In State of Louisiana et al. v. U.S. Envt’l Prot. Agency et al., 2:23-CV-01714, 2024 WL 994651 (W.D. La. Mar. 7, 2024), a federal judge rejected certain states’ and industry groups’ motion for preliminary relief to enjoin the EPA’s revised Clean Water Act (“CWA”) rule (“2023 Rule”). The 2023 Rule reinstated EPA’s long-held interpretation of Section 401 of the CWA that afforded states and tribes broad authority to veto or impose conditions on federally permitted activities due to water quality concerns. The court’s decision is a blow to efforts instituted by EPA under the Trump administration t ..read more

In Pakootas v. Teck Cominco Metals, Ltd., No. 2:04-CV-00256-SAB, 2024 WL 627260 (E.D. Wash. Feb. 14, 2024), the United States District Court for the Eastern District of Washington held that CERCLA does not mandate a procedure for conducting natural resource damage assessments (NRDAs), nor is certainty of costs required for NRDAs to be considered valid under the CERCLA statute. Read More » Tags: CERCLA, Natural Resource Damages, Tribal Lands ..read more

In California Restaurant Association v. City of Berkeley, 89 F. 4th 1094 (9th Cir. 2024), the Ninth Circuit was tasked with determining whether the City of Berkeley’s attempt to prohibit the use of natural gas pipelines in new buildings through a local ordinance conflicted with the federal Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. § 6297(c).  That statute expressly preempts state and local governments from enacting regulations restricting energy use of many natural gas appliances, including those used in household and restaurant kitchens.  After evaluating the parties’ a ..read more

On January 3, 2024, the United States Court of Appeals for the Tenth Circuit reversed a district court decision that held that a Colorado gold mining company’s operation of four settling ponds constituted an unpermitted discharge of pollutants into navigable waters under the Clean Water Act (“CWA”).  In Stone v. High Mountain Mining Company, No. 22-1340 (10th Cir. 2024), the Tenth Circuit held that the district court did not correctly follow the Supreme Court’s decision in County of Maui v. Hawaii, 140 S. Ct. 1462 (2020) regarding the CWA’s applicability to indirect discharges to navigabl ..read more

On January 2, 2024, the United States District Court for the Eastern District of Michigan issued an order to exclude the expert testimony of Dr. Robert Michaels in a series of cases related to the corrosive water in Flint, Michigan. Carthan, et al. v. Snyder et al, No. 5:16-cv-1044 (E.D. Mich. 2024). The court held that Dr. Michaels, in applying a methodology commonly employed by epidemiologists known as the Bradford Hill guidelines, failed to establish an association between corrosive water and skin and hair conditions, and without such, the testimony was unreliable and could not be used to i ..read more

On December 6, 2023, in Short Creek Development v. MFA Incorporated, No 22-05021, 2023 WL 8452430 (W.D. Mo. Dec. 6, 2023), a Federal District Court in Missouri held that Defendant Missouri Farmers Association, Inc. ("MFA") failed to demonstrate that a divisibility of harm exception to the rule of joint and several liability should be applied in apportioning responsibility to pay for the cleanup costs at a fertilizer plant.  The case underscores the challenges associated with establishing divisibility of harm in a CERCLA action. Read More » Tags: CERCLA, Cost Recovery, Divisibili ..read more

In In Re FirstEnergy Corp. Securities Litigation, case number 2:20-cv-03785 pending in the U.S. District Court for the Southern District of Ohio, the special master granted a motion to compel discovery of documents relating to an internal investigation performed by outside counsel for defendant FirstEnergy Corp. (“First Energy”) regarding the company’s role in an alleged bribery scheme.  Because of a lack of admissible supporting evidence, the special master rejected the company’s position that the materials were protected by the attorney-client privilege and work-product doctrine and ord ..read more

In City of St. Charles v. Union Electric Company, the City of St. Charles (the “City”) brought common law claims sounding in negligence against Defendant Union Electric Company dba Ameren Missouri (“Ameren”), alleging that Ameren contaminated the City’s water supply, causing the City to incur millions in cleanup costs. No. 4:23-cv-00846-MTS (E.D. Mo. 2023). Ameren removed the case to federal court because it had been subject to an administrative settlement with EPA to perform the cleanup pursuant to CERCLA, but on November 2, 2023, the U.S. District Court for the Eastern District of Missouri r ..read more

On November 1st, 2023, in a split 4-1 opinion with a dissent, the Pennsylvania Commonwealth Court held that Pennsylvania cannot participate in the Regional Greenhouse Gas Initiative (“RGGI”) because the regulations intended to implement RGGI pursuant to the Air Pollution Control Act (“APCA”) constitute an impermissible tax rather than a fee. Bowfin KeyCon Holdings, LLC vs. Pa. Dep’t of Env’t Prot. and Pa. Env’t Quality Bd., 2023 WL 7171547, at *1 (Pa. Commw. Ct. Nov. 1, 2023). The holding halts former Governor Tom Wolf’s efforts to make Pennsylvania the first major fossil-fuel producing state ..read more

In Kanawha Forest Coalition, et al. v. Keystone WV, 2:22-cv-00367, 2023 WL 6466210 (S.D. W.V. Oct. 4, 2023), the Honorable Joseph R. Goodwin of the United States District Court for the Southern District of West Virginia, Charleston Division granted summary judgment against the operator of three defunct surface mines for past violations of the Clean Water Act (“CWA”) and Surface Mining Control and Reclamation Act (“SMCRA”) but granted summary judgment in favor of the operator with regard to claims of ongoing permit violations, finding that the Plaintiffs’ theories constituted a collateral attac ..read more