On December 6, 2023, in Short Creek Development v. MFA Incorporated, No 22-05021, 2023 WL 8452430 (W.D. Mo. Dec. 6, 2023), a Federal District Court in Missouri held that Defendant Missouri Farmers Association, Inc. ("MFA") failed to demonstrate that a divisibility of harm exception to the rule of joint and several liability should be applied in apportioning responsibility to pay for the cleanup costs at a fertilizer plant.  The case underscores the challenges associated with establishing divisibility of harm in a CERCLA action. Read More »

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In In Re FirstEnergy Corp. Securities Litigation, case number 2:20-cv-03785 pending in the U.S. District Court for the Southern District of Ohio, the special master granted a motion to compel discovery of documents relating to an internal investigation performed by outside counsel for defendant FirstEnergy Corp. (“First Energy”) regarding the company’s role in an alleged bribery scheme.  Because of a lack of admissible supporting evidence, the special master rejected the company’s position that the materials were protected by the attorney-client privilege and work-product doctrine and ordered FirstEnergy to produce all documents related to the internal investigation. Read More »

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In City of St. Charles v. Union Electric Company, the City of St. Charles (the “City”) brought common law claims sounding in negligence against Defendant Union Electric Company dba Ameren Missouri (“Ameren”), alleging that Ameren contaminated the City’s water supply, causing the City to incur millions in cleanup costs. No. 4:23-cv-00846-MTS (E.D. Mo. 2023). Ameren removed the case to federal court because it had been subject to an administrative settlement with EPA to perform the cleanup pursuant to CERCLA, but on November 2, 2023, the U.S. District Court for the Eastern District of Missouri remanded the case back to state court for want of subject matter jurisdiction. Read More »

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On November 1st, 2023, in a split 4-1 opinion with a dissent, the Pennsylvania Commonwealth Court held that Pennsylvania cannot participate in the Regional Greenhouse Gas Initiative (“RGGI”) because the regulations intended to implement RGGI pursuant to the Air Pollution Control Act (“APCA”) constitute an impermissible tax rather than a fee. Bowfin KeyCon Holdings, LLC vs. Pa. Dep’t of Env’t Prot. and Pa. Env’t Quality Bd., 2023 WL 7171547, at *1 (Pa. Commw. Ct. Nov. 1, 2023). The holding halts former Governor Tom Wolf’s efforts to make Pennsylvania the first major fossil-fuel producing state to implement a price on carbon emissions.     Read More »

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In Kanawha Forest Coalition, et al. v. Keystone WV, 2:22-cv-00367, 2023 WL 6466210 (S.D. W.V. Oct. 4, 2023), the Honorable Joseph R. Goodwin of the United States District Court for the Southern District of West Virginia, Charleston Division granted summary judgment against the operator of three defunct surface mines for past violations of the Clean Water Act (“CWA”) and Surface Mining Control and Reclamation Act (“SMCRA”) but granted summary judgment in favor of the operator with regard to claims of ongoing permit violations, finding that the Plaintiffs’ theories constituted a collateral attack on validly-issued permits.  Read More »

Share | Email| Comments|  Topics: Citizens Suit, Clean Water Act, Mining, NPDES, Permits, Successor Liability, West Virginia

In State of Utah v. Walsh, 2:23-CV-016-Z, 2023 WL 6205926 (N.D. Tex. Sep. 21, 2023), twenty-six states and a number of private parties (“plaintiffs”) sought to overturn the United States Department of Labor’s (“DOL’s”) latest environmental, social, and governance (“ESG”) investment rule (“Rule”) issued pursuant to the DOL’s administrative authority under the Employment Retirement Income Security Act of 1974 (“ERISA”).  In upholding the Rule, the district court rejected in a footnote plaintiffs’ attempt to invoke the major questions doctrine, offering guidance as to the types of cases in which courts are more likely to apply the doctrine following the United States Supreme Court’s decision last year in West Virginia v. EPA (2022). Read More »

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On September 14, 2023, in Conservation Law Foundation v. Academy Bus, a Massachusetts District Court held that the members of the Conservation Law Foundation (the “Foundation”) lacked standing to challenge the idling of buses under the Clean Air Act (“CAA”).  Conservation Law Found. v. Acad. Express, LLC., No. 20-10032-WGY, 2023 WL 5984517, at *1 (D. Mass. Sept. 14, 2023). Specifically, the court held that simply breathing in polluted air, without any concrete injury that is fairly traceable to the defendant, is not sufficient to prove an actual injury under the CAA. Read More »

Share | Email| Comments|  Topics: Air, Citizens Suit, Clean Air Act, Emissions, HAPs, Hazardous Air Pollutants, Odors, Standing

In an issue of first impression, in Matter of Proposed Construction of Compressor Station (CS327), No. A-3616-20, 2023 WL 5614411 (N. J. Super. Ct. Aug. 31, 2023), the New Jersey Superior Court rejected the New Jersey Department of Environmental Protection (“DEP”)’s interpretation of the Highlands Water Protection and Planning Act (the “Highlands Act”) and found that a permittee’s project upgrade must be “routine” to be exempted from the strict permitting requirements of the Highlands Act. Read More »

Share | Email| Comments|  Topics: Chevron Deference, Citizen Suit, New Jersey, Oil and Gas, Permits, Pipelines, Wetlands

On August 24, 2023, in Catherine Baker v. Croda Inc., No. 393, 2022 (Del. 2023), the Delaware Supreme Court held that an increased risk of illness, without present manifestation of physical harm, is not a cognizable injury under Delaware law. Read More »

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In a recent en banc decision out of the Eleventh Circuit, the Court found that the panel had used an improper standard in holding that a state law failure to warn cause of action was not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and after clarifying the appropriate inquiry, sent the matter back to the panel for further consideration.  In the case, the plaintiff averred that after years of using the popular weedkiller, Roundup, he developed cancer, which he claims Monsanto failed to adequately warn consumers was a risk of using that product.  Carson v. Monsanto Company, 72 F.4th 1261 (11th Cir. 2023).  Monsanto responded that plaintiff’s Georgia state law claims were expressly or impliedly preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) because the United States Environmental Protection Agency (“EPA”) approved a label for Roundup which lacked a cancer warning, and classified Roundup’s principal ingredient, glyphosate, as “not likely to be carcinogenic.”     Read More »

Share | Email| Comments|  Topics: Eleventh Circuit, Federal Insecticide, Fungicide, and Rodenticide Act, FIFRA, Georgia, Preemption, Toxic Torts