Over the last week, pre-enforcement challenges to two separate federal government actions have been dismissed for lack of standing.  In Commonwealth of Kentucky et al. v. EPA, et al., No 3:23-cv-00007-GFVT, 2023 WL 2733383 (E.D. Ky. March 31, 2023), the Honorable Gregory F. Van Tatenhove of the United States District Court for the Eastern District of Kentucky dismissed without prejudice claims brought by the Commonwealth of Kentucky (the “Commonwealth”) and private-sector plaintiffs challenging the United States Environmental Protection Agency’s (“EPA”) and Army Corps of Engineers’ rule redefining “waters of the United States” under the Clean Water Act.  Five days later, in The State of Louisiana, et al. v. Joseph R. Biden, Jr., et al., No. 22-30087, 2023 WL 2780821 (5th Cir. April 5, 2023), the Honorable Jacques L. Wiener, Jr. of the United States Court of Appeals for the Fifth Circuit dismissed states’ challenges to President Biden’s social cost of greenhouse gases established pursuant to Executive Order No. 13990 (the “Executive Order”).  Both cases demonstrate the importance of alleging sufficient harm to confer federal court jurisdiction. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Clean Water Act, Due Process, Federal Jurisdiction, Federal Procedure, Greenhouse Gas, Kentucky, Louisiana, Procedure, Rapanos, Standing, Water

Last month, in U.S. v. CITGO Petro. Corp., 711 Fed. Appx. 237 (5th Cir. 2017), the United States Court of Appeals for the Fifth Circuit affirmed an $81 million civil penalty assessment under the federal Clean Water Act (“CWA”) against CITGO Petroleum Corp. (“CITGO”), for unpermitted wastewater discharges from its plant in Lake Charles, Louisiana when a severe rainstorm caused two storage tanks to fail and over 2 million gallons of oil to be discharged into local waterways.  In the underlying case before the United States District Court for the Western District of Louisiana, CITGO conceded liability, and therefore, the only issue for trial was the total penalty to be assessed.  After a two-week bench trial, the District Court determined that CITGO had failed to properly maintain its wastewater storage tanks and allowed sludge and waste oil to accumulate in the tanks, which lessened their total storage capacity and ability to withstand a storm surge.  The District Court ultimately assessed a $6 million civil penalty against CITGO, which EPA appealed.  Read More »

Share | Email| Comments|  Topics: Civil Penalties, Clean Water Act, Cleanup, Contamination, EPA, Fifth Circuit, Louisiana, Storage Tank, Stormwater, Water

An issue that insurers and industry have grappled with is whether a company can obtain environmental insurance coverage for costs to address violations of the Clean Air Act, when the costs at issue are aimed at curbing future air emissions, rather than remediating emissions that have already occurred.  Last week, one federal judge in Louisiana answered that question in the affirmative in La Gen Louisiana Gen. LLC, et al. v. Illinois Union Ins. Co., Dkt. No. 3:10-cv-00516 (M.D. La., Aug. 5, 2015).  Read More »

Share | Email| Comments|  Topics: Air, Cases to Watch, CERCLA, Clean Air Act, Decisions of Note, Defense Costs, Electric, Emissions, Energy, Enforcement Action, EPA, Fifth Circuit, Indemnification, Insurance, Insurance Coverage, Louisiana, Remediation

Both before and after the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2451 (2011), removal to federal court under the Class Action Fairness Act (“CAFA”) was a key tool in the arsenal employed by class action defendants, as federal courts have become increasingly more skeptical of certifying classes in toxic tort class actions.  But with many state court procedural rules patterned after their federal counterparts, federal trends can influence state courts, and the recent Louisiana Supreme Court decision in Price v. Roy R. Martin, 2011-C-0853 (Dec. 6, 2011), is a perfect example. Read More »

Share | Email| Comments|  Topics: Certification, Class Actions, Contamination, Decisions of Note, Dukes, Louisiana, Real Estate, Toxic Torts