The U.S. Court of Appeals for the Tenth Circuit issued a decision on August 3, 2026, which clarified the scope of the diligent prosecution bar to citizen suits under the Clean Air Act (“CAA”).  The decision was a partial victory for the environmental organizations that brought the lawsuit and adds to the body of appellate decisions aiming to elucidate this heavily litigated area of the law. Read More »

Share | Email| Comments|  Topics: Air, CERCLA, Citizen Suit, Citizens Suit, Clean Air Act, Colorado, Consent Decree, Diligent Prosecution, Emissions, EPA, Loper Bright, Pollutants, Superfund, Tenth Circuit

Earlier this month, the U.S. Court of Appeals for the Eleventh Circuit held in City of Brunswick v. Honeywell International, Inc., 2026 WL 2224648 (11th Cir. Aug. 3, 2026), that potentially responsible parties (“PRPs”) implementing an EPA-selected CERCLA remedy pursuant to a consent decree may be “acting under” a federal officer for purposes of the federal officer removal statute, 28 U.S.C. § 1442(a)(1). The decision may provide a basis for such PRPs to remove related state-law claims to federal court. The decision also holds that an appeal of a remand order involving federal officer removal automatically stays district court proceedings, including the remand order, pending appeal. Read More »

Share | Email| Comments|  Topics: Causation, CERCLA, Cleanup, Consent Decree, Contamination, Eleventh Circuit, EPA, Federal Jurisdiction, Potentially Responsible Parties, Preemption, Remediation, Removal, Subject Matter Jurisdiction, Superfund

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

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

Before neighboring property owners can intervene to challenge a consent decree in a remediation action, they must establish Article III standing. On August 5, 2022, The United States Court of Appeals for the Eighth Circuit affirmed the ruling of the United States District Court for the District of Minnesota and held that neighboring property owners of a chemical plant undergoing environmental remediation lacked constitutional standing to intervene to oppose an amended consent decree and remedial action plan. United States v. Reilly Tar & Chem. Corp., Slip Op. No. 20-2786 (8^th Cir. Aug. 5, 2022). The court reasoned that the entry of the amended consent decree was not a causal link of the proposed intervenors’ harm because it did not require the chemical plant to clean-up chlorinated volatile organic compounds (CVOCs) and perchloroethylene (PCE) and therefore did not alter the chemical plant’s preexisting duties regarding PCE. Id. Read More »

Share | Email| Comments|  Topics: CERCLA, Consent Decree, Eighth Circuit, Groundwater, Intervention, Solvents, Standing, Superfund

On May 18, 2022 in York et al. v. Northrop Grumman Corp. Guidance and Electronics Co. Inc. et al., No. 21-cv-03251 (W.D. Mo.), a Missouri federal court dismissed Plaintiffs’ complaint alleging negligence, nuisance and trespass from alleged groundwater contamination, finding the claims were preempted by an existing consent decree. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Consent Decree, Contamination, Injunction, Missouri, Negligence, Nuisance, Preemption, Property Value, Superfund, Trespass, Water

Less than a month after hearing oral arguments, the United States Supreme Court issued its unanimous decision in Guam v. United States, Docket No. 20-382 (May 24, 2021), the eagerly anticipated opinion on whether consent decrees and administrative orders that do not expressly resolve liability for claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) nevertheless give rise to a claim for contribution under Section 113(f)(3) of CERCLA. The issue is a crucial one and has been the subject of numerous court opinions because of the short, three-year limitations period for contribution actions. The opinion, which the Court intended to provide clarity in the area, holds that only settlements that release “CERCLA-specific liability” trigger the right to contribution. Read More »

Share | Email| Comments|  Topics: Case Update, CERCLA, Clean Water Act, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Decisions of Note, Landfill, Statute of Limitations, Superfund, Supreme Court, United States Supreme Court, Waste

The First Circuit recently affirmed the District of Rhode Island’s approval of a superfund consent decree entered into between the United States Environmental Protection Agency (“EPA”), the State of Rhode Island and several Potentially Responsible Parties despite opposition by third party PRPs that the settlement was arbitrary and capricious and contrary to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Emhart Indus., Inc. v. CNA Holdings LLC, No. 19-1563, slip op. (1st Cir. 2021 Feb. 17, 2021). What makes this case unique, and bolstered the arguments of the objectors, is that the settlement incorporated work pursuant to a ROD that the District Court had already determined has not been selected in accordance with law. Nevertheless, both the District Court and the First Circuit held that the finding did not preclude the settlement, leaving the objectors exposed to contribution claims for a remedy potentially inconsistent with the National Contingency Plan (“NCP”). In affirming the lower court, the First Circuit highlighted the “integral part” that early settlement plays in CERCLA’s statutory scheme, thus giving deference to the settling parties. Read More »

Share | Email| Comments|  Topics: Allocation, Apportionment, CERCLA, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Divisibility, First Circuit, Groundwater, National Contingency Plan, National Priorities List, Remediation, Sediment Sites, Superfund

Last week, the U.S. District Court for the Eastern District of Michigan refused to void a private settlement agreement entered between Sierra Club and DTE in the face of an objection by the United States that the settlement agreement interfered with a related consent decree and infringed on the government’s enforcement authority. United States v. DTE Energy Co., et al., No. 10-CV-13101 (E.D. Mich. Dec. 3, 2020). Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Air Act, Consent Decree, Emissions, Energy, Enforcement, Enforcement Action, Michigan

In Frazer/Exton Development, L.P. v. United States, the United States Court of Appeals for the Federal Circuit affirmed the dismissal of a takings claim against the federal government relating to environmental contamination because the appellants, current and former landowners of the site at issue, filed their lawsuit more than 6 years after environmental remediation was complete. Frazer/Exton Development, L.P. v. United States, No. 2019-2143 (Fed. Cir. Apr. 7, 2020). Read More »

Share | Email| Comments|  Topics: Brownfields, CERCLA, Cleanup, Consent Decree, Contamination, Damages, Environmental Covenants, Federal Circuit, Pennsylvania, Real Estate, Remediation, Statute of Limitations, Superfund, Takings