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Analyzing the critical energy and environmental issues of the day

Category Archives: Litigation

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$13mm NRD Settlement in 2003 Oil Spill Illustrates Long Tail on OPA Natural Resource Damage Claims

Posted in Litigation, Natural Resources, Oil & Gas, Trump Track
On October 17, 2017, the U.S. and the States of Rhode Island and Massachusetts lodged what was acknowledged as a “unique” settlement with a tug boat owner and operator for natural resource damages resulting from a 2003 marine oil spill. In U.S. v. Bouchard Transportation Company, the defendants had earlier settled other federal, state and… Continue Reading

Trump Track: Test for EPA’s Sue and Settle Process

Posted in EPA, Federal, Health and Safety, Litigation, Trump Track
As noted previously on this blog, on October 16, 2017, EPA Administrator Scott Pruitt issued a memorandum announcing new policies to avoid what he considered inappropriate approaches to resolving litigation, commonly referred to by the rubric “sue and settle.” The major changes in policy included inviting participation by all interested parties in any settlement negotiations,… Continue Reading

Ninth Circuit Rejects Application of CERCLA to Aerial Emissions

Posted in CERCLA, Federal, Litigation
In the long-running saga of efforts by the State of Washington and the Confederated Tribes of the Colville Reservation to attach CERCLA liability to a smelter in British Columbia, the smelter owner, Teck Industries, won a significant ruling. In Pakootas v. Teck Cominco Metals, Ninth Circuit Court of Appeals rejected plaintiffs’ efforts to expand their… Continue Reading

New York Public Service Commission’s ESCO Order Set for Preliminary Injunction Hearing

Posted in Litigation, Rulemakings
On May 20, 2016, a state Supreme Court judge in New York is tentatively set to hear arguments regarding a request for preliminary injunctive relief with regard to the “Order Resetting Retail Energy Markets And Establishing Further Process,” issued on February 23, 2016 (the “ESCO Order”) by the New York Public Service Commission (“NYPSC”).   While… Continue Reading

Children’s Crusade to Combat Climate Change Continues

Posted in Climate Change, Litigation, Northwest
A federal magistrate judge in Oregon has kept alive the dreams of a group of young plaintiffs—aided by environmental advocacy groups—to compel government action against climate change.  Like a similar case brought by the same plaintiffs a few years ago in state court, discussed below, the federal case seeks a declaration that government inaction violates… Continue Reading

Sturgeon v. National Park Service: Supreme Court Sidesteps Federal / State Lands Conflict

Posted in Land Use, Litigation, Natural Resources, Rulemakings
A case originating in Alaska may have answered the question for those wondering how the United States Supreme Court will approach weighty questions of law and policy with a vacancy on the Court; it probably won’t. In Sturgeon v. National Park Service, 577 U.S.  (2016), the Court had the opportunity to address a monumental conflict… Continue Reading

Could the US Be “Aiding and Abetting” Cape Wind MBTA Violations?

Posted in Federal, Litigation, Natural Resources, Renewables
In the latest legal wrangling over the long-delayed Cape Wind Associates’ wind farm off Nantucket, during oral argument judges on the DC Circuit suggested that by permitting the wind farm, the US might be aiding and abetting violations of the Migratory Bird Treaty Act.  Whatever the outcome of the particular case, the comments may be… Continue Reading

Take Two! Frogs, Water, and the Endangered Species Act in Oregon

Posted in Land Use, Litigation, Northwest
In late December we reported on a lawsuit filed by the Center for Biological Diversity (“Center”) that alleges the U.S. Bureau of Reclamation (“BOR”) is violating the Endangered Species Act (“ESA”) through its operation and maintenance of the Crane Prairie and Wickiup dams and reservoirs in the Upper Deschutes River Basin. On January 11, 2016,… Continue Reading

Frogs, Water, and the Endangered Species Act in Oregon

Posted in Land Use, Litigation, Northwest
Oregon spotted frogs and their habitats are being harmed because of the way the U.S. Bureau of Reclamation (“BOR”) operates and maintains some reservoirs in the Upper Deschutes River Basin, so asserts the Center for Biological Diversity (“the Center”) in a lawsuit filed against the BOR on December 18, 2015 in federal district court in… Continue Reading

BP has settled its Clean Water Act penalty claims, but important questions remain to be decided

