On July 25, 2023, a Third Circuit panel rejected an environmental group’s challenge of federally approved changes to Pennsylvania’s State Implementation Plan (“SIP”),  holding that the Environmental Protection Agency (“EPA”) emissions-based analysis did not violate the Clean Air Act (“CAA”). Ctr. for Biological Diversity v. U.S. Env’t Prot. Agency, 2023 WL 471884, at *6 (3d Cir. 2023). The panel’s reasoning focused on a close statutory reading of §7410 of the CAA, which prevents EPA from approving any SIP revision that would “interfere with any applicable requirement for attainment and reasonable further progress” in reaching the National Ambient Air Quality Standards (“NAAQS”). Id. at *4. NAAQS are air quality benchmarks that each state must work toward by reducing their air pollution levels. Id. at *1. Ultimately, the Third Circuit held that Pennsylvania’s revisions did not interfere with NAAQS attainment because Pennsylvania reasonably concluded that emissions would likely decrease under the source specific requirements imposed by the revised plan. Id. at *4. Read More »

Share | Email| Comments|  Topics: Air, Citizen Suit, Clean Air Act, Climate Change, Greenhouse Gas, HAPs, Hazardous Air Pollutants, Legislation, Pennsylvania, Rulemaking, Third Circuit

On May 5, 2023 in Atlantic Richfield Company, et al. v. The County of Montgomery, Pennsylvania, No. 1338 C.D. 2021 (Pa. Cmwlth. 2023), the Pennsylvania Commonwealth Court rejected a novel attempt to hold paint manufacturers liable for lead paint in residential structures based on a public nuisance theory.  Read More »

Share | Email| Comments|  Topics: Lead Paint, Nuisance, Pennsylvania

In a case which will have major implications throughout Pennsylvania, on January 4, 2023, the Pennsylvania Commonwealth Court ruled that the school system defendants, which are immune from taxation, were not required to pay the Borough of West Chester’s stormwater charge because “the Stormwater Charge constitutes a local tax”.  Borough of West Chester v. Pa. State System of Higher Education and West Chester University of Pa. of the State System of Higher Education, No. 260 M.D. 2018 (Pa. Cmwlth. Jan. 4, 2023).  The Court held that the stormwater charge constituted a tax and not a fee or special assessment because the charge provided benefits enjoyed by the general public, rather than individualized services provided to particular customers.  Read More »

Share | Email| Comments|  Topics: Fees, Pennsylvania, Stormwater

In an opinion issued last month, the Third Circuit affirmed the dismissal of a lawsuit brought by the Adorers of the Blood of Christ, an order of Roman Catholic nuns, against the Transcontinental Gas Pipe Line Company (“Transco”) under the Religious Freedom and Restoration Act (“RFRA”).  Adorers of the Blood of Christ U.S. Province v. Transcontinental Gas Pipe Line Co LLC, 53 F.4th 56 (3d Cir. 2022).  The Adorers’ sought in their lawsuit money damages from Transco as a result of the completed construction of a pipeline across the Adorers’ property, which they argued amounted to a substantial burden on their exercise of religion under RFRA.  The Third Circuit upheld the dismissal of the suit, holding that the Adorers’ lawsuit was “inescapably intertwined” with an earlier approval issued for the pipeline by the Federal Energy Regulatory Commission (“FERC”) and therefore amounted to an impermissible collateral attack on that approval that was precluded by the Natural Gas Act.  Read More »

Share | Email| Comments|  Topics: Damages, FERC, Natural Gas Act, Oil and Gas, Pennsylvania, Pipelines, Third Circuit

A successful defense of a mass environmental tort case frequently turns on class certification.  In Holly Lloyd v. Covanta Plymouth Renewable Energy, LLC, No. 20-4330, 2022 WL 407377 (E.D. Pa. Feb. 10, 2022), a federal district court denied a motion to certify a class of neighboring residents complaining about noxious odors from a municipal waste incinerator.  In so holding, the court’s decision set out key strategies and considerations for defeating class certification in future mass environmental tort cases.  Read More »

Share | Email| Comments|  Topics: Certification, Class Actions, Nuisance, Odors, Pennsylvania, Real Estate, Residential, Waste

