Yes, the per curium opinions in Exxon Mobil Corp. v. Ford, et al., No. 1804, September Term, 2009 (Md. Spec. App Feb. 9, 2012) are over a month old, but at 309 pages, it isn’t light reading.  It takes a while to digest the five different opinions and try to reconcile, in any reasonable fashion, what they say.  And while several issues were addressed by the court, we’re going to focus here on a favorite tort – medical monitoring. Read More »

Share | Email| Comments|  Topics: Decisions of Note, Maryland, Medical Monitoring, Toxic Torts

For the past year, the natural gas industry was hopeful that 2012 could be the year that Marcellus Shale natural gas production in New York could finally begin in earnest.  Governor Paterson’s Executive Order No. 41, which effectively banned the use of high volume hydraulic fracturing and horizontal drilling necessary to extract natural gas from the Marcellus Shale, expired in 2011.  During the moratorium the state moved forward with its efforts to establish a regulatory and permitting framework that would allow for Marcellus Shale development in New York.  New York’s Department of Environmental Conservation (“DEC”) issued for public comment preliminary and revised draft Generic Environmental Impact Statements that recommended lifting the moratorium on Marcellus Shale development.  In addition, DEC issued a set of proposed regulations applicable to high-volume hydraulic fracturing in 2011.  With the  comment period on the regulations closing on January 11, 2012, industry hoped that the administrative and regulatory hurdles holding back Marcellus Shale development in New York would soon be gone.  Read More »

Share | Email| Comments|  Topics: Marcellus Shale, Oil and Gas

Although CERCLA has been around for many years, courts are still interpreting both its parts and its whole.  In recent years, the Supreme Court has tried to direct traffic between Section 107(a), which permits PRPs to bring cost recovery actions against other PRPs for “any necessary costs of response incurred” by the PRP bringing suit, and Section 113(f), which permits PRPs who have been sued under section 106 or 107(a) or have entered into a judicially-approved settlement with a federal or state government resolving CERCLA liability to bring actions for contribution against other PRPs to recover amounts paid in excess of their equitable share of liability.   Because these two provisions have differing limitations periods, burdens of proof, and allow for different forms of recovery against multiple defendants, the distinction is often significant. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Decisions of Note, Eleventh Circuit, Enforcement Action, Statute of Limitations, Superfund, Waste

For the Association of Corporate Counsel, Nicole recently wrote about the decision in Menasha Corp. v. United States Department of Justice, No. 11-C-682 (E.D. Wis. 2012) which should give counsel some pause before communicating with employees of a client’s affiliated entities, particularly in multi-party environmental cost-recovery cases.  Her article can be found here.

Share | Email| Comments|  Topics: Cost Recovery, Decisions of Note, Superfund

Yesterday, the United States Supreme Court issued its decision in PPL Montana, LLC v. Montana, No. 10-218 (Feb. 22, 2012), which reads more like a wonderous travelogue than a judicial opinion.  The decision can’t help but inspire one to put on a pair of hiking boots and set out for Montana.  At least, the Montana explored by Lewis and Clark and that joined the United States in 1889.  Read More »

Share | Email| Comments|  Topics: Decisions of Note, Equal-Footing Doctrine, Leases, Montana, Navigability, Public Lands, Real Estate, Riverbed, Supreme Court

We don’t just write, we speak too!  I’m going to be leading a breakfast roundtable discussion on March 6 as part of ICSC’s University of Shopping Centers.  More details are here and please stop by! Read More »

Share | Email| Comments|  Topics: CERCLA, Clean Air Act, Clean Water Act, Cleanup, Leases, RCRA, Real Estate, Speaking Engagements, Superfund, Waste, Wetlands

This week, the Supreme Court of the State of Montana took a look at statute of limitations issues in the context of state law claims for trespass and nuisance in contamination cases in the case of Burley v. Burlington Northern & Santa Fe Railway Co., 2012 MT 28 (Feb. 7, 2012).  The issue, which was certified to the Court from the United States District Court for the District of Montana was the following: Read More »

Share | Email| Comments|  Topics: Cleanup, Montana, Nuisance, Real Estate, Statute of Limitations, Toxic Torts, Trespass

We previously reported on Powell v. Tosh, No. 5:09-CV-121-R (W.D. Ky. Oct. 12, 2011), a case in which the U.S. District Court for the Western District of Kentucky certified a class action filed on behalf of a group of homeowners for damages allegedly suffered as a result of odors migrating from a nearby hog farm.   As Suzanne suggested in her previous post, Powell quite possibly may have been the first decision granting class certification in an environmental toxic tort case since the Supreme Court’s June 2011 decision in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011) – a decision that many speculated would be the death knell to class actions in this arena.  Read More »

Share | Email| Comments|  Topics: Case Update, Cases to Watch, Kentucky, Nuisance, Toxic Torts, Trespass

A little creativity goes a long way and cash-strapped municipal entities need all the creativity they can get. But it doesn’t always put money in your pocket. And such was the result in Emergency Services Billing Corporation, Inc. v. Allstate Insurance Co., No. 11-2381 (7^th Cir. Feb. 2, 2011) which upheld a trial court’s determination that automobiles owned and used for personal purposes are not “facilities” under CERCLA and hence drivers (and their insurance carriers) are not liable for “response costs” incurred in responding to motor vehicle accidents. And thus the Volunteer Fire Department of Westville, Indiana, cannot recoup the amounts it spent in responding to the four separate, unrelated auto accidents that were the subject of the collection efforts. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Indiana, Seventh Circuit

Much attention has been paid recently to the terms of oil and gas leases in light of the increasing exploration and production activity in the Marcellus Shale region.  But in other parts of the country, particularly Texas and Oklahoma, oil and gas royalties are old hat.  Which may be why, in a December 16, 2011 decision, the Supreme Court of Texas held that a lessor of gas rights was barred by the statute of limitations from recovering underpayments made by Shell Oil Company – which had unabashedly admitted at trial that it had underpaid the plaintiff’s predecessor-in-interest for at least 3 years, and possibly ten years, and that in doing so it had breached its contract. Read More »

Share | Email| Comments|  Topics: Breach of Contract, Leases, Marcellus Shale, Oil and Gas, Statute of Limitations, Tolling