On June 18, 2025, the Supreme Court decided EPA v Calumet Shreveport Refining, LLC et al., and its companion case Oklahoma et al. v. EPA, clarifying the tripartite framework for determining venue in Clean Air Act (“CAA” or “Act”) litigation.  Looking at the CAA's venue provision (42 U.S.C. 7607(b)(1)), the Court explained that if a challenge is to an “nationally applicable” EPA action the challenge should be directed to the U.S. Circuit Court of Appeals for the D.C. Circuit and the matter ends there.  But, if the challenge is to a “locally or regionally applicable” EPA action, then typically those challenges belong in the relevant regional Circuit Court.  However, when a “locally or regionally applicable” action falls within the “nationwide scope or effect” exception, which requires the action be (1) “based on a determination of nationwide scope or effect” and (2) accompanied by an EPA finding to the same effect, the Court instructed that the matter should be routed back to the D.C. Circuit.  Applying this understanding of CAA's venue provision, the Court reached different conclusions in Calumet and Oklahoma, finding respectively that the “nationwide scope or effect” exception applied in one instance and not in the other. Read More »

Share | Email| Comments|  Topics: Agency Action, Air, Clean Air Act, D.C. Circuit, EPA, Federal Procedure, Procedure, Refinery, Renewable Fuel Standard, State Implementation Plans, Supreme Court, United States Supreme Court, Venue

On June 20, 2025, the Supreme Court issued it opinion in Diamond Alternative Energy v. EPA, holding fuel producers had standing—and had specifically demonstrated redressability—to challenge California-specific regulations EPA approved under the Clean Air Act.  The Court’s opinion  reversing and remanding to the D.C. Circuit left the merits of the case for another day, but acknowledged that the regulations at issue may be rescinded shortly, mooting most, if not all, of the parties’ controversy. Read More »

Share | Email| Comments|  Topics: Agency Action, Air, California, Clean Air Act, Climate Change, D.C. Circuit, Emissions, EPA, Federal Procedure, Greenhouse Gas, Legislation, Oil and Gas, Standing, Supreme Court, United States Supreme Court

On May 29, 2025, the Supreme Court decided Seven County Infrastructure Coalition v. Eagle County, reversing the D.C. Circuit’s determination that the Environmental Impact Statement (“EIS”) issued by the U.S. Surface Transportation Board (the “Board”) in connection with an approximately 88-mile railroad line in northeastern Utah violated the National Environmental Policy Act (“NEPA”).  Justice Kavanaugh, writing for the Court, concluded the NEPA question presented “is not close” and the Board was “absolutely correct” in declining to evaluate “environmental effects from separate projects upstream or downstream from the project at issue” in the EIS.    Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Administrative Procedures Act, D.C. Circuit, Decisions of Note, Federal Circuit, Loper Bright, NEPA, Oil and Gas, Pipelines, Railroad, Supreme Court, United States Supreme Court

In March 2024, the County of Bucks filed a controversial suit under state law against a number of large oil companies alleging the County was injured because of the companies’ deceptive conduct with respect to their impact on climate change. The Defendants filed various preliminary objections including lack of subject-matter jurisdiction, arguing that despite the County’s effort to focus the complaint on fraudulent practices, the case at bottom alleged harm from severe weather allegedly due to air emissions, which are governed exclusively by federal law. On May 16, 2025, the Bucks County Court of Common Pleas issued an opinion agreeing with the Defendants and dismissing the case entirely.  See Bucks County v. BP P.L.C., et al., No. 2024-01836 (Bucks Cty. Com. Pl. May 16, 2025). Read More »

Share | Email| Comments|  Topics: Clean Air Act, Climate Change, Pennsylvania, Preemption, Standing

On May 1, 2025, the United Stated District Court for the Northern District of California evaluated a settlement agreement between a long-time generator of hazardous substances, an innocent plaintiff, and the Department of Toxic Substances Control (“DTSC”), and found that it met the requirements as a good faith agreement under both the California Code of Civil Procedure and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  See Maxim L Properties v. Moyer Products, Ind., 2025 WL 1261419.  The court ruled that a settlement agreement that, among other things, accounts for the “rough approximation” of liability is generally satisfactory in both California and under CERCLA. Read More »

Share | Email| Comments|  Topics: Allocation, California, Certification, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Good Faith Settlement, Potentially Responsible Parties, Remediation, Superfund

On April 25, 2025, the Superior Court of New Jersey, Appellate Division (the “Appellate Division”) in New Jersey Department of Environmental Protection et al. v. Desai et al., ruled on the statute of limitations for state claims brought under the New Jersey Spill Compensation and Control Act (the “Spill Act”), finding that claims concerning remediation do not begin to accrue until the remediation is complete. Read More »

Share | Email| Comments|  Topics: Agency Action, Cleanup, Cost Recovery, ISRA, New Jersey, Spill Act, Statute of Limitations

On April 3^rd, the U.S. District Court of Colorado vacated the U.S. Army Corps of Engineers’ (“USACE”) Record of Decision, Final Environmental Impact Statement, and approval of a dredge-and-fill permit for Denver Water’s expansion project of the Gross Dam and Reservoir in Colorado and remanded the matter back to the agency.  The Court temporarily enjoined Denver Water from continuing construction on the dam pending a hearing on what is “reasonable and necessary” to ensure that the dam will be structurally safe and issued a permanent injunction prohibiting the enlargement of the Gross Reservoir. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Agency Action, Army Corps, Clean Water Act, Climate Change, Colorado, Injunction, NEPA, Permits, Water

Last month in Atlantic Richfield Company v. NL Industries, the Tenth Circuit Court of Appeals held that plaintiff Atlantic Richfield’s action under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) was timely, reversing the District Court’s determination applying the statute of limitations for cost recovery actions and granting summary judgment to the defendant NL Industries entities on that basis. Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, Potentially Responsible Parties, Statute of Limitations, Superfund, Tenth Circuit

In a decision on February 5, 2025, the Superior Court of New Jersey dismissed the Attorney General of New Jersey’s state tort claims against various energy companies seeking redress for the effects of climate change in Platkin v. Exxon Mobil Corp (N.J. Super. No. MER-L-001797-22).  Because the dispute concerned interstate and global air emissions, which implicate uniquely federal interests, the court concluded that the federal Constitutional structure requires that federal common law preempts these climate-change related tort claims.   Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Climate Change, Energy, New Jersey, NJDEP, Toxic Torts

In Conservation Law Foundation, Inc. v. Academy Express, LLC, the Conservation Law Foundation brought a private right of action under the Clean Air Act, alleging that Academy Express, LLC, a bus company, allowed its vehicles to sit idle for excessive periods of time across Massachusetts and Connecticut. No. 20-10032-WGY (D. Mass. 2023). On appeal, the First Circuit decided an interesting question regarding standing: whether smelling odor from vehicle fumes was sufficient to confer standing to sue a particular bus company. The First Circuit said it was and so allowed the case to proceed. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Connecticut, Emissions, Massachusetts, Nuisance, Odors, Pollutants