In Kerns v. Chesapeake Exploration, LLC, No. 18-3636 (6th Cir. Feb. 4, 2019), released on Monday, February 4, the Sixth Circuit Court of Appeals held that a pipeline’s use of Ohio’s forced pooling law is not a taking under the Fourteenth Amendment. This decision, although not recommended for full text publication, is significant as more states enact and/or expand the scope of such laws, and may influence a similar suit brought in Colorado, within the Tenth Circuit, challenging the constitutionality of Colorado’s forced pooling regulations.  Read More »

Share | Email| Comments|  Topics: Deeds, Drilling, Energy, Exploration, Leases, Marcellus Shale, Mineral Rights, Oil and Gas, Royalties, Sixth Circuit, Takings, Takings Clause, Trespass

In Rice v. First Energy Corporation, a putative class of plaintiffs living near a former landfill filed trespass, nuisance, negligence, and medical monitoring claims against First Energy Corporation and NRG Energy, Inc., alleging that each Defendant was liable for claims arising from their respective subsidiaries’ disposal of coal ash in the landfill. No. 2:17-cv-489-LPL, 2018 WL 4282850, at *1 (W.D. Pa. Sept. 7, 2018). Though it frequently noted Plaintiffs’ lackluster efforts to pursue discovery and their heavy reliance on conclusory, minimalistic arguments, U.S. Magistrate Judge Lisa Pupo Lenihan nevertheless dug deep into the parties' arguments to issue a thorough and strong opinion highlighting the difficulty of piercing a corporate veil in an environmental case and concluding that the Defendants were neither corporate successors nor alter egos of their respective subsidiaries. Id. at *13. Read More »

Share | Email| Comments|  Topics: Alter Ego, Class Actions, Coal Ash, Corporate Veil, Landfill, Medical Monitoring, Negligence, Nuisance, Pennsylvania, Toxic Torts, Trespass

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

A putative class of plaintiffs who allege to have lived in a defined geographic area around a manufacturing plant in Merrimack, New Hampshire, or have been served by the town’s municipal water supply, sued the manufacturer in federal court, alleging property damage claims and exposure to perfluorooctanoate (AFPO) and perfluorooctanoic acid (PFOA) that warrants medical monitoring.  Brown v. Saint-Gobain Performance Plastics Corp. et al., No. 16-cv-242, 2017 WL 6043956 (D.N.H. Dec. 6, 2017).  The plaintiffs’ claims were styled as common law claims for negligence, trespass, nuisance, and negligent failure to warn, as well as an equitable claim for “negative unjust enrichment” on the theory that the manufacturer was unjustly enriched by avoiding costs associated with preventing the release of contaminants.  The Court dismissed the unjust enrichment count but allowed the remaining claims to proceed. Read More »

Share | Email| Comments|  Topics: Class Actions, Cleanup, Damages, Medical Monitoring, New Hampshire, Nuisance, Property Damage, Toxic Torts, Trespass

In 2014, the Town of Westport, Massachusetts (Westport) brought suit against Monsanto Company (Monsanto) seeking to recover costs it had and would incur in remediating PCB-containing caulk used in the construction of the Westport Middle School in 1969.  Through a series of pretrial motions, the district court eventually dismissed all claims against Monsanto and its related entities, and in the recent decision of Town of Westport v. Monsanto, No. 17-1461, 2017 U.S. App. LEXIS 24827 (1st Cir. Dec. 8, 2017), the First Circuit affirmed the district court’s actions, dealing a blow to purchasers of PCB-containing building materials seeking similar recoveries.  Read More »

Share | Email| Comments|  Topics: Building Materials, Cancer, First Circuit, PCBs, Property Damage, Property Value, Real Estate, Remediation, Trespass

Last week, in the case of Maroz v. Arcelormittal Monessen LLC, 2015 U.S. Dist. LEXIS 140660 (W.D. Pa. Oct. 15, 2015), a judge of the Western District of Pennsylvania declined to dismiss a proposed class action in which residents living near ArcellorMittal’s coke plant in Monessen, Pennsylvania alleged that noxious odors and air particulates from the plant polluted their properties.  After allowing the residents to amend their original complaint, U.S. District Judge Arthur J. Schwab found that the residents adequately pled the state common law tort claims for private nuisance, negligence, and trespass, despite the judge’s acknowledgement that there was “not a large number of detailed facts” set forth in the amended complaint.   However, the Court did dismiss claims for public nuisance and punitive damages. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Clean Air Act, Emissions, Nuisance, Odors, Pennsylvania, Preemption, Trespass

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

In November 2009, a group of 44 plaintiffs, including the Ely family, filed suit against Cabot Oil & Gas Corp. for personal injuries and property damages that allegedly resulted from Cabot’s hydraulic fracturing operations in Dimock Township, Susquehanna County, Pennsylvania. The case is pending in the Middle District of Pennslyvania, captioned as Ely et al. v. Cabot Oil & Gas Corp., et al., Dkt. No. 3:09-cv-2284 (M.D. Pa.) (J. Carlson). After a number of parties settled out of the lawsuit, Cabot filed a motion for summary judgment on the Elys’ claims for breach of contract and lost royalties on an oil and gas lease, fraudulent inducement, negligence and negligence per se, medical monitoring, and violations of the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”).   On Monday, nearly all of the Elys’ claims were dismissed. Read More »

Share | Email| Comments|  Topics: Breach of Contract, Contamination, Cost Recovery, Dimock, Drilling, Exploration, Leases, Medical Monitoring, Natural Gas, Negligence, Nuisance, Oil and Gas, Pennsylvania, Real Estate, Residential, Toxic Torts, Trespass

Last summer we reported on Bell v. Cheswick Generating Station, 903 F. Supp. 2d 314 (3rd Cir. 2013), a Third Circuit decision which held that the Clean Air Act does not preempt state law claims for personal and property damage caused by air pollutants.  And in March, we noted, not unsurprisingly, that defendant GenOn Power had filed a Petition for Cert to the U.S. Supreme Court.  On June 2, that Petition was denied, which may have been the impetus for the Supreme Court of Iowa to release its decison in Freeman v. Grain Processing Corp., No. 13-0723 (June 13, 2014), holding that neither the Clean Air Act nor Iowa's analogous state act pre-empted similar state law claims.  The decision is a hefty one, providing a historical overview of the Clean Air Act and preemption law and an in-depth discussion leading to the Court's final determination.  Put this one aside for one evening when you're sitting in the recliner with a glass of wine at your side.   

Share | Email| Comments|  Topics: Air, Case Update, Clean Air Act, Iowa, Nuisance, Preemption, Third Circuit, Toxic Torts, Trespass

Yesterday, a three-judge panel of the Third Circuit issued a unanimous precedential opinion in Bell v. Cheswick Generating Station, No. 12-4216 (3d Cir. Aug. 20, 2013), holding that the federal Clean Air Act (“CAA”) does not preempt state common law tort claims.  In doing so, the Court reversed the Western District’s dismissal of the Complaint, and remanded the case for further proceedings. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Clean Air Act, Emissions, Negligence, Nuisance, Pennsylvania, Preemption, Third Circuit, Trespass