Last week, the United States Supreme Court held that federal courts can review the Army Corps of Engineers’ determinations that a landowner’s property contains “waters of the United States” and is therefore subject to the Clean Water Act’s regulations and permitting process.  Remarkably, the decision was unanimous in affirming the Eighth Circuit’s decision that such determinations are considered final agency actions under the Administrative Procedures Act and are therefore reviewable by the courts.  The majority opinion in the case, United States Army Corps of Eng'rs v. Hawkes Co., No. 15-290 (U.S. May 31, 2016), was authored by Chief Justice Roberts while Justices Kennedy, Kagan, and Ginsberg each authored separate concurring opinions.   Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Procedures Act, Army Corps, Clean Water Act, Eighth Circuit, Enforcement, EPA, Federal Procedure, Informal Agency Action, Permits, Procedure, Rapanos, Supreme Court, Water, Wetlands

We’ve been following the case of Strudley v. Antero Resources Corp., No. 2011 CV 2218, since May, 2012, when a Colorado trial court dismissed the action following plaintiffs’ failure to establish, pursuant to a Lone Pine order, a prima facie case showing that the defendant, a natural gas drilling company, was responsible for plaintiffs’ personal injuries.  The Lone Pine order required the Strudleys to submit to the Court, before it would allow any discovery, sufficient expert opinions, scientific testing results, and personal medical information to support their claims.  In July, 2013, a Colorado Court of Appeals reversed, finding that Lone Pine orders were not permitted under Colorado law and thus the plaintiffs could not be shut out of the courthouse at such an early stage. Read More »

Share | Email| Comments|  Topics: Case Update, Causation, Contamination, Discovery, Drilling, Due Process, Marcellus Shale, Natural Gas, Oil and Gas, Procedure, Real Estate, Toxic Torts

Back in August of 2013, we reported that the Appellate Division of the New Jersey Superior Court, in the case of Morristown Associates v. Grant Oil Co., held that a six year statute of limitations applied to claims brought pursuant to the Spill Act.  On Tuesday, January 27, 2015, the New Jersey Supreme Court overturned that decision to find that there is no statute of limitations barring a Spill Act claim.  MGKF will shortly be issuing a Special Alert discussing this important decision in more detail.

Share | Email| Comments|  Topics: Case Update, Cleanup, Contamination, Cost Recovery, Decisions of Note, New Jersey, Procedure, Real Estate, Remediation, Spill Act, Statute of Limitations

Since the United States Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2451 (2011), plaintiffs in contamination cases have struggled to meet the raised bar for class certification.  And that bar was certainly not lowered by the Seventh Circuit in its decision in Parko v. Shell Oil Co., Nos. 13-8023 & 13-8024 (7^th Cir. Jan 17, 2014).  Parko involved a putative class comprised of property owners in the town of Roxana, Illinois, who claimed that their property values had been diminished by benzene contamination of the groundwater from an adjacent oil refinery which had been in operation for nearly 100 years.  In checking off the certification requirements, the district court held that the question of whether the multiple defendants who owned and operated the refinery during the preceding 90 plus years failed to “contain petroleum byproduct [resulting] in contamination to Roxana property” predominated.   The Seventh Circuit panel unanimously disagreed.  Judge Posner, writing for the Court, described the opinion as necessary for clarification of a trial court’s responsibility to conduct a “rigorous analysis” of whether common issues predominate; in doing so, he did not hesitate to take the district judge to task for “treat[ing] predominance as a pleading requirement” rather than an evidentiary one.  Read More »

Share | Email| Comments|  Topics: Causation, Certification, Class Actions, Contamination, Dukes, Expert Witness, Illinois, Procedure, Real Estate, Residential, Seventh Circuit, Toxic Torts, Water

Determining the appropriate Statute of Limitations for claims brought pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. (“CERCLA”), is often a tricky matter.  Usually, the issue arises in the context of determining whether a claim is properly brought under Section 107(a), 42 U.S.C. § 9607(a), for costs voluntarily incurred, or § 113(f), 42 U.S.C. § 9613(f), for costs incurred pursuant to a court order or approved settlement, as Section 107(a) claims may be subject to a six-year statute of limitations, while claims under Section 113(f) have a three-year limitations period.  However, in State of New York v. Next Millenium Realty, LLC, No. 12-2894-cv (2^nd Cir. Oct. 15, 2013), the Second Circuit turned its attention to a different distinction, the one between removal actions and remedial actions, as Section 107(a) claims “must be commenced … for a removal action, within 3 years after completion of the removal action [and] for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action. . . .”  42 U.S.C. Section 9613(g)(2)(B).  In order to find the claims of the State of New York timely, the Court held that a water purification system in use for over 15 years was nevertheless a removal action and not a remedial action because, among other things, the measures were intended to “minimize and mitigate” damage from contamination and not to “permanently eliminate” it.  Id. at 24. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Cost Recovery, New Jersey, Procedure, Remediation, Removal, Second Circuit, Statute of Limitations, Superfund

In May, we reported on the case of Strudley v. Antero Resources Corp., No. 2011 CV 2218 (Denver Co. Dist. Court  May 9, 2012), in which a state trial court issued a Lone Pine order requiring the plaintiffs to show, prior to the initiation of discovery, that there was a prima facie basis for associating their personal injury claims with the defendants’ hydraulic fracturing activities.  The court subsequently dismissed the case when the plaintiffs failed, in the court's view, to meet this initial burden.  The dismissal was appealed and in Strudley v. Antero Resources Corp., Court of Appeals No. 12CA1251 (Co. Ct. Appeals, 1st Div., July 3, 2013), reversed.   Read More »

Share | Email| Comments|  Topics: Case Update, Causation, Contamination, Discovery, Drilling, Due Process, Marcellus Shale, Natural Gas, Oil and Gas, Procedure, Real Estate, Toxic Torts

On March 13, 2013, the First Circuit issued its opinion in Paolino v. JF Realty, LLC,No. 12-2031 (1st Cir. Marc. 13, 2013), reversing in part the District Court’s dismissal of a Citizen’s Suit brought pursuant to the Clean Water Act, and in so doing addressing an “issue of first impression in the First Circuit as to the standard for measuring the sufficiency of the mandatory pre-suit notice which must be given” before such a suit can be brought.   Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Federal Procedure, Procedure

The U.S. District Court for the Middle District of Louisiana recently ruled that an U.S. Army Corps of Engineers’ approved jurisdictional determination finding wetlands subject to the Clean Water Act (CWA) is not a final agency action within the meaning of the Administrative Procedure Act (APA). The court further held that its holding was not impacted by the U.S. Supreme Court’s recent decision in Sackett v. EPA. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, Due Process, Procedure, Real Estate, Wetlands

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

As a result of increasing development of natural gas drilling, pipelines are popping up everywhere.  And with them has come a mound of litigation.  In a February 5, 2013 decision, the United States District Court for the Middle District of Pennsylvania has ruled, as a matter of first impression, that permits issued by a state agency (in this case, the Pennsylvania Department of Environmental Protection (“PADEP”)) under the federal Clean Water Act (the “CWA”) may be challenged only in federal court, and not in a state adjudicatory proceeding. Read More »

Share | Email| Comments|  Topics: Cases to Watch, Clean Water Act, Drilling, Due Process, Federal Energy Regulatory Commission, Federal Procedure, Marcellus Shale, Natural Gas Act, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Procedure