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Environmental Civil Procedure

Read need-to-know updates, commentary, and analysis on Environmental issues written by leading professionals.

Environmental Groups Argue Sham Recycling Rule Should Be Recycled by EPA Rather Than Partially Discarded by Court

by Williams Mullen on

EPA promulgated a final rule in 2015 redefining “solid waste” under the Resource Conservation and Recovery Act (“RCRA”) to curb sham recycling (the “Rule”). In the August 2017 issue of Environmental Notes, we reported that...more

Environmental Citizen Suits —A Growing Trend Under the Trump Administration

by King & Spalding on

In his first year in office, President Trump has begun to deliver on his campaign promise of rolling back environmental regulations—from the waters of the United States rulemaking to the Clean Power Plan. He has also proposed...more

When Is a Discharge to Groundwater Subject to the Clean Water Act? Can You Say “Significant Nexus”?

Whether the Clean Water Act regulates discharges to groundwater has been a topic of significant debate.  At this point, there seems to be something of a trend in the cases towards concluding it does, but it remains true that...more

U.S. Fifth Circuit Affirms $20 Million Judgment Against Barge Owner as Responsible Party Under the Oil Pollution Act of 1990

by Liskow & Lewis on

In July of 2008, nearly 300,000 gallons of oil spilled into the Mississippi River in New Orleans when a tugboat towing an oil-filled barge veered across the river into the path of an ocean-going tanker. American Commercial...more

Meaning of “In Connection With” and “Pursuant To” Under Oil Pollution Act A Question of First Impression in Fifth Circuit

On November 7, in U.S. v. American Commercial Lines, LLC, the U.S. Court of Appeals for the Fifth Circuit affirmed the District Court’s ruling that American Commercial Lines (ACL), the owner of a tug boat whose contracted...more

D.C. Circuit's Atlantic Sunrise stay creates uncertainty for pipeline developers

by Hogan Lovells on

Earlier this week, the United States Court of Appeals for the District of Columbia Circuit issued an administrative stay of the Federal Energy Regulatory Commission’s (FERC) approval of Transcontinental Gas Pipe Line Company,...more

Sixth Circuit Holds Safe Drinking Water Act Does Not Preempt Constitutional Claims

by Beveridge & Diamond PC on

The Sixth Circuit revived previously dismissed claims in the Flint water cases, clarifying where the Safe Drinking Water Act (SDWA) does not preempt § 1983 claims. Boler v. Earley, No. 16-1684 (6th Cir. July 28, 2017)....more

Mississippi Federal Court Denies Preliminary Injunction for Failure to Show Threat of Irreparable Harm

by Beveridge & Diamond PC on

In a case demonstrating limits to injunctive relief, in the environmental context a Mississippi federal court denied a request for a temporary restraining order because the plaintiff did not show he would suffer irreparable...more

Ninth Circuit Issues Guidance on RCRA Section 1006 Anti-Duplication Provision

On November 2, the U.S. Court of Appeals for the Ninth Circuit issued its long-awaited ruling in Ecological Rights Foundation v. Pacific Gas & Electric Company, which clarifies the Resource Conservation and Recovery Act’s...more

Insured Survives Summary Judgment Motion on Three Pollution Exclusion Exceptions

by Beveridge & Diamond PC on

Illustrating how an insured can counter the insurer’s pollution exclusion arguments in coverage disputes, a federal court in Illinois held that an insured chemical company succeeded in raising genuine issues of material fact...more

Federal Court in California Greenlights Discovery After Sufficient Lone Pine Submissions

by Beveridge & Diamond PC on

In a case demonstrating the limits of a Lone Pine strategy, a California federal court allowed a toxic tort class action to proceed after plaintiffs’ experts showed that “Plaintiffs’ case is not meritless or frivolous.” The...more

Ohio Natural Resources Damages Claim Dismissed with Prejudice for Failure to Properly Serve Defendant

by Beveridge & Diamond PC on

Demonstrating the importance of timely service of process in complex environmental cases, a federal court in Ohio dismissed CERCLA natural resource damages claims and related state statutory actions for the state’s failure to...more

