In Paradise Lost, John Milton wrote that “easy is the descent into Hell, for it is paved with good intentions.” A modern environmental lawyer might say that the road to waste, inefficiency, and obstruction is paved with good intentions. Nowhere is that more apparent than with citizen suit provisions, as was demonstrated in the decision earlier this week in Nucor Steel-Arkansas v.… More
Monthly Archives: February 2015
Over a decade after the Supreme Court’s decision in Cooper Industries v. Aviall, the divide between CERCLA Section 107 cost recovery claims and Section 113 contribution claims remains unsettled. PRPs incurring response costs at Superfund sites would almost always prefer to seek reimbursement of those costs as a Section 107 claim given its more favorable statute of limitations and joint and several liability standard. However, the post-Aviall case law offers little clarity as to the precise dividing line between Section 107 and 113 claims.… More
As two current events illustrate, climate change over the coming years is likely to test and ultimately expose the fundamental inadequacy of much of the infrastructure built to support modern societies. The first current event involves a record-breaking drought in South America which has left water taps dry in many homes in one of the largest cities in the world — San Paulo, Brazil. The second current event involves record-breaking cold and snow over the past month which has left significant portions of Boston’s public transportation system inoperable.… More
Last week, Judge Paul Borman of the Eastern District of Michigan, allowed a motion by the United States for judgment on the pleadings, dismissing a third-party complaint brought against the United States by Michigan Consolidated Gas. The decision is the latest judicial effort to clarify the distinction between cost recovery actions under § 107 of CERCLA and contribution actions under § 113 of CERCLA.
I don’t have any criticism of Judge Borman’s decision. … More
In November, the North American Electric Reliability Corporation provided its “Initial Reliability Review” of EPA’s Clean Power Plan. NERC raised a number of concerns about the impact of the CPP on reliability.
On Sunday, the Boston Globe had a fairly comprehensive look at the causes of the current failings of the MBTA. Interesting reading for those who like to belabor the obvious. The short version? Lack of political will and combined with a typical willingness to spend money we didn’t have.
As an environmental lawyer, I found the article interesting, because a discussion of the origin of the Big Dig transit commitments – a story I know pretty well – for the first time turned on a light bulb for me. … More
Déjà Vu All Over Again: CLF and CWRA Try Once More to Get EPA to Regulate Stormwater Discharges to the Charles River
In 2008, EPA made a preliminary determination to use its residual designation authority (RDA) under the Clean Water Act to designate stormwater discharges from two or more acres of impervious surfaces in the Lower Charles River Watershed and released a draft general permit to cover such discharges. However, EPA never finalized that designation.
In 2013, the Conservation Law Foundation and other groups petitioned EPA Regions 1,… More
The decision earlier this month in Cyprus Amax Minerals v. TCI Pacific Communications is a useful reminder that corporate form exists for a reason and that parent corporations who ignore corporate niceties do so at their peril. In the Bestfoods decision, the Supreme Court made clear that CERCLA does not displace state corporate law and that a parent corporation will only be held indirectly liable for the acts of its subsidiaries when the corporate veil can be pierced under applicable state law.… More
Although there is no news on DOE’s web site as of today, apparently FutureGen 2.0 is dead. DOE stopped federal funding. The FutureGen Alliance has already asked DOE to reconsider, but that seems unlikely at this point.
Two big questions beg for answers in light of the announcement. First, does carbon capture and storage still have a future even if FutureGen does not? … More