Category Archives: Court Cases

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Can a Settlement with the Regulator Protect You from Your Neighbors in Massachusetts?

The Massachusetts Supreme Judicial Court (the court of last resort in the Commonwealth) issued a decision in a land use case today of potential concern for environmental practitioners. It raises the question whether a settlement by a regulated entity and the regulator protects the settling party from further claims by neighbor against the settling party … Continue Reading

Commonwealth Court’s Invalidation of Pennsylvania PUC Defined Terms – Potential Net Metering Implications

On May 12, 2020, a three-judge panel of the Commonwealth Court of Pennsylvania held that certain net metering regulations of the Pennsylvania Public Utility Commission (PUC) are unenforceable. The regulations at issue are related to the implementation of Pennsylvania’s Alternative Energy Portfolio Standards Act (AEPS Act), which incentivizes the use of electricity generated by renewable … Continue Reading

New York State Court Greenlights New Islanders Arena Project

A New York State Supreme Court Justice in Nassau County dismissed two separate challenges to the state government approvals of a new arena for the NHL’s New York Islanders hockey team. The challenges to the Belmont Redevelopment Project were brought by a neighboring village and a group of citizens seeking to stop the ongoing construction … Continue Reading

Federal Judge in Montana Narrows Vacatur of Nationwide Permit 12

On April 17, we posted about the federal district court for Montana vacating the Nationwide Permit (NWP) 12 and enjoining the Army Corps of Engineers’ authorization for the use of NWP 12 on any utility projects in the nation (including pipelines, transmission lines and communications lines) on the grounds that the Corps had not complied … Continue Reading

Supreme Court: Pollutants Reaching Navigable Waters Through Groundwater May Require Permit Under Clean Water Act

Rejecting the Trump administration’s novel 2019 interpretation that the Clean Water Act never requires permits for pollutant discharges to groundwater, the United States Supreme Court handed down, on April 23, its eagerly awaited decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, et al. The 6-3 majority held that Section 301 of the Clean … Continue Reading

The Supreme Court Allows State Law Claims for More Cleanup on Superfund Sites . . . Sometimes

On April 20, the United States Supreme Court decided that Montana homeowners within a Superfund site could seek to recover the costs of restoration of their land to its uncontaminated condition – a more complete cleanup than the Superfund remedy would accomplish – but only if the U.S. Environmental Protection Agency (“EPA”) ultimately approved the … Continue Reading

Federal Judge Prohibits Use of U.S. Army Corps of Engineers’ Nationwide Permit 12 for Utility and Pipeline Projects

In an April 15 ruling in Northern Plains Resource Council, et al. v. Army Corps of Engineers, Judge Brian Morris of the U.S. District Court for the District of Montana vacated the U.S. Army Corps of Engineers’ Clean Water Act Nationwide Permit 12 and enjoined the Corps from using NWP 12 to authorize any dredge … Continue Reading

Pennsylvania Supreme Court Clarifies Application of Fair Share Act to Strict Liability Asbestos Claims

In 2011, The Fair Share Act, 42 Pa. C.S.A. § 7402, became law. The Fair Share Act changed the law of joint and several liability for actions sounding in negligence, eliminating joint and several liability except under certain exceptions. Under the Act, “a defendant’s liability shall be several and not joint, and the court shall enter a separate … Continue Reading

Fourth Circuit Rejects Statute of Limitations Challenge to FERC Electricity Market Manipulation Suit

On Feb. 11, 2020, the United States Court of Appeals for the Fourth Circuit decided that the Federal Energy Regulatory Commission (FERC) did not overstep the statute of limitations in its effort to impose more than $29 million in civil penalties over alleged wholesale electricity market manipulation carried out by Dr. Houlian Chen and other associated financial … Continue Reading

Rule of Capture is Back for Pennsylvania Oil and Gas Wells . . . Sort Of

On Wednesday, the Pennsylvania Supreme Court overturned a lower court decision that appeared to make the “rule of capture” inapplicable to oil and gas wells subjected to hydraulic fracturing, or “fracking.” Briggs v. Sw. Energy Production Co., No. 63 MAP 2018 (Pa. Jan. 22, 2020) (see majority opinion; see concurring and dissenting opinion). However, the … Continue Reading

Environmental Cases in the Pennsylvania Appellate Courts During 2019

By my count, the three Pennsylvania appellate courts decided 27 environmental cases in 2019. Categorization is somewhat subjective, so I apologize for any omissions. For brevity, citations are truncated, and omitted years are 2019. This survey briefly characterizes those cases under the following categories: Environmental Rights Amendment; pre-emption of local regulation; other local land use … Continue Reading

The Dutch Supreme Court Obliges the Dutch Government to Reduce Greenhouse Gas Emissions

On 20 December 2019 the Dutch Supreme Court delivered its judgment in the case of Urgenda against the Dutch State. In 2013, the NGO Urgenda started a civil law procedure against the Dutch State for “knowingly exposing its own citizens to danger” by not taking sufficient measures to prevent climate change and therefore not preventing … Continue Reading

