This month, the United States Court of Appeals for the Ninth Circuit held in Confederated Tribes of the Colville Rsrv. v. Teck Cominco Metals Ltd, No. 24-5565, 2025 WL 2525853 (9th Cir. Sept. 3, 2025) that CERCLA permits recovery of natural resource damages with a cultural use component, effectively reversing the district court’s holding that cultural resource damages are not authorized under CERCLA. Read More »

Share | Email| Comments|  Topics: CERCLA, Citizen Suit, Citizens Suit, Contamination, Natural Resource Damages, Ninth Circuit, Pollutants, Tribal Lands, Water, Water Use

On June 30, 2025, the Supreme Court denied the Port of Tacoma (the “Port”) and SSA Terminals LLC's (“SSA”) petition for writ of certiorari to review the 9^th Circuit’s decision in Port of Tacoma v. Puget Soundkeeper Alliance addressing whether the Clean Water Act (“CWA”) authorizes citizens to enforce conditions of state-issued pollutant discharge permits adopted under state law that impose a greater scope of coverage than required by the CWA.  The 9th Circuit answered this question in the affirmative, holding that Washington's Industrial Stormwater General Permits (“ISGP”), a CWA National Pollutant Discharge Elimination System (“NPDES”) permit, required the Port and SSA to have the necessary stormwater controls across the entire West Sitcum Terminal (the “Terminal”).  The Supreme Court's recent decision to deny certiorari leaves litigants open to a patchwork of Circuit determinations on the scope of the CWA’s citizen suit provision.  Read More »

Share | Email| Comments|  Topics: Citizen Suit, Citizens Suit, Clean Water Act, Ninth Circuit, NPDES, Permits, Private Right of Action, Stormwater, Supreme Court, United States Supreme Court, Water

On July 9^th, 2025, the Eastern District of New York ruled on a series of motions in Suffolk County Water Authority v. Dow Chemical Company, a case brought by the Suffolk County Water Authority (“Suffolk”) against chemical manufacturers for the alleged contamination of Suffolk’s groundwater supply with 1,4-dioxane (“dioxane”), a chemical classified by the EPA as a “probable human carcinogen.”  Judge Gershon issued an opinion allowing most of the plaintiff’s common law tort claims to proceed to trial while clarifying the standard for expert admissibility under recently amended Federal Rule of Evidence 702. Read More »

Share | Email| Comments|  Topics: Causation, Contamination, Drinking Water, Evidence, Expert Witness, Groundwater, Negligence, New York, Nuisance, Pollutants, Strict Liability, Trespass, Water

On April 3^rd, the U.S. District Court of Colorado vacated the U.S. Army Corps of Engineers’ (“USACE”) Record of Decision, Final Environmental Impact Statement, and approval of a dredge-and-fill permit for Denver Water’s expansion project of the Gross Dam and Reservoir in Colorado and remanded the matter back to the agency.  The Court temporarily enjoined Denver Water from continuing construction on the dam pending a hearing on what is “reasonable and necessary” to ensure that the dam will be structurally safe and issued a permanent injunction prohibiting the enlargement of the Gross Reservoir. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Agency Action, Army Corps, Clean Water Act, Climate Change, Colorado, Injunction, NEPA, Permits, Water

Over the last week, pre-enforcement challenges to two separate federal government actions have been dismissed for lack of standing.  In Commonwealth of Kentucky et al. v. EPA, et al., No 3:23-cv-00007-GFVT, 2023 WL 2733383 (E.D. Ky. March 31, 2023), the Honorable Gregory F. Van Tatenhove of the United States District Court for the Eastern District of Kentucky dismissed without prejudice claims brought by the Commonwealth of Kentucky (the “Commonwealth”) and private-sector plaintiffs challenging the United States Environmental Protection Agency’s (“EPA”) and Army Corps of Engineers’ rule redefining “waters of the United States” under the Clean Water Act.  Five days later, in The State of Louisiana, et al. v. Joseph R. Biden, Jr., et al., No. 22-30087, 2023 WL 2780821 (5th Cir. April 5, 2023), the Honorable Jacques L. Wiener, Jr. of the United States Court of Appeals for the Fifth Circuit dismissed states’ challenges to President Biden’s social cost of greenhouse gases established pursuant to Executive Order No. 13990 (the “Executive Order”).  Both cases demonstrate the importance of alleging sufficient harm to confer federal court jurisdiction. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Clean Water Act, Due Process, Federal Jurisdiction, Federal Procedure, Greenhouse Gas, Kentucky, Louisiana, Procedure, Rapanos, Standing, Water

