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End of a Long Dry Road: Federal Court Of Claims Rejects Klamath Farmers’ Takings Claims

December 5, 2017

In a seventy-five page opinion, the United States Court of Federal Claims in September brought to a bitter end takings litigation that began 16 years ago, in 2001.[1] The opinion held that while several plaintiffs had property interests that were physically taken by the United States government, they could not pursue their takings claims because their water More

Permit Denials for Pacific Northwest Coal Terminals Raise Question of Precedent for Major Waterway Projects

December 4, 2017

In late September 2017, the Washington Department of Ecology (Ecology) denied a request by Millennium Bulk Terminals-Longview (“Millennium”) for Section 401 Water Quality Certification for its proposed coal export terminal near Longview, Washington. More

Emerging Water Contaminants Update: Uncertainty Remains Despite Regulatory Action

September 25, 2017

Emerging contaminants, particularly perfluorinated compounds, are increasingly found in drinking water throughout the country. Regulatory uncertainty facing drinking water suppliers and consumers is slowly forcing legislators, regulators, and private plaintiffs to act. More

Owner of a Lonely Heart: Federal Government Liable for CERCLA Damages on Public Lands

September 21, 2017

Two federal courts recently ruled that the United States may be liable for the cleanup costs associated with historic mining operations as “owners” of public lands.[1] The courts held that an “owner” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is at bare minimum, the legal title holder and does not need t More

Nothing Great Comes Easily: The Successful Struggle to Secure the City of Bend's New Water Supply Project

September 18, 2017

Fresh from intense litigation over the spotted frog[1], Central Oregon has again been the arena of another fierce fight, this time involving the future of the City of Bend's water supply improvement project. The legal trajectory of this court challenge was determined not by the ESA but by NEPA-related theories. More

Private Enforcement of U.S. Environmental Laws — Why Standing Still Matters

September 5, 2017

Changes in leadership at the U.S. Environmental Protection Agency (“EPA”) and Department of Justice (“DOJ”) have prompted some to worry about the commitment of the federal government to environmental enforcement in the Trump era. More

New California Policy Requiring Registration of Pesticide Treated Textiles Creates Regulatory Wrinkles for Manufactures and Retailers

September 5, 2017

As of July 1, 2017, pesticide treated textiles that include claims regarding antimicrobial or other pest resistant qualities (“pesticidal claims”) must be registered as pesticides with the California Department of Pesticide Regulation (“DPR”).[1] The registration requirement has numerous business and legal implications for companies that sell these products More

Renewable Energy in the Age of Trump

August 21, 2017

The Trump Administration has been clear about its intentions to revive the domestic fossil fuel industry. Across the campaign trail and into the Oval Office, Donald J. More

Got Mold? A Brief Guide to Liability and Notice Requirements

March 5, 2008

Thousands of mold-related lawsuits have been filed in the United States during the last decade. Prior to 2000, most mold claims were routinely settled for relatively nominal amounts of $5,000 or less. Today, mold claims by commercial developers and homeowners routinely exceed $100,000, and some are resolved for much higher amounts. More

Does the Clean Water Act Regulate Discharges of Pollutants to Hydrologically Connected Groundwater? Federal Courts Disagree

January 27, 2016

The Clean Water Act (“CWA”) prohibits the discharge of pollutants into “waters of the United States”[1] without a valid National Pollutant Discharge Elimination System (“NPDES”) permit.[2] The statute offers notoriously scant guidance as to what “waters of the United States” actually means. More

Emerging Contaminants Cause Regulatory Uncertainty for Water Suppliers and Landowners

March 9, 2017

Water suppliers and landowners are increasingly contending with a new generation of persistent contaminants, particularly perflourinated compounds. Perfluorinated compounds are chemicals that have historically been used in a variety of industrial and consumer products. They are now found worldwide in the environment, wildlife, and even humans. More

Potential for Public Land Transfers under the Trump Administration

May 31, 2017

The federal government owns or controls over 640 million acres of land in the United States. Approximately 92 percent of the federal lands are located in the twelve western states. Except for a few million acres that are managed by the Department of Defense, the federal landholding is managed primarily by four agencies; the U.S. More

Chemical Fingerprinting of Gasoline and Diesel Fuel – What Is It? Where Did It Come From? Who Is Responsible?

August 23, 2006


The need for identification, delineation, and differentiation of petroleum-derived contaminants resulting from leaking storage tanks, pipelines, or following a release of fuel during trans-shipment of petroleum is a particularly challenging aspect of site investigations where an equitable settlement of the resulting liability and damages is at stake. More

Takings: Supreme Court Expands Governmental Liability to Property Developers

October 16, 2013

One of the most significant environmental cases to come out of the U.S. Supreme Court last session was Koontz v. St. Johns River Water Management District, 570 U.S. ___ (2013), a case which many have characterized as a dramatic expansion of the scope of potential governmental liability for takings under the Fifth Amendment. More

Supreme Court Reasserts Standard for Injunctive Relief in NEPA Cases

June 28, 2010

Reversing a nationwide injunction, the United States Supreme Court reiterated the four-part standard for injunctive relief it announced in 2008, confirming that this same standard applies in cases arising under NEPA. In a 7-1 opinion[1] delivered by Justice Alito in Monsanto Co. v. More

Predicting How a “Justice” Gorsuch Would Impact Environmental Law

April 3, 2017

Judge Neil Gorsuch of the Tenth Circuit is presently being considered by the U.S. Senate for confirmation of his appointment to the U.S. Supreme Court. Appointed by President Trump shortly after taking office, Judge Gorsuch would take the now long-vacant seat formerly held by Justice Antonin Scalia. More