Environmental Due Diligence for Corporate Transactions: The Bona Fide Purchaser and the All Appropriate Inquiry Rule

A few months ago we posted our first blog on environmental due diligence, and as promised, we will continue to post on this important subject. This week we will focus on the popular, yet oft-mistaken, bona fide purchaser exception and the all appropriate inquiries rule (AAI rule) under CERCLA. In purchasing property, a buyer will conduct an assessment to determine whether a parcel (or property connected to an entity being acquired) has potential environmental contamination concerns and whether any issues
Continue reading...

Climate Change Lawsuits Heat Up – The City of Boulder, Boulder County, and San Miguel County Join the Mix

On April 17, 2018, the City of Boulder, Boulder County, and San Miguel County, all in Colorado, collectively became the latest government entities to file suit against some of the world’s largest oil and gas companies, seeking compensation for the costs of adapting to climate change in their communities.   Non-coastal suits arrive: The Colorado suit, similar to all the previously filed government suits, alleges that the defendants’ greenhouse gas products are directly responsible for current and future physical impacts
Continue reading...

Extra-Terrestrial? Illinois Attorney General to File Suit Over Emission Controls in Wisconsin

Illinois Attorney General Lisa Madigan has announced she plans to file a lawsuit challenging a recently issued ruling by the U.S. Environmental Protection Agency (EPA). While lawsuits involving environmental regulations between individual states and the federal government are becoming increasingly prevalent, this suit is noteworthy as it involves a manufacturing facility being built by Foxconn Technology Group (Foxconn) just north of the Illinois border in southeast Wisconsin. The Taiwanese company plans to build flat-screen display panels at the factory and
Continue reading...

What Happens to Wastewater From Oil and Gas Extraction? EPA Seeks Input

The U.S. Environmental Protection Agency (EPA) has begun soliciting information for a new study that will examine how numerous entities across the U.S., including industry, stakeholders, local officials, energy providers, states, and the EPA itself, regulate and manage wastewater produced during the oil and gas extraction processes. The goal of the study is to develop better and more effective ways to dispose of, recycle, or reuse the wastewater generated during extraction. By way of example, and with regard to hydraulic
Continue reading...

In the Name of Transparency: EPA’s Proposed Rule to Limit Scientific Studies Raises Concern

On April 24, 2018, U.S. Environmental Protection Agency Administrator Scott Pruitt proposed a rule to impose limitations on what scientific studies may be used by the agency to promulgate regulations. Mr. Pruitt seeks to exclude from the agency’s consideration any scientific studies that contain confidential data on the grounds that the agency ought to be transparent about the information it relies upon in crafting regulations. The proposed rule has garnered support from certain scientific organizations, like the American Chemistry Council,
Continue reading...

Up the Creek: The EPA Invites Public Comment Regarding Cleanup to NJ Superfund Site

The U.S. EPA is seeking public comment now on its proposed cleanup plan for the Berry’s Creek Study Area — a Superfund site located in Bergen County, New Jersey. Berry’s Creek Study Area includes a 6.5 mile tributary of the Hacksensack River and about 12 miles of additional wetlands and industrial properties within the watershed. The creek originates near Teterboro Airport, runs through various sections of towns that are close to where Giants Stadium used to stand in the Meadowlands,
Continue reading...

How Clean is Clean? Environmental Issues Hamper CA Wildfire Recovery

Late last year, we reported on the looming environmental threat of the 2017 California wildfires. The threat has become reality with respect to two contaminants in particular: benzene and arsenic. As reconstruction moves forward in Northern California this year, real human health hazards created by the devastating fires are now present. Municipal officials in Fountaingrove, California have found elevated benzene readings in hundreds of samples of drinking water over the last several months, and the city is evaluating the necessity of
Continue reading...

Rounded Down: An Update on California Glyphosate Litigation

Last November, we brought your attention to litigation in federal court in California regarding the listing of glyphosate as a substance “known to the state to cause cancer.” Since then, there have been developments in both the originally reported federal court case and a state court case on the same subject. First, a refresher: glyphosate is a common pesticide sprayed on more than 200 types of crops across four million acres in California. Monsanto Company, the principal plaintiff in both
Continue reading...

Legal Acrobatics or Sound Interpretation: Ground Water Regulation under the Clean Water Act

In February, we reported about whether ground water can be regulated under the Clean Water Act. As a refresher, we discussed Hawaii Wildlife Fund v. County of Maui — a case involving the indirect discharge of injection well wastewater into the ocean by traveling through groundwater. The court held there that for purposes of the CWA the injection wells were a point source, requiring an NPDES permit for groundwater because “the pollutants are fairly traceable from the point source to a
Continue reading...

GenX Update: State Environmental Agency Seeks Injunction Against Chemours From Further Discharging GenX

We’ve posted on several occasions about the ongoing litigation over GenX contamination emanating from the Chemours Fayetteville Works facility along the Cape Fear River in North Carolina. The damages that defendants typically face in these trending water contamination actions arise not only from cleanup costs to the waterbody at issue, but from the impact to the surrounding communities —ranging from PI, damage to real property/diminution in value, natural resources, and medical monitoring. There’s also another type of damages in the form
Continue reading...