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California Dep't of Toxic Substances Control v. Hearthside Residential Corp., No. 09-55389 (9th Cir. July 22, 2010)

By Betsy McDaniel and Adam Bailey

On July 22, the Ninth Circuit Court of Appeals held that under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA," commonly referred to as the "Superfund" law), the owner of a contaminated site when cleanup costs are incurred is the "current owner" for liability purposes. The decision will provide clarity to state agencies or other entities that engage in the remediation of contaminated lands. In the event that a landowner refuses to accept responsibility for cleanup, the entity that performed the cleanup can easily determine whom to sue for repayment.

Connecticut v. American Electric Power Company Inc., ____F.3d ____, No. 05-5104 (2nd Cir. 2009)

By James Rusk

States and private plaintiffs may sue utility operators under the federal common law of nuisance to abate carbon dioxide ("CO₂") emissions that contribute to global warming, the Second Circuit Court of Appeals held this month. Although the 139-page opinion appears to open a new front in the fight over climate change, its full import is uncertain. The court held only that plaintiffs had standing, that they had stated public nuisance claims under the federal common law and that those claims were justiceable. It did not reach the merits of plaintiffs' claims, and it expressly noted that those common law claims could yet be displaced by federal legislative or rulemaking action. With that in mind, the case could prove more significant as an additional impetus for national greenhouse gas regulation than as a tool for judicial control of emissions.

By Brenna Moorhead

The California Natural Resources Agency (CNRA) led twelve state agencies in preparing the Draft California Climate Adaptation Strategy. The Strategy responds to the mandates of Executive Order S-13-08, which called for development of an adaptation strategy for addressing climate change. Consistent with the Order, the Strategy summarizes the best known science on climate change impacts, assesses the state’s vulnerability to these impacts, and outlines solutions to be implemented by state agencies to promote resiliency.

By Randolph C. Visser, Jeffrey W. Forrest, & Michael Hansen

On May 4, the U.S. Supreme Court handed down its 8 to 1 decision in the much anticipated case of Burlington Northern & Santa Fe Railway Co., et al v. United States et al. (556 U.S.___ (2009)), which challenged the traditional notion of joint and several liability under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund") and challenged a new, expansive notion of arranger liability under CERCLA. The Supreme Court overturned the Ninth Circuit Court of Appeals' broad interpretation of arranger liability and may have lowered the bar for how Potentially Responsible Parties ("PRPs") can demonstrate apportionment liability, therefore avoiding CERCLA's expansive joint and several liability scheme.

By Olivier Theard

Summary

Two new rules promulgated by the South Coast Air Quality Management District (AQMD) that were designed to encourage development of newer, cleaner electric power plants by replacing older, more-polluting ones were recently vacated in a case pending in the Superior Court in Los Angeles.  The court decided that, in implementing the rules, the AQMD, which has broad jurisdiction to control air pollution in most of Southern California, violated the California Environmental Quality Act (CEQA) by failing to analyze the rules’ health and environmental impacts prior to their adoption.

Northwest Environmental Advocates, et al. v. United States Environmental Protection Agency (July 23, 2008, 9^th Cir. Case Nos. 03-5760, 06-17187, and 06-17188) __ F.3d ___

By Misty Calder

Plaintiffs Northwest Environmental Advocates, San Francisco Baykeepers, and The Ocean Conservancy (“plaintiffs”) challenged a regulation originally promulgated by the Environmental Protection Agency (“EPA”) in 1973 exempting certain marine discharges from the permitting scheme of sections 301(a) and 402 of the Clean Water Act (“CWA”).  That regulation, 40 C.F.R. § 122.3(a), provides that the following vessel discharges into the navigable waters of the United States do not require permits pursuant to the National Pollutant Discharge Elimination System (“NPDES”):  (1) discharge of effluent from properly functioning marine engines; (2) discharge of laundry, shower, and galley sink wastes from vessels; and (3) any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water.  The Ninth Circuit Court of Appeal upheld the ruling of the District Court that the regulation exempting the discharges was invalid.

On April 10, 2008, the Army Corps of Engineers ("Corps") and the Environmental Protection Agency ("EPA") issued a final rule governing mitigation requirements for unavoidable impacts to wetlands and other waters of the United States under the section 404 program of the Clean Water Act.  70 Fed. Reg. 19594. This rule is a major change to the Section 404 program.  It was published with nearly 80 pages of preamble in the Federal Register, and the rules itself is more than 30 pages.  It will take some time for the Corps staff and the regulated community to learn the new rule.  The rule is sufficiently complex that it will be many years before the effect of the changes will be fully understood.

By Olivier F. Theard and Maria J. Gangemi

I. Introduction

On November 5, California filed suit for an injunction to compel EPA to rule on California's requested waiver from the Clean Air Act's prohibitions of states enforcing their own greenhouse gas emissions standards for automobiles.  Several other states have intervened, seeking to adopt California's standards as well.

People of the State of California v. General Motors Corporation et al. (Sept. 17, 2007, C06-05755) ___Cal.App.4^th ___;

By Maria J. Gangemi

Introduction/Holding:

In a major case brought by the State of California seeking to hold automakers liable for global warming, District Judge Martin Jenkins in San Francisco granted defendants' motion to dismiss the State's nuisance causes of action under federal and state law.  The judge determined that it was a non-justiciable political question.

By Randolph C. Visser and Olivier F. Theard

Pursuant to AB 32 (the Global Warming Solutions Act) the California Air Resources Board (CARB) recently announced that it would go beyond the minimum statutory requirements and has proposed additional “early action measures” designed to help California achieve its statutory goal of reducing greenhouse gas emissions to 1990 levels by the year 2020.  If adopted, the new measures will significantly increase the current list of early action measures which were approved by CARB in June 2007.

The California Court of Appeal, Second District, threw out a jury award of $14,275,237 in damages against Shell Oil Co. in an action by plaintiff Watson Land Company concerning groundwater and soil contamination from a gasoline pipeline leak. The appellate court ruled that the jury erred when it found that Shell derived a $14,275,237 "benefit" from the leak and resulting contamination, and misapplied Civil Code section 3334 in awarding that amount to plaintiff.

The federal court of the Eastern District of California has published its decision in Kotrous v. Goss-Jewett Co. of Northern California, Inc. (2005 WL 1417152, E.D. Cal. Jun. 16, 2005), concerning whether a potentially responsible party in CERCLA hazardous waste cases may bring a contribution claim.