Yesterday, in CTS Corp. v. Waldburger, the Supreme Court held that CERCLA does not preempt state statutes of repose, reversing a Fourth Circuit decision and Ninth Circuit precedent. A statute of limitations extinguishes the right of a claimant to pursue a cause of action after a set period has elapsed after a claim has accrued, while … Continue Reading
The long-awaited federal water resources authorization bill is likely on its way to becoming law. The bill authorizes work carried out by the U.S. Army Corps of Engineers (“USACE”), ranging from navigation to flood control. As of May 22, 2014, both the House and Senate have approved the Conference Report. See here for more information. This … Continue Reading
The U.S. Supreme Court scheduled oral argument for April 23, 2014, in CTS Corp. v. Waldburger. For some cases brought under state law and involving hazardous substances, CERCLA preempts state statutes of limitation under 42 U.S.C. 9658.… Continue Reading
This year has seen significant development in the area of environmental due diligence for those involved in real property transactions. And major development continues as we approach year-end. … Continue Reading
To avoid the potentially staggering environmental cleanup liabilities under the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Oregon cleanup statute, a prospective landowner or tenant must have conducted all appropriate inquiries (“AAI”) into the previous ownership and uses of the property consistent with good commercial or customary practice. Because the Oregon … Continue Reading
On August 30, 2013, the Ninth Circuit Court of Appeals issued a groundbreaking decision, requiring an insurance company that has issued comprehensive general liability policies to defend a policyholder that has received an information request from the U.S. Environmental Protection Agency (“EPA”) under Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). See … Continue Reading
SB 476A is one of few environmental bills that the 2013 legislature passed. The bill amends the prospective purchaser agreement statute (ORS 465.325) in the following ways: (1) Requiring the Oregon Department of Environmental Quality (“DEQ”) to specifically notify potentially responsible parties (“PRPs”), who have previously entered into an agreement with DEQ, of any proposed consent … Continue Reading
Governor Kitzhaber signed Senate Bill 814 into law last week. This bill substantially amends the Oregon Environmental Cleanup Assistance Act in a manner very favorable to policyholders prosecuting claims seeking insurance coverage for claims arising from environmental contamination. First, the law makes it clear that the anti-assignment language contained in most general liability policies only … Continue Reading
On April 4, 2013, the Fourth Circuit Court of Appeals issued the first appellate decision interpreting the “bona fide prospective purchaser” (“BFPP”) defense. The BFPP defense exempts certain qualified individuals and entities from the stringent federal environmental cleanup liability imposed under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) . . .… Continue Reading
In Lakey v. Puget Sound Energy, Inc., No. 87679-7 (Wash. 2013), the Supreme Court of Washington put power companies on notice that electromagnetic radiation could receive greater scrutiny in Washington courts, but the case also opened a back door for pre-existing uses.… Continue Reading
On March 21, 2012, in Sackett v. EPA, the U.S. Supreme Court (the “Court”) unanimously ruled that an order issued by the U.S. Environmental Protection Agency (“EPA”) against the Sacketts, who had allegedly filled wetlands without a permit, was “final agency action.” This means that the Sacketts can challenge that order in court and dispute that … Continue Reading
