Environmental Law Portal

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Beveridge & Diamond’s 100 lawyers in seven U.S. offices focus on environmental and natural resource law, litigation and dispute resolution. We help clients around the world resolve critical environmental and sustainability issues relating to their products, facilities, and operations. 

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Supreme Court Says CERCLA Does Not Preempt Repose Defense for Tort Claims

The U.S. Supreme Court has put to rest a longstanding legal question affecting the deadline for plaintiffs to bring toxic tort and contamination claims stemming from certain contaminated sites. CTS Corp. v. Waldburger, No. 13-339 (June 9, 2014). Specifically, the Court considered whether Section 309 of the Comprehensive Environmental Response, Compensation, and Liability Act (commonly known as the Superfund law or CERCLA), which preempts a state “statute of limitations,” also preempts a state statute of repose. In a 7-2 decision, the Court held it does not, reversing a Fourth Circuit ruling and resolving a split in the lower courts.  Read More ›

Iowa Supreme Court Rules Pollution Suit Not Preempted by Clean Air Act

Striking a blow to defendants seeking to limit the scope of toxic tort claims based on air emissions, the Iowa Supreme Court ruled that a putative class action filed by residents asserting tort claims against a corn milling facility was not preempted by the federal Clean Air Act (CAA) or Iowa state law. The court also refused to dismiss the case based on the political question doctrine. See Freeman v. Grain Processing Corp., No. 13-0723 (Iowa June 13, 2014).  Read More ›

Jury Awards Nearly $3 Million in First U.S. Toxic Tort Verdict Related to Fracking

Although the torrent of toxic tort litigation related to hydraulic fracturing that many predicted has not materialized, the first jury award for toxic tort claims relating to hydraulic fracturing operations has now been handed down. A Dallas jury found that Defendant Aruba Petroleum, Inc. intentionally interfered with homeowners’ use of their property in Fort Worth by drilling natural gas wells on neighboring property, causing personal injury and property damage. See Parr v. Aruba Petroleum, Inc., No. CC-11-01650-E (Dallas Co. Ct. at Law, jury verdict June 19, 2014).  Read More ›

New York High Court Finds Expert Failed to Satisfy Causation Requirement

In a decision that reaffirms the importance of expert testimony, New York’s highest court ruled that a plaintiff’s expert had failed to establish either general or specific causation such that the plaintiff could withstand summary judgment. See Cornell v. 360 W. 51st Street Realty, LLC, 2014 NY Slip Op 02096 (N.Y. March 27, 2014). The case arose out of a woman’s claim that exposure to dampness and mold in her apartment caused her to suffer a variety of physical symptoms, which eventually forced her out of her apartment. She filed suit against her landlord and other related entities, claiming personal injuries, property damage, and constructive eviction, among other causes of action. Read More ›

New York High Court Limits Requirements for Early Medical Evidence

A recent ruling by New York’s highest court may make it somewhat easier for toxic tort plaintiffs to survive early motions practice in New York. The New York Court of Appeals ruled that lead-based paint plaintiffs were not required to have a medical professional causally connect their injuries to lead exposure in order to bring a claim. Hamilton v. Miller, Case Nos. 113 & 114 (N.Y. June 12, 2014). The decision still squarely places the burden of proof with plaintiffs, however, and may require plaintiffs to hire an expert during discovery to meet their burden.  Read More ›

D.C. Circuit Rejects Toxic Tort Claims Based on Aerial Spraying of Herbicide

Reinforcing the importance of standing and causation in toxic tort cases, the U.S. Court of Appeals for the District of Columbia affirmed the entry of summary judgment in favor of Defendant DynCorp on key claims arising from the aerial spraying of herbicides on illegal coca crops in Colombia. See Arias v. DynCorp, No. 13-7044 (D.C. Cir. May 30, 2014). A group of Ecuadorian provinces and farmers brought suit alleging damages from the spraying near the Colombia-Ecuador border, arguing both that the herbicides drifted and that some planes inadvertently crossed the border resulting in direct spraying of Ecuadorian land. Plaintiffs alleged that the spraying caused health problems and drove people away from the affected areas, which forced the provinces to invest in additional schools and health centers and harmed their financial interests.   Read More ›

First Circuit Rejects Monitoring Due to Lack of Subcellular Evidence

Underscoring the importance of evidence to support exposure-based injury claims, the U.S. Court of Appeals for the First Circuit rejected Plaintiffs’ bid to secure medical monitoring because they did not demonstrate that they had suffered subcellular damage.  See Genereux v. Raytheon Co., No. 13-1921 (1st Cir. June 10, 2014). Plaintiffs were former employees of Raytheon, who alleged that they were exposed to beryllium on the job, and employees’ families, who alleged that they were subjected to take-home exposure. Plaintiffs filed a class action over exposure to hazardous beryllium and sought medical monitoring damages. Read More ›

Wisconsin Supreme Court Finds Spraying Herbicide is “Inherently Dangerous”

While a homeowner would normally be shielded from liability based on an independent contractor’s actions, a homeowner who hired a contractor to spray herbicide on his property may be held liable for damages to his neighbor’s trees because spraying is an “inherently dangerous activity,” according to the Supreme Court of Wisconsin. Brandenburg v. Briarwood Forestry Servs., LLC, Appeals No. 2012AP2085 (Wis. June 12, 2014). In Brandenburg, Plaintiff neighbors alleged that an independent contractor’s spraying caused extensive, permanent damage to trees on their property and that the independent contractor was negligent for failing to take precautions to prevent the damage. The trial court granted the homeowners' summary judgment motion, holding that the homeowners had no duty to the neighbors and that only the independent contractor could be liable for any damage the spraying caused.   Read More ›

Flame Retardants Face Increasing Federal and State Scrutiny

Both the federal and state governments are closely studying and regulating the use of flame retardants and products containing flame retardants, due to a variety of concerns. This alert presents background on the use of flame retardants to meet flammability standards, and then reviews regulatory actions taken by the Environmental Protection Agency (EPA) and the Consumer Product Safety Commission (CPSC) in restricting the use of certain halogenated flame retardants. It also provides a survey of state restrictions on specific flame retardants.

Read the full alert on our website

“P3 or Not P3?” That is the Question. Obama Says: “P3.”: New Transportation Investment Center Boosts P3 Projects

President Obama last week formally embraced the expansion of Public-Private Partnerships (P3s) as a means to fill the gap in public sector transportation financing. Infrastructure developers and project sponsors should look to a planned September 9 summit on infrastructure investment hosted by the U.S. Treasury Department to learn more about how they may gain access to/benefit from expanded resources for P3s. Read More ›