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Climate Litigation Against the US Is Dead. How Long Will State Climate Damage Cases Survive?

On Monday morning, the Supreme Court denied certiorari in Juliana v. United States. The cert. denial leaves in place the 9th Circuit Court of Appeals decision that ordered the case dismissed for lack of standing. At least for...more

New York State Amends Landmark “Climate Change Superfund Act” Amidst Legal Challenges

We previously reported on New York State’s enactment of the Climate Change Superfund Act (the “Climate Superfund Act” or the “Act”), groundbreaking legislation that seeks to recover $75 billion from fossil fuel producers for...more

More on Climate Superfund Laws and Litigation

Last week, we posted about New York State’s enactment of the Climate Change Superfund Act. We promised to continue to monitor developments concerning climate superfund legislation and to update readers as necessary. It’s been...more

Montana Protects a Constitutional Right to a Stable Climate: Will Any Other States Follow Suit?

Earlier this week, the Montana Supreme Court affirmed a lower court ruling in favor of plaintiffs in a climate case based on certain provisions of the Montana constitution. Specifically, the court ruled that: - The...more

The Fifth Circuit Court of Appeals Really Doesn't Want to Decide Who Has Standing to Bring CAA Penalty Claims

Earlier this week, in what almost certainly has to be the most fractured appellate decision in the history of the United States courts, the 5th Circuit Court of Appeals, sitting en banc, affirmed via per curiam decision the...more

In the Void Left by Congress's Failure to Address Plastic Pollution, More Litigation Such as This Is Inevitable

Last November, I posted about litigation filed by New York State Attorney General Letitia James, asserting public nuisance and other claims against PepsiCo concerning contamination of the Buffalo River. At the time, I...more

Supreme Court Refuses to Halt EPA Power Plant Emissions Rule Pending Federal Appeal

On October 16, 2024, the United States Supreme Court shot down requests from states and industry groups to stay the implementation of the Environmental Protection Agency’s (EPA) rule to reduce carbon emissions from coal-fired...more

Fluoridation May Not Be A Commie Plot, But It Does Apparently Present Unreasonable Risks

Sometimes, a blog just has to be written. For those of us of a certain age, Sterling Hayden's speech as Jack D. Ripper in Dr. Strangelove concerning the Communist plot to fluoridate our water is iconic. Well, it turns out...more

We’re From the Government and We’re Here to Help You; NPDES Permit Flexibility Edition

Inside EPA (subscription required) reported this week that a group of Democratic state attorneys general have filed an amicus brief supporting EPA’s appeal of a 9th Circuit Court of Appeals decision holding that EPA had...more

What's the Future for Climate Litigation in the US After Juliana?

On Wednesday, the 9th Circuit granted a petition for mandamus from the United States and ordered the District Court to dismiss the complaint in Juliana v. United States. The 9th Circuit had previously ordered the case...more

The D.C. Circuit Affirms EPA’s Reinstatement of California’s Authority to Set Auto Emissions Limits; Don’t Get Too Excited About...

On Tuesday, in Ohio v. EPA, the D.C. Circuit Court of Appeals denied several challenges to EPA’s decision to restore California’s authority under § 209(b) of the Clean Air Act to regulate emissions from motor vehicles. It’s...more

Superfund Is Short of Money. Can It Be Fixed By Tinkering Around the Edges?

This week, Inside EPA (subscription required) ran a story indicating that EPA is trying to figure out how to juggle some increasingly expensive cleanups with shortfalls in Superfund tax revenue. The story notes that EPA is...more

The D.C. Circuit Vacates Most of EPA’s SSM SIP Call; Generators Breath a Sigh of Relief

Earlier this month, the District of Columbia Court of Appeals vacated most of EPA’s startup, shutdown, and malfunction SIP Call. The Court’s rationale boils down to EPA’s failure to make a predicate finding that the SIP call...more

EPA Lowers the PM2.5 NAAQS: Goldilocks Can Sleep Soundly

On February 7, 2024, EPA finalized a rule lowering the primary annual National Ambient Air Quality Standard for PM2.5 to 9.00 ug/m3.  This is a significant reduction from the current 12.00 ug/m3 standard and a victory for...more

Each Federal Agency Should Use Its Judgment in Determining the Social Cost of Carbon — How’s That Going to Work Out?

Late last month, the Interagency Working Group on Social Cost of Greenhouse Gases quietly released a three-paragraph memo on how agencies should determine the social cost of greenhouse gas emissions.  I hesitate to call it...more

Post-Sackett, Who Will Speak for the Clean Water Act?

Earlier this month, in Lewis v. United States the 5th Circuit issued a decision interpreting the Supreme Court’s decision in Sackett v. EPA. The 5th Circuit decision is a model of clarity and demonstrates what I’ll call the...more

More Litigation Concerning Plastic Pollution: Can Claims Be Both Novel and Traditional at the Same Time?

Last month, I advised plastics manufacturers to prepare for more litigation.  Although I am generally loath to speculate, it already looks as though this prediction is coming true.  Earlier this month, PennEnvironment and...more

Is Litigation the Solution to Plastic Pollution?

Earlier this week, New York State Attorney General Letitia James filed suit against PepsiCo.  At the core of the case are allegations that PepsiCo.’s widespread use of single-use plastics has created or contributed to a...more

Oil and Hazardous Substances; Never the Twain Shall Meet

Late last month, in Munoz v. Intercontinental Terminals Company, the 5th Circuit Court of Appeals held that the liability provisions of CERCLA and the Oil Pollution Act do not overlap and that, consequently, where oil and...more

Does EPA Have Authority to Include Narrative Criteria in NPDES Permits? Yes, For Now.

Earlier this week, the 9th Circuit Court of Appeals affirmed EPA’s NPDES permit issued to San Francisco’s Oceanside sewer system. San Francisco had challenged the permit on the ground that EPA does not have authority to...more

The Supreme Court Majority Prepares to Bury Chevron; Is There Anyone Left to Praise It?

Earlier this week, the Supreme Court accepted cert. in Lopez Bright Enterprises v. Raimondo, which presents a straightforward challenge to the continuing viability of Chevron...more

It’s More Important for EPA to Ensure that States Are Good Neighbors Than That They are Perfect Neighbors

Last week, D.C. Circuit Court of Appeals rejected challenges to EPA’s “Revised Cross-State Air Pollution Update Rule”. The Court found that the Rule was “an appropriate exercise of EPA’s statutory authority”....more

May A Court Take Judicial Notice of Gravity?

Earlier this month, United States District Court Judge Stephen Wilson held that NL Industries was not liable under CERCLA for air emissions of lead because such emissions did not constitute “disposal” within the meaning of...more

The Battle Over PFAS Continues to Heat Up. The Assessment of Costs and Benefits Remains Undone.

Last month, EPA issued interim health advisories for PFOA and PFOS that took many people’s breath away.  It is rather amazing how quickly we’ve moved from parts per billion past parts per trillion to the low parts per...more

FWS and NOAA Decide That “Habitat” Should Not Be Defined By Regulation: I Hope This Is Good News

This week, the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration issued a rule rescinding the rule issued in 2020 defining “habitat” for the purposes of determining what constitutes “critical...more

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