In Conservation Law Foundation, Inc. v. Academy Express, LLC, the Conservation Law Foundation brought a private right of action under the Clean Air Act, alleging that Academy Express, LLC, a bus company, allowed its vehicles to sit idle for excessive periods of time across Massachusetts and Connecticut. No. 20-10032-WGY (D. Mass. 2023). On appeal, the First Circuit decided an interesting question regarding standing: whether smelling odor from vehicle fumes was sufficient to confer standing to sue a particular bus company. The First Circuit said it was and so allowed the case to proceed. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Connecticut, Emissions, Massachusetts, Nuisance, Odors, Pollutants

In a recent case from the United States District Court for the Western District of Pennsylvania, the court granted a partial motion to dismiss the plaintiff’s common law claims because they were deemed time-barred under Pennsylvania law.  Iorfido v. Domtar Paper Company, LLC et al., No. 23-156, 2024 WL 1346641 (W.D. Pa. Mar. 29, 2024).  The lawsuit stemmed from a paper mill’s ongoing emissions of lime particulate matter that allegedly harmed plaintiff’s property.  The court dismissed the common law claims as obviously barred by the two-year statute of limitations as pled in plaintiff’s complaint. Read More »

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On May 5, 2023 in Atlantic Richfield Company, et al. v. The County of Montgomery, Pennsylvania, No. 1338 C.D. 2021 (Pa. Cmwlth. 2023), the Pennsylvania Commonwealth Court rejected a novel attempt to hold paint manufacturers liable for lead paint in residential structures based on a public nuisance theory.  Read More »

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In September 2020, I wrote a Litigation Blog post about the Ninth Circuit’s decision in Nanouk v. United States, 974 F.3d 941 (9th Cir. 2020), which considered whether the so-called discretionary function exception barred tort claims against the government in connection with its lengthy, haphazard cleanup of a PCB hotspot near a Cold War-era military installation in Alaska. As I explained in that article, the exception bars tort claims that are based on discretionary government conduct—often following a policy-based analysis—but not claims that are based on simple negligence by government officials.  Because cleanup protocols for such bases were generally grounded in economic and national security policy, the Ninth Circuit held the exception barred all claims asserted by the plaintiff, whose adjacent land was impacted by the PCBs, except one claim: that after deciding to undertake the cleanup in 1990, the government simply failed to do it for 13 years. The Court remanded that issue, instructing the government to proffer evidence showing that the delay in effectuating the cleanup was likewise policy based.  On remand, the trial court addressed this issue in denying without prejudice the United States' Motion to Dismiss.  Nanouk v. United States, Case No. 3:15-cv-00221-RRB (Mar. 15, 2023).    Read More »

Share | Email| Comments|  Topics: Alaska, Case Update, Cleanup, Contamination, Federal Tort Claims Act, Negligence, Nuisance, Odors, PCBs, Property Damage, Remediation, Removal, Sovereign Immunity, Toxic Torts, Trespass

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

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

The post was authored by summer associate Nik Hansen.

The State of Delaware brought claims against former PCB manufacturer Monsanto Company for the environmental contamination caused by PCB products in Delaware waterways. On July 11, 2022, in State of Delaware v. Monsanto Co., C.A. No. N21C-09-179, the Delaware Superior Court found that the State failed to state valid claims for public nuisance, trespass, and unjust enrichment against Monsanto. In its three-part holding, the Court held that product-related public nuisance claims are not cognizable in the state of Delaware, that the State does not have standing to bring trespass claims against resources it holds in public trust, and that unjust enrichment cannot be brought as a stand-alone claim in the superior court. Read More »

Share | Email| Comments|  Topics: Contamination, Delaware, Nuisance, PCBs, Standing, Trespass

On May 18, 2022 in York et al. v. Northrop Grumman Corp. Guidance and Electronics Co. Inc. et al., No. 21-cv-03251 (W.D. Mo.), a Missouri federal court dismissed Plaintiffs’ complaint alleging negligence, nuisance and trespass from alleged groundwater contamination, finding the claims were preempted by an existing consent decree. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Consent Decree, Contamination, Injunction, Missouri, Negligence, Nuisance, Preemption, Property Value, Superfund, Trespass, Water

A successful defense of a mass environmental tort case frequently turns on class certification.  In Holly Lloyd v. Covanta Plymouth Renewable Energy, LLC, No. 20-4330, 2022 WL 407377 (E.D. Pa. Feb. 10, 2022), a federal district court denied a motion to certify a class of neighboring residents complaining about noxious odors from a municipal waste incinerator.  In so holding, the court’s decision set out key strategies and considerations for defeating class certification in future mass environmental tort cases.  Read More »

Share | Email| Comments|  Topics: Certification, Class Actions, Nuisance, Odors, Pennsylvania, Real Estate, Residential, Waste

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