This post was authored by Alice Douglas, with contributions from Summer Associate Reilly Wright 

On July 5, 2023, the United States Department of the Interior’s Bureau of Ocean Energy Management (BOEM) approved the largest offshore wind energy project to date—known as Ocean Wind 1—which will entail the construction of up to 98 wind turbines and up to 3 offshore substations off the coast of New Jersey over the next two years.  Ocean Wind 1, financed by the Danish company Orsted, is the third offshore wind energy project to gain approval by the Biden administration, following the Vineyard Wind project off the coast of Massachusetts and the South Fork Wind project off the coast of Rhode Island and New York, which are both currently under construction. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Citizen Suit, Climate Change, Endangered Species Act, Energy, NEPA, Permits, Standing

On June, 23, 2023, in the decision In re First Reserve Management., L.P., No. 22-0227, 2023 WL 4140454 (Tex. June 23, 2023), the Texas Supreme Court analyzed when a corporate parent’s control over its subsidiary’s operations might give rise to the parent’s liability under a “negligent undertaking” theory.  The Texas Supreme Court held that, in order to sustain a negligent undertaking theory against a corporate parent for its role in its subsidiary’s operations under Texas law, a plaintiff must have proof that the parent engaged in affirmative, direct control of the aspect of the operations of the subsidiary that gave rise to the alleged injury.  It is not enough that the parent appoints directors of the subsidiary, or that it owns a controlling stake in the subsidiary.  The decision emphasizes that a corporate parent’s liability for the actions of its subsidiary is the exception, and not the general rule, and it is a plaintiff’s obligation to plead facts in support of any exception to the general rule that it intends to rely upon. Read More »

Share | Email| Comments|  Topics: Multi-District Litigation, Negligence, Texas

In Sinclair Wyoming Refining Company, LLC v. United States Environmental Protection Agency, No. 22-9530 (10th Cir. July 5, 2023),  the Honorable Scott M. Matheson, Jr. of the United States Court of Appeals for the Tenth Circuit dismissed a petition for review filed by Sinclair Wyoming Refining Company, LLC (“Sinclair”) of an email from the United States Environmental Protection Agency (“EPA”) for lack of jurisdiction because it was not a final agency action.  Sinclair applied for a hardship exemption from EPA’s Renewable Fuel Standards for compliance year 2018 and, when EPA did not immediately respond, submitted Renewable Identification Numbers (“RINs”) in compliance with the regulations.  Sinclair’s application was initially denied by EPA and later reconsidered and approved.  Sinclair asked EPA in two separate emails to return the RINs that it had submitted for calendar year 2018.  In April 2022, the Director of EPA’s Fuel Compliance Center responded to Sinclair’s email, stating, in relevant part, that “the 2018 RINs [would] not be returned… .”  Sinclair filed the petition for review of EPA’s April 2022 email. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Air, Clean Air Act, Federal Jurisdiction, Procedure, Tenth Circuit

On June 23, 2023, in MRP Properties Company LLC v. United States, No. 22-1789, 2023 WL 4141227 (6^th Cir. June 15, 2023), the Sixth Circuit decided that despite having directed production at refineries during World War II, the United States government did not qualify as an “operator” of those facilities under CERCLA, providing additional guidance for courts evaluating what kinds of activities subject a party to operator liability.  Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, Michigan, Operator Liability, Potentially Responsible Parties, Refinery, Sixth Circuit, Superfund

In Sackett v. EPA, 2023 WL 3632751 (U.S. May 23, 2023), the Supreme Court limited the authority of the United States Environmental Protection Agency (“EPA”) to regulate wetlands by embracing a “continuous surface connection test” to determine if adjacent wetlands are subject to the Clean Water Act (“CWA”) and explicitly rejecting Justice Kennedy’s “significant nexus” test from Rapanos v. United States, 547 U.S. 715, 754 (2006). While the 9-0 decision was unanimous in judgment by holding that the Sacketts’ wetland was not subject to federal jurisdiction, the court was sharply divided as to the test to determine when an adjacent wetland qualifies as a Water of the United States (or “WOTUS”).  A five-justice majority held that the CWA’s jurisdiction includes only adjacent wetlands that are indistinguishable from WOTUS due to a continuous surface connection. Under this framework, for an adjacent wetland to be subject to CWA jurisdiction, the adjacent body of water must constitute a WOTUS, and the adjacent wetland must have a continuous surface connection with the WOTUS such that it is difficult to determine where the body of water ends and the wetland begins.  The majority’s holding casts serious doubt on the continuing viability on the final WOTUS rule that became effective earlier this year and relied in part on the “significant nexus” test that EPA and the United States Army Corps have applied through guidance since the Rapanos decision. See 88 Fed. Reg. 3004 (Jan. 18, 2023). Read More »

Share | Email| Comments|  Topics: Clean Water Act, Decisions of Note, EPA, Major Questions Doctrine, Navigability, Ninth Circuit, Rapanos, Supreme Court, United States Supreme Court, Wetlands

