and easy as the government would like. Although local governments are often critical players in the cleanup and redevelopment of contaminated...more

Global Private Equity Newsletter - Winter 2016 Edition: Tools for Managing Environmental Risks in Deals

When parties to an M&A deal consider most environmental risks, they essentially seek the same goals that they seek with respect to other liabilities in the deal. M&A sellers, particularly private equity sellers, seek to avoid...more

Off the Tracks: A Data-Driven Analysis of Crude-by-Rail Liability Factors, Exposure, and Potential Solutions

Crude oil prices are now approaching what pundits believe is likely to be the bottom phase in the current market cycle. Due to the price downturn, the arbitrage window that drives a substantial portion of crude-by-rail...more

U.S. Coast Guard Issues Final Rule Raising OPA 90 Liability Limits

Action Item: The U.S. Coast Guard published a Final Rule increasing limits of liability for vessels, deepwater ports, and onshore facilities under the Oil Pollution Act of 1990 (“OPA 90”). The raise in liability limits also...more

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