In an opinion and order released on November 21, 2022, the United States District Court for the District of New Mexico overseeing litigation arising from the Gold King Mine spill granted a defendant-contractor’s partial summary judgement motion seeking dismissal of claims that it was liable under CERCLA as a transporter, operator, or arranger. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2022 WL 17093503, at *1 (D. N.M. Nov. 21, 2022).  The court held that one of the contractor defendants, Weston Solutions, Inc. (“Weston”), was not subject to CERCLA liability because it only assisted with operating the water management system rather than controlling any operations related to the release of contaminant from the King Gold Mine (“Mine”). Id. This decision follows the court’s earlier denial of a Motion to Dismiss in which the court held that the plaintiffs adequately pled operator, arranger, and transporter liability. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 1282997, at *2-4 (D. N.M. Mar. 20, 2019) (slip opn.). Our blog post discussing the court’s first holding on this issue can be found here. Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Clean Water Act, Colorado, Consultant Liability, Gold King Mine, New Mexico, Public Lands, Response Action Contractors, Superfund, Tribal Lands, Utah, Water

On May 18, 2022 in York et al. v. Northrop Grumman Corp. Guidance and Electronics Co. Inc. et al., No. 21-cv-03251 (W.D. Mo.), a Missouri federal court dismissed Plaintiffs’ complaint alleging negligence, nuisance and trespass from alleged groundwater contamination, finding the claims were preempted by an existing consent decree. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Consent Decree, Contamination, Injunction, Missouri, Negligence, Nuisance, Preemption, Property Value, Superfund, Trespass, Water

Can plaintiffs in a citizen suit piggyback on existing governmental enforcement action and enforce the same alleged violation under the Clean Water Act (“CWA”)? Yes, as long as the citizen suit does not seek civil penalties, according to the First Circuit in The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, No. 19-2095, __ F. 4^th __ (1st Cir. 2022).  The First Circuit, sitting en banc, held that under the CWA, administrative enforcement action by the government precludes only a citizen’s “civil penalty action,” which the Court interpreted to mean an action seeking civil penalties.  A citizen suit seeking other forms of relief, i.e. injunctive or declaratory, however, could proceed notwithstanding the government’s action.   Read More »

Share | Email| Comments|  Topics: Citizen Suit, Civil Penalties, Clean Water Act, Cleanup, Declaratory Relief, Enforcement Action, First Circuit, Injunction, Stormwater, Water

On April 21, 2022, in Tomas Vera et al. v. Middlesex Water Co. (MID-L-6306-21, Superior Court of New Jersey, Middlesex County), a New Jersey Superior Court judge granted plaintiffs’ motion for certification in a case stemming from PFAS contamination of the county’s water supply.  Defendant Middlesex Water Co. (“Middlesex”) sent notices to customers on October 22, 2021 and November 8, 2021 advising that testing showed levels of Perfluorooctanoic Acid (“PFOA”) of 36.1 parts per trillion, well above the 14 parts per trillion maximum contaminant level (“MCL”) standard set by the New Jersey Department of Environmental Protection (“NJDEP”).  The notices further advised of health concerns potentially associated with PFOA, recommended that customers with “specific health concerns, a severely compromised immune system, have an infant, are pregnant or are elderly” seek advice from a health care provider, and recommended installing a home water filter to reduce levels of PFOA in the tap water or use bottled water for drinking, cooking, or preparing beverages for infants. Read More »

Share | Email| Comments|  Topics: Class Actions, Contamination, Drinking Water, Injunction, Medical Monitoring, New Jersey, PFAS, Water

On August 3, 2021, in the Methyl Tertiary Butyl Ether (“MTBE”) MDL the Court ruled that while the Commonwealth of Pennsylvania's alter ego allegations were sufficient to pierce the corporate veil as between defendants Lukoil Americas Corporation and its subsidiary Getty Petroleum Marketing Inc. for jurisdictional purposes, they were not sufficient to pierce the veil for liability purposes, nor was there successor liability, resulting in the dismissal of all claims against LAC. Read More »

Share | Email| Comments|  Topics: Alter Ego, Corporate Veil, Insurance Coverage, Multi-District Litigation, Nuisance, Pennsylvania, Spill Act, Storage Tank, Successor Liability, Water