Supreme Court Rejects First Nation’s Spiritual Objection to Ski Resort

On November 2, 2017, the Supreme Court of Canada (SCC) ruled in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) that a decision to approve the Jumbo Glacier Resort did not violate the...more

Property Ownership and Water Supply Sources Matter in PFOA Contamination Lawsuits

by Beveridge & Diamond PC on

Illustrating some limitations on common law claims for groundwater contamination, a federal court in New York partially granted and partially denied a motion to dismiss in a cluster of sixteen lawsuits alleging...more

Washington State’s Suit Against Monsanto Remanded to State Court

by Beveridge & Diamond PC on

Clarifying the application of a doctrine called “federal officer jurisdiction,” a federal judge in Washington held that the federal government’s actions involving procurement of polychlorinated biphenyls (PCBs) from Monsanto...more

PCB Nuisance Suits from Three California Cities Stayed Pending Administrative Decision

by Beveridge & Diamond PC on

Showing how administrative claims can derail coexistent judicial actions, a federal court in California asked three California cities to first exhaust their administrative claims seeking state compensation for the cities’...more

District Court Permits Landowner to Pursue Hazardous Material Dumping Case Against the U.S. Navy

by Beveridge & Diamond PC on

Illustrating what constitutes sufficient notice to the government of the value of a claim under the Federal Tort Claims Act (FTCA), a Maryland federal court rejected the Navy’s claim that it had insufficient notice of the...more

Security for Costs Decision Allows Significant Recognition and Enforcement Appeal to Proceed

by Bennett Jones LLP on

On October 31, 2017, the Ontario Court of Appeal released the latest decision in a nearly 25-year legal saga being pursued on behalf of approximately 30,000 indigenous Ecuadorian villagers affected by environmental pollution...more

Ninth Circuit Confirms That “Good Faith Belief” Defense Under The ESA Is Governed By A Subjective Standard

On October 25, the U.S. Court of Appeals for the Ninth Circuit vacated the Dan Calver Wallen’s conviction for killing three grizzly bears in violation of the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA). The case...more

U.S. Supreme Court Considering Case with Major Implications for Western Water Rights

by Snell & Wilmer on

Several months ago, an earlier post in this blog described a decision by the Ninth Circuit Court of Appeals that recognized a federal reserved water right to groundwater [see Ninth Circuit Holds that Federal Reserved Water...more

First Appellate District Rejects Urban Decay Claim, Upholds EIR for New El Dorado County Courthouse

by Downey Brand LLP on

Since the 2004 decision in Bakersfield Citizens for Local Control v. City of Bakersfield, CEQA petitioners challenging development projects often assert that the lead agency has failed to adequately analyze urban decay...more

Tenth Circuit Upholds Owner-Property Exclusion In Connection With Cleanup Efforts

On August 25, the U.S. Court of Appeals for the Tenth Circuit, in an unpublished opinion, affirmed the lower court’s ruling that the cost to remediate environmental contamination at a ski resort was subject to a contractual...more

Keeping CEQA In Its Lane: First District Holds Substantial Evidence Supports EIR’s Conclusion That “Urban Decay” Is Not Reasonably...

by Miller Starr Regalia on

In 15-page opinion filed on September 15, and later certified for publication on October 16, 2017, the First District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging the Judicial...more

Volkswagen Settlement Offers Funding For Clean Transportation Upgrades

by McCarter & English, LLP on

Local governments and businesses considering investments in clean transportation projects may find funding opportunities resulting from partial settlements in the Volkswagen “clean diesel” emissions litigation. The U.S....more

Recap of Recent Oral Argument Before SCOTUS: Nat’l Assoc. of Mfr. v. Dep’t of Defense and Jesner v. Arab Bank, PLC

Last week, the U.S. Supreme Court heard oral argument in two significant cases: Nat’l Assoc. of Mfr. v. Dep’t of Defense and Jesner v. Arab Bank, PLC. In National Association of Manufacturers, the Court is being asked to...more

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