In a January 17, 2025 opinion in the cases of Montana Wildlife Federation et al. v. Deb Haaland et al. and Western Watersheds Project et al. v. Deb Haaland et al., the United States Court of Appeals for the Ninth Circuit examined a number of oil and gas leases in Idaho and Montana sold during the prior Trump administration, vacating some and overturning vacatur of others. The opinion offers insight into how a court may look to analyze improper agency action in instances where significant economic expenditure has already taken place. Read More »

Share | Email| Comments|  Topics: Agency Action, Citizens Suit, Exploration, Federal Land Policy and Management Act, Leases, Mineral Rights, NEPA, Ninth Circuit, Oil and Gas, Public Lands

In a recent case from the United States District Court for the Northern District of Illinois, two plaintiffs alleged that Danone Waters of America, LLC (“Danone”) violated Illinois and California state statutes by labeling Evian spring water “natural” despite the presence of microplastics which leach from the plastic bottles into the water.  Daly v. Danone Waters of America, LLC, 2024 WL 4679086 (N.D. Ill. Nov. 5, 2024).  Read More »

Share | Email| Comments|  Topics: California, Citizens Suit, Greenwashing, Illinois, Preemption

In an opinion published on December 18, 2024, the Montana Supreme Court found that a provision in the Montana Constitution providing for the right to a “clean and healthful environment” guarantees the right to a stable climate system.  In Held v. State of Montana, 2024 MT 312 (Mont. 2024), the Montana Supreme Court affirmed a trial court decision striking down state law provisions that barred state agencies from considering greenhouse gas (“GHG”) emissions in permitting decisions, finding the law violates the environmental rights guaranteed by the Montana Constitution. Read More »

Share | Email| Comments|  Topics: Air, Citizens Suit, Clean Air Act, Climate Change, Greenhouse Gas, Montana

In Marin Audubon Society v. Federal Aviation Administration, No. 23-1067 (D.C. Cir. Nov. 12, 2024), the United States Court of Appeals for the District of Columbia Circuit unexpectedly held that, despite nearly fifty years of precedent, the White House’s Council on Environmental Quality (“CEQ”) lacks the authority to promulgate binding regulations for the purpose of implementing the National Environmental Policy Act (“NEPA”). Read More »

Share | Email| Comments|  Topics: Agency Action, Council on Environmental Quality, D.C. Circuit, Loper Bright, NEPA

In joint tortfeasor settlements in private party actions under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), courts can choose from two competing federal contribution protection methods: the Uniform Comparative Fault Act (“UCFA”), known as pro rata, and the Uniform Contribution Among Tortfeasors Act (“UCATA”), known as pro tanto.  Last month, in City of Las Cruces and Dona Ana County v The Lofts of Alameda, LLC, Civil Action No. 2:17-cv-00809-JCH-GBW, 2024 WL 4512434, the U.S. District Court for the District of New Mexico considered the merits of both contribution protection methods and concluded that the pro rata approach was the most equitable under the circumstances.  Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Contribution, Cost Recovery, Good Faith Settlement, New Mexico, Potentially Responsible Parties, Solvents, Superfund

On October 29, 2024 in Dawson v. Murphy, et al., the New Jersey Superior Court Appellate Division affirmed the trial court’s order denying Plaintiffs leave to amend their complaint to assert a claim that New Jersey’s investment of state pension funds into oil and gas companies which allegedly harm the environment constitutes a violation of plaintiffs’ rights under the New Jersey Civil Rights Act (“NJCRA”).  No. A-3083-22, 2024 WL 4601708 (N.J. Super. App. Div. Oct. 29, 2024).  In an unpublished opinion, the Court held that that the New Jersey Constitution does not guarantee a right to a stable environment and therefore the state’s investments did not violate Plaintiffs’ constitutional rights.  Read More »

Share | Email| Comments|  Topics: Citizen Suit, Climate Change, Environmental Justice, Greenhouse Gas, New Jersey, New Jersey Civil Rights Act, Oil and Gas, Public Trust Doctrine

In Barclay Lofts LLC v. PPG Industries, Inc., Case No. 20-CV-1694, 2024 WL 4224731 (E.D. Wis. Sept. 18, 2024), a United States District Court in Wisconsin, after deciding several threshold issues under CERCLA, allocated liability for past and future response costs to clean up a contaminated site based upon a detailed analysis of the operational and material handling practices of the potentially responsible parties.  The decision offers insights about the facts that a court may find compelling and the factors that a court may apply to reach an equitable CERCLA allocation among responsible parties. Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Operator Liability, Owner Liability, PCBs, Potentially Responsible Parties, Remediation, Solvents, Superfund

On September 27, 2024, in Short Creek Development, LLC v. MFA Incorporated, No. 22-05021-CV-SW-WBG, 2024 WL 4326815 (W.D. Mo. Sept. 27, 2024), Magistrate Judge W. Brian Gaddy determined Plaintiffs’ claim under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) was barred by the applicable statute of limitations as “physical on-site construction of the remedial action” occurred more than six years prior to when Plaintiffs brought their lawsuit.  Specifically, the Magistrate Judge found that costs related to a leachate collection system constructed approximately a year before the adoption of a Record of Decision (“ROD”) amendment outlining a permanent remedy for the Orongo-Duenweg Mining Belt Superfund Site (the “Site”) was the beginning of the six-year limitations period.   In doing so, the Court rejected adoption of a “bright-line” rule that remedial actions begun before adoption of a final remedial plan do not trigger the limitations period.  Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Cost Recovery, Groundwater, Landfill, Mining, Missouri, Remediation, Removal, Statute of Limitations, Superfund, Waste

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 the wake of the Supreme Court’s decision in Loper Bright Enters. v. Raimondo, 244 S.Ct. 2244 (2024), the general breadth and scope of agency decision-making has been called into question. In its recent decision, Huntsman Petrochemical LLC v. EPA, No. 23-1045, 2024 WL 3763355 (D.C. Cir. Aug. 13, 2024), the D.C. Circuit has made it clear that where statutory interpretation is not implicated, the Court will continue to afford EPA’s conclusions involving technical expertise a significant degree of deference. While neither the parties nor the Court attempted to address or reference Loper Bright, the Court articulated a clear standard applicable to agency actions involving statistical and modeling analyses: the Court will examine each step of an agency’s analysis to satisfy themselves that the agency has not “departed from a rational course.” Only where a statistical model “bears no rational relationship to the characteristics of data to which it was applied” will agency action be deemed arbitrary and capricious. Accordingly, regulated entities should be aware that the concept of deference lives on when challenging agency decision-making, even in the wake of the fall of Chevron Deference. Read More »

Share | Email| Comments|  Topics: Air, Chevron Deference, Clean Air Act, D.C. Circuit, Emissions, EPA, HAPs, Hazardous Air Pollutants, Rulemaking