Category Archives: Court Cases

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The Margate Dune Project, Cooperative Federalism, and Problems of Litigation Procedure

The current federal administration has expressed a desire to defer largely to states through principles of cooperative federalism.  A recent case involving the dune construction in Margate, New Jersey, offers some insight into the procedural complexities this approach presents for those affected.  Where a state oversees a federally funded project, it is unlikely that one … Continue Reading

Drytech, NFAs, and ISRA Triggers: The ultimate clingy relationship

Have you ever wanted to escape a clingy and annoying relationship? In terms of environmental compliance, triggering New Jersey’s Industrial Site Recovery Act (ISRA) can evoke the same feelings of frustration.  N.J.S.A. 13:1K (­­­­1993). The recent Drytech, Inc. v. State of New Jersey, in particular, highlighted the pesky and recurrent nature of ISRA. ISRA applies … Continue Reading

Environmental Cases in the Pa. Appellate Courts During 2016

This month, my column in the Pennsylvania Law Weekly surveys the decisions in the Pennsylvania appellate courts during 2016 addressing environmental issues.  The cases cover the Environmental Rights Amendment, impacts of oil and gas drilling, stormwater, land contamination, air pollution, the Alternative Energy Portfolio Standards Act, solid waste management, and enforcement procedure.  Read Environmental Cases … Continue Reading

Further Update on Challenging Wetlands Permitting Decisions – the Latest Ruling in Hawkes

In a previous post we predicted that the U.S. Supreme Court would affirm an Eighth Circuit decision holding that a landowner can obtain immediate judicial review of a wetlands “jurisdictional determination” (JD) by the U.S. Army Corps of Engineers, and the Court did affirm that decision near the end of last Term. See U.S. Army … Continue Reading

Court Weighs In on the ERA After ‘Robinson Township’

The Commonwealth Court of Pennsylvania recently denied a petition seeking declaratory and mandamus relief to require the Pennsylvania Public Utility Commission and a group of executive government officials to regulate greenhouse gases consistent with Article I, Section 27 of the Pennsylvania Constitution.  Funk v. Wolf, No. 467 M.D. 2015 (Pa. Commw. Ct. July 26, 2016).  … Continue Reading

Coscia Gets 3 Years in Prison: The Criminalization of Trading Commodities?

Sarao, Coscia, and now the Berkshire Power Company, each charged with crimes – spoofing, fraud, false information – relating to commodity trading. Commodity traders likely have incorporated into their compliance regimes the general risk that allegations of criminal fraud could arise. These criminal matters no longer appear to be isolated instances and, instead, counsel for … Continue Reading

‘Arsenal Coal’ Exception and the Status of Pre-Enforcement Reviews

In two decisions issued at the end of 2015, the Pennsylvania courts increased uncertainty regarding the breadth of the Arsenal Coal exception and status of pre-enforcement reviews. As a general rule, a regulated entity may only challenge regulations when the regulator imposes those regulations on the entity in a permit or enforcement action. In Pennsylvania, pre-enforcement review … Continue Reading

Ordinance Requiring Pesticide Warning Signs Found to Violate First Amendment

A town cannot compel a utility company to post a warning notice that its utility poles contain a wood preservative.  That is the effect of U.S. District Judge Spatt’s February 4th decision in PSEG Long Island LLC v. Town of North Hempstead, 15-cv-0222, slip op. (E.D.N.Y Feb. 4, 2016). On September 9, 2014, the Town … Continue Reading

U.S. Supreme Court agreed to hear an important regulatory takings case, Murr v. Wisconsin

The Supreme Court on January 15 granted cert. in Murr v. Wisconsin, 359 Wisc. 2d 675 (Wis. App. 2014), rev. denied, 862 N.W.2d 899 (Wis. 2015), a regulatory takings case involving the “relevant parcel” or “parcel-as-a-whole” issue, one of the most important takings issues that the Supreme Court has never addressed. The relevant parcel issue, … Continue Reading

Annual Review of Environmental Cases from the Pennsylvania Courts

In January, my monthly column in the Pennsylvania Law Weekly reviewed the treatment of environmental issues by the Pennsylvania appellate courts in the previous year.  Read the very-cleverly-titled Environmental Cases in the Pennsylvania Courts During 2015, 39 Pa. L. Weekly 56 (Jan. 19, 2016), by clicking here. The cases addressed follow: Berner v. Montour Twp., 120 A.3d 433 (Pa. … Continue Reading

Further Thoughts on Valuing Contaminated Property

Some time ago, I offered some observations about how to value the diminution in property value caused by contamination.  I examined in particular the case of a property where someone other than the landowner had the obligation to clean up.  All of this was motivated by the Pennsylvania Commonwealth Court’ decision in Harley-Davidson’s long-running property tax appeal. … Continue Reading

