A major part of practicing environmental law is the ability to advise based on an assessment of how an agency is likely to behave. The rules and regulations are often not as clear as a regulated party would like. Interpreting the rules and regulations, or using how they have been interpreted in other contexts to determine a recommended course of action, can be difficult. I…
In Weyerhaeuser v U.S Fish and Wildlife Service, 2018 WL 6174253 (November 27, 2018) the Supreme Court addressed the tension between the presumption that agency decisions are subject to judicial review and the exclusion from review for actions that are given over to the discretion of an agency. At issue was the agency’s designation of certain land as “critical habitat” for the dusky gopher frog. …
When real property is sold without a clear allocation of potential environmental cleanup costs, a court trying to allocate those costs in a litigation looks to a variety of “equitable” factors to reach a fair allocation. In Trinity Industries, Inc. v Greenlease Holding Company (3d Cir. September 5, 2018), the Court examined “value of the property” as a fairness factor, that is, in addition to…
Plaintiffs were accused by public officials of toxic dumping. As a result, the local newspaper published a series of articles with headlines accusing plaintiffs of dumping. The accusations were also discussed on local television and on news radio. In response, plaintiffs commenced an action seeking, among other relief, a Declaratory Judgment stating that they were not responsible. Daytree at Cortland Square v Walsh, 2018 WL…
A person who contaminated soil or groundwater may be required to pay for the cost of cleaning up the contamination and may be required to pay for damages to natural resources. How those two obligations relate to each other has been a source of much discussion, specifically, is it one or the other (and if you pay for cleaning it up, you don’t have to…
A recent federal court of appeals decision provides a rare example of a court overturning an EPA decision on an issue of fact – a decision to place a site on the National Priorities List (NPL). In Genuine Auto Parts v EPA, 2018 WL 2270186 (D. C. Cir. 2018). the court vacated an EPA decision to place a site on the NPL based on its…
The recent decision in California Department of Toxic Substances v Westside Delivery, LLC, 2018 WL 1973715 (9th Cir., April 27, 2018) provides an interesting analysis of the “contractual relationship” element of the “so-called” innocent landowner defense. And I say “so-called” because although the ASTM standard for site assessments is aimed at establishing that defense, the defense is so difficult to establish that some commentators question…
In Center for Regulatory Reasonableness v EPA, 138 S. Ct. 1041 (2018) the Supreme Court rejected a petition from the Center for Regulatory Reasonableness, challenging “policy letters” issued by EPA, upholding a D.C Court of Appeals ruling that concluded that the court did not have jurisdiction to review the letters. While the ruling is primarily a technical ruling regarding how to challenge regulatory action, the…
In Friends of Santa Clara River v United States Army Corps of Engineers, 2018 WL 1702746 (9th Cir. April 9, 2017) the Court reviewed the rules for organizational standing and concluded that it is easier for an organization to challenge a procedural defect in a project approval than a substantive defect. Several environmental organizations challenged Army Corps of Engineers approval of a permit to discharge…
In National Association of Manufacturers v Department of Defense, 2018 WL 491526 (2018), the Supreme Court reversed a decision of the Sixth Circuit Court of Appeals regarding which courts should hear challenges to the Waters of the United States rule issued by EPA and the Army Corps of Engineers, leaving the scope of Clean Water Act wetlands regulation unclear. The definition of the statutory phrase…