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

In an opinion and order released on November 21, 2022, the United States District Court for the District of New Mexico overseeing litigation arising from the Gold King Mine spill granted a defendant-contractor’s partial summary judgement motion seeking dismissal of claims that it was liable under CERCLA as a transporter, operator, or arranger. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2022 WL 17093503, at *1 (D. N.M. Nov. 21, 2022).  The court held that one of the contractor defendants, Weston Solutions, Inc. (“Weston”), was not subject to CERCLA liability because it only assisted with operating the water management system rather than controlling any operations related to the release of contaminant from the King Gold Mine (“Mine”). Id. This decision follows the court’s earlier denial of a Motion to Dismiss in which the court held that the plaintiffs adequately pled operator, arranger, and transporter liability. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 1282997, at *2-4 (D. N.M. Mar. 20, 2019) (slip opn.). Our blog post discussing the court’s first holding on this issue can be found here. Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Clean Water Act, Colorado, Consultant Liability, Gold King Mine, New Mexico, Public Lands, Response Action Contractors, Superfund, Tribal Lands, Utah, Water

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

Can plaintiffs in a citizen suit piggyback on existing governmental enforcement action and enforce the same alleged violation under the Clean Water Act (“CWA”)? Yes, as long as the citizen suit does not seek civil penalties, according to the First Circuit in The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, No. 19-2095, __ F. 4^th __ (1st Cir. 2022).  The First Circuit, sitting en banc, held that under the CWA, administrative enforcement action by the government precludes only a citizen’s “civil penalty action,” which the Court interpreted to mean an action seeking civil penalties.  A citizen suit seeking other forms of relief, i.e. injunctive or declaratory, however, could proceed notwithstanding the government’s action.   Read More »

Share | Email| Comments|  Topics: Citizen Suit, Civil Penalties, Clean Water Act, Cleanup, Declaratory Relief, Enforcement Action, First Circuit, Injunction, Stormwater, Water

On April 21, 2022, in Tomas Vera et al. v. Middlesex Water Co. (MID-L-6306-21, Superior Court of New Jersey, Middlesex County), a New Jersey Superior Court judge granted plaintiffs’ motion for certification in a case stemming from PFAS contamination of the county’s water supply.  Defendant Middlesex Water Co. (“Middlesex”) sent notices to customers on October 22, 2021 and November 8, 2021 advising that testing showed levels of Perfluorooctanoic Acid (“PFOA”) of 36.1 parts per trillion, well above the 14 parts per trillion maximum contaminant level (“MCL”) standard set by the New Jersey Department of Environmental Protection (“NJDEP”).  The notices further advised of health concerns potentially associated with PFOA, recommended that customers with “specific health concerns, a severely compromised immune system, have an infant, are pregnant or are elderly” seek advice from a health care provider, and recommended installing a home water filter to reduce levels of PFOA in the tap water or use bottled water for drinking, cooking, or preparing beverages for infants. Read More »

Share | Email| Comments|  Topics: Class Actions, Contamination, Drinking Water, Injunction, Medical Monitoring, New Jersey, PFAS, Water

On August 3, 2021, in the Methyl Tertiary Butyl Ether (“MTBE”) MDL the Court ruled that while the Commonwealth of Pennsylvania's alter ego allegations were sufficient to pierce the corporate veil as between defendants Lukoil Americas Corporation and its subsidiary Getty Petroleum Marketing Inc. for jurisdictional purposes, they were not sufficient to pierce the veil for liability purposes, nor was there successor liability, resulting in the dismissal of all claims against LAC. Read More »

Share | Email| Comments|  Topics: Alter Ego, Corporate Veil, Insurance Coverage, Multi-District Litigation, Nuisance, Pennsylvania, Spill Act, Storage Tank, Successor Liability, Water

On February 18, 2021, the Court in Lower Susquehanna Riverkeeper, et al., v. Keystone Protein Co., No. 1:19-CV-01307, 2021 WL 632734, at *1 (M.D. Pa. Feb. 18, 2021), denied a factory owner’s motion for summary judgment based on its holding that the Clean Water Act (“CWA”) and the Pennsylvania Clean Streams Law (“PCSL”) are not “roughly comparable” statutes. In so deciding, the plaintiffs’ citizen’s suit, alleging violations under the CWA, was allowed to proceed notwithstanding that the defendant factory had settled litigation with the Pennsylvania Department of Environmental Protection (“PADEP”) for the same violations under the PCSL. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Streams Law, Clean Water Act, Effluents, Enforcement Action, NPDES, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Preemption, Water

This Post was authored by Lisa Maeyer, a MGKF summer associate. 

On June 8, 2020, the Commonwealth Court of Pennsylvania affirmed a trial court’s holding that flooding from sewage overflows not resulting from intentional activity on the part of a sanitary authority did not constitute a de facto taking of a landowner’s affected property. In the Matter of: Condemnation by the Franklin Twp. Sewage Auth., No. 1237 C.D. 2019, 2020 WL 3039070 (Pa. Cmwlth. June 8, 2020). In particular, the Court held that because the sewage overflows resulted from the age of the system and infiltration and inflows not caused by any actions of the Franklin Township Municipal Sanitary Authority (the “Authority”), the lower court properly sustained preliminary objections to Plaintiff William Ott’s petition seeking compensation for a de facto taking of his property. Read More »

Share | Email| Comments|  Topics: Condemnation, Damages, Eminent Domain, Flooding, Pennsylvania, Property Damage, Property Value, Real Estate, Sovereign Immunity, Stormwater, Takings, Trespass, Water

Today, the Supreme Court altered Clean Water Act jurisprudence when it vacated and remanded a closely-watched Ninth Circuit decision which pertained to the federal government’s authority to oversee of the migration of pollution through groundwater to navigable waters. See County of Maui, Hawaii v. Hawaii Wildlife Fund et al., No. 18-260, 590 U.S. ____ (Apr. 23, 2020). In writing for the 6-3 majority, Justice Breyer presented the central issue of the litigation as “whether the [Clean Water] Act ‘requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,’ here, ‘groundwater.’” Id. at 1 (internal citations omitted). The Court held that a permit issued under the Clean Water Act is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” Id. Because the “functional equivalent” standard is slightly amorphous, the Court introduced several factors to aid courts, the Environmental Protection Agency (EPA), and the regulated community in making permitting determinations. See Breyer Factors, below. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Contamination, Effluents, Groundwater, NPDES, Permits, Supreme Court, United States Supreme Court, Water

Under the Clean Water Act (CWA), a TMDL establishes the maximum amount of each pollutant that an impaired water segment can receive while still meeting identified water quality standards. After EPA receives a proposed TMDL from the state, it has a non-discretionary duty to either “approve or disapprove” the TMDL. See 33 U.S.C. § 1313(d)(2). If EPA approves the TMDL, it becomes effective. If EPA disapproves the TMDL, it must produce and issue its own TMDL within thirty days. Just before the close of 2019, the Ninth Circuit affirmed the decision of the District Court for the Western District of Washington to compel the Environmental Protection Agency (EPA) to issue a temperature total maximum daily load (TMDL) for the Columbia and Snake Rivers. Columbia Riverkeeper v. Wheeler, No. 18-35982 (9th Cir., Dec. 20, 2019). At issue in the litigation was whether the “constructive submission doctrine” applied when Washington and Oregon failed to submit required temperature TMDLs and whether that failure triggered a non-discretionary duty for EPA to issue the TMDL itself. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Ninth Circuit, TMDL, Water