Archives: Environmental Litigation

Subscribe to Environmental Litigation RSS Feed

Proposed Settlement Agreement Requires US EPA to Promulgate Perchlorate Regulations by the End of 2019

US EPA recently agreed in federal court to engage in a rulemaking process over the next three-plus years which would culminate in the promulgation of final perchlorate regulations by December 19, 2019. Perchlorate remains the only unregulated contaminant for which US EPA has made a final determination to regulate since the Safe Drinking Water Act (SDWA) was amended in … Continue Reading

Recent Developments in Oil Pollution Act Litigation

Congress enacted the Oil Pollution Act in 1990 following the Exxon Valdez oil spill in order to strengthen the federal government’s ability to prevent and respond to oil spills. As this law continues to evolve, particularly in the wake of the 2010 Deepwater Horizon spill, the Environmental Law Institute convened a panel of experts to discuss … Continue Reading

Oral Argument Approaching in Litigation to Expand 8th Circuit’s Ban on US EPA’s Blending Prohibition

Oral argument in the Center for Regulatory Reasonableness (CRR) v. EPA, Case No. 14-1150 (D.C. Cir.) matter has been set for October 21, 2016. At issue is the March 25, 2013 decision of the Eighth Circuit in Iowa League of Cities v. EPA, Case No. 11-3412, which vacated US EPA’s across-the-board prohibitions on the use … Continue Reading

Georgia and South Carolina are the Newest Battle Grounds for States’ Eminent Domain Authority

In 2005, the US Supreme Court held in Kelo v. City of New London that the city of New London, Connecticut could condemn 15 residential properties for a “public use” that entailed transferring the property to a new private owner.  The majority opinion backstopped its expansive definition of “public use” by emphasizing that “nothing in [its] … Continue Reading

Piercing the Corporate Veil Following Breaches of UK Environmental Permits

The recent Court of Appeal decision in R v Powell and Westwood contains an interesting insight into the extent to which company directors may find themselves personally liable for the cost of remediating contamination which has been caused or knowingly permitted by the companies that they control. It has confirmed that the corporate veil should … Continue Reading

NY Appeals Court: Environmental Cleanup Insurer’s Liability Limited to Insured Years

In a case of first impression, Keyspan Gas East Corp. v. Munich Reins. Am., Inc., a New York appellate court reversed a lower court ruling and held that an insured, rather than its environmental cleanup insurer, must be allocated environmental cleanup costs for periods of time when the relevant insurance was not available in the marketplace.  The … Continue Reading

Ninth Circuit Rules Smelter Emissions Are Not a CERCLA Disposal

The Ninth Circuit’s recent opinion in Pakootas v. Teck Cominco Metals, Ltd., addressed whether, “[w]hen a smelter emits lead, arsenic, cadmium, and mercury compounds through a smokestack and those compounds contaminate land or water downwind, . . . the owner-operator of the smelter [can] be held liable for cleanup costs and natural resource damages under … Continue Reading

Supreme Court of Western Australia Rules that State Environmental Policies are Not ‘Relevant Considerations’ when Making an Environmental Impact Assessment

The port City of Fremantle, now considered by many as part of greater Metropolitan Perth, has been home to Fremantle Port since the turn of the 19th Century. For more than a century, 90% of Western Australia’s imports and 30% of its exports have moved through the port. In 2014, during their first budget, the … Continue Reading

US EPA’s Great Lakes Restoration Initiative Grants for Voluntary Action a Striking Contrast to the Chesapeake Bay TMDL

US EPA announced recently that it had awarded twenty-eight Great Lakes Restoration Initiative (GLRI) grants totaling more than $12.5 million. Portions of this federal funding will provide financial assistance to owners of farmland who voluntarily act to reduce nutrient runoff from their land. The provision of federal funding to address issues in the Great Lakes … Continue Reading

US Supreme Court Rules Against the Corps and in Favor of Landowners With Respect to the Reviewability of Jurisdictional Determinations, Reserving for Another Day the Full Scope of Finality under the Administrative Procedure Act

In one of the most closely watched environmental and administrative law cases this term, the US Supreme Court ruled unanimously against the government on Tuesday, May 31, 2016, affirming the Eighth Circuit’s decision allowing federal courts to review the US Army Corps of Engineers’ jurisdictional determinations. Jurisdictional determinations are decisions wherein the Corps determines whether wetlands or dry … Continue Reading

A Short History of Clean Power Plan Litigation as of March 2016

The Clean Power Plan and its surrounding litigation has quickly become one of the hottest topics both inside and outside the legal world. News that the U.S. Supreme Court had granted a stay of the Clean Power Plan on February 9, 2016 spread like wildfire, but many recent followers are unaware of just how long and polemic … Continue Reading

How Challengers Obtained the Stay that Put US EPA’s Clean Carbon Plan on Hold

On February 9, 2016, the U.S. Supreme Court granted a stay of the Clean Power Plan requested by 29 states and state agencies, coal companies, utilities, and several trade associations. News of the order granting the stay spread like wildfire across the nation, having become a top news story overnight. The road to the historic … Continue Reading

Record Fine Imposed For UK Water Pollution Offence – Prevention Less Costly Than Cure?

