Cost-recovery and contribution lawsuits under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) can sometimes drag on for several years, or longer, because of the multitude of potentially responsible parties (PRPs), the often-separate liability and allocation phases, and appeals of rulings decided at each phase, among other complications.  The recent decision in Georgia-Pacific Consumer Products LP et al. v. NCR Corp., 1:11-cv-483 (W.D. Mich.), highlights the winding and prolonged paths that some of these cases can take.  Read More »

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On April 12, 2024, the United States Supreme Court unanimously decided Sheetz v. County of El Dorado, California, No. 22-1074, holding that county-level legislation that imposes conditions on the receipt of building permits, here the imposition of traffic impact fees, may amount to a taking under the Constitution’s Fifth Amendment when the conditions do not have an “essential nexus” to the government’s land use interest and a “rough proportionality” to the proposed development’s impact on that interest.  The ruling overturned decisions from lower courts that had held that the Takings Clause operates to invalidate only administrative conditions imposed by local land use agencies, not legislative enactments like the traffic impact fee imposed by the County in this case.   Read More »

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In State of Louisiana et al. v. U.S. Envt’l Prot. Agency et al., 2:23-CV-01714, 2024 WL 994651 (W.D. La. Mar. 7, 2024), a federal judge rejected certain states’ and industry groups’ motion for preliminary relief to enjoin the EPA’s revised Clean Water Act (“CWA”) rule (“2023 Rule”). The 2023 Rule reinstated EPA’s long-held interpretation of Section 401 of the CWA that afforded states and tribes broad authority to veto or impose conditions on federally permitted activities due to water quality concerns. The court’s decision is a blow to efforts instituted by EPA under the Trump administration to interpret the authority of states and tribes more narrowly under Section 401. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, Retroactive, Water Pollution Control Act

In Pakootas v. Teck Cominco Metals, Ltd., No. 2:04-CV-00256-SAB, 2024 WL 627260 (E.D. Wash. Feb. 14, 2024), the United States District Court for the Eastern District of Washington held that CERCLA does not mandate a procedure for conducting natural resource damage assessments (NRDAs), nor is certainty of costs required for NRDAs to be considered valid under the CERCLA statute. Read More »

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In California Restaurant Association v. City of Berkeley, 89 F. 4th 1094 (9th Cir. 2024), the Ninth Circuit was tasked with determining whether the City of Berkeley’s attempt to prohibit the use of natural gas pipelines in new buildings through a local ordinance conflicted with the federal Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. § 6297(c).  That statute expressly preempts state and local governments from enacting regulations restricting energy use of many natural gas appliances, including those used in household and restaurant kitchens.  After evaluating the parties’ arguments, the court concluded that the ordinance is preempted by the EPCA based on the text, structure, and context of that statute.  Read More »

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On January 3, 2024, the United States Court of Appeals for the Tenth Circuit reversed a district court decision that held that a Colorado gold mining company’s operation of four settling ponds constituted an unpermitted discharge of pollutants into navigable waters under the Clean Water Act (“CWA”).  In Stone v. High Mountain Mining Company, No. 22-1340 (10th Cir. 2024), the Tenth Circuit held that the district court did not correctly follow the Supreme Court’s decision in County of Maui v. Hawaii, 140 S. Ct. 1462 (2020) regarding the CWA’s applicability to indirect discharges to navigable waters. Read More »

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On January 2, 2024, the United States District Court for the Eastern District of Michigan issued an order to exclude the expert testimony of Dr. Robert Michaels in a series of cases related to the corrosive water in Flint, Michigan. Carthan, et al. v. Snyder et al, No. 5:16-cv-1044 (E.D. Mich. 2024). The court held that Dr. Michaels, in applying a methodology commonly employed by epidemiologists known as the Bradford Hill guidelines, failed to establish an association between corrosive water and skin and hair conditions, and without such, the testimony was unreliable and could not be used to infer causation between Flint water and reported skin rashes and hair loss.  Read More »

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