In an opinion issued last month, the Third Circuit affirmed the dismissal of a lawsuit brought by the Adorers of the Blood of Christ, an order of Roman Catholic nuns, against the Transcontinental Gas Pipe Line Company (“Transco”) under the Religious Freedom and Restoration Act (“RFRA”).  Adorers of the Blood of Christ U.S. Province v. Transcontinental Gas Pipe Line Co LLC, 53 F.4th 56 (3d Cir. 2022).  The Adorers’ sought in their lawsuit money damages from Transco as a result of the completed construction of a pipeline across the Adorers’ property, which they argued amounted to a substantial burden on their exercise of religion under RFRA.  The Third Circuit upheld the dismissal of the suit, holding that the Adorers’ lawsuit was “inescapably intertwined” with an earlier approval issued for the pipeline by the Federal Energy Regulatory Commission (“FERC”) and therefore amounted to an impermissible collateral attack on that approval that was precluded by the Natural Gas Act.  Read More »

Share | Email| Comments|  Topics: Damages, FERC, Natural Gas Act, Oil and Gas, Pennsylvania, Pipelines, Third Circuit

In an opinion and order released on November 21, 2022, the United States District Court for the District of New Mexico overseeing litigation arising from the Gold King Mine spill granted a defendant-contractor’s partial summary judgement motion seeking dismissal of claims that it was liable under CERCLA as a transporter, operator, or arranger. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2022 WL 17093503, at *1 (D. N.M. Nov. 21, 2022).  The court held that one of the contractor defendants, Weston Solutions, Inc. (“Weston”), was not subject to CERCLA liability because it only assisted with operating the water management system rather than controlling any operations related to the release of contaminant from the King Gold Mine (“Mine”). Id. This decision follows the court’s earlier denial of a Motion to Dismiss in which the court held that the plaintiffs adequately pled operator, arranger, and transporter liability. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 1282997, at *2-4 (D. N.M. Mar. 20, 2019) (slip opn.). Our blog post discussing the court’s first holding on this issue can be found here. Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Clean Water Act, Colorado, Consultant Liability, Gold King Mine, New Mexico, Public Lands, Response Action Contractors, Superfund, Tribal Lands, Utah, Water

Last month we reported on Curtis v. 7-Eleven, in which the Northern District of Illinois held that marking products as “recyclable” when they may not, as a practical matter, be recycled did not constitute consumer fraud because the fact that the material is capable of being recycled is not false or misleading.  This month, the Northern District of California came to the same conclusion.  In David Swartz, et al., v. The Coca-Cola Company, et al., No. 21-cv-04643 (N.D. Cal. Nov. 18, 2022), the Honorable James Donato of the United States District Court for the Northern District of California granted a motion to dismiss claims brought against defendants Coca-Cola, Blue Triton Brands, and Niagara Bottling (collectively the “Defendants”) by plaintiff individuals and Sierra Club (“Plaintiffs”).  Plaintiffs filed a complaint against Defendants alleging violations of California’s Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law, and that such violations constitute fraud, deceit, and/or misrepresentation and negligent misrepresentation.  Specifically, Plaintiffs alleged that the “100% recyclable” labels on single-use plastic bottles supplied by the Defendants were false and misleading because most plastic bottles are not recycled and instead end up in landfills or incinerators due to a lack of recycling capacity and a lack of demand for recycled plastics.  Read More »

Share | Email| Comments|  Topics: California, Greenwashing, Procedure, Waste

In Emhart Industries, Inc. v. New England Container Company, Inc., et al., No. 06-218 WES, 2022 WL 15437874 (D.R.I. Oct. 27, 2022), a federal court addressed the parameters for arranger liability under CERCLA where Defendants sent drums with residual hazardous substances for reconditioning.  The Court denied summary judgment for Defendants, finding liability depends on Defendant’s intent to dispose, which is a fact intensive analysis dependent “foremost on intentional steps Defendants took toward the goal of disposal, but also asks whether the product was useful, if Defendants knew of the hazardousness, and the state of the hazardous substances at the time of the transaction.” Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Contamination, Contribution, Cost Recovery, Potentially Responsible Parties, Superfund

