On April 7, 2020, the Appellate Division of the New Jersey Superior Court rendered its decision in New Jersey Department of Environmental Protection v. Hess, A-2893-18T2 (N.J. Super. App. Div. Apr. 7, 2020), one of the lawsuits in which the State of New Jersey (the “State”) is seeking to recover natural resource damages (“NRDs”). Earlier this year we flagged the Appellate Court’s opinion as one to watch in 2020, particularly with respect to how the Appellate Court would rule on the State’s ability to assert a claim for trespass over land it does not own—an issue that has divided sister trial courts. See New Jersey Department of Environmental Protection v. Deull Fuel, No. ATL-L-1839-18 (N.J. Super. Ct. Law Div. Aug. 8, 2019) (denying motion to dismiss common law trespass claim because Public Trust Doctrine supersedes exclusivity element of trespass); New Jersey Department of Environmental Protection v. Hess, MID-L4579-18 (N.J. Super. Ct. Law Div. Dec. 21, 2018) (granting motion to dismiss common law trespass claim because State lacked exclusive possession over the land).  The Appellate Court’s unreported opinion provides clarity that despite the State’s authority under the public trust doctrine, it cannot assert a claim for trespass in the absence of exclusive possession. Read More »

Share | Email| Comments|  Topics: Contamination, Natural Resource Damages, New Jersey, Nuisance, Oil and Gas, Spill Act, Strict Liability, Trespass, Water Pollution Control Act

In 2015, a pipeline in Santa Barbara County, California ruptured and leaked oil, some of which made its way to the ocean and eventually washed up on local beaches. A class of plaintiffs brought an action in federal district court against defendants Plains All American Pipeline, L.P., and Plains Pipeline L.P. (“Plains”) for claims of statutory violations, negligence, public nuisance, continuing private nuisance, nuisance per se, and trespass. In response, Plains filed a motion for summary judgment which sought to have the claims of the Property Subclass plaintiffs dismissed, primarily on the basis that the harm caused by the oil spill was a “temporary diminution in property value,” and not recoverable as a matter of law.

Last week, Judge Gutierrez of the District Court for the Central District of California issued an order denying most of the defendants’ motion for summary judgment, thereby allowing the litigation to continue. See Keith Andrews et al v. Plains All American Pipeline, L.P. et al., CV 15-4113 PSG (JEMx) (Mar. 17, 2020). The court held that several of plaintiffs’ claims contained genuine issues of material fact that should be brought before a jury, and that it could not rule as a matter of law that plaintiffs had not suffered harm. The claims which merited the most analysis in the order were the common law property claims, i.e.: negligence, nuisance, and trespass. Read More »

Share | Email| Comments|  Topics: California, Class Actions, Contamination, Damages, Negligence, Nuisance, Oil and Gas, Property Damage, Property Value, Real Estate, Trespass

In a report and recommendation issued last week, a magistrate judge with the United States District Court for the District of Idaho found that disputes of fact preclude summary judgment on the majority of claims brought by a landfill against the United States Air Force and two other defendants. Idaho Waste Systems, Inc. v. U.S. Air Force, No. 1:18-cv-00229 (D.C. Idaho Jan. 27, 2020). The magistrate judge recommended dismissing state law claims brought against the Air Force on sovereign immunity grounds, but found that most of the remaining claims, including claims under CERCLA, should go to trial. Read More »

Share | Email| Comments|  Topics: Arranger Liability, Cases to Watch, CERCLA, Contribution, Cost Recovery, Federal Tort Claims Act, Iowa, Landfill, Ninth Circuit, Nuisance, Property Value, Response Action Contractors, Sovereign Immunity, Superfund, Trespass

Relying on Texas caselaw, the Fifth Circuit, in Gao v. Blue Ridge Landfill TX, L.P., No. 19-40062 (5^th Cir. Oct. 30, 2019), affirmed a district court decision which held that homeowners who moved near a preexisting landfill were subject to a two-year statute of limitations to bring suit based on odors emanating from the landfill. The case, while reliant on state law, nonetheless suggests that such claims that sound in nuisance need to be brought quickly, and that even a change in operations or uptick in odor complaints may be insufficient to reset the clock on the viability of claims. Read More »

Share | Email| Comments|  Topics: Air, Fifth Circuit, Landfill, Nuisance, Odors, Statute of Limitations, Texas, Waste

