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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Legal Whipsaw in Washington Sawmill Case: State Supreme Court Decision Fundamentally Changes the Scope of Liability Under the Model Toxics Control Act

On May 24, 2018, in a significant decision with far-reaching implications for cleanups at Washington’s contaminated sites, the Washington State Supreme Court narrowed the scope of “owner or operator” liability under the state environmental cleanup statute, the Model Toxics Control Act (MTCA).  Pope Resources, LP v. Washington State Department of Natural Resources.[1]  The surprising 6-3 decision held:  (1) that a state agency – in this case, the Department of Natural Resources (DNR) – may not be liable as an “owner” under MTCA when it merely acts as a lessor, or property management agent, for a property owned by the state; and (2) that liability as an “operator” under MTCA requires active involvement in the operational decisions at a facility. Read More ›

Major Offshore Wind Projects Advance in Massachusetts and Rhode Island

Commercial-scale offshore wind power may soon become a reality in New England. On May 23, Massachusetts electric distribution companies selected Vineyard Wind, a subsidiary of Avangrid Renewables, LLC, as the preferred provider of 800 megawatts (MW) of offshore wind generation to the Massachusetts power market, and Rhode Island selected Deepwater Wind as the preferred provider of 400 MW of offshore wind generation to the Rhode Island power market. Both companies propose to generate the electricity from wind projects they intend to construct on federal leases on the Outer Continental Shelf offshore of Massachusetts and Rhode Island. Read More ›

California Appeals Court Upholds State’s Reliance On Conclusion By A Foreign Agency To Classify Glyphosate As “Cancer-Causing”

Two courts recently examined California’s regulation of glyphosate, a widely used pesticide ingredient, for its alleged health risks via the state’s Proposition 65 warning program. The decisions are noteworthy for the contrasting approaches that they take with respect to the amount of deference to give to international regulatory actions that are incorporated by reference into U.S. law. Read More ›

Environmental Enforcement Policy Developments: The Trump Administration and Congress Make Their Mark

During the past year, numerous developments have signaled a change in approach to environmental enforcement as it is being conducted by the Trump Administration.  Enforcement continues, in several cases on high profile matters, but there are differences in scope and approach when compared to the prior administration.  Several of these developments are discussed below, followed by a list of key takeaways. Read More ›

Vermont House of Representatives to Consider Pair of Sweeping Toxic Tort Liability Bills

On March 21, 2018, the Vermont Senate approved S.197, a bill that (1) establishes strict liability, jointly and severally, for any person who releases a toxic substance and (2) creates a private right of action for medical monitoring damages related to toxic substance exposure. The Vermont House Judiciary Committee split the bill in two after hearing extensive testimony. The strict liability provisions are now attached to an unrelated bill, S.123, while the medical monitoring provisions remain in S.197. Read More ›

Conflicting District Court Rulings Set up Climate Change Tort Issues for Resolution by the Ninth Circuit

After two judges from the Northern District of California reached different conclusions in similar cases, The Ninth Circuit Court of Appeals will be next to determine whether climate-change-related tort actions may be properly heard in federal court.  As previewed by Beveridge & Diamond in a March 30, 2018 News Alert, the two judges reached contrary decisions concerning the scope of federal jurisdiction over climate-change-related tort actions, thus teeing up the complicated issues of Clean Air Act displacement and federal common law for the Ninth Circuit.  See California v. BP Plc, et al, No. 17-cv-6011 WHA, Memorandum Opinion and Order at *8 (N.D. Cal. 2018) (Alsup, J.); County of San Mateo v. Chevron et al., No. 17-cv-4929 VC, Memorandum Opinion and Order at  2-3 (N.D. Cal. 2018).  Read More ›

Montana Supreme Court Undercuts CERCLA, Permits Property Owners to Pursue Restoration Damages Claim

In an opinion tilting against the weight of precedent elsewhere, the Montana Supreme Court held that private landowners could pursue common-law claims to clean-up their properties beyond what EPA required in its selected CERCLA remedy for the Anaconda Smelter Superfund site.  Atl. Richfield Co. v. Mont. Second Judicial Dist., 390 Mont. 76 (Mont. Dec. 29, 2017).   ARCO has filed a Petition for a Writ of Certiorari asking the U.S. Supreme Court to overrule the Montana Supreme Court.  Petition for Writ of Certiorari, Atl. Richfield Co., No. 17-1498 (Apr. 27, 2018).  Read More ›

Clean Air Act Preemption Claims Not Preempted in Diesel Cheat Device Class-Action

A Michigan district court judge determined that the Clean Air Act did not preclude plaintiffs from bringing 53 state law fraudulent concealment and consumer protection claims against General Motors LLC and its suppliers for developing and installing devices on GM diesel trucks to cheat emissions tests. Fenner v. Gen. Motors, LLC, 2018 WL 949856 (E.D. MI. February 20, 2018). Read More ›

Mississippi Federal Court Rejects RCRA Preemption

Illustrating limits on Resource Conservation and Recovery Act (“RCRA”) preemption of state tort claims, a Mississippi federal court concluded that the state’s toxic tort claims were not preempted by federal law.  See Mississippi ex rel. Hood v. Meritor, Inc, No. 17-CV-74 SA/JMV, Memorandum Opinion and Order at 1, 9 (N.D. Miss. Mar. 13, 2018).  Read More ›

Faulty Expert Testimony Leads to Dismissal of Benzene Exposure Claims

Illustrating the importance of expert testimony in toxic torts, the United States Court of Appeals for the Tenth Circuit recently dismissed a plaintiff’s appeal after finding that the plaintiff’s expert witness (1) provided a flawed methodology for determining benzene caused the plaintiff’s leukemia and (2) failed to rule out idiopathic origins. Hall v. Conoco Inc., 886 F.3d 1308 (10th Cir. 2018). Read More ›