Environmental Blog Archives - Forchelli Deegan Terrana Law

June 21, 2019

Center for Biological Diversity v US Forest Service: To What Extent Does Failure to Take Steps that Might Mitigate Environmental Harm Caused by a Third Party Make Someone Responsible for that Environmental Harm?

The 9th Circuit Court of Appeals decision in Center for Biological Diversity v US Forest Service, 2019 WL 2293425 (May 30, 2019) raises important questions about the extent to which someone might be held liable for failing to prevent someone else from causing environmental harm. The Center for Biological Diversity alleged that the Forest Service violated the Resource Conservation and Recovery Act (also known as…

May 21, 2019

Dispelling 5 Misconceptions About Environmental Issues

I am starting to prepare course materials for a course entitled “Environmental Law for Non-Environmental Lawyers.” The purpose of the course would be to dispel many of the misconceptions that people have about environmental issues. As a starting point, here are 5 easy ways to tell that the person talking about the environmental issue has no clue: 1. “There are no hazardous substances in the…

April 18, 2019

Freedom of Information: How Transparent is Government Decision Making?

The federal Freedom of Information Act (5 USC 553 et. seq.) and New York’s Freedom of Information Law (Public Officers Law section 87) require government agencies to provide records to the public upon request. There are exemptions, but the basic policy is that government records should be open to the public. A recent decision by the federal district court for the District of Columbia addresses…

March 14, 2019

Neighbors Win on Imminent and Substantial Danger Claim and Court Grants Them No Remedy

In Lijam, LLC v General Electric Company, 2019 WL 1011021 (March 2019), neighbors of a contaminated site sued under the Resource Conservation and Recovery Act (RCRA), claiming the site “may present an imminent and substantial danger to health or the environment.” The neighbors won on summary judgement, with the court concluding that General Electric was liable under RCRA. The court then denied the neighbors’ request…

January 14, 2019

Obtaining Regulatory Guidance from the Regulators

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…

December 5, 2018

Supreme Court Expands Power of Courts to Review Agency Decisions

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. …

October 24, 2018

Fairness in Allocating Cleanup Costs Between Buyers and Sellers of Real Property

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…

August 20, 2018

Company Accused in the Press of Toxic Dumping Asks Court for a Declaration that is Not Responsible: Court Says there is no Such Claim

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…

August 6, 2018

How Do Cleanup Costs Relate to Damages to Natural Resources?

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…

July 19, 2018

Genuine Auto Parts v EPA: How to Challenge Agency Findings of Fact

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…