- Volume 31, Issue #11
- U.S. Supreme Court Refuses To Stay Youths' Climate Change Suit
WASHINGTON, D.C. - The U.S. Supreme Court on July 30 denied a petition filed by the federal government that sought a stay in a suit brought by 21 young people accusing the government of contributing to climate change, finding that the request was premature and that the plaintiffs' claims present "substantial grounds for difference of opinion" (United States of America, et al. v. U.S. District Court for the District of Oregon, No. 18A65, U.S. Sup.).
- Judge Finds Oakland, San Francisco Lack Jurisdiction In Climate Change Suit
SAN FRANCISCO - A federal judge in California in July 27 granted a motion filed by four fossil fuel sellers in which they argued that the cities of Oakland and San Francisco lacked personal jurisdiction to pursue claims that the companies' marketing of fossil fuels contributed to climate change and rising sea levels that now threaten the cities, holding that the municipalities failed to demonstrate that their injuries would have occurred without the companies' activities in the state (City of Oakland v. BP Plc, et al., No. 17-06011, N.D. Calif., 2018 U.S. Dist. LEXIS 126258).
- New York City's Climate Change Claims Displaced By Federal Law, Judge Says
NEW YORK - A federal judge in New York on July 19 dismissed New York City's lawsuit accusing five producers of fossil fuels of promoting their products despite knowing they caused climate change, finding that its claims for public nuisance, private nuisance and trespass are displaced by the federal Clean Air Act (City of New York v. BP PLC, et al., No. 18 Civ. 182, S.D. N.Y., 2018 U.S. Dist. LEXIS 120934).
- Baltimore Mayor, City Council Sue Fossil Fuel Producers Over Climate Change
BALTIMORE - The mayor and city council of Baltimore on July 20 sued 14 producers of fossil fuels in Maryland state court, contending that the companies knew since the 1960s that the use of the products causes climate change, which causes sea levels to rise and increases the risk of damage to the city's infrastructure (Mayor and City Council of Baltimore v. BP Plc, et al., No. n/a, Md. Cir., Baltimore City).
- 5th Circuit Dismisses Texas Agencies, Universities From Superfund Cleanup Suit
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Aug. 1 ordered a federal judge in Texas to dismiss claims brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Texas Solid Waste Disposal Act (SWDA) against a number of state agencies and universities, finding that they are immune to the suit under state sovereign immunity (United States Oil Recovery Site Potentially Responsible Parties Group v. Railroad Commission of Texas, et al., No. 17-20361, 5th Cir., 2018 U.S. App. LEXIS 21375).
- Federal Appeals Panel Upholds Ruling Awarding Companies $99M For Avgas Cleanup
WASHINGTON, D.C. - A Federal Circuit U.S. Circuit Court of Appeals panel on July 18 upheld a 2017 ruling requiring the government to pay $99 million to companies it contracted with to manufacture aviation fuel (avgas) during World War II and a 2015 order denying the government's request for discovery into any insurance coverage settlements the companies obtained, finding that the judge did not abuse her discretion when making the decisions (Shell Oil Company, et al. v. United States, No. 2017-1695, Fed. Cir., 2018 U.S. App. LEXIS 19858).
- Judge Finds ASARCO Cannot Seek Contribution From Union Pacific For Cleanup
COEUR D'ALENE, Idaho - A federal judge in Idaho on July 26 ruled that American Smelting and Refining Co. (ASARCO) could not seek contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) from Union Pacific Railway, finding that its claim was barred by a bankruptcy settlement and that the plaintiff company paid less than its allocated share of liability (ASARCO, LLC v. Union Pacific Railway, et al., No. 12-cv-283, D. Idaho, 2018 U.S. Dist. LEXIS 126370).
- Judge Refuses To Vacate Ruling That Cleanup Agreements Can Offset Each Other
GREEN BAY, Wis. - A federal judge in Wisconsin on July 12 refused to reconsider a Feb. 5 ruling denying in part a motion for partial summary judgment filed by the federal government and state of Wisconsin in a suit to recover more than $33 million in cleanup costs from the Lower Fox River Superfund site, maintaining that disputes exist as to whether the last nonsettling defendant company is entitled to a reduction in liability as well as the amount it must pay the plaintiffs (United States of America, et al. v. NCR Corp., et al., No. 10-C-910, E.D. Wis., 2018 U.S. Dist. LEXIS 116686).
