Over the last week, pre-enforcement challenges to two separate federal government actions have been dismissed for lack of standing.  In Commonwealth of Kentucky et al. v. EPA, et al., No 3:23-cv-00007-GFVT, 2023 WL 2733383 (E.D. Ky. March 31, 2023), the Honorable Gregory F. Van Tatenhove of the United States District Court for the Eastern District of Kentucky dismissed without prejudice claims brought by the Commonwealth of Kentucky (the “Commonwealth”) and private-sector plaintiffs challenging the United States Environmental Protection Agency’s (“EPA”) and Army Corps of Engineers’ rule redefining “waters of the United States” under the Clean Water Act.  Five days later, in The State of Louisiana, et al. v. Joseph R. Biden, Jr., et al., No. 22-30087, 2023 WL 2780821 (5th Cir. April 5, 2023), the Honorable Jacques L. Wiener, Jr. of the United States Court of Appeals for the Fifth Circuit dismissed states’ challenges to President Biden’s social cost of greenhouse gases established pursuant to Executive Order No. 13990 (the “Executive Order”).  Both cases demonstrate the importance of alleging sufficient harm to confer federal court jurisdiction. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Clean Water Act, Due Process, Federal Jurisdiction, Federal Procedure, Greenhouse Gas, Kentucky, Louisiana, Procedure, Rapanos, Standing, Water

Rejecting federal officer removal and federal question removal theories, the Fourth Circuit affirmed the District of West Virginia’s remand of a state tort suit against the remediators of an EPA-permitted Resource Conservation and Recovery Act (“RCRA”) site.  W.V. St. Univ. Bd. of Govs. v. Dow Chem. Co. et al., No. 20-1712, __ F.4^th __, 2022 WL 90242 (Jan. 10, 2022). Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Federal Jurisdiction, Federal Procedure, Fourth Circuit, Groundwater, Negligence, Nuisance, Procedure, RCRA, Removal, Subject Matter Jurisdiction, Superfund, Trespass, West Virginia

This Blog Post was authored by Omar Khodor, a summer associate.

On June 23, 2021, the Ninth Circuit, in directing the lower court to dismiss a citizen’s suit claim under the Clean Water Act (“CWA”), held that the CWA did not abrogate tribal sovereign immunity. Deschutes River All. v. Portland Gen. Elec. Co., No. 18-35867, 2021 WL 2559477 (9th Cir. June 23, 2021). To abrogate a Tribe’s sovereign immunity, the Ninth Circuit explained that a statute must convey “perfect confidence” that Congress intended to abrogate tribal sovereign immunity. Id. at 14. It further found that the CWA does not unequivocally do so because Section 1365 – a section explicitly dealing with United States and governmental sovereign immunity – does not mention tribal sovereign immunity. Id. at 15-16. Rather, Section 1365 states that “any citizen may commence a civil action on his own behalf . . . against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution).” 33 U.S.C. § 1365. Although Section 1362(5) of the CWA goes on to define “any person” as a municipality (among other things), and Section 1362(4) further defines a “municipality” as including an “Indian Tribe or an authorized Indian Tribal organization,” the court determined that Congress had not clearly intended to abrogate tribal sovereign immunity because Tribes are not included in Section 1365. Deschutes River All., 2021 WL 2559477 at *15-16. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Energy, Federal Procedure, Ninth Circuit, Procedure, Sovereign Immunity, Tribal Lands

In State of Rhode Island v. Shell Oil Products Co., L.L.C. et al., No. 19-1818 (1st Cir. 2020), decided on October 29th, 2020, the First Circuit joined seven sister circuits in holding that the scope of appellate review of remand orders under 28 U.S.C. § 1447(d) is limited to the questions of federal-officer jurisdiction and civil rights jurisdiction. And while the holding does not break new ground in light of its consistency, it informs members of industry of the venue in which they will litigate climate change claims based in tort and state law providing environmental rights. Read More »

Share | Email| Comments|  Topics: Climate Change, Federal Procedure, First Circuit, Nuisance, Procedure, Removal, Trespass

This Post was authored by Andrew LeDonne, a MGKF summer associate. 

On July 2, 2018, the State of Rhode Island (“RI”) filed suit against twenty-one oil and gas companies in an attempt to hold these organizations liable for climate change impacts RI has and will experience. The defendants (Chevron Corp., et al.) removed the case to federal court. On August 17, 2018, RI filed a motion to remand the case back to state court. On Monday, July 22, 2019, the United States District Court for the District of Rhode Island granted RI’s motion to remand. The remand order was stayed for sixty days for the court to consider whether a further stay pending appeal is warranted. Rhode Island v. Chevron Corp., 2019 WL 3282007 (D.R.I. July 22, 2019). Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Climate Change, Emissions, Federal Procedure, First Circuit, Nuisance, Oil and Gas, Preemption, Procedure, Subject Matter Jurisdiction

