In an unpublished opinion, Sutton v. Hoffmann-La Roche, Inc., No. A-5545-18T3 (N.J. App. Div. May 27, 2020), the Appellate Division of the New Jersey Superior Court recently affirmed a lower court’s certification of a class seeking damages due to lost property value premised upon the existence of contaminated groundwater.  Certification of similar homeowner classes has been illusive in federal courts, and thus of particular note here, the Appellate Division made clear that the while the language of New Jersey’s class certification rule is “textually similar” to the federal rule, New Jersey’s interpretation of its own rule is “far more liberal and permissive toward class certification.” Op. at 30, n. 6. Although the local nature of the case most likely made the Class Action Fairness Act inapplicable, this decision is further evidence of the importance to defendants in class action litigation of exercising removal jurisdiction whenever possible. Read More »

Share | Email| Comments|  Topics: CAFA, Certification, Class Actions, Contamination, Damages, Groundwater, Negligence, New Jersey, Nuisance, Property Value, Residential, Trespass

In a highly anticipated decision, on April 20, 2020, the U.S. Supreme Court ruled that state courts may award restoration damages to landowners who seek, under state law, a more expensive cleanup than that selected by EPA, but as potentially responsible parties under CERCLA they must first receive EPA’s approval of their alternative cleanup plan before they would be entitled to those damages. Atlantic Richfield Co. v. Christian, et al., No. 17-1498 (U.S. Apr. 20, 2020). Beyond its fact-specific holding, the opinion’s broader implications may have a significant impact on CERCLA cleanups and litigation going forward.   Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Damages, Innocent Party, Montana, Nuisance, Property Damage, Remediation, Removal, Residential, Statute of Limitations, Strict Liability, Superfund, Supreme Court, Trespass, United States Supreme Court

On February 21, 2020, the Pennsylvania Commonwealth Court dismissed a claim brought by a group of municipalities alleging that a Pennsylvania Public Utility Commission (PUC) regulation governing the siting of gas meters failed to sufficiently protect historic resources under Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment (ERA). See City of Lancaster, et al. v. Pa. Pub. Util. Comm’n, No. 251 MD 2019 (Pa. Cmwlth. Feb. 21, 2020). Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Energy, Environmental Rights Amendment, Historic Resources, Natural Gas, Pennsylvania, Preemption, Public Utilities Commission, Real Estate, Residential, Utilities

On June 1, 2018, the Pennsylvania Supreme Court, in a 4-3 decision, held that a municipality was required to amend its zoning ordinance before it could allow natural gas operations in a residential-agricultural zoning district. Gorsline v. Bd. of Sup. of Fairfield Twp., et al., No. 67 MAP 2016, 2018 WL 2448803 (June 1, 2018).  Specifically, the Court ruled that the Fairfield Township Board of Supervisors improperly found that the drilling and operation of a natural gas well in a Residential-Agricultural (“R-A”) district was “similar to” other uses in the R-A district.  Although the Township’s zoning ordinance did not specifically allow drilling, the zoning ordinance provided that when a use is not specifically permitted by the zoning ordinance, the Supervisors may permit the use if, among other things, it is “similar to and compatible with the other uses permitted in the zone where the subject property is located.”  The Supervisors found that Inflection Energy, LLC’s proposed gas drilling was “similar to” other uses in the R-A district.  The Commonwealth Court upheld the Supervisors’ decision, finding that the gas drilling was similar to and compatible with a “public service facility,” which is a conditional use in the R-A district, and which is defined as the “erection, construction, alteration, operation or maintenance of buildings, power plants or substations, water treatment plants or pumping stations; sewage disposal or pumping plants and other similar public service structures by a utility, whether publicly or privately owned, or by a municipal or other governmental agency, including the furnishing of electrical, gas, communication, water supply and sewage disposal services.”   Read More »

Share | Email| Comments|  Topics: Act 13, Drilling, Environmental Rights Amendment, Marcellus Shale, Pennsylvania, Residential, Zoning

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

In a 2-1 decision last week, the Michigan Court of Appeals declined to dismiss a lawsuit against Dow Chemical in connection with dioxin contamination in the soils of the Tittabawassee River flood plain. Henry v. Dow Chemical Co., LC No. 03-047775-NZ (Mich. Ct. App. June 1, 2017).  Affirming the lower court’s denial of Dow’s motion for summary disposition, the Court of Appeals rejected the argument that the plaintiffs’ claims for negligence and nuisance were barred by the applicable statute of limitations even though the public was made aware of potential dioxin contamination in the river from Dow’s operations as early as 1984.  The Court’s analysis, which was accompanied by a dissenting opinion, turned on the fact that Dow failed to support its motion with evidence that the floodplain soils on the plaintiffs’ property were contaminated as far back as the 1980s.  Read More »

Share | Email| Comments|  Topics: Cases to Watch, Causation, Contamination, Damages, Discovery, Discovery Rule, Michigan, Negligence, Nuisance, Real Estate, Residential, Sediment Sites, Statute of Limitations, Toxic Torts

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 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

This week, in the case of Smith v. ConocoPhillips Pipe Line Co., No. 14-2191 (8th Cir.  Sept. 15, 2015), the Eighth Circuit overturned a district court’s grant of a certification to a class comprised of property owners who alleged that the contamination of a neighboring property, and their fear of its spread, was a nuisance.  The Eighth Circuit held that the plaintiffs did not provide evidence that their own properties were contaminated and thus denied class certification based on the plaintiffs’ failure to demonstrate a common injury. Read More »

Share | Email| Comments|  Topics: Certification, Class Actions, Contamination, Eighth Circuit, Medical Monitoring, Negligence, Nuisance, Oil and Gas, Real Estate, Residential, Toxic Torts

In New Jersey, a property owner affected by a release from an underground storage tank cannot succeed on a private nuisance or trespass action absent demonstration of the tank owner’s intentional, negligent or reckless conduct.  Moreover, neither the tank owner’s insurer’s agreement to remediate the affected property nor the migration of the leaked substance onto the affected property conveys the affected property owner third party beneficiary status such that the property owner can maintain a bad faith action against the insurance provider.  In Ross v. Lowitz, No. A-101-13 (N.J. Aug. 6, 2015), the New Jersey Supreme Court recently issued a decision narrowing the avenues to recovery of property owners affected by a release from a neighboring underground storage tank by clarifying these two rules. Read More »

Share | Email| Comments|  Topics: Cleanup, Contamination, Cost Recovery, Decisions of Note, Insurance, Insurance Coverage, New Jersey, Nuisance, Remediation, Residential, Storage Tank, Trespass