- Judge Allows Groups' Federal Records Act Claims Against EPA, Administrator
WASHINGTON, D.C. - A federal judge on July 24 ruled that two nonprofit organizations dedicated to informing the public about governmental actions can pursue claims that the U.S. Environmental Protection Agency and former administrator Scott Pruitt did not implement a proper records management policy and violated the Federal Records Act (FRA) requirement to create and preserve records, ruling that they sufficiently stated claims for relief (Citizens for Responsibility & Ethics in Washington v. Scott Pruitt, et al., No. 18-406, D. D.C., 2018 U.S. Dist. LEXIS 123183).
- U.S. Attorney General Can Intervene In MTBE Contamination Suit, Judge Says
BALTIMORE - A federal judge in Maryland on July 30 ruled that the U.S. attorney general can intervene in a suit brought by the state of Maryland against 69 sellers of gasoline containing the additive methyl tertiary butyl ether (MTBE), which allegedly contaminated water in the state, finding that the attorney general can present evidence as to whether Section 1503 of the Energy Policy Act of 2005 is constitutional (Maryland v. Exxon Mobil Corp., et al., No. ELH-18-459, D. Md., 2018 U.S. Dist. LEXIS 127475).
- Magistrate Orders Production Of Communications Between Company Experts, Staff
SPRINGFIELD, Ill. - A federal magistrate judge in Illinois on July 13 ordered a power company found liable for violating the Clean Air Act (CAA) to produce communications between two of its testifying experts and their staff, finding that the information is not subject to blanket protection under the work product doctrine (Natural Resources Defense Council, et al. v. Illinois Power Resources LLC, No. 13-cv-1181, C.D. Ill., 2018 U.S. Dist. LEXIS 116873).
- DuPont To Pay $3.1M To EPA To Settle Claims Related To Fatal Chemical Spill
HOUSTON - E.I. du Pont de Nemours & Co. on July 23 agreed to pay $3.1 million to the Environmental Protection Agency to settle allegations that it violated the Clean Air Act (CAA) when it accidentally released methyl mercaptan (MeSH) at the company's chemical plant in La Porte, Texas, causing the death of four employees and injuring six others (United States v. E.I. du Pont de Nemours and Company, No. 18-2545, S.D. Texas).
- Steel Mini Mill Agrees To Pay $325,000, Upgrade Facility Over Emissions
DETROIT - The owner of a steel mini mill on July 17 agreed to pay a $325,000 penalty and upgrade emissions controls at its facility to resolve allegations asserted by the federal government in a lawsuit simultaneously filed in Michigan federal court accusing the company of violating the Clean Air Act (CAA) (United States v. Gerdau Specialty Steel N.A. Michigan, No. 18-cv-12228, E.D. Mich.).
- Judge Finds Land Owner's Claims Over Contamination Untimely, Barred By Deed
HAMMOND, Ind.- A federal judge in Indiana on Aug. 6 awarded summary judgment to BP North America Inc., finding that a land owner's state law claims accusing it of withholding information about contamination on the property from underground storage tanks were time-barred and its claims under the Indiana Environmental Legal Action (ELA) statue and the state's underground storage tank statute were barred by a 2003 deed that waived BP's liability for present and future contamination (8103 Taft LLC v. BP North America Inc., No. 16 CV 319, N.D. Ind., 2018 U.S. Dist. LEXIS 131239).
- Judge Transfers Land Owner's Third-Party Suit Against Cleanup Company
NEW ORLEANS - A federal judge in Louisiana on July 31 transferred a land owner's breach of contract suit against an environmental cleanup company to Illinois federal court, finding that contracts between the parties contain a forum-selection clause that requires disputes to be resolved in a court in that state (KFC Corp. v. Iron Horse of Metairie Road LLC, et al., No. 16-16791, E.D. La., 2018 U.S. Dist. LEXIS 127790).
- Judge: Developer Owes Environmental Services Firm For Breach Of Contract
NEWARK, N.J. - A developer that was removed from a construction job to build an outdoor recreational facility after it used crushed concrete fill material containing high levels of polychlorinated biphenyls (PCBs) breached its contract with an environmental services firm when it failed to pay monthly invoices from the firm, a federal judge in New Jersey ruled July 24 in awarding summary judgment to the firm (TRC Environmental Corp. v. Waterside Development Corp., et al., No. 16-cv-374, D. N.J., 2018 U.S. Dist. LEXIS 1233365).
