In a post last year, I discussed what I I thought was the dubious dismissal of a CERCLA cost recovery action in Stratford Holding, LLC v. Fog Cap Retail Investors LLC. That case involved a holding that the costs of investigating the presence of solvents in the groundwater above regulatory standards were not “necessary” response costs because the the state had declined [...]
Category Archives: Uncategorized
Weighing the Costs and Benefits of Cost-Benefit Analysis
I have previously posted about Cass Sunstein’s efforts to bring cost-benefit analysis to government regulation. On Friday, E&E News reported on Sunstein’s new book, Simpler: The Future of Government, noting that Sunstein has been subject to “scathing” criticism from Lisa Heinzerling. It will probably not surprise you to learn that I’m with Sunstein on this [...]
The Fifth Circuit Rejects EPA’s Disapproval of Alabama’s Opacity Regulation: Do We Blame EPA, DOJ, or Two Judges?
On Wednesday, in Alabama Environmental Council v. EPA, the Fifth Circuit Court of Appeals rejected EPA’s 2011 disapproval of Alabama’s opacity regulation. The case involves relatively obscure provisions of the Clean Air Act, but the decision nonetheless provides a number of – abject – lessons. First, a short history. In 2003, Alabama adopted a revision [...]
Unstated Rule on Superfund Liability for Sale of a Usable Product — One Year Later
Exactly a year ago, I posted a blog that argued that the decisions on Superfund liability for the sale of usable product could be distilled down to an ”unstated rule” — a party will be held liable as having intended to arrange for the disposal of a hazardous substance if it sells a waste that cannot be [...]
It Is a Unitary Government Afterall: Privilege For Intra-Governmental Communications
About a year ago, I blogged about a decision by the federal district court in the Lower Fox River case ruling that there was no attorney-client privilege protecting communications between government lawyers representing the EPA and those representing federal PRPs. At the heart of that decision was the finding that the two sets of government lawyers [...]
MassDOT Issues Its 21st-Century Transportation Plan: Brother, Can You Spare $13 Billion?
The Massachusetts Department of Transportation today released The Way Forward: A 21st-Century Transportation Plan. The Plan summarizes steps that MassDOT has already taken to implement reforms, describes transportation needs over the next ten years, and discusses options for attaining the funding necessary to address the identified needs. The needs include a number of proposals that [...]
EPA’s Authority to Set TMDLs Is Limited: Be Careful What You Wish For
Last week, in Virginia Department of Transportation v. EPA, Judge Liam O’Grady struck down EPA’s attempt to set a TMDL for the Accotink Creek in Virginia based on the rate of total stormwater discharge to the Creek, rather than on the amount of sediment in the stormwater discharge. To Judge O’Grady, the case was a [...]
CERCLA Cost Recovery or Contribution Claim: Another Judicial Misstep
The chaos unleashed by Aviall continues in a recent decision by the Seventh Circuit. In Bernstein v. Blankert, the Seventh Circuit revisited the issue whether a party having entered into an Administrative Order by Consent had a claim against other PRPs for cost recovery under Section 107(a) or for contribution under Section 113(f)(1). Offering a novel and entirely misguided conclusion, the court found that [...]