In West Virginia Rivers Coalition, Inc., et al. v. The Chemours Company FC, LLC, the Court of Appeals for the Fourth Circuit vacated a district court decision to preliminarily enjoin The Chemours Company (“Chemours”) from discharging hexafluoropropylene oxide dimer acid (“HFPO-DA”)—a Chemours-created PFAS chemical— from its Washington Works facility in excess of its permitted limit.  In doing so, the Fourth Circuit took no issue with the district court’s standing analysis, but determined the district court made legal and factual errors in its irreparable harm determination. Read More »

Share | Email| Comments|  Topics: Citizens Suit, Clean Water Act, Contamination, Drinking Water, Fourth Circuit, Injunction, Permits, PFAS, Pollutants, Standing, 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

The United States District Court for the Western District of Louisiana, Lake Charles Division, on August 22, 2024 issued an injunction barring the United States Environmental Protection Agency (EPA) and the United States Department of Justice (DOJ) from enforcing regulations based on Title VI of the Civil Rights Act, 42 U.S.C. 200d, et seq., in the State of Louisiana (the “State”). The ruling in State of Louisiana v. US Environmental Protection Agency, et al., No. 2:23-CV-00692, 2024 WL 3904868, at *1 (W.D. La. Aug. 22, 2024), effectively prohibits these federal agencies from implementing regulations that implicate Title VI’s disparate impact prohibition.   Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Disparate Impact, Environmental Justice, Injunction, Louisiana, Permits, Rulemaking, Title VI

In Curtis v. 7-Eleven, No. 21-cv-6079, 2022 WL 4182384, at * 1 (N.D. Ill. Sept. 13, 2022), the Honorable Steven C. Seeger of the United States District Court for the Northern District of Illinois delivered an eminently readable and entertaining decision, granting in part and dismissing in part 7-Eleven’s motion to dismiss a number of “greenwashing” claims brought against it by putative class representative, Devon Curtis.  Greenwashing is defined as “the act or practice of making a product, policy, activity, etc. appear to be more environmentally friendly or less environmentally damaging than it really is.” In her complaint, Curtis alleges that she purchased foam plates, foam cups, party cups, and freezer bags from 7-Eleven.  Even though these products were labeled “recyclable”, Curtis alleges that they never really were, either because very few recycling facilities accept these products or because some of the products lacked markings, known as RIC numbers, which recycling facilities use to sort products by plastic type.   Read More »

Share | Email| Comments|  Topics: Class Actions, Greenwashing, Illinois, Injunction, Landfill, Standing, Waste

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

In a back and forth battle with the United States District Court for the Northern District of Arizona regarding the scope of judicial power under RCRA, the Ninth Circuit last week reopened three interest groups’ citizen suit claims against the U.S. Forest Service. In Ctr. for Biological Diversity v. U.S. Forest Serv., No. 17-15790, 2019 WL 2293425 (9^th Cir. May 30, 2019), the plaintiffs allege that the use of lead ammunition creates an imminent and substantial endangerment to human health and the environment in the Kaibab National Forest, which borders Grand Canyon National Park in northern Arizona. Reversing the district court, the Ninth Circuit held that the controversy is justiciable because it would allow the district court to issue meaningful injunctive relief and not merely an advisory opinion. Read More »

Share | Email| Comments|  Topics: Arizona, Citizen Suit, Endangered Species Act, Forest Service, Injunction, Ninth Circuit, Public Lands, RCRA

Earlier this month, the Pennsylvania Supreme Court affirmed in part and reversed in part a preliminary injunction issued by the Pennsylvania Commonwealth Court with respect to newly promulgated regulations regarding unconventional well drilling. Marcellus Shale Coal. v. Dep't of Envtl. Prot. of Commonwealth, 115 MAP 2016, 2018 WL 2452607 (June 1, 2018). In the decision, the Court rejected the argument that courts should defer to a regulatory agency when deciding a preliminary injunction with respect to the agency’s authority to issue regulations, and also shed light on how it interprets allegations of vagueness and conflict in agency regulations. The majority opinion was authored by Chief Justice Saylor and was joined in full by all the associate justices except for Justice Donohue, who authored a concurring and dissenting opinion. Justice Donohue’s opinion, perhaps most notably, voices her disagreement with the Commonwealth Court’s interpretation of Article 1, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment. Read More »

Share | Email| Comments|  Topics: Act 13, Drilling, Energy, Environmental Rights Amendment, Groundwater, Injunction, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Pipelines, Water

Under the Clean Water Act (“CWA”), it is well established that any entity discharging pollutants into the surface waters of the United States from a “point source” must obtain a permit. But courts have disagreed on whether the CWA also encompasses groundwater that is hydrologically connected to surface water.  Last week, a federal district court in Virginia followed a line of cases in holding that the CWA does cover the discharge of pollutants to groundwater that is hydrologically connected to surface water. Sierra Club v. Va. Elec. & Power Co., Civil Action No. 2:15-CV-112 (E.D. Va. Mar. 23, 2017). Read More »

Share | Email| Comments|  Topics: Citizen Suit, Civil Penalties, Clean Water Act, Coal Ash, Injunction, NPDES, Permits, Water