United States Indicts Facility Owner Under Clean Air Act General Duty Clause

The U.S. Environmental Protection Agency (EPA) continues to increase its enforcement role in industrial accidents, at times overshadowing the role traditionally played by the Occupational Safety and Health Administration (OSHA). EPA often takes tougher enforcement actions than OSHA and is more willing to bring criminal charges. This trend is reflected in a recent case affirming … Continue Reading

Maryland Court of Appeals Limits Bases for Challenging CWA Permits under the Chesapeake Bay TMDL

A recent state appellate court decision sharply limited the bases on which Clean Water Act permittees may challenge permitting requirements imposed to comply with a federal Chesapeake Bay “Total Maximum Daily Load” (“TMDL”), often described as a watershed-wide “pollution diet.” The decision directly impacts municipalities with separate stormwater sewer (“MS4”) permits, as well as certain … Continue Reading

Environmental Compliance and Land Use “Special Permits” in Massachusetts

Does compliance with environmental regulations suffice to prove that an operation is safe? Maybe not, for purposes of land use approvals in Massachusetts. Last week, the Massachusetts Appeals Court decided Fish v. Accidental Autobody, Inc., No. 18-P-345 (Mass. App. Ct. May 24, 2019), an appeal from the grant of a “special permit” for an autobody … Continue Reading

Enforcing the CERCLA Permit Bar . . . in State Court

From David G. Mandelbaum, a member of the Massachusetts Bar: As is familiar, section 121(e)(1) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9621(e)(1), exempts Superfund cleanups from all federal, state, and local permits. In addition, section 113(b) grants the federal district courts exclusive jurisdiction “over all controversies arising under” CERCLA. … Continue Reading

Contradicting the Department of Justice, EPA Changes Stance on Groundwater Discharges

Contradicting the argument raised by the United States in a recent amicus brief in the U.S. Court of Appeals for the Ninth Circuit, the EPA finalized new guidance on April 12, 2019, concluding that the Clean Water Act “is best read as excluding all releases of pollutants from a point source to groundwater from NPDES … Continue Reading

Limits on Administrative Orders to Clean Up in Delaware

On Feb. 21, 2019, the Delaware Superior Court decided that the state’s Department of Natural Resources and Environmental Control (DNREC) cannot order an environmental violator to remedy its violation under the department’s general enforcement statute. That is, under that statute, DNREC can order a person illegally disposing of solid waste to stop adding to the … Continue Reading

Significant Environmental Cases in Pa. Courts During 2018 (Part 2)

Part 2 of this series on the large number of environmental cases decided by the Pennsylvania appellate courts in 2018 discusses enforcement, the Oil and Gas Act, valuation, and a few other cases of note. Read David G. Mandelbaum’s article from The Legal Intelligencer supplement Pa. Law Weekly, “Significant Environmental Cases in Pa. Courts During 2018 … Continue Reading

Martinez v. Colorado Oil and Gas Conservation Commission Update

On Jan. 14, 2019, the Colorado Supreme Court held in Martinez v. Colo. Oil & Gas Conservation Comm’n, that the Colorado Oil and Gas Conservation Commission (Commission) properly denied a petition requesting that it adopt a rule that would halt the drilling of oil and gas wells for the foreseeable future. The Supreme Court’s decision reinforces … Continue Reading

Significant Environmental Cases in Pa. Courts During 2018 (Part 1)

The Pennsylvania appellate courts decided a relatively large number of environmental cases during 2018. This survey briefly characterizes those cases under the following categories: Environmental Rights Amendment; pre-emption of local regulation; other local land use regulation issues; Sewage Facilities Act (Act 537); and stormwater, earth disturbance, and stream encroachment. Read David G. Mandelbaum’s 42 Pa. … Continue Reading

Staying in Lane Under the Environmental Rights Amendment

The Commonwealth Court recently provided new guidance on the extent to which the Environmental Rights Amendment to the Pennsylvania Constitution gives municipalities or agencies additional powers or imposes on them additional obligations. Frederick v. Allegheny Township Zoning Hearing Board, No. 2295 C.D. 2015 (Pa. Commw. Ct. Oct. 26, 2018), holds that the amendment does not alter … Continue Reading

Constant Vigilance: Why Environmental Criminal Enforcement Still Matters

Jillian Kirn authored an article titled “Constant Vigilance: Why Environmental Criminal Enforcement Still Matters” in The Legal Intelligencer. According to Syracuse University’s Transactional Records Access Clearing House (TRAC), federal prosecutions for environmental crimes are down 40 percent from 2013 levels. Still, despite these recent declines, environmental criminal enforcement remains a potent regulatory tool. To read the … Continue Reading

Florida Appellate Court Reverses Class Certification in Commercial Fishing Action Arising From a 65-Million-Gallon Process Water Release Into Tampa Bay

In the summer of 2004, during Hurricane Frances, an industrial facility released approximately 65 million gallons of process water into Tampa Bay. A group of commercial fishermen promptly filed a putative class action. The class representatives alleged that the release damaged the natural habitat and adversely affected commercial fishing in and around Tampa Bay. At … Continue Reading
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