Early this month, the Second Circuit heard oral argument in Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States EPA, No. 14-1823, an appeal from the Southern District of New York’s March 2014 ruling which invalidated the “water transfer” exemption rule from National Pollutant Discharge Elimination System (“NPDES”) permitting requirements.  A decision from the Second Circuit, which will have far reaching effects on public and private entities alike, is expected in 2016. Read More »

Share | Email| Comments|  Topics: Cases to Watch, Clean Water Act, EPA, New York, NPDES, Permits, Second Circuit, Water

Another opinion was issued yesterday in the Morristown Associates v. Grant Oil Co. case, Dkt. No. A-0313-11T3 (N.J. App. Div., Nov. 17, 2015), a case which became famous earlier this year when the New Jersey Supreme Court held that there is no statute of limitations for private-party contribution claims under the New Jersey Spill Act. After the case was remanded following the New Jersey Supreme Court’s decision, the Appellate Division had to address several issues that the parties had appealed, but were deemed moot when the Appellate Division previously dismissed the case on statute of limitations grounds.  Read More »

Share | Email| Comments|  Topics: Cases to Watch, Cleanup, Contamination, Cost Recovery, Decisions of Note, Negligence, New Jersey, Remediation, Spill Act, Statute of Limitations, Storage Tank

The New Jersey Superior Court Appellate Division recently confirmed that the New Jersey Spill Act applies retroactively and abrogates the State of New Jersey’s sovereign immunity for contribution to contamination.  The case, NL Industries, Inc. v. State, Dkt. No. L-1296-14 (Law Div., Middlesex Cnty., August 27, 2014), affd. Dkt. No. A-0869-1413, (App. Div., Aug. 26, 2015), deals with the remediation of contamination related to the historic construction of a sea wall and jetty in the Laurence Harbor section of Old Bridge Township.  The sea wall and jetty are part of the Raritan Bay Superfund site, which was placed on the National Priorities List in November 2009 after EPA detected elevated levels of lead and heavy metals in the soil, beach, sand, and sediments surrounding the Bay.  In January 2014, the EPA issued a unilateral administrative order to NL Industries, the manufacturer of lead and other heavy metal slags that were used to construct the sea wall, to clean up the contamination, which is anticipated to cost in excess of $75 million.   Read More »

Share | Email| Comments|  Topics: Cases to Watch, Cleanup, Contamination, Contribution, Cost Recovery, Decisions of Note, EPA, New Jersey, Remediation, Retroactive, Sovereign Immunity, Spill Act, Superfund

An issue that insurers and industry have grappled with is whether a company can obtain environmental insurance coverage for costs to address violations of the Clean Air Act, when the costs at issue are aimed at curbing future air emissions, rather than remediating emissions that have already occurred.  Last week, one federal judge in Louisiana answered that question in the affirmative in La Gen Louisiana Gen. LLC, et al. v. Illinois Union Ins. Co., Dkt. No. 3:10-cv-00516 (M.D. La., Aug. 5, 2015).  Read More »

Share | Email| Comments|  Topics: Air, Cases to Watch, CERCLA, Clean Air Act, Decisions of Note, Defense Costs, Electric, Emissions, Energy, Enforcement Action, EPA, Fifth Circuit, Indemnification, Insurance, Insurance Coverage, Louisiana, Remediation

This summer, we reported on the Third Circuit’s decision in the Bell v. Cheswick Generating Station case, which held that the federal Clean Air Act (“CAA”) does not preempt state common law tort claims in a putative class action filed by over 1,500 residents complaining that the operations of GenOn Power Midwest, L.P.’s (“GenOn’s) coal-fired electric generation station constituted a nuisance under Pennsylvania common law.  Read More »

Share | Email| Comments|  Topics: Air, Case Update, Cases to Watch, Class Actions, Clean Air Act, Emissions, Nuisance, Pennsylvania, Preemption, Supreme Court, Third Circuit

