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…

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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…

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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…

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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…

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

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…

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Supreme Court Rejects “Regulatory Reasonableness” Petition

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…

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

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…

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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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