Remedying Toxic Exposures: Will CERCLA Continue to Help?
On Monday, June 9, 2014, the U.S. Supreme Court decided CTS Corp. v. Waldburger, --- U.S. ---, --- S. Ct. ---, 2014 WL 2560466 (June 9, 2014), a case that posed the seemingly simple legal question of whether the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” also known as Superfund), 42 U.S.C. §§ 9601-9675, preempts state statues of repose. Behind that legal question, however, lies the issue of whether the plaintiffs landowners do or should have a state-law remedy for the fact that CTS Corporation contaminated their properties with toxic chemicals as part of its electronics business between 1959 and 1985.
CTS sold the property in 1987, and the plaintiffs brought suit in 2011, alleging a state-law nuisance claim. North Carolina, the state where the properties are located and where the suit was filed, has a 10-year statute of repose. CTS argued that the statute of repose barred the plaintiffs’ nuisance claims, and the U.S. Supreme Court, in what is basically a 7-2 decision with the majority opinion authored by Justice Kennedy, agreed.
CERCLA essentially allows for two parallel liability schemes when hazardous substances are released into the environment. Under CERCLA itself, four categories of “potentially responsible parties …
The EPA’s June 2, 2014 announcement of a Clean Power Plan is momentous. On the surface, its scope, complexity, potential for myriad legal challenges and, not to mention, the difficulty of gathering reliable cost and benefit data, make it so. Mothers should advise their children to grow up to be energy lawyers, not cowboys. However, what makes this proposed rule more significant are the below the surface core principles and concepts that make the Clean Power Plan a game changer for the practice areas of environmental and energy law and policy.
It is a historical curiosity that the field of environmental law preceded energy law in the 1970s. It is also a historical curiosity that these two disciplines developed largely independently of each other, even though they are naturally connected by the physical fuel cycle. Environmental consequences follow the fuel cycle from the exploration and extraction …
On June 2, 2014, the United States Environmental Protection Agency issued its much awaited and debated proposed Clean Air Act Section 111(d) regulations to reduce greenhouse gas (GHG) emissions from existing electric utility generating units, colloquially referred to as power plants. And because the largest GHG emitters in this category are coal burning plants, such plants and linked businesses and coal-intensive jurisdictions all have nervously awaited these proposals. In an earlier blog analysis, I assessed the statutory language and how it provides EPA with considerable latitude to allow for flexibility and trading of pollution.
Now we have the actual proposal, which in turn solicits comments as the next step in the notice and comment process. Weighing in at 645 pages, this proposal will be scrutinized by legions of lawyers, environmentalists, and political pundits in the coming months. Nevertheless, a quick review of this important proposal reveals …
Megan Herzog has done a great job of explaining the background of the rules and summarizing the proposal in her blog posts. I just wanted to add a quick note about how EPA has structured its rules in light of possible legal challenges. The fundamental issue facing EPA is how to define the “best system” for reducing carbon emissions. Is it limited to technological upgrades at individual emitters? Or can it be broader, and if so, how broad? Industry is sure to argue that EPA can only set standards for individual plants that emit carbon, nothing more.
EPA responds to this argument in two ways. First, as Megan notes, states can use measures drawn from four “building blocks” — reductions at individual emitters, trading with other emitters, use of renewable energy, and energy efficiency. The first block corresponds to industry’s interpretation of the law. The second block …
Today, Center for Progressive Reform Member Scholar Robert Verchick published an op-ed in New Orleans' Times-Picayune entitled, "Gov. Jindal, don't sign away our legal claims against BP."
The piece notes:
Governor Jindal will probably sign SB469, a bill designed to neutralize the Southeast Louisiana Flood Protection Authority – East's lawsuit against oil and gas companies. But does our governor realize that, if he signs this bill, he may also be killing scores of claims that his own his own state and associated local governments have brought against BP for the Macondo oil spill?
For, whatever the governor or state lawmakers may believe, that is precisely what SB469 might do.
SB469 clearly lists not only who can bring claims in Louisiana's coastal zone, but what kind of claims they can bring. Notably missing from its list are claims for economic losses and claims for natural resource …
