In a January 6 decision, U.S. v. Brace, No. 21-2966 (3rd Cir. Jan. 6, 2023), the U.S. Court of Appeals for the Third Circuit affirmed a district court’s ruling that a long-standing consent decree prohibiting discharge to wetlands is valid and unambiguous. This decision is a good reminder that Consent Decrees have a long shelf life and that private parties should negotiate carefully to ensure both its short-term and long-term interests are protected. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Consent Decree, Enforcement, Third Circuit, Wetlands

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

In order to bring a citizen suit in federal district court under the Clean Water Act, 33 USC  § 1365(a)(1), the plaintiff must first give “notice of the alleged violation” to the alleged violator, the EPA, and the State at least 60 days prior to commencing suit. In  Shark River Cleanup Coalition v. Township of Wall; Estate of Fred McDowell Jr., (No. 21-2060, 3d Cir. August 24, 2022), the Third Circuit Court of Appeals found that the district court erred in its finding that the notice was inadequate because it had not adequately identified the location of the alleged violation as required by the EPA regulations implementing the statutory notice requirement, but upheld the dismissal of the lawsuit on an alternate ground not reached by the district court – that the notice that was given was inadequate because it did not provide “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated” also as required by EPA’s regulations. 40 C.F.R. §135.3(a). Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Federal Jurisdiction, New Jersey, Statutory Notice, Subject Matter Jurisdiction, Third Circuit, Waste

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 Tuesday, June 29, 2021, the United States Supreme Court reversed the Third Circuit and held that Section 717f(h) of the Natural Gas Act authorizes Federal Energy Regulatory Commission (FERC) certificate holders to “condemn all necessary rights-of-way, including land in which the State holds an interest.” See PennEast Pipeline Co., LLC v. New Jersey, Slip Op. No. 19-1039, (June 29, 2021). This holding is consistent with history and precedent regarding the superior power of federal eminent domain. Read More »

Share | Email| Comments|  Topics: Condemnation, Eminent Domain, Federal Energy Regulatory Commission, FERC, Marcellus Shale, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pipelines, Public Lands, Sovereign Immunity, Supreme Court, Takings, Takings Clause, Third Circuit, United States Supreme Court

Last week the Third Circuit held that Combustion Equipment Associates, Inc. n/k/a Carter Day Industries, Inc. (“Carter Day”) was not protected from a contribution claim brought by Compaction Systems Corporation of Connecticut, Inc. and Compaction Systems Corporation (collectively, “Compaction”) for amounts Compaction was obligated to pay to the United States despite Carter Day having resolving its liability to the State of New Jersey for the same site. New Jersey Department of Environmental Protection v. American Thermoplastics Corporation, et al., Nos. 18-2865 & 19-2243 (3d. Cir. Sept. 8, 2020). At issue was whether the settlement agreement between Carter Day and the New Jersey Department of Environmental Protection (“NJDEP”) addressed the same “matter” as the contribution claim brought by Compaction for response costs at the Combe Fill South Landfill Superfund Site (the “Combe Fill Site” or “Site”). Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Contribution, EPA, Landfill, New Jersey, Remediation, Superfund, Third Circuit

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

On May 4, 2020, the Third Circuit issued a precedential opinion affirming the United States District Court for the District of New Jersey’s decision that the United States Government (the “Government”) is not liable as an operator under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) for its involvement at a chromite ore processing plant in New Jersey during World Wars I and II. PPG Indus. Inc. v. United States, No. 19-1165, slip op. (3d Cir. May 4, 2020). The decision clarifies the applicable standard for parties seeking to hold the Government liable as an operator for cleanup costs at contaminated former defense sites. Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Operator Liability, Potentially Responsible Parties, Remediation, Removal, Superfund, Third Circuit

They say stigmas are social constructs. In court, however, they must be based on relevant and objective evidence, so says the Court of Appeals for the Third Circuit in a precedential opinion involving the amount of compensation owed to private landowners for easements over their properties to allow the installation of an underground pipeline. In UGI Sunbury LLC v. A Permanent Easement for 2.4645 Acres, Nos. 18-3126, 18-3127 (Feb. 11, 2020), the appellant UGI Sunbury, LLC (UGI) sought vacatur of a decision from the District Court of the Middle District of Pennsylvania in a condemnation proceeding under the Natural Gas Act, which based the compensation awarded in part on a claim that the public perception of natural gas pipelines on or near real property will permanently reduce the value of the property due to the stigma that the property is “damaged goods.” While the Third Circuit did not opine on the validity of the theory in general, it did find that the expert testimony upon which the award was based utterly failed to meet the requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and thus should not have been admitted nor relied upon.  Read More »

Share | Email| Comments|  Topics: Condemnation, Marcellus Shale, Natural Gas Act, Oil and Gas, Pennsylvania, Pipelines, Property Damage, Real Estate, Stigma, Takings, Third Circuit

On January 15, 2020, Judge Gerald J. Pappert of the Eastern District of Pennsylvania dismissed two groups of private plaintiffs’ claims against the United States Navy regarding perfluorocarbon contamination, PFOS and PFOA, in drinking water supplies around former Navy facilities in Bucks and Montgomery Counties, Pennsylvania. Giovanni v. U.S. Dept. of Navy, No. 16-4873, 17-765, -- F.Supp.3d --, 2020 WL 224683 (E.D. Pa. Jan. 15, 2020). Read More »

Share | Email| Comments|  Topics: Cancer, CERCLA, Class Actions, Contamination, Damages, HSCA, Medical Monitoring, Pennsylvania, PFAS, Superfund, Third Circuit, Toxic Torts