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 »

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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 »

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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