- 6th Circuit Affirms Class Certification For Some Groundwater Claims
CINCINNATI - A panel of the Sixth Circuit U.S. Court of Appeals on July 16 affirmed a lower court's decision to deny class certification under Federal Rule of Civil Procedure 23(b)(3), but then certify other issues for class treatment under Rule 23(c)(4) for a lawsuit in which residents contend that they have been harmed by the presence of volatile organic compounds (VOCs) in their groundwater (Terry Martin, et al. v. Behr Dayton Thermal Products LLC, et al., No. 17-3663, 6th Cir.; 2018 U.S. App. LEXIS 19441).
- Grand Jury Indicts Arkema, CEO For Texas Plant's Chemical Release During Hurricane
LIBERTY, Texas - The district attorney for Harris County, Texas on Aug. 3 announced that a grand jury has indicted chemical manufacturer Arkema North America, its chief executive officer and a plant manager for contamination of the air and the local water supply after the company's plant was damaged in Hurricane Harvey and released multiple chemical and volatile organic compounds.
- Groups: Injunction Proper In Groundwater Case Involving Marina On Raritan River
TRENTON, N.J. - Two environmental groups on July 16 filed a brief in New Jersey federal court contending that their motion for a preliminary injunction should be granted against NL Industries Inc. related to claims that the company and others violated the Clean Water Act (CWA) when they discharged pollutants in levels that exceeded federal permits and contaminated local groundwater. Moreover, the groups insist that the defendants' argument that the motion is not ripe because of plans to build a marina on the river should be rejected (Raritan Baykeeper, et al. v. NL Industries Inc., et al., No. 09-4117, D. N.J.).
- CSX To Pay $2.7M To Settle Claims Stemming From Spill After Derailment
CHARLESTON, W.Va. - CSX Transportation Inc. on July 24 agreed in West Virginia federal court to pay $2.7 million to resolve claims that an oil spill caused by a derailment of 109 rail cars in 2009 resulted in violations of the Clean Water Act (CWA), the West Virginia Water Pollution Control Act (WPCA) and the West Virginia Groundwater Protection Act (GPA) (United States, et al. v. CSX Transportation Inc., No. 18-cv-1175, S.D. W.Va.).
- Bad Faith, Punitive Damages Claims Survive Dismissal In Contamination Coverage Suit
FRESNO, Calif. - Claims for bad faith and punitive damages alleged against an insurer in an environmental contamination coverage suit can move forward, a California federal judge said Aug. 1 after determining that the insured has sufficiently alleged facts in support of the claims (City of Fresno v. Tokio Marine Specialty Insurance Co., No. 18-504, E.D. Calif., 2018 U.S. Dist. LEXIS 129224).
- New York Federal Judge: Excess Insurer Must Cover Costs For 7 Contaminated Sites
NEW YORK - In an environmental contamination suit filed by an insured more than 30 years ago, a New York federal judge on July 17 ruled that an excess insurer owes its insured coverage for environmental contamination remediation costs for seven sites arising out of the insured's manufacture of pesticides (Olin Corp. v. Lamorak Insurance Co., et al., No. 84-1968, S.D. N.Y., 2018 U.S. Dist. LEXIS 119212).
- Oregon Federal Judge Says Insurers Failed To Prove Accidental Exception Applies
PORTLAND, Ore. - An Oregon federal judge on July 19 granted an insured's motion for partial summary judgment on the applicability of a pollution exclusion in two insurers' policies after determining that the insurers failed to prove that the exclusion's exception for sudden and accidental releases does not apply to the insured's claims (Siltronic Corp. v. Employers Insurance Company of Wausau, et al., No. 11-1493, D. Ore., 2018 U.S. Dist. LEXIS 126184).
- Insured Must Amend Complaint To Address Policy's Pollution Exclusion
BATON ROUGE, La. - A Louisiana federal judge on July 26 denied an insurer's motion to dismiss an insured's complaint seeking coverage for an oil spill and ordered the insured to amend its complaint to address the applicability of the pollution exclusion to its claim for coverage (Apollo Energy LLC v. Certain Underwriters at Lloyd's, London, No. 17-1741, M.D. La., 2018 U.S. Dist. LEXIS 124918).