Last week the Supreme Court of Montana held that there is no implied private right of action for judicial enforcement under the Montana Water Use Act (Act).  In Lyman Creek, LLC v. City of Bozeman, DA 19-0112 (Mont. 2019), the Court determined that the Act reserves the right of enforcement only for the Montana Department of Natural Resources and Conservation (DNRC), the attorney general, and the county attorneys. Read More »

Share | Email| Comments|  Topics: Enforcement, Montana, Private Right of Action, Water, Water Use

Last week, Judge Chad F. Kenney, former Delaware County Court of Common Pleas Judge and recent appointee to the United States District Court for the Eastern District of Pennsylvania, granted Defendant Bethlehem Landfill Company’s motion to dismiss a putative class action alleging that landfill odors created a public and private nuisance for all households within a 2.5-mile radius of the facility. Baptiste v. Bethlehem Landfill Co. et al., No. 18-2691, 2019 WL 1219709 (E.D. Pa. Mar. 13, 2019). The lead plaintiffs, Robin and Dexter Baptiste, reside 1.6 miles from the facility and allege that odors from the facility impacted their property value and ability to enjoy their property. Id. at *5. They alleged that the conditions affected 8,400 households within a 2.5-mile radius. Id.  They styled their claims as claims for public nuisance, private nuisance, and negligence. Id. at *1. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Landfill, Negligence, Nuisance, Odors, Pennsylvania, Private Right of Action, Property Value

A group of private landowners ended of 2017 with a Montana Supreme Court ruling, in Atlantic Richfield Company v. Montana Second Judicial District Court, that they could proceed with their state law claims for restoration damages against the owner of a site contaminated by a former copper smelter. No. 16-0555, 2017 WL 6629410 (Mont. December 29, 2017). In a split decision, the Court found that the landowners’ claims for restoration damages were not preempted by the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) because the claims did not constitute a challenge to the U.S. Environmental Protection Agency’s established cleanup plan for the Site. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Damages, Montana, Preemption, Private Right of Action, Real Estate, Remediation, Residential, Superfund, Trespass

On June 20, 2017, the Pennsylvania Supreme Court, in a majority decision, established a binding, heightened standard of review for challenges brought under Pennsylvania’s Environmental Rights Amendment. See Pa. Environmental Defense Foundation v. Commonwealth, No. 10 MAP 2015 (Pa. June 20, 2017) (PEDF).  The Court’s decision in PEDF affirmed and expanded upon the Court’s 2013 plurality decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013), which the Commonwealth Court had refused to follow. Read More »

Share | Email| Comments|  Topics: Act 13, Decisions of Note, Environmental Rights Amendment, Oil and Gas, Pennsylvania, Private Right of Action

A U.S. District Court recently considered two questions in response to a citizen suit under the Resource Conservation and Recovery Act (“RCRA”) requesting injunctive relief while an ongoing state-court proceeding over the remediation was already ongoing: (1) whether the Court could enter injunctive relief even though the state-proceeding was ongoing; and (2) whether the Court should enter injunctive relief in light of the state-proceeding.  In the case, LAJIM, LLC, et al. v. General Electric Co., No. 13 CV 50348 (N.D. Ill. October 4, 2016), the U.S. District Court for the Northern District of Illinois first held that RCRA “plainly authorizes” injunctive relief in citizen suits, even when a state proceeding is ongoing.  But the Court found that it needed additional facts to determine whether the injunctive relief was appropriate in the case before it, and established an action plan to make such a finding.     Read More »

Share | Email| Comments|  Topics: Citizen Suit, Cleanup, Contamination, Illinois, Private Right of Action, RCRA, Remediation

For decades, it has been the unanswered question – what is the statute of limitations for a claim under New Jersey’s Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et. seq. (the “Spill Act”)?  Unlike CERCLA, the Spill Act contains no express statute of limitations for private contribution actions.  Thus, trial courts have been left to fend for themselves and, as a result, have failed to achieve consensus.  Federal district courts have unanimously applied New Jersey’s six year limitations period for actions for damages to real property, while, until Friday, the only state decision was an unpublished trial court opinion holding that there is no limitations period for such claims.  But on August 23, 2013, the Appellate Division of the Superior Court of New Jersey, in the case of Morristown Assoc. v. Grant Oil Co., No. A-0313-11T3 (App. Div. Aug. 23, 2013), finally spoke and, in agreement with the federal courts, held that the six-year limitations period applies. Read More »

Share | Email| Comments|  Topics: Cleanup, Contamination, Contribution, Cost Recovery, Decisions of Note, New Jersey, Private Right of Action, Remediation, Spill Act, Statute of Limitations, Statute of Repose, Tolling

As footnoted in yesterday’s post, the decision in Trinity Industries, Inc. v. Chicago Bridge & Iron Co., No. 12-2059 (3^rd Cir. Aug. 20, 2013), was a twofer.  Yesterday, we wrote about that part of the decision which held that a party who has resolved its liability under state statutes may seek contribution under Section 113(f) of CERCLA.  Today, we look at the second part of the decision, which concerns the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §6901, et seq.  Read More »

Share | Email| Comments|  Topics: Cleanup, Consent Decree, Contamination, Pennsylvania, Private Right of Action, RCRA, Remediation, Removal, Third Circuit, Waste

On May 25, 2012, the Sixth Circuit rendered its decision in Sierra Club v. Korleski, No. 10-3269 (6^th Cir. May 25, 2012), holding that there is no private right of action under Section 7604 of the  Clean Air Act (“CAA”), 42 U.S.C. § 7604, to compel a state to enforce its own State Implementation Plan (“SIP”) of the national air quality standards.  In doing so, it effectively overruled its own precedent, relying on an intervening Supreme Court decision which found no similar private right of action under the Endangered Species Act (“ESA”). Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Private Right of Action, Procedure, Sixth Circuit