Federal Regulatory and Administrative Law Issues Impacted by Recent Supreme Court Decisions

As the Supreme Court’s new term begins, it will be considering several cases that could have a significant impact on cases involving the Administrative Procedure Act and other federal regulatory litigation. What follows is a summary of last term’s APA-related decisions followed by a preview of two cases currently on the Court’s docket for the … Continue Reading

Supreme Court Won’t Consider What Level of Deference States Should Be Given Under CERCLA

As noted previously, the Ninth Circuit found, in Arizona v. City of Tucson, 761 F.3d 1005 (9th Cir. 2014), that state government agencies are not afforded the same level of deference as EPA on the question of whether a CERCLA consent decree is fair, reasonable and consistent with CERCLA.  Arizona filed a petition for writ … Continue Reading

Eighth Circuit Reverses Class Certification Where Class Members Not Commonly Injured by Contamination on Their Property

On September 15, the Eighth Circuit reversed the district court’s order certifying a class of property owners who sought nuisance based damages and injunctive relief. In Smith v. ConocoPhillips Pipe Line Co., No. 14-2191, 2015 WL 5332450 (8th Cir. Sept. 15, 2015) the Court concluded that there was no evidence showing that class members were … Continue Reading

When an Agency Changes its Mind: Lessons from Village of Kake

When administrations change, so does policy.  That may result in an agency changing its mind.  On the federal level, that change — particularly a change in a factual finding — will be subject to review under the Administrative Procedure Act. The Ninth Circuit recently considered such a change in position over whether the Tongass National … Continue Reading

Third Circuit Upholds EPA’s Authority for Chesapeake Bay TMDL

The Third Circuit recently determined that EPA acted within its statutory authority in publishing the Chesapeake Bay TMDL in American Farm Bureau Federation v. United States Environmental Protection Agency, No. 13-4079 (3d Cir. July 6, 2015).  My column for the Pennsylvania Law Weekly discusses the decision and the implications for Pennsylvania, a state that did … Continue Reading

Horne and Environmental Law: The case of the taken raisins

Horne v. Department of Agriculture, No. 14-275 (U.S. June 22, 2015), is a takings case about the price support program for California raisins.  That may seem a little far afield for environmental lawyers, but the case bears some careful analysis.  Among other things, the Court draws a distinction between the analysis appropriate for a regulatory … Continue Reading

U.S. Supreme Court Reverses and Remands MATS to D.C. Circuit for EPA Failure to Consider Costs

In a 5 to 4 split decision, the U.S. Supreme Court ruled on Monday, June 29th, that the U.S. Environmental Protection Agency (“EPA”) unreasonably interpreted the federal Clean Air Act (“CAA”) when EPA decided deemed that costs were irrelevant in deciding whether to regulate hazardous air emissions from electric utility sources under section 112 of … Continue Reading

A Different Level of Deference Given to States in CERCLA Consent Decrees

In a recent decision, Arizona v. City of Tucson, 761 F.3d 1005 (9th Cir. 2014), the Ninth Circuit found that state government agencies should not be afforded the same deference as EPA on the question of whether a CERCLA consent decree is fair, reasonable and consistent with CERCLA. In my recent column for Pennsylvania Law Weekly, I examine … Continue Reading

D.C. Circuit Dismisses Challenges to Proposed Clean Air Act Section 111(d) Rule

From Michael Cooke of GT Tampa The U.S. Court of Appeals for the D.C. Circuit has denied petitions to review the EPA’s proposed rule to regulate carbon dioxide emissions from existing electric generating sources.  See In re Murray Energy Corporation, No. 14-1112 (D.C. Cir. June 9, 2015).    The proposed the rule was issued under section 111(d) … Continue Reading

Federal Court Holds Land Deposition of Air Emissions Can Constitute “Disposal” of “Solid Waste”

A federal district court ruled on March 10 that citizens may bring a RCRA imminent and substantial endangerment case based on the ground deposition of material emitted from a facility’s smoke stacks.  The Little Hocking Water Assoc., Inc. v. E.I. du Pont Nemours & Co., 2015 BL 64422, S.D. Ohio, No. 09-cv-1081, 3/10/15.  Explicitly rejecting … Continue Reading

Government Access to Contaminated Sites

Regulators need access to environmentally contaminated sites.  They have to study them to determine whether the contamination requires a cleanup, they have to choose a cleanup, they have to conduct or direct implementation of that cleanup, and then they have to provide for its monitoring and maintenance.  But when the contaminated property is not the … Continue Reading
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