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