Posted in Environmental Quality, Health and Safety, Litigation
The United States and BP lodged their proposed settlement of the remaining claims by the US in connection with the Deepwater Horizon explosion and spill with the US District Court today. Comments to the Justice Department are due by Friday, December 4, 2015.  The details of the proposed settlement, which includes the largest Clean Water Act… Continue Reading

Migratory Bird Treaty Act Narrowly Interpreted: the Fifth Circuit Joins the Eighth and Ninth Circuits

Posted in Federal, Litigation, Natural Resources, Rulemakings
The Fifth Circuit Court of Appeals reversed a district court decision holding CITGO liable for three misdemeanors under the Migratory Bird Treaty Act (MBTA) for bird deaths (the opinion lists 35 birds, including “twenty (regular old) ducks”) resulting from uncovered equalization tanks at its Corpus Christi refinery. The court also reversed two Clean Air Act (CAA)… Continue Reading

Non-Settling CERCLA Defendants Beware: Ninth Circuit Provides Lower Courts with Discretion to Allocate Liability Using Equitable Factors

Posted in CERCLA, Litigation, Rulemakings
There is a split of authority on how credits for settlements under the Comprehensive Response, Compensation and Liability Act (“CERCLA”) are allocated to non-settlors.  Some courts have applied the proportionate share approach, under the Uniform Comparative Fault Act (“UCFA”), and others have applied the pro tanto approach, under the Uniform Contribution Among Tortfeasors Act (“UCATA”).… Continue Reading

Washington’s Courts Deliver Possible Double Whammy Limiting Insurers’ Ability to Use a Late Tender Defense to Delay Providing a Defense

Posted in Litigation, Northwest
Liability insurance policies require notice be provided to the insurer to allow the insurers time to adequately investigate and respond to claims.   An insured’s failure to provide notice to its carrier can result in the insured losing the benefits of its policies. Some courts have deemed an insured’s failure to provide notice within time periods… Continue Reading

Ninth Circuit Rejects CERCLA Settlement, Declines to Give Deference to State Agency

Posted in CERCLA, Litigation
On August 1, 2014, a divided panel of the Ninth Circuit reversed a district court’s approval of a multi-party settlement at an Arizona waste site.  State of Arizona v. Ashton Company Incorporated Contractors and Engineers, et al., No. 12-15691 (9th Cir. August 1, 2014).  The dissenting opinion noted that this is only the second time… Continue Reading

What’s It All About?

Posted in California, Federal, Litigation, Water Law
There are many lessons that one could take from the outcome of the seven year (and counting) litigation involving environmental groups and the operators of the Los Angeles County stormwater system. Certainly one lesson is to be careful what you ask for when you are drafting your stormwater permit – the Los Angeles County Flood… Continue Reading

Offers of Judgment – Can They Shift Fees?

Posted in Litigation, Natural Resources, Rulemakings
A recent Resource Conservation and Recovery Act (“RCRA”) lawsuit may offer some additional guidance on when offers of judgment may cut off a party’s right to recover attorneys’ fees and costs under environmental laws.  Plaintiff National Exchange Bank and Trust (“National Exchange”) prevailed on its RCRA claim and was found to be entitled to litigation… Continue Reading

Court Rejects Challenge to California’s Carbon Offsets Program

Posted in California, Cap and Trade, Climate Change, Litigation
A California state judge in San Francisco has rejected a challenge to California’s carbon offsets program, ruling that regulators have the authority to include the mechanism in the cap-and-trade program for greenhouse gases. San Francisco Superior Court Judge Ernest Goldsmith ruled Friday that the state Air Resources Board was authorized to use offset protocols under the guidelines… Continue Reading

Auction Today, Results Monday (part of the California Cap and Trade Program)

Posted in California, Cap and Trade, Climate Change, Litigation, Renewables
Get your auction here!  Today is the day. The California Air Resources Board (CARB) is holding an auction of greenhouse gas allowances for use in the California cap and trade program today, November 14, 2012, from 10:00 a.m. until 1:00 p.m (PST).  It is CARB’s first auction and all eyes are on California to see… Continue Reading

California Court finds Renovated Ferry Building to No Longer Be Municipal Load

Posted in California, Litigation
A California Appellate Court confirmed on March 27 an earlier Superior Court ruling that the iconic Ferry Building in San Francisco, a property owned and originally largely occupied by the Port of San Francisco, was no longer Municipal Load. This is significant because the City and County of San Francisco has a contract with Pacific Gas and… Continue Reading