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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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Showing 8 posts in Citizen Suits.

Cert Petition Seeks Supreme Court Review of Ninth Circuit’s Expansion of the CWA’s NPDES Program

Earlier this year, the Fourth and Ninth Circuits decided a pair of cases that have the potential to greatly expand the scope of the National Pollution Discharge Elimination System (NPDES) permit program under the Clean Water Act (CWA). For decades, many have generally taken for granted that NPDES permits are required only when a point source directly delivers pollutants to surface waters.  In Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), and Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018), both courts rejected this assumption by holding that pollutants reaching surface waters via groundwater required NPDES permits. Read More ›

NGOs Challenge Department of Interior’s New Interpretation of “Incidental Take” Liability Under Migratory Bird Treaty Act

National environmental groups recently filed a pair of new lawsuits in New York federal district court seeking to expand the scope of liability for “incidental take” under the Migratory Bird Treaty Act (“MBTA”).[1]  The litigation seeks to overturn recent legal and policy guidance issued by the United States Department of the Interior (“DOI”) and Fish and Wildlife Service (“FWS”) which provided greater regulatory certainty by limiting those agencies’ enforcement actions under the MBTA to claims of intentional harm to migratory birds.  If the new lawsuits prevail, many industries may once again face potential criminal liability for day-to-day operations posing a risk of unintentional effects on migratory birds.  The lawsuits are also a reminder that courts remain split on the scope of MBTA liability, that MBTA enforcement policy may shift between administrations, and that other statutes still make avian protection a key component of environmental planning and compliance at many facilities. Read More ›

Ninth Circuit Holds That Indirect Discharges Require NPDES Permits

On February 1, the Ninth Circuit issued a decision that has the potential to sweep regulated groundwater discharges that reach surface waters, and similarly remote-in-place discharge situations, into the Clean Water Act’s (CWA) NPDES permitting program.  In Hawai’i Wildlife Fund v. County of Maui, --- F. 3d ---, 2018 WL 650973 (9th Cir. 2018), the court held that the County of Maui violated the CWA by discharging pollutants from wastewater injection wells that release pollutants indirectly to the ocean via groundwater without a National Pollutant Discharge Elimination System(NPDES) permit.  The court determined that the CWA does not require pollutants to directly enter a navigable water from a point source in order to be regulated under the statute.  By holding that such “indirect” discharges require NPDES permits, this decision has the potential to expand the scope of CWA liability and the NPDES program. Read More ›

DOJ Clarifies Limits on Third Party Payments in Environmental Settlements

In a memorandum issued earlier this month, the U.S. Department of Justice (DOJ) clarified how a policy prohibiting settlement payments to third parties, announced in June 2017,  will apply in cases handled by DOJ’s Environment and Natural Resources Division.  Our prior alert is available here.  When DOJ unveiled the policy last June, it left open a number of questions concerning how the policy might affect settlements in environmental cases.  DOJ’s new memorandum resolves some of these questions, while also indicating how DOJ will implement the policy in environmental cases. Read More ›

DOJ Eliminates Option of Third Party Payments in Settlements

On June 7, 2017, Attorney General Jeff Sessions issued a memorandum prohibiting the U.S. Department of Justice (DOJ) from directing any settlement payments to third-party, non-governmental organizations (NGOs) that were not directly harmed by a defendant’s actions. If strictly implemented, this new policy may impose significant limits on the availability of certain types of relief available in civil and criminal environmental enforcement cases.  The memorandum also raises significant questions about how the U.S. Environmental Protection Agency (EPA) will handle environmental settlements under the Trump Administration, as well as how DOJ will approach settlements resolving citizen suits. Read More ›

Recent PFAS Case Law – RCRA, CERCLA and Toxic Tort Claims

A new class of emerging contaminants poses challenges at remediation sites and for the protection of drinking water, and is generating new toxic tort litigation. Per- and polyfluoroalkyl substances (PFAS) are emerging contaminants that are being identified at several sites in many areas of the country.  The U.S. EPA and many states are beginning to issue guidelines, advisories or in some cases, standards for PFAS in drinking water, soil, or groundwater.  At the same time, several cases are winding their way through the courts.  Below we discuss several recent cases involving PFAS contamination.  In each of these cases, some of the claims have survived a motion to dismiss, suggesting that it will be difficult to quickly dispose of such claims prior to discovery. Read More ›

Supreme People’s Court Issues Judicial Interpretation Addressing Environmental Civil Public Interest Litigation

On January 6, 2015, China’s Supreme People’s Court (SPC) issued a judicial interpretation on environmental civil public interest litigation, effective January 7, 2015. This interpretation comes one week after China’s amended Environmental Protection Law went into effect (see B&D alert from January 9, 2015). Read More ›

Federal Court Allows Citizen Suits to Proceed Based on State’s Failure to "Diligently Prosecute" Enforcement Action

In a decision that looks beyond the mere existence of relevant enforcement actions and turns on the diligence with which they are being prosecuted, the U.S. District Court for the Southern District of West Virginia allowed a citizen suit to proceed despite pending enforcement actions against the defendant companies. See Ohio Valley Envt’l Coal. v. Patriot Coal Co., No. 11-cv-00115 (S.D. W.Va. Dec. 7, 2011), available at www.bdlaw.com/assets/attachments/OhioValley.pdf Read More ›