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

In Citizens Development Corporation, Inc. v. County of San Diego, et al., No. 12-CV-334-GPC-KSC, 2022 WL 4374957 (S.D. Cal. Sept. 21, 2022), the Honorable Gonzalo P. Curiel of the United States District Court for the Southern District of California granted three Motions for Good Faith Settlement Determination in an action under Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) related to alleged contamination of surface water and groundwater in and around Lake San Marcos and San Marcos Creek located in San Marcos, California.  One day later, in Maxim I Properties v. A.M. Bud Krohn, et al., No. 12-cv-00449-DMR, 2022 WL 4390433 (N.D. Cal. Sept. 22, 2022), the Honorable Donna M. Ryu of the United States District Court for the Northern District of California issued an order denying a Motion for Good Faith Settlement filed by Maxim I Properties (“Maxim”) and defendant Moyer Products (“Moyer”) in a matter concerning contamination at a property in San Jose, California.  As such settlements can provide contribution protection to parties potentially liable for clean up, these two cases provide good insight into the factors courts will consider in determining whether to approve them.      Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Contribution, Cost Recovery, Good Faith Settlement, Potentially Responsible Parties, Superfund

In Rio Linda Elverta Cmty. Water Dist. v. United States, No. 2:17-CV-01349, 2022 WL 3567143 (E.D. Cal. Aug. 18, 2022), the Honorable Kimberly J. Mueller, Chief Judge for the United States District Court for the Eastern District of California, dismissed  two California water utilities’ federal and state law claims against the federal government and several private sector defendants relating to hexavalent chromium (“Cr6”) pollution at the former McClellan Air Force Base (“Base”) near Sacramento, California.  The water utilities allege that during active operations of the Base, the federal government used products containing Cr6, which contaminated the groundwater aquifer from which the water utilities derive municipal drinking water, making it unsafe for human consumption.  Much of the case turned on the interplay between CERCLA sections 104 and 113(h) in the context of a clean up of a federal facility. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Contribution, Cost Recovery, Drinking Water, Federal Facilities, Groundwater, Negligence, Nuisance, RCRA, Remediation, Removal, Subject Matter Jurisdiction, Superfund, Trespass

On August 19, 2022, a magistrate judge of the Colorado District Court held that contribution-defendants cannot assert their own contribution claims under section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) because they are only liable for their fair share of response costs.  Atlantic Richfield Co. v. NL Indus., Inc., No. 20-cv-00234-NYW-KLM, 2022 WL 3577261, at *6 (D. Colo. Aug. 19, 2022). The magistrate judge’s analysis resolved questions for potentially responsible parties (“PRPs”) seeking to assert contribution claims against other PRPs based on a claim of inequitable distribution of common liability in a 113(f) action. Id. at *4. Read More »

Share | Email| Comments|  Topics: CERCLA, Colorado, Contribution, Cost Recovery, Potentially Responsible Parties, Superfund

Stanford University can proceed with its lawsuit against HP Inc. and Agilent Technologies, Inc., the U.S. District Court for the Northern District of California ruled on September 19, 2022, holding that because certain soil contamination was a “continuous” or abatable nuisance or trespass, Stanford’s nuisance and trespass claims were not time barred and could continue.  Accordingly, the court denied HP and Agilent’s motion for summary judgment on Stanford’s nuisance and trespass claims. Bd. of Trs. of the Leland Stanford Junior Univ. v. Agilent Techs., Inc., No. 18-cv-01199 (N.D. Ca. Sept. 19, 2022). Read More »

Share | Email| Comments|  Topics: California, CERCLA, Contamination, Discovery Rule, Nuisance, PCBs, Solvents, Statute of Limitations, Superfund, Trespass

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