Environmental Liability

News & Analysis as of

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

Two Chinese Public Interest Groups Win Landmark Environmental Lawsuit in China

In a seminal judicial decision, a court in China’s Fujian province ruled on October 29, 2015 in favor of two environmental NGOs who brought suit against four defendants under China’s revised Environmental Protection Law for...more

Waste on land: a warning for landowners

Fly-tipping continues to cause problems for businesses, governments and communities. Defra recently assessed the number of fly-tipping incidents during 2014-2015 at around 900,000 in England alone.1 It comes as a surprise to...more

Can Air Emissions Lead to CERCLA Liability?

The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (“CERCLA”) imposes fairly broad liability on potentially responsible parties (“PRPs”) to pay for the investigation and...more

UK courts get tough on environmental crime: sentencing of environmental offences committed by large companies

There is a widely held belief that environmental laws in the UK are toothless in practice because enforcement authorities are under resourced and typical levels of fines and penalties imposed are far too low. This view...more

Texas Court: No Prejudice Required to Deny for Late Reporting Under a Claims-Made Policy

This summer in Nicholas Petroleum, Inc. v. Mid-Continent Cas. Co., 2015 WL 4456185, 2015 Tex. App. LEXIS 7489 (Tex.App., Jul. 21, 2015), a Dallas panel of Texas’ intermediate level appellate court rejected policyholder...more

Migratory Bird Treaty Act: Question Of Unintentional “Take” Primed For Potential Fifth Circuit En Banc Or Supreme Court Review

Recently, industry won a major legal victory regarding liability—or lack thereof—for unintentional and indirect bird deaths under the Migratory Bird Treaty Act (MBTA). Unfortunately, that victory could be short lived,...more

Aikens on Leadership and Culture

Ed. Note-The VW scandal is clearly much broader than simply corporate lying about environmental compliance. It is about an entire corporate culture that engaged in, tolerated or consciously disregarded the illegal behavior....more

Be Careful About What you Claim – Or Fail to Claim – FTC Sends Green Guides Warning Letters

Last week the Federal Trade Commission (FTC) sent warning letters to providers of environmental certification seals, and to businesses using those seals, alerting them to the Commission’s concerns that the seals “could be...more

Yaiguaje v Chevron Corporation: Supreme Court releases leading decision on the enforcement of foreign judgments in Canada

Summary - - Supreme Court of Canada favours a relaxed approach to the recognition and enforcement of foreign judgments in Canada. - For a Canadian court to recognize and enforce a foreign judgment, a judgment...more

Migratory Bird Treaty Act Narrowly Interpreted: the Fifth Circuit Joins the Eighth and Ninth Circuits

The Fifth Circuit Court of Appeals reversed a district court decision holding CITGO liable for three misdemeanors under the Migratory Bird Treaty Act (MBTA) for bird deaths (the opinion lists 35 birds, including “twenty...more

3D Printing of Medical Devices: When a Novel Technology Meets Traditional Legal Principles

This white paper – 3D Printing of Medical Devices: When a Novel Technology Meets Traditional Legal Principles – explores the legal ramifications and risks of the rapidly increasing use of 3D printing of medical devices. 3D...more

Ninth Circuit Interprets CAFA Exception Narrowly, Facilitating Removal in Environmental Tort Cases

Creating a Circuit split, the Ninth Circuit held that a tort case against a Washington corporation did not fall under the so-called “local event” exception to the Class Action Fairness Act (“CAFA”) and, therefore, had been...more

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