Author: Goldberg Segalla

Agriculture
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Roundup Litigation – Not Just Glyphosate Anymore

The massive verdicts against the manufacturer of Roundup in favor of plaintiffs claiming that use of Monsanto’s Roundup herbicide caused their Non-Hodgkin lymphoma have rightly garnered significant attention. On the heels of verdicts of $289 million, later reduced to $78 million, and $80 million came the May 13, 2019 verdict of $2.055 billion in a case brought by Alva and Alberta Pilliod. This significantly higher verdict may be heavily influenced by an argument not previously emphasized by plaintiffs that Roundup contains not just glyphosate …

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Climate Change
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Congratulations, World! Atmospheric CO2 Levels Have Not Been This High in the Past Three Million Years

The world set a new record in May 2019, at least on a human perspective. Atmospheric concentrations of CO2 reached 415.26 ppm on May 14, as recorded at the Mauna Loa Observatory in Hawaii, a level not seen in the past three million years.

 

To put that into perspective, the last time atmospheric concentrations of CO2 were this high, there were no humans on Earth. This was the Pliocene Epoch, where global temperatures were on average 2-3°C (3.6-5.8°F) higher than today; the …

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California / EPA
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Oh, Nuts… California to Enact Ban on Use of Chlorpyrifos

Earlier this month, California state officials announced plans to ban chlorpyrifos, a widely used farm pesticide on crops such as oranges, grapes, and almonds. Chlorpyrifos is still approved for those uses by the EPA. The current EPA administration has been defending the chemical against court challenges after the Obama administration took steps to prohibit its use.

In April, chlorpyrifos was formally listed by the California Environmental Protection Agency (CalEPA) as a “toxic air contaminant,” which California law defines as “an air pollutant which may cause …

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Emerging Issues / General
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Record-Setting $2 Billion Verdict In Glyphosate Litigation

Previously, we reported two significant jury verdicts involving alleged exposure to glyphosate-containing Roundup, including a $289 million verdict and an $80 million verdict, both occurring in California courts within the past year.

In another plaintiff’s victory, an Alameda County jury has reached a record-setting $2 billion verdict against Monsanto — the largest in history involving alleged exposure to glyphosate. This is now the third consecutive herbicide trial where a jury has found in favor of plaintiffs.

The plaintiffs in this case, Alva and Alberta …

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CERCLA / EPA
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Reopener Alert: The Erosion of Peace of Mind

While covenants not to sue purport to provide some security to settling parties, in CERCLA actions, reopener provisions, which the EPA includes in most consent decrees, allow for future liability for unforeseen and unknown conditions that arise following completion of the remedial actions. As a result of these reopener provisions, which became required in all but a few limited circumstances after the 1986 CERCLA amendments, parties that settle CERCLA claims live with the risk that new claims could be asserted to address new cleanup demands …

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Legislation
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Climate Change Litigation: Where Are the Coverage Suits?

There is an interesting question surrounding the present generation of climate change lawsuits currently working their way through the court system. Specifically, where are the duty to defend actions related to these suits?

Background

By way of background, there are two types of climate change lawsuits currently working their way through the courts:

  1. Those filed by government entities that seek to hold energy companies responsible for the costs that government entities are forced to expend in adapting to climate change, and which could be susceptible
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Michigan / New Jersey / Wastewater
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PFAS Contamination Map Underscores Widespread Pollution

In conjunction with the Social Science Environmental Health Research Institute of Northeastern University, the non-profit watchdog organization Environmental Working Group (EWG) published last week an updated version of their interactive map documenting alleged sites of PFAS contamination in the United States. It purports to chart 610 locations in 43 states that have reported known contamination with PFAS chemicals, potentially affecting the drinking water of approximately 19 million people. A prior version of the map issued in July 2018 documented only 172 contaminated sites in 40 …

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CERCLA / Due Diligence / New Jersey / New York / Pipeline
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FERC Ambivalence Leads to Pipeline Approval

In a split decision, a bipartisan four-commissioner panel of the Federal Energy Regulatory Commission (FERC) approved an application by Transcontinental Gas Pipe Line Co. LLC for a construction certificate. Transco plans to upgrade several portions of a pipeline that serves the northeast region of the country, including parts of New York City and New Jersey.

Specifically, the project involves construction of approximately 14 miles of pipeline in Pennsylvania, New Jersey, and Queens County, New York, 23 miles of offshore pipeline near Queens and Staten Island, …

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Clean Water Act / Emissions / EPA / Pipeline / President Trump
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Executive Order 13868 – the Push is on to Maximize Energy Production – Climate Change Impacts and the Local Environment – Nevermind.

On April 10, 2019, the Trump administration published Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” which directs the EPA Administrator to, “consult with states, tribes, and relevant executive departments and agencies in reviewing section 401 of the Clean Water Act and EPA’s related regulations and guidance to determine whether any provisions thereof should be clarified to be consistent with the policies described in section two of this order.” The policy referred to in section two states, in relevant part:

It is the …

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Agriculture / California
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Glyphosate Alert: ATSDR Releases Draft Toxicological Profile and Governments Enact Restrictive Legislation

There have been several notable updates regarding glyphosate. First, and notwithstanding the US EPA’s long maintained position that glyphosate is not likely to be carcinogenic to humans, earlier this month, another US agency, the U.S. Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry (ATSDR), issued a draft report on the Toxicological Profile for Glyphosate.

The draft ATSDR report was reportedly conducted over the past several years. The report states that, among other things, “a possible association between exposure to glyphosate …

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