The record fine of £1m recently handed down to Thames Water Utilities Limited is further evidence (if any were needed) that the Courts are willing impose extremely tough penalties on very large organisations found to have breached environmental regulations. Background Thames Water has an environmental permit to discharge treated sewage from Tring Sewage Treatment Works into … Continue Reading

The Air (Emissions) of Spring May Soon Give Rise to Unprecedented CERCLA Liability

iStock_000012328862_SmallAs 2015 came to a close, the Ninth Circuit Court of Appeals quietly notified the parties in a decades-long environmental dispute that, in April 2016, the court will hear arguments in a case that could reshape CERCLA liability forever.  The basis for the pending appeal is a district court order holding that air emissions could … Continue Reading

Food Law Enforcement in the UK: Official Statistics 2014/2015 and Database of Prosecutions

Official Statistics 2014/2015  The Food Standards Agency (“FSA”) has today published official statistics for the year 2014/2015 on food law enforcement across the UK, compiled from information given to them by local authorities. The returns from local authorities cover food hygiene (microbiological quality and contamination of food by micro-organisms or foreign matter) and food standards … Continue Reading

US EPA’s Clean Carbon Plan Finally Published, Challengers Immediately File Suit and Motions for a Stay

At long last, US EPA officially published the Clean Power Plan (CPP) this morning in the Federal Register, 82 days after releasing a copy of the signed final rule on August 3, 2015. Publication of the rule has been covered extensively by our team in previous posts here and here. Official publication of the rule has been met … Continue Reading

Still Waters: Sixth Circuit Issues Nationwide Stay Against “Waters of the US” Rule

The US Court of Appeals for the Sixth Circuit issued a nationwide stay on October 9, 2015 against the “Waters of the United States” Final Rule. The Final Rule defines the term “waters of the United States” under the Clean Water Act while, as we noted previously, expanding federal jurisdiction over waters that were not previously covered. … Continue Reading

US District Court Blocks BLM Rule for Hydraulic Fracking on Federal and Tribal Land

On September 30, 2015, the US District Court for the District of Wyoming preliminarily enjoined the US Bureau of Land Management (BLM) from enforcing its final rule regulating hydraulic fracturing on federal and Native American lands, pending the resolution of a challenge to the rule under the Administrative Procedures Act (APA) brought by various industry, state, … Continue Reading

Ninth Circuit Invalidates US EPA’s Unconditional Registration of Sulfoxaflor Insecticide as the Agency Also Faces Other Challenges to Its Pollinator Protection Efforts

On September 10, 2015, in Pollinator Stewardship Council et al. v. EPA, the Ninth Circuit Court of Appeals invalidated US EPA’s unconditional registration of the insecticide sulfoxaflor, concluding that the scientific data relied upon by the agency regarding the product’s potential impact on honey bees did not support approval of the insecticide.  Sulfoxaflor, which is … Continue Reading

Federal Judge Sides With US EPA In Pebble Mine FOIA Litigation

On August 24, 2015, Judge H. Russel Holland of the US District Court for the District of Alaska dealt a blow to Pebble Limited Partnership’s (Pebble Partnership) efforts to obtain documents which it believes could support its claim that US EPA failed to comply with the Federal Advisory Committee Act (FACA) by coordinating with environmental … Continue Reading

US District Court Enjoins Waters of the US Rule But Limits Injunction to the 13 Plaintiff States

On August 27, 2015, the US District Court for the District of North Dakota granted a motion for preliminary injunction to a coalition of 13 states (the States) attempting to block implementation of the Waters of the United States (WOTUS) Rule, promulgated by US EPA and the Army Corps of Engineers (the Corps) and set to go into … Continue Reading

US EPA Issues Second Direct Final Rule on Greenhouse Gas Permitting in Light of DC Circuit Ruling

As we previously reported, in May 2015 US EPA issued a direct final rule allowing for the rescission of certain preconstruction (“PSD”) permits issued by US EPA and delegating permit review authority to states under Step 2 of the Greenhouse Gas (“GHG”) Tailoring Rule.  Step 2 of the Tailoring Rule set in motion PSD permitting for “GHG-only” sources, meaning sources permitted solely … Continue Reading

Reforming the offence of Public Nuisance

Introduction Five years after originally consulting the public, the Law Commission has recently published its report on reforming the common law criminal offences of public nuisance and outraging public decency.  This note focuses on the proposed reforms to the offence of public nuisance. Public nuisance is unusual in so far as it is both a … Continue Reading
LexBlog