My August column in the Pennsylvania Law Weekly considers the recent decision in Litgo New Jersey, Inc. v. Commissioner New Jersey Dept. of Envt’l Prot’n, No. 12-1288 (3d Cir. Aug. 6, 2013).  Litgo is mostly a Superfund case, but it also involves a claim under the citizen suit provision of the Resource Conservation and Recovery Act, 42 U.S.C. 6972.  The parties had had earlier litigation in New Jersey state court.  Under the New Jersey entire controversy doctrine, had plaintiff been able to bring its RCRA claim in the state court action, it would have been barred by claim preclusion from bringing it in the later federal case.  However, the court of appeals held that section 7002(a) of RCRA vests exclusive jurisdiction in the federal courts.  Cf. City of Scranton v. Dept. of Envt’l Prot’n, No. 94-060-C (Pa. Envt’l Hearing Bd. Nov. 4, 1997).  Note that the day following the Litgo decision, the Court of Appeals for the Fourth Circuit decided Ackerman v. ExxonMobil, No. 12-1103 (4th Cir. Aug. 7, 2013), affirming abstention in an MTBE case in favor of a state tort action.

To read Third Circuit Found Exclusive Fed. Jurisdiction Under RCRA, 36 Pa. L. Weekly 763 (Aug. 20, 2013), click here.

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights