In an environmental dispute between innocents involving a Church and a downgradient property owner, a federal court recently found the Church, although without original sin, was less innocent and should bear all the costs of the cleanup, even the costs of cleaning up an independent source of contamination on the downgradient property. In Alprof Realty LLC v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints,… More
Monthly Archives: September 2012
Another Nail in the Public Nuisance Litigation Coffin: The 9th Circuit Affirms Dismissal of the Kivalina Claims
On Friday, in Native Village of Kivalina v. ExxonMobil, the 9th Circuit Court of Appeals may have sounded the death knell for public nuisance litigation concerning the impacts of climate change, affirming dismissal of the damage claims brought by the City of Kivalina and the Native Village of Kivalina against major greenhouse gas emitters.
As most readers will know, last year,… More
Last week, in United States v. Louisiana Generating, EPA won a ruling regarding what type of projects fall within the routine maintenance, repair or replacement exception from the rule that facility modifications are subject to PSD/NSR requirements. The decision is thorough in that it carefully reviews the so-called “WEPCO Factors” – the nature, extent, purpose, frequency, and cost of the work, and applied them to the work at issue in this case,… More
I finally had an opportunity to review the recent Final Decision in In the Matter of Palmer Renewable Energy, concerning the proposed Palmer biomass facility. Last week, MassDEP Commissioner Ken Kimmell affirmed the Recommended Final Decision by Presiding Officer Timothy Jones, rejecting challenges by the Conservation Law Foundation to the air permit issued to the project by MassDEP. For practitioners, the case is important, but a decidedly mixed bag.… More
Site owners who conduct environmental investigations of potential releases of hazardous substances in the expectation that they will be able to recover their costs from the party whose operations gave rise to that threatened release may be surprised by the outcome in a recent federal district case in Georgia, Stratford Holding, LLC v. Fog Cap Retail Investors LLC. There, a site owner brought CERCLA and state law claims against a tenant and subtenant for dry cleaning operations after the owner’s sampling showed over 2 ppm of tetrachloroethylene (PCE),… More
EPA Approves Colorado’s Regional Haze Plan: What Does Colorado Know That the Rest of the Country Hasn’t Yet Figured Out?
On Tuesday, EPA formally approved Colorado’s state implementation plan to address regional haze. According to a press release from Governor John Hickenlooper, the plan will reduce power plant emissions by more than 70,000 tons by 2018. Notably, it will include closure of coal-fired power plants. Indeed, Daily Environment Report stated that “coal-fired power generation will be gone from the Denver metro region by 2018” as a result of the plan.… More
This may not be the most earth-shattering stories reported in this space, but it is a Massachusetts story, and the rhetoric surrounding the issue is sufficiently noteworthy that I thought I would, er, note it. Concord, Massachusetts, has apparently become the first community in the nation to ban the sale of certain plastic water bottles.
Last week marked the 17th Auction in the Regional Greenhouse Gas Initiative (RGGI). The number of bidders who went through the process of qualifying to participate in the auction is the lowest it has been in the program’s history — 29, down from 35 from the last auction in June, and well below the high of 84 in the first auction involving all member states, held in December 2008.… More