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Stanford University can proceed with its lawsuit against HP Inc. and Agilent Technologies, Inc., the U.S. District Court for the Northern District of California ruled on September 19, 2022, holding that because certain soil contamination was a “continuous” or abatable nuisance or trespass, Stanford’s nuisance and trespass claims were not time barred and could continue.  Accordingly, the court denied HP and Agilent’s motion for summary judgment on Stanford’s nuisance and trespass claims. Bd. of Trs. of the Leland Stanford Junior Univ. v. Agilent Techs., Inc., No. 18-cv-01199 (N.D. Ca. Sept. 19, 2022). Read More »

In order to bring a citizen suit in federal district court under the Clean Water Act, 33 USC  § 1365(a)(1), the plaintiff must first give “notice of the alleged violation” to the alleged violator, the EPA, and the State at least 60 days prior to commencing suit. In  Shark River Cleanup Coalition v. Township of Wall; Estate of Fred McDowell Jr., (No. 21-2060, 3d Cir. August 24, 2022), the Third Circuit Court of Appeals found that the district court erred in its finding that the notice was inadequate because it had not adequately identified the location of the alleged violation as required by the EPA regulations implementing the statutory notice requirement, but upheld the dismissal of the lawsuit on an alternate ground not reached by the district court – that the notice that was given was inadequate because it did not provide “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated” also as required by EPA’s regulations. 40 C.F.R. §135.3(a). Read More »

Before neighboring property owners can intervene to challenge a consent decree in a remediation action, they must establish Article III standing. On August 5, 2022, The United States Court of Appeals for the Eighth Circuit affirmed the ruling of the United States District Court for the District of Minnesota and held that neighboring property owners of a chemical plant undergoing environmental remediation lacked constitutional standing to intervene to oppose an amended consent decree and remedial action plan. United States v. Reilly Tar & Chem. Corp., Slip Op. No. 20-2786 (8th Cir. Aug. 5, 2022). The court reasoned that the entry of the amended consent decree was not a causal link of the proposed intervenors’ harm because it did not require the chemical plant to clean-up chlorinated volatile organic compounds (CVOCs) and perchloroethylene (PCE) and therefore did not alter the chemical plant’s preexisting duties regarding PCE. Id. Read More »

The post was authored by summer associate Nik Hansen.

The State of Delaware brought claims against former PCB manufacturer Monsanto Company for the environmental contamination caused by PCB products in Delaware waterways. On July 11, 2022, in State of Delaware v. Monsanto Co., C.A. No. N21C-09-179, the Delaware Superior Court found that the State failed to state valid claims for public nuisance, trespass, and unjust enrichment against Monsanto. In its three-part holding, the Court held that product-related public nuisance claims are not cognizable in the state of Delaware, that the State does not have standing to bring trespass claims against resources it holds in public trust, and that unjust enrichment cannot be brought as a stand-alone claim in the superior court. Read More »

This post was authored by summer associate Kelly Hanna.

In Daikin Applied Americas, Inc. v. EPA, the D.C. Circuit Court of Appeals sided with the U.S. Environmental Protection Agency (“EPA”) by holding that a groundwater plume can be listed as a Superfund Site on the National Priorities List (“NPL”) pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., even if the sources of contamination are not clearly identified. No. 20-1479, 2022 WL 2565083 (D.C. Cir. July 8, 2022). The Court also held that substantial evidence exists to support aquifer interconnectivity so long as observed releases occur at each aquifer. Thus, EPA’s decision to list a “groundwater plume with no identified source” that spanned multiple aquifers in an area southwest of Minneapolis, Minnesota on the NPL survived both arbitrary and capricious and substantial evidence challenges. Read More »

This post was authored by summer associate Reilly Wright

In United States v. ERR, LLC, No. 21-30028 (5th Cir. May 26, 2022), the Fifth Circuit ruled that the Seventh Amendment guarantees the right to a jury trial for defendants facing subrogation and recoupment claims under the Oil Pollution Act of 1990 (the “OPA”).  In 2015, ERR was found responsible for an oil spill originating from a wastewater treatment center that it owned and operated on the banks of the Mississippi River.  In 2017, the United States sued ERR under the OPA for removal costs it had paid from the Oil Spill Liability Trust Fund (the “Fund”) to Oil Mop LLC, a spill-response service provider.  ERR demanded a jury trial, which the district court denied, finding that the relief provided for in the OPA was in the nature of equitable restitution, so its claims sounded in equity, not in law.  However, the Fifth Circuit overturned that decision, holding that such claims were legal in nature and therefore provide ERR the right to a jury trial. Read More »

This post was authored by Trang Do, a summer associate.

In West Virginia v. EPA, the Supreme Court limited the authority of the United States Environmental Protection Agency (EPA) to reduce greenhouse gases by setting emission guidelines for existing power plants, characterizing the energy generation shifting strategy proposed in the Clean Power Plan (CPP) as an overreach of the agency’s power. In a 6-3 decision, with the three liberal justices dissenting, the Court held that the authority to adopt a regulatory program that would significantly alter how the nation’s energy is generated fell under an “extraordinary case” of the major questions doctrine. West Virginia v. EPA 597 U. S. ____ (2022). The major questions doctrine requires that a federal agency have “clear congressional authorization” when acting on issues of great “economic and political significance.” Id. (citing Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324). Read More »

On May 18, 2022 in York et al. v. Northrop Grumman Corp. Guidance and Electronics Co. Inc. et al., No. 21-cv-03251 (W.D. Mo.), a Missouri federal court dismissed Plaintiffs’ complaint alleging negligence, nuisance and trespass from alleged groundwater contamination, finding the claims were preempted by an existing consent decree. Read More »

Can plaintiffs in a citizen suit piggyback on existing governmental enforcement action and enforce the same alleged violation under the Clean Water Act (“CWA”)? Yes, as long as the citizen suit does not seek civil penalties, according to the First Circuit in The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, No. 19-2095, __ F. 4th __ (1st Cir. 2022).  The First Circuit, sitting en banc, held that under the CWA, administrative enforcement action by the government precludes only a citizen’s “civil penalty action,” which the Court interpreted to mean an action seeking civil penalties.  A citizen suit seeking other forms of relief, i.e. injunctive or declaratory, however, could proceed notwithstanding the government’s action.   Read More »

On April 21, 2022, in Tomas Vera et al. v. Middlesex Water Co. (MID-L-6306-21, Superior Court of New Jersey, Middlesex County), a New Jersey Superior Court judge granted plaintiffs’ motion for certification in a case stemming from PFAS contamination of the county’s water supply.  Defendant Middlesex Water Co. (“Middlesex”) sent notices to customers on October 22, 2021 and November 8, 2021 advising that testing showed levels of Perfluorooctanoic Acid (“PFOA”) of 36.1 parts per trillion, well above the 14 parts per trillion maximum contaminant level (“MCL”) standard set by the New Jersey Department of Environmental Protection (“NJDEP”).  The notices further advised of health concerns potentially associated with PFOA, recommended that customers with “specific health concerns, a severely compromised immune system, have an infant, are pregnant or are elderly” seek advice from a health care provider, and recommended installing a home water filter to reduce levels of PFOA in the tap water or use bottled water for drinking, cooking, or preparing beverages for infants. Read More »