Category Archives: Uncategorized

CERCLA Principles in Child Pornography Cases

Although one might not ordinarily think to associate child pornography and pollution, the two were linked at an oral argument yesterday before the United States Supreme Court. Specifically, in a child pornography case, the defendant was found guilty of viewing a child pornography video obtained from the Internet. Pursuant to federal statute, the defendant was ordered […]

Sale of a Usable Waste Defense — Another Instance of the Unstated Rule of CERCLA Liability

Extending its string of CERCLA PCB losses in the Midwest, NCR Corporation was recently found liable for contribution based on its sale of waste scrap from its manufacture of carbonless copy paper in Michigan.  In Georgia-Pacific v. NCR Corporation, the federal court rejected NCR’s claim that it had merely had sold a useful product when it sold waste resulting […]

The Third Circuit Reinstates Nuisance Claims Against Cheswick Generating: Bad Idea

On Wednesday, in Bell v. Cheswick Generating Station, the 3rd Circuit Court of Appeals revived class action nuisance claims brought by residential property owners living within one mile of GenOn’s Cheswick Generating Station.  (Full disclosure – this firm represents GenOn, now NRG, in various matters, though not this litigation.)  The District court had ruled that […]

Environmental Nuisance Claims — It Helps To Have Experts

The old warning that “past performance is no guarantee of future results” apparently applies not only to investments but also to environmental nuisance suits in Tennessee.  In Freeman v. Blue Ridge Paper Products, a class of 300 residents living 26 miles downriver from a paper mill plant had obtained a $2 million jury verdict in state court on […]

The Real Risk of Unregulated Air Pollution

Sometimes the most valuable research turns out to be a confirmation of the obvious.   Fitting that bill is the study released yesterday in the Proceedings of the National Academy of Science documenting the substantially decreased life expectancy among people in China living in areas where coal has for many decades been used to heat homes.   The study is based on […]

CERCLA Is Still Constitutional

To paraphrase Shakespeare, United States v. Sterling Centrecorp, Inc., is a great feast of legal argument.  The PRP in that case purchased the assets of a mining company whose operations in California had caused releases of arsenic.  That PRP was found to be liable for CERCLA response costs under no fewer than four discrete legal theories –(1) explicit assumption of  liabilities, (2) implicit assumption of liabilities, (3) de […]

What Response Costs Are Necessary Under CERCLA

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 […]

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 […]

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 […]