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  In an unpublished opinion, the Court held that that the New Jersey Constitution does not guarantee a right to a stable environment and therefore the state’s investments did not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

This entry was authored by MGKF Summer Associate Ryan Raynor

Next term, the United States Supreme Court will decide the extent to which federal agencies must consider environmental impacts beyond their control in performing environmental reviews. On June 24, 2024, the Supreme Court granted certiorari to the Seven County Infrastructure Coalition and the Uinta Basin Railway, LLC to determine whether the National Environmental Policy Act (“NEPA”) requires a federal agency conducting an environmental impact statement (“EIS”) to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority. Eagle Cnty., Colorado v. Surface Transportation Bd., 82 F.4th 1152, 1179 (D.C. Cir. 2023), cert. granted sub nom. Seven Cnty. Coalition v. Eagle Cnty., Co, 2024 WL 3089539 (U.S. June 24, 2024). Read More »

Share | Email| Comments|  Topics: Energy, FERC, Greenhouse Gas, Natural Gas, NEPA, Oil and Gas, Pipelines, Railroad, United States Supreme Court

On July 18, 2024, in Shirley v. Pennsylvania Legislative Reference Bureau, No. 85 MAP 2022, 2024 WL 3450536 (Pa. July 18, 2024), the Pennsylvania Supreme Court reversed the denial of three nonprofit organizations’ application to intervene in the litigation challenging the Pennsylvania Department of Environmental Protection (PADEP) regulation implementing Pennsylvania’s participation in the Regional Greenhouse Gas Initiative (the RGGI Regulation).  After rejecting several arguments regarding the appealability of the order denying intervention, the Court found that the nonprofits’ interest in defending the RGGI Regulation under the Pennsylvania Constitution’s Environmental Rights Amendment (ERA) was not adequately represented by the PADEP and therefore the lower court erred in denying intervention.  Because of this ruling, the three nonprofit organizations (Citizens for Pennsylvania’s Future, Clean Air Council, and the Sierra Club) (Nonprofits) are now able to pursue an appeal of the Commonwealth Court’s final order permanently enjoining the RGGI Regulation from going into effect.  Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Environmental Rights Amendment, Greenhouse Gas, Hazardous Air Pollutants, Intervention, Pennsylvania, Pennsylvania Department of Environmental Protection, Rulemaking, Standing

This month, in Markmik, LLC v. Packer (unreported decision, No. 23-P-736), the Massachusetts Appeals Court affirmed a trial court’s finding that a less expensive cleanup option requiring buyers to accept an activity and use limitation (“AUL”), with no diminution in value damages, was appropriate given a guaranty by sellers that was silent about the level of cleanup committed to. Read More »

Share | Email| Comments|  Topics: Breach of Contract, Cleanup, Contamination, Cost Recovery, Damages, Groundwater, Massachusetts, Property Value, Real Estate, Remediation, Vapor Intrusion