Last week, a San Francisco judge issued a tentative ruling on the defendant Monsanto Company’s Motion for Judgment Notwithstanding the Verdict, and their Motion for a New Trial. This ruling threatens to gut the $289 million dollar verdict ($39M compensatory and $250M punitives) that the plaintiff Dewayne Johnson secured this summer over the company that manufactures Roundup and Ranger Pro, the glyphosate-containing herbicides used by the plaintiff in his work as a school district groundskeeper and that were alleged to have caused his lymphoma. In …
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Feed It Once And Now It Stays: Another National PFAS Class Action Seeking A Study Rather Than Money
It’s been written about exhaustively in PFAS circles: the C8 Science Panel and its “probable link” findings between PFOA and various diseases. This was a groundbreaking study that was part of a settlement agreement in watershed litigation that ultimately led to a whopping $671 million payout for over 3,000 individual plaintiffs. The defendant, DuPont, had not only agreed to the creation of an independent panel of experts to evaluate any link between exposure to PFOA and human disease, but it also agreed — by extension …
Continue ReadingFederal Government Again Seeks Stay of Climate Change Suit Filed by Minors
The federal government has again sought a stay in the climate change lawsuit filed by 21 minors, known as the Juliana case. The lawsuit was filed in 2015 against President Obama and numerous federal agencies, claiming that the executive branch contributed to climate change in violation of the children’s rights under the Fifth and Ninth Amendments to the Constitution and an asserted federal public-trust doctrine. The children are seeking a declaration from the U.S.D.C. for the District Court of Oregon that the executive branch must …
Continue ReadingSquaring the CERCLA: Federal Court in DC Weighs in on Interplay Between Action for Response Costs and Action for Contribution
One of the many pitfalls in Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) compliance is navigating the interplay between cost recovery actions under CERCLA § 107(a) and contribution actions under CERCLA § 113(f). In general, parties who incur costs to respond to environmental contamination gain a cause of action under § 107(a) against other potentially responsible parties (PRPs). On the other hand, parties who have been held liable for cleanup costs through some government action may seek contribution from other responsible parties under § …
Continue ReadingHydraulic Fracturing Update: PA Appellate Court Permits Enforcement of $1 Million Dollar Penalty Upon Fracking Operator
Recently, a Pennsylvania Appellate Court decided to permit the enforcement of a monetary penalty levied upon a driller, totaling over $1.1 million, stemming from the delay of maintenance to leaks in a damaged liner of an impoundment used to contain wastewater from hydraulic fracturing operations.
In EQT Production Company v. Department of Environmental Protection, Docket # 844 CD 2017, a driller challenged the extent of a monetary assessment against it by Pennsylvania’s Department of Environmental Protection (DEP). The Commonwealth of Pennsylvania’s Environmental …
Continue ReadingNuclear NY: “ZEC” Subsidies Permitted by Second Circuit
On September 27, 2018, the Second Circuit Court of Appeals upheld the District Court’s ruling in Coalition for Competitive Elec., et al. v. Zibelman, et al., and determined that New York State’s ZEC program is neither field nor conflict preempted. No. 17-2654, 2018 WL 4622696 (2nd Cir. Sept. 27, 2018). Moreover, the court found that the plaintiffs lacked Article III standing to raise a dormant Commerce Clause claim.
In August 2016, the New York Public Service Commission (PSC) adopted the Zero Emissions Credit (ZEC) …
Continue ReadingThe Art of the Deal? New EPA Administrator shaves $30 million from clean-up costs for nuclear waste near underground landfill fire in suburban St. Louis.
The U.S. Environmental Protection Agency has announced its final plan for the West Lake Landfill in suburban St. Louis. As we’ve previously reported, West Lake Landfill is the site of illegally dumped nuclear waste that is buried near a long-smoldering underground fire.
Approximately a decade ago, the EPA announced a cap-and-monitor proposal for the site. However, that plan was met with such resistance that it was withdrawn and a new proposal was announced earlier this year. That plan, with an estimated cost of $236 million, …
Continue ReadingWEBINAR: Unregulated (Mostly), Uncertain, and Ubiquitous-PFAS and the Highly Anticipated ATSDR Report
Join Goldberg Segalla’s George H. Buermann and Oliver E. Twaddell for a complimentary, live, and interactive webinar on PFAS substances and how companies, insurers, and counsel should prepare themselves for what might be the next mass tort. George and Oliver will present on the most recent — and perhaps most significant — indicator of these developments, a report from the Agency for Toxic Substances and Disease Registry (ATSDR), which includes a toxicological profile of PFAS and a comprehensive analysis of the current state of these …
Continue ReadingSplitting from Other Circuits, Sixth Circuit Limits the Scope of the Clean Water Act
This week, the Sixth Circuit diverged from the Fourth and Ninth Circuits by limiting the scope of the Clean Water Act (CWA) as it relates to groundwater. The court held that the CWA cannot regulate pollutants from point sources if they reach navigable waters through groundwater. This decision is a clear split from the Fourth and Ninth Circuits, who have both held this year that groundwater can be regulated under the CWA if it serves as a conduit for pollution that eventually reaches navigable waters, …
Continue ReadingSub-National Efforts to Tackle Greenhouse Gas Emissions Take up the Slack
Given the Trump Administration’s position on climate change, one could easily become discouraged that any meaningful progress can be made in reaching the Nationally Determined Contribution (NDC) set for the United States under the 2015 Paris Agreement to stabilize greenhouse gas (GHG) emissions and to keep anthropogenic warming to below 2°C.
Under the Paris Agreement, the United States is tasked with reducing its GHG emissions by 26-28 percent below its 2005 emissions by 2025. Such pessimism might not be completely warranted, however, despite the Trump …
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