Category Archives: State & Local

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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

Green Roof Initiative: Compare the Green Roof Initiative with the new proposal

Brady R. McShane authored an article in the Colorado Real Estate Journal titled “Green Roof Initiative: Compare the Green Roof Initiative with the new proposal.” The article discusses Denver’s Green Roof Review Task Force and its proposed changes to the Initiative. Passed by voters in the November 2017 election, the Green Roof Initiative aimed to decrease building energy … Continue Reading

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

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 … Continue Reading

Environmental Cases in the Pennsylvania Appellate Courts During 2017

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.… Continue Reading

How Will Pa. Implement the Environmental Rights Amendment?

The Pennsylvania Supreme Court’s June decision in Pennsylvania Environmental Defense Foundation v. Wolf, 161 A.3d 911 (Pa. 2017) (PEDF), has sparked many conversations about how the newly interpreted Environmental Rights Amendment to the Pennsylvania Constitution will be implemented. In my column this month for the Pennsylvania Law Weekly I hope to catalogue at least some … Continue Reading

Lessons of Hurricane Irma — State of Florida Focus on Hurricane Preparedness and Infrastructure

In response to the widespread impacts of Hurricane Irma in Florida (all coastlines and virtually every community), Speaker Corcoran of the Florida House of Representatives has created a new Committee on Hurricane Response and Preparedness. Speaker Pro Tempore Jeanette Nunez of Miami will chair the 16-member bipartisan Select Committee whose focus will be to gather … Continue Reading

Hurricanes Harvey & Irma: Controlling Water, Mold, Bacterial Fallout

Six Tips on Managing Water Damage, Mold Growth, and Bacterial Threats As Florida, Georgia, South Carolina, Texas, and other impacted areas begin the journey to recovery after Hurricanes Harvey and Irma, property owners are faced with the challenge of addressing water damage, preventing or remediating mold growth, and heading off bacterial threats from potentially contaminated … Continue Reading

Safe Drinking Water Act Does Not Preempt Flint Plaintiffs’ Section 1983 Claims

On July 28, 2017 the Sixth Circuit Court of Appeals reversed two lower court rulings and remanded two cases pertaining to the lead-contaminated water crisis in Flint, Michigan, concluding that plaintiffs’ claims under 42 U.S.C. § 1983 for deprivation of their federal rights were not preempted by the Safe Drinking Water Act (SDWA) (Beatrice Boler, … 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

What’s Happening With the Environmental Rights Amendment?

A decision rendered last month by the Supreme Court of Pennsylvania reinterpreted the commonwealth’s obligations under Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment (ERA). The Supreme Court sided with the appellant, Pennsylvania Environmental Defense Foundation (PEDF), in PEDF v. Commonwealth of Pennsylvani a, 10 MAP 2015, and held … Continue Reading

Levitas v. Christian: Standards for Expert Opinions on Exposure Pathways in Maryland

Last week, the Maryland Court of Appeals (the highest state court) decided a lead paint toxic tort case of potential interest to environmental lawyers. Levitas v. Christian, No. 58 Sept. Term 2016 (Md. July 11, 2017), holds that a pediatrician may testify not only that the plaintiff’s injuries are the result of lead exposure, but … 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

The 5th Circuit Issues Order Leaving Intact its Judicial Stay on the EPA Regional Haze Rule

On March 22, 2017, the U.S. Court of Appeals for the 5th Circuit continued its stay of EPA’s Regional Haze Rule. Texas et al. v. U.S. Environmental Protection Agency, No. 16-60118 (Mar. 22, 2017). The EPA rule would have required power plants in Texas and Oklahoma to install costly and potentially unnecessary upgrades to their generators. Last July, … 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

Help! The DEP Guidance Document I Need is Missing!

The Pennsylvania Department of Environmental Protection (“DEP”), as is typical of government agencies, regularly releases guidance documents explaining how to interpret or apply its programs and regulations. Once drafted and again once finalized, these documents are published in DEP’s Online Library, where they can be accessed through browser searches or directly through the eLibrary.  But … Continue Reading

New York State Proposes Revisions to Its Environmental Review Regulations

Late last month the New York State Department of Environmental Conservation (DEC) proposed to revise its Part 617 regulations, which are the rules governing the conduct of environmental impact review under New York’s “Little NEPA,” known as the State Environmental Quality Review Act (SEQRA). The proposal was officially noticed in today’s issue of the New … Continue Reading

Massachusetts Releases Draft Regulations to Further Reduce GHG Emissions

The Massachusetts Department of Environmental Protection (MassDEP) recently released draft regulations for public comment which aim to further reduce greenhouse gas (GHG) emissions from various industry sectors in Massachusetts, including transportation, electricity generation, and natural gas pipelines. Public comments on these regulations are due by Feb. 24, and can be submitted in writing to MassDEP … Continue Reading

Philadelphia’s Approach to Nuisance Abatement on Vacant Properties

Conventional environmental lawyers may find themselves in unfamiliar territory when faced with a municipal citation for allowing a vacant property to become a nuisance or a municipal claim to recover the costs of abating that nuisance.  In Philadelphia, the City has a regular program to do both.  That program proceeds under City ordinances and regulations, … Continue Reading

New Emergency Rule in Florida Requires Responsible Parties to Quickly Notify Public of Pollution Spills

On Sept. 26, 2016, Governor Scott ordered the Florida Department of Environmental Protection to immediately issue an emergency rule requiring immediate notification of pollution spills to the general public, FDEP, and local governments. FDEP provides a copy of the Governor’s order and related materials on its website. During an investigation of two recent pollution spills … Continue Reading
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