The adage “you can’t put the toothpaste back in the tube” has manifested itself in two recent federal court decisions. Under separate theories, both the Second Circuit and the District Court of the District of Columbia have issued decisions that highlight the difficulty environmental groups faced in challenging energy infrastructure projects that have been completed during the course of litigation. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Procedures Act, Army Corps, Citizen Suit, D.C. Circuit, Energy, Marcellus Shale, NEPA, New York, NPDES, Oil and Gas, Pipelines, Second Circuit

In an opinion issued on February 12, 2018 in the case of Cooper Crouse-Hinds LLC et al. v. City of Syracuse et al., Case No. 5:16-cv-01201 (N.D.N.Y. Feb. 12, 2018), Judge Mae D’Agostino of the United States District Court for the Northern District of New York weighed in on the issue of when state court orders for removal and remediation resolve a potentially responsible party's liability to the government under Section 113 of CERCLA, and in this case allowing, for at least the time being, Section 107 claims to proceed where there was no clear guidance from the Second Circuit. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contribution, Cost Recovery, Landfill, New York, Remediation, Removal, Second Circuit, Superfund

Love Canal – the infamous neighborhood in Niagara Falls, New York where large quantities of chemical waste was dumped, and which became the catalyst for enactment of the federal Superfund program – is still generating legal opinions, nearly 40 years after President Jimmy Carter declared a federal health emergency and Love Canal became the first Superfund site.  Read More »

Share | Email| Comments|  Topics: Contamination, Damages, Defense Costs, Indemnification, Insurance, Insurance Coverage, Medical Monitoring, Negligence, New York, Remediation, Second Circuit, Superfund, Toxic Torts

Last week, the Second Circuit issued an unpublished decision affirming an earlier decision of the Eastern District of New York that stands for the principle that a passive lessee that subleases a property to an unaffiliated tenant is neither an “Owner” nor an “Operator” under CERCLA. Next Millenium Realty, LLC v. Adchem Corp., No. 16-1260-cv, 2017 U.S. App. LEXIS 8476 (2d Cir. May 11, 2017).  Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, New York, Real Estate, Remediation, Second Circuit, Superfund

In a unanimous decision of a three judge panel last week, the Second Circuit decided that it lacked jurisdiction to overturn a S.D.N.Y. judge’s order enforcing the terms of the Tronox bankruptcy settlement against a group of more than 4,000 Pennsylvania state court plaintiffs. Tronox, Inc. v. Kerr-McGee Corp., No. 16-343, 2017 U.S. App. LEXIS 6949 (2d Cir. Apr. 20, 2017).  Both the district court’s decision and the Second Circuit’s decision protected Kerr-McGee, bankrupt Tronox’s corporate parent, from a Pennsylvania toxic tort suit related to contamination surrounding a wood treatment plant in Avoca, Pennsylvania. Read More »

Share | Email| Comments|  Topics: Bankruptcy, Class Actions, Contamination, Federal Procedure, New York, Pennsylvania, Procedure, Residential, Second Circuit, Subject Matter Jurisdiction, Toxic Torts

In the latest development in Olin Corporation v. Insurance Co. of North America, No. 1:84-CV-01968, (S.D.N.Y., 11/21/2016), a 30-plus year old case between plaintiff Olin Corporation (“Olin”) and its insurance provider, defendant Insurance Company of North America (“INA”), a judge of the Southern District Court of New York ultimately ordered the insurer to reimburse Olin $1.7 million for litigation costs it incurred in connection with a 2003 lawsuit concerning hazardous waste contamination at one of Olin’s properties originating in the 1950s. Read More »

Share | Email| Comments|  Topics: Indemnification, Insurance, Insurance Coverage, New York

In a dispute that once generated the “largest environmental bankruptcy award ever,” the United States District Court for the Southern District of New York this month issued a decision further clarifying the effects of the monumental 2014 bankruptcy settlement agreement.  The February 1, 2016 decision in In re Tronox Incorporated, No. 1:14-cv-5495, determined that beneficiaries of the 2014 settlement agreement could not reignite their toxic tort claims against the debtors’ surviving corporate parent, Kerr-McGee Corporation (“(new) Kerr-McGee”), in the underlying settlement agreement. Read More »

Share | Email| Comments|  Topics: Bankruptcy, Class Actions, Contamination, New York, Pennsylvania, Residential, Toxic Torts

Early this month, the Second Circuit heard oral argument in Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States EPA, No. 14-1823, an appeal from the Southern District of New York’s March 2014 ruling which invalidated the “water transfer” exemption rule from National Pollutant Discharge Elimination System (“NPDES”) permitting requirements.  A decision from the Second Circuit, which will have far reaching effects on public and private entities alike, is expected in 2016. Read More »

Share | Email| Comments|  Topics: Cases to Watch, Clean Water Act, EPA, New York, NPDES, Permits, Second Circuit, Water

Last week, the Court of Appeals of New York (the state’s highest court) definitively ruled that under New York law, a plaintiff cannot assert an independent cause of action for medical monitoring.  Rather, medical monitoring in New York is only available as an element of consequential damages for another tort where a plaintiff has suffered physical injury or property damage. Read More »

Share | Email| Comments|  Topics: Cancer, Class Actions, Medical Monitoring, New York, Toxic Torts

A recent decision from the Appellate Division of the Supreme Court of New York reminds that one should never take for granted any procedural matter and, in particular, standing to sue. Read More »

Share | Email| Comments|  Topics: New York, Procedure, Real Estate, Standing