As a result of increasing development of natural gas drilling, pipelines are popping up everywhere.  And with them has come a mound of litigation.  In a February 5, 2013 decision, the United States District Court for the Middle District of Pennsylvania has ruled, as a matter of first impression, that permits issued by a state agency (in this case, the Pennsylvania Department of Environmental Protection (“PADEP”)) under the federal Clean Water Act (the “CWA”) may be challenged only in federal court, and not in a state adjudicatory proceeding. Read More »

Share | Email| Comments|  Topics: Cases to Watch, Clean Water Act, Drilling, Due Process, Federal Energy Regulatory Commission, Federal Procedure, Marcellus Shale, Natural Gas Act, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Procedure

A few months ago, we reported on an interesting Seventh Circuit opinion on CERCLA §107 claims issued in the Fox River clean-up litigation in Wisconsin.  The Fox River clean-up, and the ensuing private party litigation, represents one of a number cases that have arisen from EPA’s efforts to remediate water bodies throughout the country that have been declared to be Superfund sites—including the Lower Passaic River and Newark Bay in northern New Jersey, the Hudson River in upstate New York, and the Gowanus Canal in Brooklyn.  Read More »

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October Term 2012 gets underway at the U.S. Supreme Court this week, and the Fifth Amendment’s Takings Clause will be front and center in one of the arguments heard by the Court today.  In Arkansas Game & Fish Commission v. United States, No. 11-597, the Justices consider whether government actions that cause recurring flooding on a parcel of land must continue permanently in order to constitute a taking for which the government is obligated to provide just compensation.  The Court’s decision in this case could affect whether a variety of government actions that cause recurring physical invasions of land demand compensation under the U.S. Constitution. Read More »

Share | Email| Comments|  Topics: Arkansas, Cases to Watch, Fifth Amendment, Flooding, Supreme Court, Takings Clause

On Tuesday, in Citizens for Pennsylvania’s Future v. Ultra Resources, Inc., No. 4:11-CV-1360 (M.D.PA. Sept. 24, 2012) — a case watched closely by natural gas stakeholders in Pennsylvania — Judge Mariani of the U.S. District Court for the Middle District of Pennsylvania refused to dismiss a citizen suit brought by an environmental group challenging the validity of state air permits issued to the operator of a series of natural gas compressor stations, potentially opening the door for similar Federal court challenges to air permits previously issued by state regulators in Pennsylvania and elsewhere.  Approximately three years ago, the Pennsylvania Department of Environmental Protection (“PADEP”) issued separate authorizations for Ultra Resources, Inc. (“Ultra”) to construct seven compressor stations pursuant to a state general permit generally known as “GP-5.”  In issuing these authorizations, PADEP considered each of the compressor stations as a separate “facility.” If PADEP had considered the compressor stations to be a single “major” facility, then Ultra would have been required to obtain a more stringent non-attainment new source review (“NNSR”) permit before commencing construction. Read More »

Share | Email| Comments|  Topics: Air, Cases to Watch, Clean Air Act, Drilling, Emissions, Federal Procedure, Marcellus Shale, Oil and Gas, Pennsylvania, Permits

The Delaware River Basin Commission (“DRBC”) was created with the approval of Congress in 1961 through the Delaware River Basin Compact, an agreement between the New York, Pennsylvania, New Jersey, Delaware, and the federal government for planning, conservation, utilization, development, management and control of the water resources of the Delaware River Basin (the “Basin”).  In June, 2010, the DRBC placed  a moratorium on natural gas development in the Basin, which includes areas within the Marcellus Shale formation, pending the adoption of regulations governing such development.  Draft regulations were published for comment in 2010, and revised draft regulations were published in November, 2011.  However, they have not yet been adopted by the DRBC, leaving the moratorium in place. Read More »

Share | Email| Comments|  Topics: Cases to Watch, Decisions of Note, Drilling, Exploration, Marcellus Shale, NEPA, Oil and Gas, Standing