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Atlantic Council, in cooperation with LexisNexis, hosts a symposium on Law and the Environment: Designing a Transatlantic Agenda

The Atlantic Council, in cooperation with LexisNexis, held a symposium in January 2009 on the topic of Law and the Environment: Designing a Transatlantic Agenda . The goal was to explore U.S. and European approaches to environmental regulation and international environmental law as a precursor to discussing...

California Court of Appeal holds that 10-year statute of repose for construction defects applies to cross-claims

In a prior post, a recent California Court of Appeal case was described in which the defendant unsuccessfully sought to use as a defense the 10-year statute of repose of California Code of Civil Procedure Section 337.15 in a case involving leakage from a closed landfill. In Pine Terrace Apartments, L...

Proposed "Midnight Rule Act" would delay implementation of rules adopted during the last 90 days of a President's final term

Every administration does it. As the last year of the President's term ticks away, a wide variety of executive orders and regulatory rules are enacted, often to help major "stakeholders" for the party or administration. Executive orders are easy to undo; just issue a countermanding executive...

Obama Administration revokes Bush 2007 Executive Order re OMB regulatory review process

In 2007, President Bush issued Executive Order 13422 which established presidentially appointed regulatory review officers at Federal agencies, gave OMB the authority to approve agency guidance documents, and added a so-called "specific market failure" test for new regulations. President Obama...

Absent extraordinary circumstances, a former EPA Administrator is not subject to deposition in CERCLA action, N.J. District Court rules

In March 2007, EPA filed a CERCLA action against defendant Sensient Colors Inc. alleging that Sensient was responsible for the contamination at the General Color Site in the City of Camden, New Jersey, and is liable to reimburse it for costs in excess of $16 million that the EPA spent to respond to the...

California Court of Appeal upholds trial court's conclusion in Prop. 65 tuna case that the methylmercury present in tuna is "naturally occurring"

One of the weaknesses of Proposition 65 was highlighted in litigation between tuna companies and the State of California over the presence of methylmercury in tuna. Methylmercury is listed under Prop. 65 both for being a carcinogen and a reproductive toxicant. [A summary of some of the human health data...

Even procedural errors by agency taking administrative action require a showing of prejudice, holds Fourth Circuit Court of Appeals

Prior posts have described numerous District Court and Court of Appeals cases in which various plaintiffs have challenged the actions of agencies in adopting regulations and granting permits; it has been repeatedly noted the difficulty of overcoming an agency's action absent a pure question of law...

Did the U.S. Supreme Court change the nature of Art. III standing in Summers v. Earth Island Institute? Possibly so

In 2003, the U.S. Forest Service issued a rule that exempt the sale of small forest projects from the citizen administrative appeal process. After the U.S. Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres of fire-damaged Federal land, environmentalist organizations...

Basing a CWA criminal statute for discharging oil into navigable waters on mere negligent does not violate Due Process, California District Court rules

On November 7, 2007, while John Cota was piloting the Cosco Busan, the vessel struck a tower of the San Francisco-Oakland Bay Bridge, resulting in the discharge of over 50,000 gallons of heavy fuel oil. The Cosco Busan is a 901-foot, 65,131-gross ton container ship sailing out of Hong Kong, China. Mr...

Obama orders agencies to review preemption positions taken over last decade

Following up on the logic of Wyeth v. Levine, 129 S. Ct. 1187 (2009) , President Obama has issued an executive order setting forth standards for Federal preemption of State laws. [See http://www.whitehouse.gov/the_press_office/Presidential-Memorandum-Regarding-Preemption/ .] No preemption argument or...

California Governor signs new e-discovery legislation; it is effective immediately

Federal and State rules pertaining to e-discovery have been at odds for several years. After several attempts, California has now enacted explicit e-discovery rules that will impact all litigation, including that related to environmental and toxic tort issues in State court. A copy of the State legislation...

