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Showing 18 posts in Federal Procedure.

The Pennsylvania Environmental Hearing Board (the “Board”) recently stirred up some controversy. Last month, in Lancaster Against Pipelines v. DEP, EHB Docket No. 2016-075-L (May 10, 2017), the Board held that it has jurisdiction to review actions taken by the Pennsylvania Department of Environmental Protection (“PADEP”) involving interstate natural gas pipelines, despite a 2013 decision issued by the U.S. District Court for the Middle District of Pennsylvania that held precisely the opposite. Read More »

Last week, the United States Court of Appeals for the Eighth Circuit affirmed a district court’s ruling to decertify a class action filed by landowners for releases from Exxon’s 850-mile Pegasus Pipeline that crosses four states from Texas to Illinois.  The case, Webb, et al. v. Exxon Mobil Corp., et al., Dkt. No. 15-2879 (8th Cir., May 11, 2017), was filed by a group of landowners who claimed that Exxon materially breached the terms of their right-of-way easement agreements by allegedly failing to inspect, maintain, repair, and replace the pipeline, which was originally installed in the mid-1940s.  At various times since the 1980s, the pipeline had releases in Texas, Arkansas, and Missouri, which the plaintiffs claim resulted in damage to their properties.  The plaintiffs sought to rescind their right-of-way easement agreements and force Exxon to remove or replace the entire pipeline, or in the alternative, to be paid damages for breach of contract and diminution in property value.  Read More »

In a unanimous decision of a three judge panel last week, the Second Circuit decided that it lacked jurisdiction to overturn a S.D.N.Y. judge’s order enforcing the terms of the Tronox bankruptcy settlement against a group of more than 4,000 Pennsylvania state court plaintiffs. Tronox, Inc. v. Kerr-McGee Corp., No. 16-343, 2017 U.S. App. LEXIS 6949 (2d Cir. Apr. 20, 2017).  Both the district court’s decision and the Second Circuit’s decision protected Kerr-McGee, bankrupt Tronox’s corporate parent, from a Pennsylvania toxic tort suit related to contamination surrounding a wood treatment plant in Avoca, Pennsylvania. Read More »

One of the finest lines that environmental attorneys walk is in protecting communications between counsel and a retained environmental consultant from disclosure in litigation.  In a recent case out of the Northern District of Indiana, Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006 (N.D. Ill. Apr. 14, 2017), the Court found that communications between counsel and consultants retained by the counsel  were not protected by the attorney-client privilege, in large part because the consultants also performed remedial work.  However, as the work was done "in anticipation of litigation" with, among others, the Indiana Department of Environmental Management (IDEM) and EPA, substantive communications were protected by the attorney work product doctrine.   Read More »

Last week, a federal court in the Central District of Illinois held the owner and operator of a coal-fired power plant liable for violations of the Clean Air Act for exceeding particulate matter emission thresholds in the plant’s state operating permit.  NRDC v. Ill. Power Res., LLC, No. 13-cv-1181, 2016 U.S. Dist. LEXIS 111976 (C.D. Ill. Aug. 23, 2016).  The court found that the plaintiffs—three environmental advocacy organizations who filed suit under the citizen suit provision of the CAA—had standing to sue the plant because certain of their individual members suffered injury-in-fact where emitted pollutants that “could cause harm” were present in the witnesses’ general geographic area and the witnesses’ pleasure was somehow diminished by the presence of the pollutants, even where the witnesses could not point to an objective effect of the alleged violation. Read More »

Last week, the United States Court of Appeals for the Third Circuit struck down challenges by environmental organizations to the Federal Energy Regulatory Commission’s (FERC) approval of an expansion of the Transcontinental pipeline, a 10,000-mile pipeline that extends from South Texas to New York City and is operated by Transcontinental Gas Pipe Line Company, LLC (“Transco”).  In doing so, however, the Court held that the environmental organizations had properly invoked a provision of the federal Natural Gas Act to challenge water quality-related permits issued by the states of Pennsylvania and New Jersey.  Thus, the decision, Delaware Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot, No. 15-2122 (3d Cir. August 8, 2016), provides that the Court of Appeals has exclusive jurisdiction over challenges to permits issued to an interstate natural gas facility to certify compliance with State water quality standards promulgated under federal supervision, as well as with federally-established Clean Water Act requirements.   Read More »

Earlier this month, a Michigan federal judge refused to dismiss a lawsuit brought by a coalition of plaintiffs seeking to force multiple city and state defendants to fix the city of Flint, Michigan’s water supply system.  The lawsuit arose from the crisis regarding lead contamination in Flint’s water supply, which has garnered national attention.  In the decision, Concerned Pastors for Soc. Action v. Khouri, No. 16-10277 (E.D. Mich. July 7, 2016), U.S. District Judge David M. Lawson rejected numerous attacks asserted by the defendants in a motion to dismiss.  Perhaps most notably, the judge rejected the argument that the federal court should defer to the U.S. Environmental Protection Agency’s (EPA) primary jurisdiction under the Safe Drinking Water Act (SDWA).    Read More »

Last week, the United States Supreme Court held that federal courts can review the Army Corps of Engineers’ determinations that a landowner’s property contains “waters of the United States” and is therefore subject to the Clean Water Act’s regulations and permitting process.  Remarkably, the decision was unanimous in affirming the Eighth Circuit’s decision that such determinations are considered final agency actions under the Administrative Procedures Act and are therefore reviewable by the courts.  The majority opinion in the case, United States Army Corps of Eng'rs v. Hawkes Co., No. 15-290 (U.S. May 31, 2016), was authored by Chief Justice Roberts while Justices Kennedy, Kagan, and Ginsberg each authored separate concurring opinions.   Read More »

Landowners who find themselves in the path of an oil or gas pipeline quickly learn that their rights are limited, and that a pipeline company granted a Federal Energy Regulatory Commission (FERC) Certificate of Public Convenience and Necessity hold most of the cards.  Thus, the recent decision in Alliance Pipeline, L.P. v. 4,360 Acres of Land, No. 13-1003 (8th Cir. Mar. 24, 2014), which in a mere 10 pages washed aside the landowners challenges Alliance Pipeline’s condemnation action, comes as no surprise.    Read More »

In a precedential decision issued by the Third Circuit Court of Appeals in the case of Vodenichar v. Halcon Energy Properties, Inc., No. 13-2812 (Aug. 16, 2013), the Court addressed the two exceptions to the Class Action Fairness Act that permits remand to state courts of class action complaints over which the federal courts would otherwise have jurisdiction.  First, the Court provided guidance as to the interpretation of the term “primary defendants” for the purposes of 28 U.S.C. § 1332(d)(4)(B) and, second, held that the “other class action” language of 28 U.S.C. § 1332(d)(4)(A) was not intended to encompass prior actions between the same parties where the procedural history indicates that the second suit was merely a continuation of the prior suit. Read More »