Cleanup Liability: When Can an Owner Claim the Innocent Landowner Defense

By Aaron Gershonowitz 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…

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Supreme Court Rejects “Regulatory Reasonableness” Petition

By Aaron Gershonowitz 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…

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When Do Environmental Groups Have Standing to Challenge a Project Approval?

By Aaron Gershonowitz 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…

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Supreme Court Sends Definition of “Waters of the United States” Back to District Courts Leaving the Scope of Federal Regulation of Wetlands Unclear

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…

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SEQRA: Third Department Decision Illustrates How Difficult it is to Get Court to use Mandamus to Order Action on an Application

The recent decision in Global Companies, LLC v New York State Department of Environmental Conservation, 2017 WL 4817272 (3d Dep't 2017) illustrates how difficult it can be for an applicant to force an end to the SEQRA process and require a decision on an application.   In April 2013, Global applied for a modification to its clean air act permit, seeking to expand the storage capacity…

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9th Circuit Concludes that RCRA Corrective Action is a CERCLA Response Action

In ASARCO, LLC v Atlantic Richfield Co., 2017 WL 3427708 (9th Cir. August 10, 2017) the court addressed whether a settlement under the Resource Conservation and Recovery Act (RCRA) could give rise to a contribution action under the Comprehensive Environmental Responsce Compensation and Liability Act (CERCLA).   The court noted a split in the federal circuits on the issue and sided with the Third Circuit in concluding…

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Supreme Court Decision: When Does the Government Need to Pay a Property Owner for “Taking” Property by Regulation

The Supreme Court issued an important regulatory taking decision on the last day of the term. Murr v Wisconsin (June 23, 2017). The Fifth Amendment of the Constitution prohibits the government from taking property without compensating the owner. Regulations often reduce the value of a property and such regulations do not result in a claim for compensation. Regulatory taking is the phrase used for situations…

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The Intersection Between Environmental Law and Landlord/Tenant Law

A recent decision by the Sixth Circuit Court of Appeals, applying New York contract law, illustrates the impacts a tenant's environmental activities can have on a landlord and the importance of addressing environmental compliance issues in a lease. Wilmington Trust Co. v ARP Generating Co., (June 8, 2017)was a breach of contract case brought by the owner of a facility, alleging that a consent order…

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Town of Islip v Datre Court Misconstrues CERCLA

In Town of Islip v Datre, 2017 WL 1157188 (EDNY, March 28, 2017), the court misread CERCLA and added a requirement that a defendant know that it is disposing of hazardous waste. This post will examine the causes of this error. The first cause of the error is trying to interpret language in a Supreme Court decision without any attempt to examine the underlying reasoning.…

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Release Reporting Under CERCLA and EPCRA

Release reporting requirements are not often litigated, but a recent decision from the Eastern District of California provides explains how the release reporting requirements under CERCLA relate to the release reporting requirements under EPCRA. In United States v Gibson Wine Co., 2017 WL 1064658 (E.D Cal. 2017), EPA alleged that failure to provide notice of a release of anhydrous ammonia was a violation of both…

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