Title Washing: The Case of the Disappearing Mineral Rights

Posted in Articles, Pennsylvania

Earlier this month, the Pennsylvania Supreme Court affirmed on appeal a hunting club’s ownership of a tract of land in its entirety – including both surface and subsurface rights – over the objections of a prior owner’s heirs. In Woodhouse Hunting Club, Inc. v. Hoyt, Case No. 327 MDA 2017, the court weighed in for the second time in recent years on the concept of “title washing,” a creation of early 19th-century property tax law with modern implications.  The question addressed in Woodhouse was whether a tax sale effectuated in 1902 extinguished a prior reservation of subsurface rights and granted the entire property at issue to the purchaser.

Read more from my article in The Legal Intelligencer supplement, Pa Law Weekly, by clicking here.

Environmentalists Score Clean Water Act Victory Which May Affect Permitting Status

Posted in Clean Water Act, EPA, Water

While litigants and the U.S. Environmental Protection Agency (EPA) continue to debate the fate of the agency’s 2015 rule defining jurisdictional waters under the Clean Water Act (Act), environmentalists have scored a victory – one that may cause a widespread re-evaluation of permitting status.

Last week the Ninth U.S. Circuit Court of Appeals upheld a lower court’s grant of summary judgment in favor of environmental groups challenging the County of Maui’s decades-old practice of injecting partially treated wastewater from its wastewater treatment plant into wells. The wells leaked, and the wastewater subsequently migrated through groundwater to the ocean. See Hawai’i Wildlife Fund v. County of Maui, __ F.3d __ (Ninth Cir. 2018).

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EPA Nixes Decades-Old Policy on Toxic Air Pollution

Posted in Air, EPA, Pollution

Jettisoning 23-year old doctrine, the U.S. Environmental Protection Agency (EPA) announced last week in guidance (“Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act,” Memorandum from William L. Wehrum, EPA (January 25, 2018)) that it was abandoning its “once-in-always-in” (OIAI) policy that branded stationary air pollution sources as “major sources” in perpetuity for purposes of compliance with the Clean Air Act’s “maximum available control technology” (MACT) standards.

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Mass SJC Reiterates that Property Damage Liability under Mass. G.L. Chap 21E is Residual to Cleanup Liability

Posted in Court Cases, Hazardous Waste, Massachusetts

Section 5(a)(iii) of the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (“Chapter 21E”) makes persons liable to clean up releases of oil or hazardous material also liable to any other person for property damage caused by the release. The Supreme Judicial Court decided a case on January 19 restating clearly that private liability for property damage is residual to the claim for a cleanup or cleanup costs. Grand Manor Condominium Ass’n v. City of Lowell, No. SJC-12294 (Ma. Jan. 19, 2018).  That is, a plaintiff can not recover for damage that a cleanup will fix.

Often a cleanup under the Chapter 21E regulations — the Massachusetts Contingency Plan or “MCP,” 310 CMR 40.0000 — results in hazardous constituents remaining in soil or groundwater at a site. Containment — from a sophisticated landfill cap to pavement — can be used to cut off exposure and therefore to achieve an acceptable risk. But that condition may diminish the value of the property, even though the property is “cleaned up.”  Section 5(a)(iii) allows claims for that diminution and similar kinds of situations.

Grand Manor decides that the three year limitations period for a section 5(a)(iii) claim begins to run only when the plaintiff learns that the damage is permanent and not going to be remedied by the cleanup. In that case, waste deposited in an old quarry by the City of Lowell allegedly impaired the value of the condominiums built over it. The plaintiffs knew of the problem for years before the City’s MCP reports made clear that a complete cleanup would be infeasible. Only then did their three years begin to run.

Notice that while this holding reinforces the defendant-friendly rule on the measure of damages, it grants a rather extended time to sue.

Environmental Cases in the Pennsylvania Appellate Courts During 2017

Posted in Articles, Court Cases, Pennsylvania

The Pennsylvania appellate courts decided about two dozen cases that one could call “environmental” last year. A brief review follows that necessarily gives short shrift to some of these opinions. This review may also omit some cases, for which I apologize.

Read Environmental Cases in the Pennsylvania Appellate Courts During 2017 by clicking here.

EPA Concludes Glyphosate is Not Likely to be Carcinogenic to Humans

Posted in Chemicals, EPA, Federal, Glyphosate

EPA concluded in draft risk assessments that a widely used herbicide in the United States that controls weeds and grasses— glyphosate—is “not likely to be carcinogenic to humans.”  Importantly, the assessment also “found no other meaningful risks to human health when the product is used according to the pesticide label.”  According to EPA, this finding is consistent with the 2017 National Institute of Health Agricultural Health Survey as well as conclusions by science reviews in other countries.

Use of glyphosate dates back to the 1970s and glyphosate is undergoing Registration Review—which requires EPA review of registered pesticides every 15 years.  The herbicide has been classified in multiple chemical categories since 1985.  Initially classified as a Group C Chemical (Possible Human Carcinogen) due to the discovery of kidney tumors in male mice, the agency reclassified the herbicide in 1986 as a Group D Chemical (Not Classifiable as to Human Carcinogenicity) due to equivocal data.  After additional peer review, in 1991, the agency classified glyphosate as a Group E Chemical (Evidence of Non-Carcinogenicity for Humans) based on studies of mice and rats.  In 2015, the Cancer Assessment Review Committee reevaluated prior data and classified glyphosate as “Not Likely to be Carcinogenic to Humans.” 

