Since the Supreme Court issued its splintered 4-1-4 decision in Rapanos v. United States, 547 U.S. 715 (2006), district and circuit courts have grappled with how to define “wetlands” for purposes of application of the Clean Water Act.  Whether adding to the confusion or bringing clarity to the subject, the Third Circuit for the first time has weighed in on the issue in United States v. Donovan, U.S. Court of Appeals for the Third Circuit, No. 10-4295 (3rd Cir., October 31, 2011) (J. Rendell).  Donovan a land owner, defended an enforcement action on the basis that  the Clean Water Act did not apply to his actions in filling part of his property and that the Army Corps lacked jurisdiction because the wetlands at issue were not adjacent to navigable-in-fact waters.  The Third Circuit disagreed.  While Donovan may be disappointed by this decision (after litigating the issues for 15 years), the case has much more far-reaching ramifications. Read More »

Share | Email| Comments|  Topics: Army Corps, Clean Water Act, Decisions of Note, Donovan, Enforcement Action, Rapanos, Real Estate, Wetlands

In light of the recent decisions in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011) and, thereafter, Gates v. Rohm & Hass Co., 655 F.3d 255 (3rd Cir. 2011), one might have wondered whether there would ever be another federal environmental tort class certified. Well, the wait is over as on October 12, 2011, just such occurred in the Western District of Kentucky. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Decisions of Note, Farming, Hog Barn, Kentucky, Nuisance, Odors, Toxic Torts, Trespass, Waste

Last month I blogged about Sackett v. Environmental Protection Agency (10-1062), the case involving pre-enforcement judicial review of compliance orders under the Clean Water Act that will be argued before the United States Supreme Court this term. Read More »

Share | Email| Comments|  Topics: Administrative Hearing, Decisions of Note, Due Process, Enforcement Action, Informal Agency Action, ISRA, Leases, New Jersey, Real Estate

On October 18, the Natural Resources Defense Council filed a lawsuit in California contending that particulate matter in diesel fuel combustion exhaust is a hazardous waste and therefore subject to the requirements of Resource Conservation and Recovery Act (RCRA).  If the Court agrees, then the world of environmental law and regulation is likely to be turned upside down. Read More »

Share | Email| Comments|  Topics: Air, Cancer, Cases to Watch, Combustion, Emissions, Railroad, RCRA, Waste

MGKF litigator Chris Ball recently considered this issue in an article published in The Legal Intelligencer. You can drill into what he had to say here.

Share | Email| Comments|  Topics: Marcellus Shale, Oil and Gas

At least that may be what the defendants in Raritan Baykeeper Inc., et al. v. NL Industries, Inc. et al., are thinking after the Third Circuit gave new life to plaintiffs’ citizen suit claims seeking to compel defendants to remediate contaminants allegedly discharged into the Raritan River.  The defendants successfully argued before the district court that the court should abstain from hearing the plaintiffs’ RCRA and Clean Water Act citizen suit claims because the New Jersey Department of Environmental Protection (NJDEP) had previously entered into an administrative consent order (ACO) with NL Industries, Inc. (NL) requiring NL to investigate contamination and to perform certain remediation activities at the site.  The ACO also required NL to conduct sediment sampling in the Raritan River, which was done in 2000 and 2002.  While some of the sediment samples showed elevated levels of arsenic, copper, lead and zinc, NL concluded that off-site sources were contributing causes of the contaminated sediments.  After reviewing the sediment sample results, NJDEP issued a letter in 2004 acknowledging off-site sources were contributing to the sediment impacts, and concluding that any remedial actions directed at cleaning up the river sediments should be part of a regional clean-up effort.  Read More »

Share | Email| Comments|  Topics: Clean Water Act, Decisions of Note

MGKF is hosting a seminar on Environmental Issues and Opportunities in the Marcellus Shale Region on Thursday, November 3, 2011 in Williamsport, PA, and Lynn will be one of the presenters, speaking on litigating in front of the environmental hearing board and defending CERCLA actions. Read More »

Share | Email| Comments|  Topics: CERCLA, Marcellus Shale, Speaking Engagements

Just a quick note that Kate and I, along with other impressive panelists, are participating in a 2 hour ALI-ABA course in December on medical monitoring claims in a post-Dukes world. Details here: Medical Monitoring And Toxic Tort Claims

Share | Email| Comments|  Topics: Speaking Engagements, Toxic Torts

In a precedential opinion issued on October 12 in the case of DeLalla v. Hanover Ins., No. 10-3933 (3rd Cir. Oct. 12, 2011), the Third Circuit finally picked a side on the question of whether a later-served defendant can remove a case filed in state court more than thirty days after the first defendant was served with the Complaint. But first, some background. Read More »

Share | Email| Comments|  Topics: Decisions of Note, Federal Procedure, Removal, Third Circuit

On October 12, 2011, in a lengthy opinion that concludes with recognizing plaintiffs’ frustration, Judge Terrence McVerry, of the Western District of Pennsylvania, granted defendants’ motions to dismiss all claims brought by governmental plaintiffs against current and former owners of a coal-fired power plant. In United States v. EME Homer City Generation L.P., et al., the U.S. and state intervenors (Pennsylvania, New Jersey and New York) alleged that defendants violated the federal Clean Air Act (“CAA”)’s PSD (prevention of significant deterioration) and Title V requirements. The crux of plaintiffs’ arguments was that defendants failed to obtain necessary permits, and that more stringent CAA emissions standards applied to projects at the power plant’s modified units to reduce SO2 emissions. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Decisions of Note, Permits, Statute of Limitations, Title V