In the second appellate case within the past year addressing the “diligent prosecution” bar under environmental citizen suit provisions, the Fifth Circuit Court of Appeals held last week that the Clean Water Act’s bar on citizen suits when governmental enforcement action is underway is not jurisdictional – reversing the dismissal of a citizen suit at the Rule 12(b)(6) stage, and remanding the case for further proceedings before the district court. Read More »

Share | Email| Comments|  Topics: Cases to Watch, Citizen Suit, Clean Water Act, Decisions of Note, Diligent Prosecution, Subject Matter Jurisdiction

In a unanimous opinion that probably surprises no one, today the United States Supreme Court ruled in Sackett v. EPA, No. 10-1062 (Mar. 31, 2012), that Administrative Compliance Orders are final agency orders which are subject to the Administrative Procedures Act and thus can be appealed even in the absence of an enforcement action by the EPA. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Case Update, CERCLA, Clean Water Act, Decisions of Note, Due Process, Enforcement Action, Procedure, Real Estate, Supreme Court, Uncategorized, Wetlands

We don’t just write, we speak too!  I’m going to be leading a breakfast roundtable discussion on March 6 as part of ICSC’s University of Shopping Centers.  More details are here and please stop by! Read More »

Share | Email| Comments|  Topics: CERCLA, Clean Air Act, Clean Water Act, Cleanup, Leases, RCRA, Real Estate, Speaking Engagements, Superfund, Waste, Wetlands

In a pair of December cases, the National Association of Home Builders (“NAHB”) has found itself without standing to challenge determinations made by the EPA and the Army Corps of Engineers with respect to whether certain “waters” fall within the agencies’ regulatory powers under the Clean Water Act (“CWA”).   Read More »

Share | Email| Comments|  Topics: Clean Water Act, NPDES, Permits, Procedure, Real Estate, Standing, Wetlands

Since the Supreme Court issued its splintered 4-1-4 decision in Rapanos v. United States, 547 U.S. 715 (2006), district and circuit courts have grappled with how to define “wetlands” for purposes of application of the Clean Water Act.  Whether adding to the confusion or bringing clarity to the subject, the Third Circuit for the first time has weighed in on the issue in United States v. Donovan, U.S. Court of Appeals for the Third Circuit, No. 10-4295 (3rd Cir., October 31, 2011) (J. Rendell).  Donovan a land owner, defended an enforcement action on the basis that  the Clean Water Act did not apply to his actions in filling part of his property and that the Army Corps lacked jurisdiction because the wetlands at issue were not adjacent to navigable-in-fact waters.  The Third Circuit disagreed.  While Donovan may be disappointed by this decision (after litigating the issues for 15 years), the case has much more far-reaching ramifications. Read More »

Share | Email| Comments|  Topics: Army Corps, Clean Water Act, Decisions of Note, Donovan, Enforcement Action, Rapanos, Real Estate, Wetlands

At least that may be what the defendants in Raritan Baykeeper Inc., et al. v. NL Industries, Inc. et al., are thinking after the Third Circuit gave new life to plaintiffs’ citizen suit claims seeking to compel defendants to remediate contaminants allegedly discharged into the Raritan River.  The defendants successfully argued before the district court that the court should abstain from hearing the plaintiffs’ RCRA and Clean Water Act citizen suit claims because the New Jersey Department of Environmental Protection (NJDEP) had previously entered into an administrative consent order (ACO) with NL Industries, Inc. (NL) requiring NL to investigate contamination and to perform certain remediation activities at the site.  The ACO also required NL to conduct sediment sampling in the Raritan River, which was done in 2000 and 2002.  While some of the sediment samples showed elevated levels of arsenic, copper, lead and zinc, NL concluded that off-site sources were contributing causes of the contaminated sediments.  After reviewing the sediment sample results, NJDEP issued a letter in 2004 acknowledging off-site sources were contributing to the sediment impacts, and concluding that any remedial actions directed at cleaning up the river sediments should be part of a regional clean-up effort.  Read More »

Share | Email| Comments|  Topics: Clean Water Act, Decisions of Note

On September 23, the Petitioners filed their opening brief  in the case of Sackett v. Environmental Protection Agency (10-1062), one of two environmental cases on the United States Supreme Court’s docket for the upcoming term.  Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Cases to Watch, Clean Water Act, Due Process, Enforcement Action, Real Estate, Wetlands