Before the enactment of CERCLA in 1980, claims alleging injury as a result of contamination were usually brought under theories of negligence and nuisance. Those claims were largely replaced by CERCLA claims because CERCLA did not require proof of negligence or proof of causation. A recent trend in environmental litigation has a return to common law theories, especially in claims against persons who do not…

In Gould Electronics v Livingston County Road Commission, 2022 WL 1467650 (6th Cir. May 10, 2022), the Sixth Circuit Court of Appeals addressed a claim between the responsible party at a Superfund Site (Gould) and a neighbor (Livingston).  The main subject of the dispute was who was responsible for the contamination on the Livingston property.  Each party blamed the other and after a trial, with…

The Ninth Circuit Court of Appeals decision in Center for Community Action and Environmental Justice v Federal Aviation Administration reads like an ordinary environmental review decision. The issue was whether the agency took the required “hard look” at the potential environmental impacts and the court said that it did. It is the dissent that should catch the eye of developers and practitioners. The dissenting opinion…

In Cedar Point Nursery v. Hassid (decided June 23, 2021) the Supreme Court decided that a regulation that required agricultural employers to allow union representatives to access their property for up to 3 hours per day for 120 days per year, was a per se taking, reversing a 9th Circuit decision that held this regulation to be merely regulation. The Court reasoned that a fundamental…

For an organization to sue to redress a perceived wrong, the organization must demonstrate that it has standing to sue, meaning that it is the proper party to bring the claim.   One of the key requirements of standing is that the plaintiff must show that he or she will be or is likely to be injured by the action objected to.  Environmental groups often demonstrate…

Two recent Appellate Division decisions addressed segmentation claims and concluded that there cannot be segmentation unless there is a plan. Under SEQRA (the State Environmental Quality Review Act), it is illegal to take a project that may have significant impacts and break it in to smaller parts (segments) for environmental review purposes, each of which taken alone is not likely to have significant impacts. The…

A recent decision by the 9th Circuit Court of Appeals highlights the boundary between environmental law and corporate law. US v Sterling Centercorp Inc., 2020 WL 5885920 (10/5/20). The case arose out of a Superfund Site in California that was the subject of a number of corporate transactions. Defendant Sterling was the corporate parent of Keystone Copper Corporation, a corporation that owned the site from…