On May 5, 2023 in Atlantic Richfield Company, et al. v. The County of Montgomery, Pennsylvania, No. 1338 C.D. 2021 (Pa. Cmwlth. 2023), the Pennsylvania Commonwealth Court rejected a novel attempt to hold paint manufacturers liable for lead paint in residential structures based on a public nuisance theory.  Read More »

Share | Email| Comments|  Topics: Lead Paint, Nuisance, Pennsylvania

On April 26, 2023, the United States Court of Federal Claims ordered the federal government to reimburse Shell U.S.A. and several other oil companies for all cleanup costs, including interest, associated with the cleanup of aviation gas (“avgas”) at a site polluted during World War II efforts. Shell U.S.A., Inc. et al. v. United States, 2023 WL 3090659 at *10 (Fed. Cl. 2023). This was the third such case in which the oil companies were seeking contractual indemnification for costs pursuant to the Contract Settlement Act and the only issue of significance addressed by the Court was whether the Plaintiffs were entitled to recover statutory interest that they previously paid under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). Ultimately, the Court held that the plain reading of CERCLA includes interest as a “charge,” and the government was not immune from paying those costs.  Id. at *8. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Contamination, Court of Federal Claims, Damages, Indemnification, Sovereign Immunity, Superfund

The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9601, et seq., is best known for setting forth a comprehensive mechanism to cleanup hazardous waste sites under a restoration-based approach and for imposing liability on potentially responsible parties. What is less well known, and what is at issue in the latest decision to come out of litigation surrounding the 2015 Gold King Mine release, is CERCLA’s provisions that allow certain governmental entities who act as environmental trustees to recover money damages known as Natural Resource Damages (“NRDs”) from responsible parties for injuries to natural resources caused, directly or indirectly, from the release of hazardous substances, above and beyond the costs to clean up the contamination.  In In re Gold King Mine Release in San Juan Cnty., Colorado, on Aug. 5, 2015, No. 16-CV-931-WJ-LF, 2023 WL 2914718 (D. N.M. Apr. 12, 2023) (“In Re Gold Mine”), the Court held that CERCLA limited the Navajo Nation’s use of NRDs but also that CERCLA did not preempt state tort claims seeking restorative damages.  Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Damages, Drinking Water, Gold King Mine, Mining, Natural Resource Damages, New Mexico, Property Damage, Public Lands, Superfund

Over the last week, pre-enforcement challenges to two separate federal government actions have been dismissed for lack of standing.  In Commonwealth of Kentucky et al. v. EPA, et al., No 3:23-cv-00007-GFVT, 2023 WL 2733383 (E.D. Ky. March 31, 2023), the Honorable Gregory F. Van Tatenhove of the United States District Court for the Eastern District of Kentucky dismissed without prejudice claims brought by the Commonwealth of Kentucky (the “Commonwealth”) and private-sector plaintiffs challenging the United States Environmental Protection Agency’s (“EPA”) and Army Corps of Engineers’ rule redefining “waters of the United States” under the Clean Water Act.  Five days later, in The State of Louisiana, et al. v. Joseph R. Biden, Jr., et al., No. 22-30087, 2023 WL 2780821 (5th Cir. April 5, 2023), the Honorable Jacques L. Wiener, Jr. of the United States Court of Appeals for the Fifth Circuit dismissed states’ challenges to President Biden’s social cost of greenhouse gases established pursuant to Executive Order No. 13990 (the “Executive Order”).  Both cases demonstrate the importance of alleging sufficient harm to confer federal court jurisdiction. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Clean Water Act, Due Process, Federal Jurisdiction, Federal Procedure, Greenhouse Gas, Kentucky, Louisiana, Procedure, Rapanos, Standing, Water

In September 2020, I wrote a Litigation Blog post about the Ninth Circuit’s decision in Nanouk v. United States, 974 F.3d 941 (9th Cir. 2020), which considered whether the so-called discretionary function exception barred tort claims against the government in connection with its lengthy, haphazard cleanup of a PCB hotspot near a Cold War-era military installation in Alaska. As I explained in that article, the exception bars tort claims that are based on discretionary government conduct—often following a policy-based analysis—but not claims that are based on simple negligence by government officials.  Because cleanup protocols for such bases were generally grounded in economic and national security policy, the Ninth Circuit held the exception barred all claims asserted by the plaintiff, whose adjacent land was impacted by the PCBs, except one claim: that after deciding to undertake the cleanup in 1990, the government simply failed to do it for 13 years. The Court remanded that issue, instructing the government to proffer evidence showing that the delay in effectuating the cleanup was likewise policy based.  On remand, the trial court addressed this issue in denying without prejudice the United States' Motion to Dismiss.  Nanouk v. United States, Case No. 3:15-cv-00221-RRB (Mar. 15, 2023).    Read More »

Share | Email| Comments|  Topics: Alaska, Case Update, Cleanup, Contamination, Federal Tort Claims Act, Negligence, Nuisance, Odors, PCBs, Property Damage, Remediation, Removal, Sovereign Immunity, Toxic Torts, Trespass