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

EPA’s Clean Air Act (“CAA”) rulemakings directed at power plants are often the target of regulatory challenges in federal court.  EPA’s latest rulemaking regulating Hazardous Air Pollutant (“HAP”) emissions from coal- and oil-fired electric utility steam generating units (“EGUs”) is unlikely to be an exception. 88 Fed. Reg. 13956 (Mar. 6, 2023).  In the now final rule, EPA has revoked an earlier action taken in 2020, in which the agency declined to regulate HAP emissions from EGUs after comparing the costs of compliance relative to the benefits of regulation, relying at the time on the Supreme Court’s decision in Michigan v. EPA, 576 U.S. 743 (2015).  Id. at 13957; see also 85 Fed. Reg. 31286. Now, just three years later under a new administration, the agency has backtracked, finding that it is appropriate and necessary to regulate HAP emissions from EGUs based on new data regarding the costs and benefits of regulating HAP emissions.  EPA claims that its latest decision is actually more in line with the statutory factors identified in Michigan for determining whether it is “appropriate and necessary” to regulate HAP emissions from EGUs under the CAA. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, EPA, HAPs, Hazardous Air Pollutants, Rulemaking

That federal agencies enjoy numerous advantages in defending against legal challenges to their administrative decision-making is a fact of administrative law.  But these advantages extend beyond the favorable standards of review that typically apply to their decisions.  An agency can, for example, sometimes short circuit what might be a meritorious appeal by seeking a “voluntary remand” from the Court, thereby potentially affording itself more control over any reconsideration while avoiding creating unfavorable precedent.  As a reminder of this, the Sixth Circuit recently held that EPA was entitled to reconsider one of its Clean Air Act (CAA) rulemakings, namely its decision to remove the air nuisance rule (ANR), a broad standard that generally prohibited nuisance emissions that endangered the “health, safety, or welfare of the public,” from Ohio’s State Implementation Plan (SIP), without the Court vacating EPA’s underlying decision.  Sierra Club et al. v. EPA, No. 21-3057, 2023 WL 1873168, at * 1 (6th Cir. Feb. 10, 2023).    Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Citizen Suit, Clean Air Act, Sixth Circuit, Standing

In In re LTL Management, LLC, No. 22-2003 (Jan. 30, 2023), the U.S. Court of Appeals for the Third Circuit had occasion to consider whether an entity that was created solely to house liabilities and file for bankruptcy could, in fact, file for bankruptcy where another entity was contractually obligated to pay those liabilities. The Court dismissed the bankruptcy petition, reasoning that this contractual obligation meant the former entity was not in financial distress and thus could not avail itself of the bankruptcy process.    Read More »

Share | Email| Comments|  Topics: Bankruptcy, Class Actions, Toxic Torts

In a January 6 decision, U.S. v. Brace, No. 21-2966 (3rd Cir. Jan. 6, 2023), the U.S. Court of Appeals for the Third Circuit affirmed a district court’s ruling that a long-standing consent decree prohibiting discharge to wetlands is valid and unambiguous. This decision is a good reminder that Consent Decrees have a long shelf life and that private parties should negotiate carefully to ensure both its short-term and long-term interests are protected. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Consent Decree, Enforcement, Third Circuit, Wetlands

In a case which will have major implications throughout Pennsylvania, on January 4, 2023, the Pennsylvania Commonwealth Court ruled that the school system defendants, which are immune from taxation, were not required to pay the Borough of West Chester’s stormwater charge because “the Stormwater Charge constitutes a local tax”.  Borough of West Chester v. Pa. State System of Higher Education and West Chester University of Pa. of the State System of Higher Education, No. 260 M.D. 2018 (Pa. Cmwlth. Jan. 4, 2023).  The Court held that the stormwater charge constituted a tax and not a fee or special assessment because the charge provided benefits enjoyed by the general public, rather than individualized services provided to particular customers.  Read More »

Share | Email| Comments|  Topics: Fees, Pennsylvania, Stormwater

In an opinion issued last month, the Third Circuit affirmed the dismissal of a lawsuit brought by the Adorers of the Blood of Christ, an order of Roman Catholic nuns, against the Transcontinental Gas Pipe Line Company (“Transco”) under the Religious Freedom and Restoration Act (“RFRA”).  Adorers of the Blood of Christ U.S. Province v. Transcontinental Gas Pipe Line Co LLC, 53 F.4th 56 (3d Cir. 2022).  The Adorers’ sought in their lawsuit money damages from Transco as a result of the completed construction of a pipeline across the Adorers’ property, which they argued amounted to a substantial burden on their exercise of religion under RFRA.  The Third Circuit upheld the dismissal of the suit, holding that the Adorers’ lawsuit was “inescapably intertwined” with an earlier approval issued for the pipeline by the Federal Energy Regulatory Commission (“FERC”) and therefore amounted to an impermissible collateral attack on that approval that was precluded by the Natural Gas Act.  Read More »

Share | Email| Comments|  Topics: Damages, FERC, Natural Gas Act, Oil and Gas, Pennsylvania, Pipelines, Third Circuit

In an opinion and order released on November 21, 2022, the United States District Court for the District of New Mexico overseeing litigation arising from the Gold King Mine spill granted a defendant-contractor’s partial summary judgement motion seeking dismissal of claims that it was liable under CERCLA as a transporter, operator, or arranger. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2022 WL 17093503, at *1 (D. N.M. Nov. 21, 2022).  The court held that one of the contractor defendants, Weston Solutions, Inc. (“Weston”), was not subject to CERCLA liability because it only assisted with operating the water management system rather than controlling any operations related to the release of contaminant from the King Gold Mine (“Mine”). Id. This decision follows the court’s earlier denial of a Motion to Dismiss in which the court held that the plaintiffs adequately pled operator, arranger, and transporter liability. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 1282997, at *2-4 (D. N.M. Mar. 20, 2019) (slip opn.). Our blog post discussing the court’s first holding on this issue can be found here. Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Clean Water Act, Colorado, Consultant Liability, Gold King Mine, New Mexico, Public Lands, Response Action Contractors, Superfund, Tribal Lands, Utah, Water