On August 3, 2021, in the Methyl Tertiary Butyl Ether (“MTBE”) MDL the Court ruled that while the Commonwealth of Pennsylvania's alter ego allegations were sufficient to pierce the corporate veil as between defendants Lukoil Americas Corporation and its subsidiary Getty Petroleum Marketing Inc. for jurisdictional purposes, they were not sufficient to pierce the veil for liability purposes, nor was there successor liability, resulting in the dismissal of all claims against LAC. Read More »

Share | Email| Comments|  Topics: Alter Ego, Corporate Veil, Insurance Coverage, Multi-District Litigation, Nuisance, Pennsylvania, Spill Act, Storage Tank, Successor Liability, Water

This Blog Post was authored by Brielle Brown, a summer associate.  Originally published on July 7, 2021, it has been updated to reflect that after a rehearing, the decision was affirmed on July 20, 2021.

A three-judge panel of the Third Circuit held on June 21, 2021, that air emission exceedances governed by a state air permit and duly reported to state or local authorities pursuant to the permit need not be reported again to the United States Environmental Protection Agency (“EPA”) pursuant to the Section 103 reporting requirements of the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Clean Air Council v. U.S. Steel Corp., 2 F.4^th 112 (3d Cir. 2021); 42 U.S.C. § 9603. The decision was reheard and affirmed on July 20, 2021. Clean Air Council v. U.S. Steel Corp., No. 20-2215, -- F.4^th --, 2021 WL 3045927 (3d Cir., July 20, 2021). The court’s reasoning came down to an interpretation of CERCLA that the phrase “subject to” was intended to mean “governed or affected by” rather than “obedient to.” Id. at *3–4. Thus, air emissions that violate relevant Clean Air Act permits are nevertheless “subject to” that permit and therefore exempt from CERCLA’s reporting requirement. Id. Read More »

Share | Email| Comments|  Topics: Air, CERCLA, Chevron Deference, Clean Air Act, Emissions, Pennsylvania, Permits, Superfund, Third Circuit

On February 18, 2021, the Court in Lower Susquehanna Riverkeeper, et al., v. Keystone Protein Co., No. 1:19-CV-01307, 2021 WL 632734, at *1 (M.D. Pa. Feb. 18, 2021), denied a factory owner’s motion for summary judgment based on its holding that the Clean Water Act (“CWA”) and the Pennsylvania Clean Streams Law (“PCSL”) are not “roughly comparable” statutes. In so deciding, the plaintiffs’ citizen’s suit, alleging violations under the CWA, was allowed to proceed notwithstanding that the defendant factory had settled litigation with the Pennsylvania Department of Environmental Protection (“PADEP”) for the same violations under the PCSL. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Streams Law, Clean Water Act, Effluents, Enforcement Action, NPDES, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Preemption, Water

On October 22, 2020, the Pennsylvania Commonwealth Court rejected a facial constitutional challenge to two statutory enactments that directed over $110 million generated from oil and gas leases on state lands to pay for the general government operations of the Pennsylvania Department of Conservation and Natural Resources (“DCNR”), finding that the appropriations were not facially unconstitutional under Article I, Section 27 of the Pennsylvania Constitution, also called the Environmental Rights Amendment (“ERA”). Pa. Envtl. Defense Found. v. Commonwealth, No. 358 M.D. 2018 (Pa. Cmwlth.) (“PEDF IV”). Read More »

Share | Email| Comments|  Topics: Act 13, Environmental Rights Amendment, Marcellus Shale, Oil and Gas, Pennsylvania

Last week the Third Circuit Court of Appeals issued a precedential opinion reversing the Eastern District of Pennsylvania’s decision granting a Motion to Dismiss a complaint filed by homeowners concerning alleged odors and air contaminants emanating from the Bethlehem landfill, thus reviving the case. Baptiste v. Bethlehem Landfill Co., No. 19-1692, slip op. (3d. Cir. July 13, 2020). In doing so, the Court found that a class of Pennsylvania homeowners allegedly affected by landfill odors may bring suit under theories of negligence, public nuisance and private nuisance. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Damages, Landfill, Negligence, Nuisance, Odors, Pennsylvania, Pennsylvania Department of Environmental Protection, Property Damage, Property Value, Residential, Solid Waste Management Act, Third Circuit, Waste