Litigation

Latest news on lawsuits brought by environmentalists, industry and others challenging EPA rules on a broad range of issues, as well as breaking stories on state, federal and Supreme Court hearings and decisions.

Topic Subtitle
Latest news on lawsuits brought by environmentalists, industry and others challenging EPA rules on a broad range of issues, as well as breaking stories on state, federal and Supreme Court hearings and decisions.

EPA PLANS STORMWATER ENFORCEMENT LIMITS IN PACT WITH BUILDERS

EPA will soon propose changes to its controversial general permit for stormwater discharges at construction sites that industry and state sources say may limit the ability of the agency and private parties to sue builders for violations that occurred prior to receiving a permit. The proposed changes, which were published in the Federal Register Sept. 16, are part of a revised settlement agreement between the agency and representatives of the construction industry that had sued the agency over the general...

GOVERNOR'S PROP. 64 SUPPORT ANGERS, DISMAYS ENVIRONMENTALISTS

Environmentalists say they feel "betrayed" by Gov. Arnold Schwarzenegger for supporting a ballot initiative to limit private enforcement of unfair business competition laws, and accuse Schwarzenegger of siding too often with industry on major policy issues. These environmentalists say they were misled by Schwarzenegger into thinking he favored a legislative solution to the state's troubled unfair competition statute and now doubt the governor ever had any intention of working on a bill to advance a compromise. Meanwhile, proponents of Proposition...

APPELLATE COURT PUTS SAN DIEGO DUMP-BLOCKING MEASURE BACK ON BALLOT

An appellate court judge has ordered an initiative to block a controversial landfill from being developed in northern San Diego be placed back on the county's November ballot, only weeks after a superior court judge decided the measure should be removed. The ruling means that after a couple of fits and starts Proposition B is back on San Diego County's ballot, meaning residents there will have the opportunity to vote whether to block the Gregory Canyon landfill from being built...

GROUP EYES LAWSUIT AGAINST LONG BEACH PORT OVER PIER EXPANSION

The Coalition for Clean Air is eyeing a lawsuit against the Port of Long Beach over an environmental impact report (EIR) for a proposed pier expansion project. The group argues the EIR contains "bogus" estimates that grossly underestimate the pollution impacts of the project, which it claims will make the terminal the largest on the West Coast if not the nation. Assumptions about current and future air pollution used in the EIR by the developer and port are skewed to...

APPEALS BOARD URGES EXPANDED EPA DATA ACCESS TO SET PENALTIES

A recent decision by U.S. EPA's Environmental Appeals Board on wetlands penalties may expand the agency's ability to gather information about a defendant's finances when the party claims an inability to pay a fine, according to an attorney familiar with the case. The board's ruling In re: Donald Cutler suggests EPA could have appealed an administrative law judge's rejection of the agency's request to gather financial information to assess a penalty against a defendant, who allegedly filled a wetland in...

ACTIVISTS DECRY U.S. BILLS TO SPLIT NINTH CIRCUIT AS ANTI-ENVIRONMENT

Pending federal bills to split the U.S. Ninth Circuit Court of Appeals are akin to "anti-environmental gerrymandering of the courts," environmentalists who oppose the measure charge. But sponsors of the bills deny any political or ideological motivation behind the push to split the court, which they argue has become too big to efficiently administer justice. Splitting the ninth circuit is not a novel idea; it has been proposed repeatedly in recent years, never with any success. But with three bills...

APPELLATE RULING MAY LIMIT GROUPS' ACCESS TO COURTS, LEGAL EXPERTS SAY

A recent appellate ruling dismissing an environmental group's attempt to stop a Forest Service timber sale on the grounds that a different environmental group had already sought to litigate the issue sets a disturbing precedent that could block industry and environmental groups' access to courts, legal experts and some environmentalists warn. These sources say the ruling may set a precedent by expanding a legal doctrine -- known as privity -- that is used to determine when parties in litigation share...

APPEALS BOARD URGES EXPANDED EPA ACCESS TO DATA FOR SETTING FINES

A recent decision by EPA's Environmental Appeals Board on wetlands penalties may expand the agency's ability to gather information about a defendant's finances when the party claims an inability to pay a fine, according to an attorney familiar with the case. The board's ruling In re: Donald Cutler suggests EPA could have appealed an administrative law judge's rejection of the agency's request to gather financial information to assess a penalty against a defendant, who allegedly filled a wetland in violation...

EPA PLANS STORMWATER ENFORCEMENT LIMITS IN PACT WITH BUILDERS

EPA will soon propose changes to its controversial general permit for stormwater discharges at construction sites that industry and state sources say may limit the ability of the agency and private parties to sue builders for violations that occurred prior to receiving a permit. The proposed changes, which will appear in the Federal Register Sept. 16, are part of a revised settlement agreement between the agency and representatives of the construction industry that had sued the agency over the general...

ACTIVISTS MULL SUIT TO FORCE EPA CONTROL OF 'DOWNSTREAM' WATER USES

Environmentalists may sue EPA for failing to promulgate water quality standards for nutrients and other pollutants in the Mississippi and Missouri rivers, arguing that the agency may be violating the Clean Water Act's (CWA) obligation to protect downstream waterbodies from pollution generated in upstream states, environmentalists tracking the issue say. One environmentalist says EPA failed to consider the downstream effects of its decision announced this summer not to promulgate nutrient water quality standards, which could be cause for litigation. The...

