Category Archives: Litigation

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New Lawsuit Challenges DOJ Policy Prohibiting SEPs

The ongoing battle over Supplemental Environmental Projects (SEPs) – environmentally-beneficial, beyond-compliance projects that defendants agree to undertake for potential penalty mitigation in settlement of environmental enforcement actions – heated up last week when an environmental group sued the attorney general and others for violating the Administrative Procedure Act (APA) in issuing a legal memorandum effectively … Continue Reading

U.S. and Dutch Governments Announce Hydrogen Collaboration

On Oct. 6, 2020, the U.S. Department of Energy’s Office of Energy Efficiency and Renewable Energy (EERE) and the Dutch Ministry of Economic Affairs and Climate Policy (Ministerie van Economische Zaken en Klimaat) issued a statement of intent. The governments aim to jointly stimulate future hydrogen research & development and demonstration activities. Hydrogen has caught … Continue Reading

Pleasing All the People Some of the Time: New York Simultaneously Proposes Regulations Implementing Its New Siting Law and Community Benefit Program for Renewable Projects

Earlier this year New York state, conceding that its previously enacted siting law had not been effective in siting large-scale renewable energy projects, enacted the Accelerated Renewable Energy Growth and Community Benefit Act (codified primarily in N.Y. Executive Law § 94-c; hereinafter, the Act). The Act, effectively a new siting law for renewable projects, created, … Continue Reading

New Jersey’s Environmental Justice Legislation: The Focus on Major Source Permit Applications Might Impact Property Values

Last month, I wrote about the “Environmental Justice for All Act,” a bill that proposes a finding that vulnerable populations are disproportionately burdened by environmental hazards. New Jersey is following the federal environmental justice debate, passing historical environmental justice legislation in both the House and Senate, where it is currently awaiting Governor Phil Murphy’s approval. … Continue Reading

McGirt v. Oklahoma: Understanding What the Supreme Court’s Native American Treaty Rights Decision Is and Is Not

Confusion permeates the public arena as to what the U.S. Supreme Court recently did – and didn’t do – by ruling in favor of the Muscogee (Creek) Nation, a federally recognized Native American tribe, and against the state in McGirt v. Oklahoma. Not since a grinning incumbent President Harry S. Truman hoisted The Chicago Daily … Continue Reading

Navigability: It’s Not Just for the Federal Clean Water Act Anymore

A curious appellate court decision has Pennsylvania environmental law practitioners scratching their heads about the status of certain waterways. No, we do not reference the U.S. Supreme Court’s latest Clean Water Act decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, __ U.S. __ (2020) from May, where six of the nine justices held … Continue Reading

Price-Anderson Act Removal of Litigation Involving a “Nuclear Incident”

“Configuration of terrain is an aid to the army. Analyzing the enemy, taking control of victory, estimating ravines and defiles, the distant and near, is the Tao of the superior general.” Sun-tzu, The Art of War 214 (Ralph D. Sawyer trans., Westview Press 1994). While the use of Sun-tzu’s strategy dramatizes a litigator’s role, the … Continue Reading

Is There Still a Place for Supplemental Environmental Projects in Pennsylvania?

SEPs, which permit a defendant to undertake an environmentally beneficial project in lieu of paying penalties—or in exchange for reduced penalties—have been seen as benefiting defendants, enforcement agencies and communities at the same time. SEPs have given enforcement agencies and defendants additional flexibility in negotiating consent decrees and settlement agreements, while also providing communities potentially … 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

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

What Environmental Lawyers Should Know About the Limits of ‘Auer’ Deference

The U.S. Supreme Court recently had the opportunity to overturn Auer deference, Kisor v. Wilkie, No. 18-15, (U.S. June 26, 2019). A 5-4 majority declined to do so, but not without emphasizing the limits of the doctrine. Auer deference refers to the doctrine that a court should generally defer to an agency’s interpretation of agency regulations … Continue Reading

Avoiding the Talismanic Effect of Unfounded Expert Testimony

Daubert decisions can be case-dispositive in complex cases. Accordingly, understanding how to discern and dismantle the foundations of expert testimony is a crucial skill for defense attorneys.  Using lessons learned from a recent Eleventh Circuit toxic-tort case, Williams v. Mosaic Fertilizer LLC, Greenberg Traurig attorneys David B. Weinstein, Christopher Torres, and Ryan T. Hopper share … 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

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

Appellate Court Opens Door to Jury Trials in Proposition 65 Cases

The California Court of Appeal, First Appellate District (First District) recently reversed course on an important issue in the Proposition 65 world by indicating that a jury trial may be available to defendants in certain circumstances. The decision, Nationwide Biweekly Administration, Inc., et al., v. The Superior Court of Alameda County, Opinion, A150264, (June 13, … Continue Reading

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

Beware the Public Trust: New York’s Highest Court Stops Retail Expansion On Citi Field’s Parking Lot Under Public Trust Doctrine

New York courts have long held that the “public trust” doctrine precludes the use of dedicated parkland for non-park uses. The New York Court of Appeals showed just how strictly that doctrine is applied when, after many years of planning and litigation, it enjoined development of a retail entertainment complex known as Willets West in … Continue Reading

Developments in Recent NY Medical Monitoring Claims

As readers of this blog know, we have been closely following developments regarding claims for medical monitoring.  (Medical Monitoring Claims in Illinois, Part 1; Medical Monitoring Claims in Illinois, Part 2.) A recent decision arising out of Hoosick Falls, New York, allowed Plaintiffs’ request for a medical monitoring fund to survive defendants’ motion to dismiss. On … Continue Reading

Massachusetts High Court Rules Leaded Gasoline is Not “Oil” Subject to Less Stringent Cleanup Requirements

The Massachusetts Supreme Judicial Court (SJC) upheld a statutory interpretation by the Massachusetts Department of Environmental Protection (MassDEP) that the statutory definition of “oil” does not include leaded gasoline. As a result, contamination from leaded gasoline released from a gas station was not eligible for less stringent remediation standards applicable to “oil” releases.  Based on … Continue Reading

Massachusetts High Court Rules Global Warming Solutions Act Mandates Annual, Declining Restrictions on GHG Emissions

In a decision that will have far-reaching consequences for the Massachusetts economy, Massachusetts’ highest court has ruled that the Global Warming Solutions Act (GWSA), passed in 2008, mandates the imposition of annual, declining limits on greenhouse gases (GHG) emissions.  In Kain vs. Dept. of Environmental Protection (SJC-11961, May 17, 2016), the Massachusetts Supreme Judicial Court … Continue Reading

Glyphosate Litigation Primer

Introduction Plaintiffs’ lawyers in several states are investigating cases of non-Hodgkin lymphoma and other forms of cancer in individuals exposed to the widely used herbicide glyphosate. These investigations follow on the heels of a 2015 report by a working group at the International Agency for Research on Cancer (IARC), which concludes that glyphosate is probably … 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
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