Rule 23(c)(4) of the Federal Rules of Civil Procedure provides that, “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4). Rule 23(b)(3), on the other hand, provides that a class action may be maintained only where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” R. 23(b)(3). The Second, Fourth, Seventh, and Ninth Circuit have adopted a “broad view” of class certification, permitting a district court to certify a class on particular issues under Federal Rule 23(c)(4), even where the traditional predominance requirements of Rule 23(b)(3) have not been met for the case as a whole. Only two circuits, the Fifth and Eleventh, ascribe to the more “narrow view” in which Rule 23(b)(3)’s predominance requirement is applied to prevent district courts from certifying particular issues under Rule 23(c)(4), without certifying an entire claim. In a recent case brought my homeowners alleging contamination to groundwater, Martin v. Behr Dayton Thermal Products LLC et al., No. 17-3663, --- F.3d ---, 2018 WL 3421711 (6^th Cir. July 18, 2018), the Sixth Circuit has now joined the majority of circuits addressing this issue by endorsing the “broad view” of issue-based class certification. Read More »

Share | Email| Comments|  Topics: CERCLA, Certification, Class Actions, Contamination, Damages, Drinking Water, Federal Procedure, Groundwater, Sixth Circuit, Toxic Torts, Water

On January 22, as Philadelphia Eagles fans continued to celebrate the team’s NFC Championship victory over the Minnesota Vikings, the U.S. Supreme Court was busy issuing a unanimous opinion in National Association of Manufacturers v. Department of Defense concerning the Waters of the United States Rule (“Rule”) promulgated by the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) in 2015. The Rule defines the statutory term “waters of the United States” in the Clean Water Act, and has been subject to appeals in both federal district courts and courts of appeals. On October 11, 2017, the Supreme Court heard oral argument addressing whether appeals of the Rule should be filed first in either the district court or the court of appeals, and held today that because the Rule does not fall within one of the Clean Water Act’s (“Act”) seven enumerated categories of EPA actions for which the courts of appeal have jurisdiction, appeals of the Rule must first proceed in district court. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, Federal Procedure, NPDES, Permits, Procedure, Supreme Court, Water, Wetlands

The Pennsylvania Environmental Hearing Board (the “Board”) recently stirred up some controversy. Last month, in Lancaster Against Pipelines v. DEP, EHB Docket No. 2016-075-L (May 10, 2017), the Board held that it has jurisdiction to review actions taken by the Pennsylvania Department of Environmental Protection (“PADEP”) involving interstate natural gas pipelines, despite a 2013 decision issued by the U.S. District Court for the Middle District of Pennsylvania that held precisely the opposite. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Water Act, Due Process, EHB, Energy, Federal Procedure, Hearing Board, Natural Gas Act, NPDES, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

Last week, the United States Court of Appeals for the Eighth Circuit affirmed a district court’s ruling to decertify a class action filed by landowners for releases from Exxon’s 850-mile Pegasus Pipeline that crosses four states from Texas to Illinois.  The case, Webb, et al. v. Exxon Mobil Corp., et al., Dkt. No. 15-2879 (8th Cir., May 11, 2017), was filed by a group of landowners who claimed that Exxon materially breached the terms of their right-of-way easement agreements by allegedly failing to inspect, maintain, repair, and replace the pipeline, which was originally installed in the mid-1940s.  At various times since the 1980s, the pipeline had releases in Texas, Arkansas, and Missouri, which the plaintiffs claim resulted in damage to their properties.  The plaintiffs sought to rescind their right-of-way easement agreements and force Exxon to remove or replace the entire pipeline, or in the alternative, to be paid damages for breach of contract and diminution in property value.  Read More »

Share | Email| Comments|  Topics: Arkansas, Certification, Class Actions, Cleanup, Contamination, Damages, Eighth Circuit, Energy, Federal Procedure, Illinois, Missouri, Oil and Gas, Pipelines, Property Value, Texas

In a unanimous decision of a three judge panel last week, the Second Circuit decided that it lacked jurisdiction to overturn a S.D.N.Y. judge’s order enforcing the terms of the Tronox bankruptcy settlement against a group of more than 4,000 Pennsylvania state court plaintiffs. Tronox, Inc. v. Kerr-McGee Corp., No. 16-343, 2017 U.S. App. LEXIS 6949 (2d Cir. Apr. 20, 2017).  Both the district court’s decision and the Second Circuit’s decision protected Kerr-McGee, bankrupt Tronox’s corporate parent, from a Pennsylvania toxic tort suit related to contamination surrounding a wood treatment plant in Avoca, Pennsylvania. Read More »

Share | Email| Comments|  Topics: Bankruptcy, Class Actions, Contamination, Federal Procedure, New York, Pennsylvania, Procedure, Residential, Second Circuit, Subject Matter Jurisdiction, Toxic Torts