Recent Toxic Tort Ruling Sets Stage For Supreme Court Review

A recent federal appeals court ruling in a toxic tort case that lowered the bar for bringing class-action suits in federal court furthers a split among circuit judges and makes it more likely the Supreme Court will have to address the issue, according to legal experts. The legal split involves the jurisdictional threshold for bringing class-action suits in federal courts. Under U.S. law, federal courts have jurisdiction to hear civil actions where the matter in controversy exceeds $75,000, but it...

DuPont Settlement On C-8 Includes Novel Health Panel Study

An agreement between DuPont and residents near a West Virginia manufacturing facility includes the creation of an expert panel to review the potential public health risks from groundwater contamination in the area and determine the scope of potential future lawsuits against the company. Legal experts say the settlement offers a novel approach to resolving the uncertainties that are often at the heart of toxic tort claims against industry. The controversy centers on the company's manufacturing and handling of a chemical...

Inspector General Poised To Issue Review Of EPA Water Enforcement

EPA's inspector general (IG) is poised to release a review of the administration's assertion that increased enforcement of excessive sewer releases during rainy weather has reduced the need to enforce water discharge permits for industrial facilities. The agency announced early this year its intention to make wet weather violations a major enforcement priority for fiscal years 2005-07. But EPA's water enforcement efforts have come under increased scrutiny by senators who have raised concerns that budget shortfalls are hindering the agency's...

Ninth Circuit To Hear Challenges To EPA Cooling Water Intake Rule

The U.S. Court of Appeals for the Ninth Circuit, which is widely considered friendly to environmental concerns, will be hearing state, industry and environmentalists' challenges to EPA's cooling water intake rule governing existing power facilities. The announcement that the eight separate complaints against EPA over the rule will be consolidated under the Surfrider Foundation v. EPA case in the Ninth Circuit comes after states, industry groups and environmentalists filed a flurry of separate legal petitions in different appellate courts in...

Errors Delay Publication Of Major EPA Air Toxics, Water Rules By Months

Minor errors are causing lengthy delays in promulgating at least three court-ordered air toxics and water pollution rules, delaying industry compliance and impeding litigation. While EPA Administrator Mike Leavitt signed all three rules in February -- in time to meet the court-ordered deadlines -- a water rule for power plants was not published until Aug. 4, an air pollution rule for plywood manufacturers was not published until July 30, and an air pollution rule for boilers has yet to be...

Environmentalists Cite 'Dirty-Bomb' Cleanup Standard In Attack On Bush 9/11 Response

The Sierra Club says upcoming federal cleanup standards for "dirty-bomb" attacks that will be weaker than acceptable Superfund cleanup levels are key pieces of evidence that the Bush administration is developing policies based on failed government efforts to protect public health in the wake of Sept. 11, 2001. The group Aug. 18 issued a 165-page report citing what it says were widespread post-9/11 failures in protecting public health across the federal government, contributing to illnesses and diseases for hundreds of...

EPA Invokes Seldom-Used Superfund Power In Precedent-Setting Cleanup Plan

EPA is close to finalizing an agreement with Massachusetts that relies on little-used Superfund authority allowing states to "enhance" some cleanup plans, which will permit the state to include navigational dredging in EPA's contaminated sediment remedy for New Bedford harbor. Invoking the authority will allow Massachusetts to streamline permitting requirements for disposal of sediment from the two projects, reduce disposal costs, coordinate monitoring and increase coordination between the two dredging projects, EPA says. The proposal may serve as a model...

Agency Coalition Creates System To Share Environment Data In Policy Decisions

A coalition of EPA, state and tribal officials is developing a first-of-a-kind system for sharing environmental studies among different government entities and EPA program offices in an effort to strengthen the development of environmental policy. But some industry officials question whether the effort would pressure companies to make costly changes to their current practice of submitting data to regulatory agencies. The Environmental Data Standards Council (EDSC) -- a coalition of 10 states, tribal and EPA officials -- is preparing the...

EPA Launches Major State Enforcement Review To Ensure Consistency

CHICAGO -- EPA has launched an effort to craft uniform procedures for assessing state enforcement programs following concerns that inconsistent federal oversight creates competitive disadvantages among states, an EPA enforcement official said at a state regulators' meeting here. EPA's Office of Enforcement and Compliance Assurance (OECA) has begun assessing a cross-section of state programs in order to craft a "state review framework" that provides a "consistent level of environmental protection across the country and a consistent mechanism to ensure states...

Court Ruling Allows Outside Parties To Challenge EPA Appeals Board Decisions

In a landmark ruling, a federal appeals court has concluded that interested parties have the right to challenge decisions by EPA's Environmental Appeals Board (EAB), even if those parties were not allowed to intervene in the initial case. The EAB is the final word on administrative appeals for all major environmental statutes that EPA administers. Parties wishing to challenge an EAB decision must go to federal court. At issue is an appeal the state of Rhode Island submitted to the...

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