In a highly anticipated decision, on April 20, 2020, the U.S. Supreme Court ruled that state courts may award restoration damages to landowners who seek, under state law, a more expensive cleanup than that selected by EPA, but as potentially responsible parties under CERCLA they must first receive EPA’s approval of their alternative cleanup plan before they would be entitled to those damages. Atlantic Richfield Co. v. Christian, et al., No. 17-1498 (U.S. Apr. 20, 2020). Beyond its fact-specific holding, the opinion’s broader implications may have a significant impact on CERCLA cleanups and litigation going forward.   Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Damages, Innocent Party, Montana, Nuisance, Property Damage, Remediation, Removal, Residential, Statute of Limitations, Strict Liability, Superfund, Supreme Court, Trespass, United States Supreme Court

In 2015, a pipeline in Santa Barbara County, California ruptured and leaked oil, some of which made its way to the ocean and eventually washed up on local beaches. A class of plaintiffs brought an action in federal district court against defendants Plains All American Pipeline, L.P., and Plains Pipeline L.P. (“Plains”) for claims of statutory violations, negligence, public nuisance, continuing private nuisance, nuisance per se, and trespass. In response, Plains filed a motion for summary judgment which sought to have the claims of the Property Subclass plaintiffs dismissed, primarily on the basis that the harm caused by the oil spill was a “temporary diminution in property value,” and not recoverable as a matter of law.

Last week, Judge Gutierrez of the District Court for the Central District of California issued an order denying most of the defendants’ motion for summary judgment, thereby allowing the litigation to continue. See Keith Andrews et al v. Plains All American Pipeline, L.P. et al., CV 15-4113 PSG (JEMx) (Mar. 17, 2020). The court held that several of plaintiffs’ claims contained genuine issues of material fact that should be brought before a jury, and that it could not rule as a matter of law that plaintiffs had not suffered harm. The claims which merited the most analysis in the order were the common law property claims, i.e.: negligence, nuisance, and trespass. Read More »

Share | Email| Comments|  Topics: California, Class Actions, Contamination, Damages, Negligence, Nuisance, Oil and Gas, Property Damage, Property Value, Real Estate, Trespass

They say stigmas are social constructs. In court, however, they must be based on relevant and objective evidence, so says the Court of Appeals for the Third Circuit in a precedential opinion involving the amount of compensation owed to private landowners for easements over their properties to allow the installation of an underground pipeline. In UGI Sunbury LLC v. A Permanent Easement for 2.4645 Acres, Nos. 18-3126, 18-3127 (Feb. 11, 2020), the appellant UGI Sunbury, LLC (UGI) sought vacatur of a decision from the District Court of the Middle District of Pennsylvania in a condemnation proceeding under the Natural Gas Act, which based the compensation awarded in part on a claim that the public perception of natural gas pipelines on or near real property will permanently reduce the value of the property due to the stigma that the property is “damaged goods.” While the Third Circuit did not opine on the validity of the theory in general, it did find that the expert testimony upon which the award was based utterly failed to meet the requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and thus should not have been admitted nor relied upon.  Read More »

Share | Email| Comments|  Topics: Condemnation, Marcellus Shale, Natural Gas Act, Oil and Gas, Pennsylvania, Pipelines, Property Damage, Real Estate, Stigma, Takings, Third Circuit

Two recent decisions from two different states, Pennsylvania and West Virginia, suggest that courts are becoming increasingly skeptical of landowners seeking to capitalize on oil and gas companies utilizing horizontal directional drilling (HDD) to access resources under the property of the landowners. Read More »

Share | Email| Comments|  Topics: Damages, Deeds, Drilling, Energy, Exploration, Leases, Marcellus Shale, Mineral Rights, Natural Gas, Nuisance, Oil and Gas, Pennsylvania, Property Damage, Property Value, Real Estate, Royalties, West Virginia

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