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

Two recent decisions from two different states, Pennsylvania and West Virginia, suggest that courts are becoming increasingly skeptical of landowners seeking to capitalize on oil and gas companies utilizing horizontal directional drilling (HDD) to access resources under the property of the landowners. Read More »

Share | Email| Comments|  Topics: Damages, Deeds, Drilling, Energy, Exploration, Leases, Marcellus Shale, Mineral Rights, Natural Gas, Nuisance, Oil and Gas, Pennsylvania, Property Damage, Property Value, Real Estate, Royalties, West Virginia

In an opinion and order released last week, the MDL court in In re Gold King Mine Release denied response contractors’ motions to dismiss. No. 1:18-md-02824-WJ, 2019 WL 1282997 (D. N.M. March 20, 2019) (slip opn.). The 2015 Gold King Mine release sent over three million gallons of contaminated wastewater into rivers in Colorado, New Mexico, and Utah. In the wake of the spill, the State of New Mexico, the State of Utah, the Navajo Nation, and multiple individual plaintiffs filed suit against the mine’s owner, the federal government, EPA, and EPA response contractors, Weston Solutions, Inc. and Environmental Restoration, LLCC (the “Response Contractors”). The court’s opinion, which allows the majority of plaintiffs’ CERCLA and tort claims to move forward, comes on the heels of a similar order denying the Federal Government’s motions to dismiss. See In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 999016 (D. N.M. Feb. 28, 2019) (slip opn.). Our blog post discussing that earlier opinion and order can be found here.    Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Citizen Suit, Clean Water Act, Cleanup, Colorado, Consultant Liability, Contamination, Gold King Mine, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Response Action Contractors, Superfund, Trespass, Tribal Lands, Utah, Water

Last week, Judge Chad F. Kenney, former Delaware County Court of Common Pleas Judge and recent appointee to the United States District Court for the Eastern District of Pennsylvania, granted Defendant Bethlehem Landfill Company’s motion to dismiss a putative class action alleging that landfill odors created a public and private nuisance for all households within a 2.5-mile radius of the facility. Baptiste v. Bethlehem Landfill Co. et al., No. 18-2691, 2019 WL 1219709 (E.D. Pa. Mar. 13, 2019). The lead plaintiffs, Robin and Dexter Baptiste, reside 1.6 miles from the facility and allege that odors from the facility impacted their property value and ability to enjoy their property. Id. at *5. They alleged that the conditions affected 8,400 households within a 2.5-mile radius. Id.  They styled their claims as claims for public nuisance, private nuisance, and negligence. Id. at *1. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Landfill, Negligence, Nuisance, Odors, Pennsylvania, Private Right of Action, Property Value

In an opinion and order released last week, the United States District Court for the District of New Mexico denied the federal government’s motions to dismiss claims relating to the 2015 Gold King Mine wastewater spill. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 999016 (D. N.M. Feb. 28, 2019) (slip opn.). The district court was not convinced by the government’s argument that it was entitled to sovereign immunity and that the plaintiffs’ complaints were inadequate. It denied the motions and allowed all but one of the plaintiffs’ claims to proceed to discovery. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Cleanup, Colorado, Contamination, EPA, Federal Tort Claims Act, Gold King Mine, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Sovereign Immunity, Superfund, Trespass, Tribal Lands, Utah, Water

In Rice v. First Energy Corporation, a putative class of plaintiffs living near a former landfill filed trespass, nuisance, negligence, and medical monitoring claims against First Energy Corporation and NRG Energy, Inc., alleging that each Defendant was liable for claims arising from their respective subsidiaries’ disposal of coal ash in the landfill. No. 2:17-cv-489-LPL, 2018 WL 4282850, at *1 (W.D. Pa. Sept. 7, 2018). Though it frequently noted Plaintiffs’ lackluster efforts to pursue discovery and their heavy reliance on conclusory, minimalistic arguments, U.S. Magistrate Judge Lisa Pupo Lenihan nevertheless dug deep into the parties' arguments to issue a thorough and strong opinion highlighting the difficulty of piercing a corporate veil in an environmental case and concluding that the Defendants were neither corporate successors nor alter egos of their respective subsidiaries. Id. at *13. Read More »

Share | Email| Comments|  Topics: Alter Ego, Class Actions, Coal Ash, Corporate Veil, Landfill, Medical Monitoring, Negligence, Nuisance, Pennsylvania, Toxic Torts, Trespass