Earlier this week, the New Jersey Supreme Court ruled that Spill Act contribution claims against the State of New Jersey for events prior to April 1, 1977 – the date the statute was enacted – are barred by the doctrine of sovereign immunity.  This ruling places the State on an unequal footing with private parties for historic environmental liability under the Spill Act, and in effect, creates an automatic orphan share for pre-1977 sites where the State would otherwise have liability.  Read More »

Share | Email| Comments|  Topics: Army Corps, Case Update, Cases to Watch, Cleanup, Contamination, Contribution, Decisions of Note, New Jersey, Remediation, Retroactive, Sovereign Immunity, Spill Act, Superfund, Supreme Court

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

On Tuesday, the Pennsylvania Supreme Court in Harley-Davison Motor Co. v. Springettsbury Twp., Dkt. No J-102-2014 (Sept. 29, 2015), ruled that the presence of contamination, and the stigma that surrounds such contamination, are relevant to determining the property’s fair market value for tax assessment purposes.   Read More »

Share | Email| Comments|  Topics: Cleanup, Cost Recovery, Damages, Decisions of Note, Fair Market Value, Pennsylvania, Property Value, Remediation, Stigma, Superfund, Supreme Court, Tax assessment

In a 7-2 opinion issued today, the United States Supreme Court held that CERCLA does not preempt state law statutes of repose that foreclose causes of action for personal injury and property damage claims asserted after a statutorily-prescribed time period has elapsed, effectively absolving potential defendants from liability.

The case – CTS Corp. v. Waldburger et al, 573 U.S. ___ (2014) (slip op) – involves a 2011 state-law nuisance action against the former property owner, CTS Corp., which in 1987 sold property contaminated with TCE and DCE, which it had characterized as “environmentally sound.”  More than 20 years after CTS Corp. sold the property, EPA informed subsequent property owners and adjacent landowners that their groundwater was contaminated and that the source of the contamination was the former electronics manufacturing facility operated by CTS Corp. on the property. Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Contribution, Cost Recovery, Decisions of Note, Discovery Rule, EPA, Fourth Circuit, New Jersey, Nuisance, Pennsylvania, Preemption, Real Estate, Remediation, Spill Act, Statute of Limitations, Statute of Repose, Superfund, Supreme Court, Tolling, Toxic Torts

This summer, we reported on the Third Circuit’s decision in the Bell v. Cheswick Generating Station case, which held that the federal Clean Air Act (“CAA”) does not preempt state common law tort claims in a putative class action filed by over 1,500 residents complaining that the operations of GenOn Power Midwest, L.P.’s (“GenOn’s) coal-fired electric generation station constituted a nuisance under Pennsylvania common law.  Read More »

Share | Email| Comments|  Topics: Air, Case Update, Cases to Watch, Class Actions, Clean Air Act, Emissions, Nuisance, Pennsylvania, Preemption, Supreme Court, Third Circuit

October Term 2012 gets underway at the U.S. Supreme Court this week, and the Fifth Amendment’s Takings Clause will be front and center in one of the arguments heard by the Court today.  In Arkansas Game & Fish Commission v. United States, No. 11-597, the Justices consider whether government actions that cause recurring flooding on a parcel of land must continue permanently in order to constitute a taking for which the government is obligated to provide just compensation.  The Court’s decision in this case could affect whether a variety of government actions that cause recurring physical invasions of land demand compensation under the U.S. Constitution. Read More »

Share | Email| Comments|  Topics: Arkansas, Cases to Watch, Fifth Amendment, Flooding, Supreme Court, Takings Clause

In a unanimous opinion that probably surprises no one, today the United States Supreme Court ruled in Sackett v. EPA, No. 10-1062 (Mar. 31, 2012), that Administrative Compliance Orders are final agency orders which are subject to the Administrative Procedures Act and thus can be appealed even in the absence of an enforcement action by the EPA. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Case Update, CERCLA, Clean Water Act, Decisions of Note, Due Process, Enforcement Action, Procedure, Real Estate, Supreme Court, Uncategorized, Wetlands

Yesterday, the United States Supreme Court issued its decision in PPL Montana, LLC v. Montana, No. 10-218 (Feb. 22, 2012), which reads more like a wonderous travelogue than a judicial opinion.  The decision can’t help but inspire one to put on a pair of hiking boots and set out for Montana.  At least, the Montana explored by Lewis and Clark and that joined the United States in 1889.  Read More »

Share | Email| Comments|  Topics: Decisions of Note, Equal-Footing Doctrine, Leases, Montana, Navigability, Public Lands, Real Estate, Riverbed, Supreme Court

The Supreme Court has had a lot to say in recent years about how the lower courts should be interpreting CERCLA, but the trend appears to have ended, at least for now.  On October 3, the Court declined to review the Eighth Circuit’s decision inMorrison Enterprises, LLC v. Dravo Corp., which held that the contribution provision of § 113(f) of CERCLA provides the exclusive remedy for a PRP that incurs response costs pursuant to an administrative or judicially approved settlement under §§ 106 or 107, such as a consent decree or administrative order on consent (AOC). Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Decisions of Note, Superfund, Supreme Court