This post was written by MGKF summer associate Ella Souder

In March 2023, the State of New Jersey sued Dow Chemical Company (“Dow”) in state court alleging that Dow was responsible for contamination caused by the chemical 1,4-dioxane which was used as an inhibitor in cleaning agents which Dow had sold decades earlier to, among others, the United States Government and military (the “Government”).  Dow removed the case to United States District Court for the District of New Jersey under the federal-officer removal statute, claiming that in producing this chemical it was “acting under” the auspices of the Government.  The District Court remanded the matter back to state court and on June 11, 2025 the Third Circuit affirmed the remand, holding that simply providing a product to the Government, even if the product complied with government specifications, was insufficient to implicate the federal-officer removal statute. See New Jersey v. Dow Chemical Co., 2025 WL 1646963 (3^rd Cir. 2025). Read More »

Share | Email| Comments|  Topics: Contamination, Federal Jurisdiction, Federal Procedure, New Jersey, Removal, Third Circuit

In City of St. Charles v. Union Electric Company, the City of St. Charles (the “City”) brought common law claims sounding in negligence against Defendant Union Electric Company dba Ameren Missouri (“Ameren”), alleging that Ameren contaminated the City’s water supply, causing the City to incur millions in cleanup costs. No. 4:23-cv-00846-MTS (E.D. Mo. 2023). Ameren removed the case to federal court because it had been subject to an administrative settlement with EPA to perform the cleanup pursuant to CERCLA, but on November 2, 2023, the U.S. District Court for the Eastern District of Missouri remanded the case back to state court for want of subject matter jurisdiction. Read More »

Share | Email| Comments|  Topics: CERCLA, Cost Recovery, Federal Jurisdiction, Removal, Subject Matter Jurisdiction

In Sinclair Wyoming Refining Company, LLC v. United States Environmental Protection Agency, No. 22-9530 (10th Cir. July 5, 2023),  the Honorable Scott M. Matheson, Jr. of the United States Court of Appeals for the Tenth Circuit dismissed a petition for review filed by Sinclair Wyoming Refining Company, LLC (“Sinclair”) of an email from the United States Environmental Protection Agency (“EPA”) for lack of jurisdiction because it was not a final agency action.  Sinclair applied for a hardship exemption from EPA’s Renewable Fuel Standards for compliance year 2018 and, when EPA did not immediately respond, submitted Renewable Identification Numbers (“RINs”) in compliance with the regulations.  Sinclair’s application was initially denied by EPA and later reconsidered and approved.  Sinclair asked EPA in two separate emails to return the RINs that it had submitted for calendar year 2018.  In April 2022, the Director of EPA’s Fuel Compliance Center responded to Sinclair’s email, stating, in relevant part, that “the 2018 RINs [would] not be returned… .”  Sinclair filed the petition for review of EPA’s April 2022 email. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Air, Clean Air Act, Federal Jurisdiction, Procedure, Tenth Circuit

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 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

Rejecting federal officer removal and federal question removal theories, the Fourth Circuit affirmed the District of West Virginia’s remand of a state tort suit against the remediators of an EPA-permitted Resource Conservation and Recovery Act (“RCRA”) site.  W.V. St. Univ. Bd. of Govs. v. Dow Chem. Co. et al., No. 20-1712, __ F.4^th __, 2022 WL 90242 (Jan. 10, 2022). Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Federal Jurisdiction, Federal Procedure, Fourth Circuit, Groundwater, Negligence, Nuisance, Procedure, RCRA, Removal, Subject Matter Jurisdiction, Superfund, Trespass, West Virginia