As discussed previously by this blog (“EPA: Research Shows Herbicide Glyphosate Unlikely to Cause Cancer” and “Glyphosate Litigation Primer”), there has been significant national and international debate surrounding the use of the herbicide.  The International Agency for Research on Cancer, a subdivision of the World Health Organization (“WHO”), identified glyphosate as a probable carcinogen in March 2015.  But, in November of that year, the European Food and Safety Authority concluded the herbicide was “unlikely to pose a carcinogenic hazard to humans.”  Another subdivision of WHO reached a similar finding in 2016, concluding “glyphosate was unlikely to pose a carcinogenic risk to humans from exposure through the diet.”  While some European countries have sought to ban the herbicide, other countries have stood behind the finding that glyphosate is unlikely to cause cancer in humans.  

In light of this backdrop, EPA characterized its 2017 evaluation as a more comprehensive evaluation compared to its prior 2015 human health review.  While the draft human health assessment finds the herbicide is unlikely to be carcinogenic to humans, EPA stated that the ecological risk assessment showed a “potential for effects on birds, mammals, and terrestrial and aquatic plants.”

The draft risk assessments and supporting documents are available on EPA’s website.  EPA will receive public comments for 60 days following the publication in early 2018 of the draft risk assessments to the glyphosate registration review docket, EPA-HQ-OPP-2009-0361.  EPA states that the agency will publish in 2019 the proposed interim registration review decision for glyphosate.  If deemed necessary, that decision would identify any proposed mitigation measures to reduce risk. 




The Hague District Court Dismisses Clean Air Case

Posted in Air, Environment, GT Alert

On the 27th of December 2017, two Dutch NGOs and 57 individual plaintiffs lost a court case against the Dutch State in which they, in a nutshell, demanded measures to be taken to improve air quality in the Netherlands. The verdict seems to be a boost for the new Dutch government’s environmental agenda and shows that such claims face scrutiny.

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Court of Appeals Throws Lifeline to Major D.C.-Area Infrastructure Project

Posted in Federal Regulation, Infrastructure, NEPA

A unanimous panel of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) threw the Washington, D.C. area’s beleaguered “Purple Line” light rail project a lifeline earlier this week when it overturned a district court ruling that would have required the Federal Transportation Administration (FTA) to prepare a Supplemental Environmental Impact Statement (SEIS) under the National Environmental Policy Act (NEPA). The Purple Line project has been in the works for over two decades.

The ruling stands for the proposition that a court must give significant deference to federal agencies when they duly consider highly technical data in assessing environmental impacts under NEPA, 42 U.S.C. § 4321 et seq., a procedural statute requiring agencies to analyze the environmental impacts of a variety of alternatives.

In Friends of the Capital Crescent Trail v. FTA, 200 F. Supp. 3d 248 (D.D.C. Aug. 3, 2016), the district court had ordered the SEIS after plaintiffs complained that the cost-benefit analysis in FTA’s EIS had failed adequately to consider the impact of recent safety problems and ridership decline in the area’s major regional transit system, the Washington Metropolitan Area Transit Authority’s Metrorail system – to which the Purple Line will connect upon completion. Subsequently, upon a motion for reconsideration, the district court allowed FTA to submit an analysis of the safety and ridership concerns and to propose the appropriate level of environmental review.

FTA submitted its analysis to the district court in December 2016, considering multiple alternatives, including complete cessation of ridership on Metrorail. Even in that scenario, FTA found, the Purple Line would still meet the project’s objective of connecting communities in Maryland’s Prince George’s and Montgomery counties and cause no greater environmental impacts.

The district court disagreed, Friends of the Capital Crescent Trail v. FTA, 253 F. Supp. 3d 296 (D.D.C. May 22, 2017), and FTA appealed.

On appeal, the D.C. Circuit held that Metrorail’s safety and ridership problems did not present “a seriously different picture of the environmental landscape” requiring preparation of an SEIS. Friends of the Capital Crescent Trail v. FTA, No. 17-5132 (D.C. Cir. Dec. 19, 2017), slip op. at 14 (internal citations omitted). In such highly technical matters where an agency decides not to prepare an SEIS, courts are to apply a narrow, not a “searching and careful” review. Id. at 10.

Appellants have not yet announced whether they will seek Supreme Court review, but this decision will likely be viewed as favorable by the current administration, which has pledged to reduce federal “red tape,” including protracted NEPA reviews, for infrastructure projects.

Successive Owners and an Obligation to Restore a Stream

Posted in Articles, Permitting, Water

Earlier this month, the Pennsylvania Commonwealth Court decided Becker v. Department of Environmental Protection, No. 560 C.D. 2017 (Pa. Commw. Ct. Dec. 1, 2017), a case focused primarily on what constitutes a “watercourse” or “stream” under the Pennsylvania Dam Safety and Encroachments Act. However, the court also considered whether the Department of Environmental Protection (DEP) and the Environmental Hearing Board (EHB) properly ordered a former owner to restore damage to the stream even though he did not have access to the property any more. In so doing, the court had some interesting things to say about ordering access and allocating costs that warrant some thought. I address them in my column this month for the Pennsylvania Law Weekly.

Read Successive Owners and an Obligation to Restore a Stream by clicking here.

WOTUS and its 2-Step Repeal

Posted in Articles, EPA, WOTUS

Paul M. Seby, a shareholder in Greenberg Traurig’s Environmental Practice, authored the article, “WOTUS Is Caught in a Whirlpool of Litigation—Is It Coming Back Around?” published in The National Law Journal. This article examines the future of the 2015 “Waters of the United States” (WOTUS) Rule as the EPA and the Army Corps of Engineers begin the implementation of a two-step process to repeal and replace it under President Trump’s Executive Order 13788. Seby also examines SCOTUS’ pending decision for early 2018 regarding which jurisdiction WOTUS Rule challenges belong in, the district courts or the Sixth Circuit.

To read the full article, click here.