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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 150 posts in Environmental Litigation. View our practice description for Environmental Litigation.

With This Tie, There Is a Winner: 4-4 SCOTUS Ruling Results in Victory for Native Americans and a Clear Mandate for Washington to Correct Culverts

In most instances, a tie means there is no winner and no loser.  Not so with the U.S. Supreme Court’s 4-4 tie in the “Culverts Case” (one branch of the sprawling U.S. v. Washington case) on June 11, 2018.  Instead, by effectively affirming the Ninth Circuit decision below, this tie is a significant win for the United States and twenty-one Native American Tribes (“Tribes”) and a significant loss for Washington State. 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 ›

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 ›

Fourth Circuit Holds Maryland Ban on Pharmaceutical “Price Gouging” Unconstitutionally Regulates Out-of-State Business Activity, Reinvigorating Extraterritoriality Doctrine of Dormant Commerce Clause

The U.S. Court of Appeals for the Fourth Circuit has struck down a Maryland law banning “excessive” prices for generic drugs, breathing new life into the extraterritoriality prong of the Dormant Commerce Clause that prohibits state and local laws that regulate commerce in other states.  Ass’n for Accessible Medicines v. Frosh,  --- F.3d ----, 2018 WL 1770978 (4th Cir. 2018). Finding that the law attempted to control drug prices set in transactions upstream from consumer sales in Maryland, the court in a 2-1 split invalidated the law, breaking with other circuits that have narrowed the extraterritorial doctrine to only bar express regulations of out of state pricing. Read More ›

SCOTX: Missed 30-Day Service Deadline Does Not Mandate Dismissal of Challenge to TCEQ Action

Last week, the Supreme Court of Texas ruled that serving citation on the Texas Commission on Environmental Quality (“TCEQ”) outside a 30-day deadline set forth in the Texas Clean Air Act (“TCAA”) did not require dismissal of the plaintiff’s lawsuit.[1] The court’s ruling may provide some relief for plaintiffs who do not strictly comply with the TCAA’s service requirements. However, the remedy for non-compliance with other TCEQ statutes’ service deadlines may be less forgiving, and practitioners should endeavor to meet all service requirements as a best practice when challenging TCEQ decisions. Read More ›

Supreme Court Poised to Overrule Requirement that Takings Claims be Filed In State Court

Signaling a possible sea change in takings law, the United States Supreme Court has accepted for review the Third Circuit’s decision in Rose Mary Knick v. Scott Township, Pennsylvania,  862 F.3d 310 (3d Cir. 2017), cert. granted,  2018 WL 1143827  (March 5, 2018).  The Court will reconsider its 1985 holding in Williamson County v. Hamilton Bank, 473 U.S. 172,  that required property owners to exhaust State court remedies in order to pursue a federal takings claim. A Pennsylvania property owner is asking the Court to overrule Williamson County’s State litigation ripeness doctrine so that citizens may bring a takings claim for just compensation under the U.S. Constitution directly in federal court.  Read More ›

Industry Wins First Round in California Climate Change Litigation

Yesterday, a California federal district court dealt a serious blow to two California cities’ climate change lawsuits against several major oil and gas companies.  Judge William Alsup issued an order denying the plaintiffs’ motion to remand these high-profile actions back to state court, finding that “plaintiffs’ claims, if any, are governed by federal common law. Federal jurisdiction is therefore proper.”[1]  If the court’s order is sustained on a likely appeal to the 9th Circuit and the cases remain in federal court, plaintiffs’ novel climate change challenge will face a steep uphill battle. Read More ›

Discharges and Hydrologic Connection to Groundwater: EPA Seeking Comment as Courts Weigh In

If the first two months of 2018 are any indication, events to play out over the rest of the year will have a major impact on what constitutes a “discharge” subject to regulation under Section 402 of the Clean Water Act (CWA).  Three cases pending in different federal courts of appeals will address whether releases of pollutants to groundwater hydrologically connected to waters of the United States are subject to the National Pollution Discharge Elimination System (NPDES) permitting requirements of the CWA.  In a fourth case, the Ninth Circuit recently weighed in on this issue by articulating a novel, broad rule for determining when a discharge occurs.  Spurred on by these developments, and its own admittedly varied positions on this issue over the years, EPA is now seeking comment by May 21 on how to approach this issue. 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 ›