In addition to my editorial, "The Poem", this newsletter features a number of articles highlighting cases and policies changing the landscape of environmental law, as well as a California Focus section. Click on the Federal Focus and California Focus banners above to navigate to their respective sections. I hope you enjoy this edition of our newsletter. As always, we welcome feedback and questions from our readers.
Happy Holidays and best wishes for the New Year!
Steven L. Hoch
Partner
213.417.5158
shoch@mpplaw.com
The Poem
Clement Clarke Moore wrote the famous “A Visit from St Nicholas”, now just called the Christmas Poem. He penned it in 1822 for his own six children. Every year in December I take vast liberties with this classic poem and submit it to you with an environmental twist. I hope that Mr. Moore doesn’t come back and haunt me for what I’ve done.
Full Story
New NPDES Permit Does Not Moot Past Violations Under Old Permit
In National Resources Defense Council v. County of Los Angeles, 840 F.3d 1098 (9th Cir. 2016), the Ninth Circuit considered whether compliance with a new, relaxed National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act moots a request for an injunction against the permit holder based on violations of a prior, more restrictive NPDES permit. There, the plaintiffs sued various governmental entities alleging that they were discharging polluted stormwater in violation of the terms of their NPDES permit. While the litigation was pending, the defendants received a new NPDES permit with substantially the same baseline receiving water limitations but markedly easier protocols for defendants to meet those limitations.
Full Story
California Supreme Court Validates Secondary Exposure Claims over Strong Opposition from Defense Groups
According to a pair of recent rulings by the California Supreme Court, both employers and premises owners can be held liable for exposing members of a worker's household to asbestos. The Court issued its unanimous ruling last week, deciding that companies have a responsibility to prevent such exposure when they can reasonably foresee that their employees will carry asbestos on their bodies or clothing to their households where others can be exposed. Both the Kesner v. Pneumo Abex, Inc. and the Haver v. BNSF Railway Company cases were remanded to the trial court for further proceedings. This ruling is important in that there are likely scores of such cases that are either awaiting filing or have recently been dismissed via motion based on the appellate decision Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, which had been used to defeat such allegations for the past few years. By this ruling, the Campbell decision was specifically “disapproved” to the extent it is inconsistent with this decision.
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New York Appellate Division Rules on Allocation to Insurers When No Insurance Is Available In the Marketplace
Allocation for long-tail environmental claims where continuous harm occurred over periods of time when liability insurance was not available in the marketplace has a varied and complex history across the United States. Some states allow for allocation for those time periods to insurers that were on the risk at other times. (See e.g. Owens-Illinois, Inc. v. United Ins. Co., 650 A.2d 974 (N.J. 1994)). Other states do not. (See e.g. Bradford Oil Co. v. Stonington Ins. Co., 54 A.3d 983) (Vt. 2011)). The New York Appellate Division is the latest state appellate court to tackle this issue. In the recent decision, Keyspan Gas East Corp. v. Munich Reinsurance America, Inc., 143 A.D.3d 86 (N.Y. App. Div. 2016), the Appellate Division held that an insurer does not have to indemnify an insured for losses that are attributable to time periods when liability insurance was otherwise unavailable in the marketplace.
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EPA Says "No" to Fracking
To state the obvious—fracking is controversial. Many allegations concerning its impact on drinking water supplies have been made and through it all the Environmental Protection Agency (EPA) did not issue any thorough analysis upon which it would use to anchor its opinion.
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Appellate Court Considers CEQA Compliance a Slam Dunk
In 1990, the City and County of San Francisco adopted the Mission Bay plan for commercial and residential development in the Mission Bay area. A final environmental impact report was certified in connection with approval of the Mission Bay plan (1990 FEIR). In 1997, a new development plan was proposed consisting of the Mission Bay North and Mission Bay South plans. Both plans were approved in 1998 after certification of a combined Mission Bay final subsequent environmental impact report (1998 FSEIR).
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Ninth Circuit Endorses IPCC Climate Forecasts for Endangered Species Act Listing
The National Marine Fisheries Service (NMFS) used climate projections to determine that the loss of sea ice over shallow waters in the Artic would leave the Pacific bearded seal subspecies (Erignathus barbatus nauticus) endangered by the year 2095. In Alaska Oil and Gas Association v. Pritzker (October 24, 2016), the Ninth Circuit Court of Appeals upheld NMFS’s 2012 decision, reversing an Alaskan District Court decision that deemed NMFS’s use of climate projections to 2095 too “speculative.” A decision to list a species as threatened must be made “solely on the basis of the best available scientific and commercial data available,” and requires a determination that the species was “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”
Full Story
Gold Diggers Forced to Find New Method for Mining Legitimate Claims
The case of People of the State of California v. Brandon Rinehart, presents a fascinating look at the world of gold mining, and the historical perspective it affords of our great state and nation. In short, it asks the question—can the state prevent a person with a legitimate “claim” for mining gold on Federal land within a state from the one type of mining that would viably access the gold at issue? Rinehart contends that the issue is the subject of Federal Preemption and that California cannot effectively prevent his ability to mine the subject claim. In this case, the California Supreme Court has determined that the state may at least temporarily prevent the practice and permits allowing said practice.
Full Story
Newsletter Contributors
Steven L. Hoch
Pamela A. Palmer
Joshua A. Quinones
Christopher G. Foster
Ryan C. McKim
For more information on the Environmental Law Group, please visit our website.
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Disclaimer: This email is designed to provide information in regard to the subject matter and is made available with the understanding that the email does not constitute the rendering of legal advice or other professional services. If legal advice is required, such services should be sought. All rights reserved.
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