Revivor of corporate powers can be applied retroactively, rules California appellate court

The general rule in California is that a corporation that is suspended (e.g., failure to file corporate tax returns) cannot file suit or a "responsive pleading" (e.g., answer, demur). In Center for Self-Improvement v. Lennar Corp. (2009), 173 Cal.App.4th 1543 , the plaintiff was suspended at...

Summary judgment cannot be subject to stipulation, rules California Court of Appeal

Occasionally, as a vehicle to get a case before an appellate court, especially when the sole question is one of law (not fact), parties will stipulate to a summary judgment in the trial court. Following cases noted in prior posts, the Court of Appeal in Magana Carthcart McCarthy v. CB Richard Ellis,...

Federal judgment may collaterally estop re-litigation of the same action in state court, rules California Supreme Court

In a case which has application to environmental and toxic tort cases, by analogy, the California Supreme Court in Hernandez v. City of Pomona (2009), 46 Cal.4th 501 , held that a Federal judgment may operate as collateral estoppel to preclude re-litigation of the same issues in a subsequently filed...

In CERCLA action, affirmative defense of a statute in repose must be plead with specificity, not reserved, holds N.J. District Court

Once again, we visit the legal travels of Sensient Colors, as noted in three prior posts. Rather than pleading a specific statute in repose in a CERCLA action, defendant Sansient Colors, as part of its answer, merely reserved the right to amend and add later a statue in repose defense. In United States...

Tribe acting to protect sacred sites on its land is entitled to attorney's fees under California's Section 1021.5 C.C.P. because Tribe is acting to protect interests of others

As noted in prior posts, in public interest litigation in California, a plaintiff frequently relies on California Code of Civil Procedure Section 1021.5 to seek its attorney’s fees. Pursuant to §1021.5 C.C.P. , the Superior Court awarded attorney fees in environmental litigation to an...

Exhausation of administrative remedies is almost always a prerequisite to litigation

Numerous prior posts have noted the need to exhaust administrative remedies prior to initiating litigation. The recent case of Howard v. Solis , 2009 U.S. App. LEXIS 14885; 2009 FED App. 0232P (6th Cir. 2009), is a good example. Petitioner, a coal miner, sought a writ of mandamus from the District...

Supreme Court to review Florida beach erosion law alleged to be a "taking"

One of the ongoing debates over the last couple of decades has been whether regulatory action, particularly environmental and land use controls, are an illegal "taking" under the Fifth and Fourteenth Amendments to the U.S. Constitution. To state that the past Supreme Court cases have been a...

Connecticut Federal District Court bars evidence of soil samples as sanction for failure to preserve evidence

Two prior posts have noted holdings in the case of Innis Arden Golf Club v. Pitney Bowes, Inc. (D. Conn. 2009). One of the holdings in the more recent case deserves further expansion and analysis. In the holding at 257 F.R.D. 334 (2009 U.S. Dist. LEXIS 43588), one of the key issues was the failure...

California Court of Appeal explains the finer points of an "underground regulation" and why they are invalid, in a case that cannot be cited as precedent

California has long been concerned with so-called "underground regulations" (rules, policies, guidance, and procedures treated as though a regulation, but issued or promulgated without following the procedures of the Administrative Procedure Act). These types of defective rules and policies...

California enacts legislation regarding sales of alternative energy by homeowners to utilities, access to clean water, use of GHG offsets, liability defenses for contamination, and lead wheel weights

Despite the budget crisis and much partisan hostility, California has enrolled this year some major environmental legislation which has not been reviewed previously. Net Metering. AB 920 ( http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0901-0950/ab_920_bill_20090921_enrolled.html ) allows residential...

The 10th Circuit finds that intervention will nearly always be permitted when the underlying lawsuit has the potential to impair the intervenor's legal or financial interests

A variety of parties often seek to intervene in “high profile” cases in order to argue for or promote their agenda on the issue; it is not uncommon for such petitions to be denied. However, the rules are different when the intervenor has a financial or other direct stake in the results. ...