First District Upholds Settlement of CEQA Challenge to Rohnert Park’s General Plan April 2006

District Court Orders Severe Sanctions against Client and Law Firm for Discovery Abuses in RCRA Contamination Case August 2009

District Court Holds that Amendments to CERCLA’S Innocent Landowner Defense Do Not Apply Retroactively November 2004

Maryland District Court Makes It Easier to Bring Suit Under CERCLA March 2003

Third District Court Allows Low-Income Housing Landlord to Pursue Contract Action against California Department of Housing June 2008

Once Groundwater, Always Groundwater? The Idaho Supreme Court Addresses Recapture August 2005

Farmers Sue Irrigation District after District Approves a Water Shortage Plan that Prioritizes Municipal and Industrial Uses February 2009

District Court Upholds Landowners’ and Employees’ Claims for PCB Contamination against Chemical User and Manufacturer January 2008

Eleventh Circuit Upholds Termination of Clean Water Act Violation Whistleblowers July 2009

Eleventh Circuit Confirms 42 U.S.C. Section 1983 Does Not Provide a Right of Action for Violations of the Clean Water Act July 2009

First District Court Finds Parcels Depicted on Antiquated Subdivision Map Are Not Entitled to Legal Recognition June 2009

Ohio Appellate Court Limits to Contemporaneous Neighbors Tort Liability for Migration of Underground Contaminants November 2002

District Court Dismisses RCRA and State Law Claims because Plaintiffs Failed to Show that Pollution of River Invaded Their Property Interests February 2004

Court of Appeal: Court of Appeal Denies Compensation for Water Rights Transferred in Exchange for Water Service May 2004

District Court Allows Army Corps to Withdraw Prior Opinion of Isolated Wetlands in Favor of U.S. Asserting Clean Water Act Jurisdication August 2008

Second District Finds Nexus/Rough Proportionality Takings Test Did Not Apply to Facial Challenge of Ordinance Requiring Affordable Multifamily Housing November 2008

Third Circuit Affirms Order Finding CERCLA Defendant Liable for Monetary Judgment Based on Future Cleanup Costs October 2008

Eleventh Circuit Finds No Reasonable Basis to Challenge Jury Decision Awarding Punitive Damages May 2007

News from the West: Clean Water Act Litigation—Federal District Courts Address ‘Navigable Waters’ with Texas’ Intermittent Creeks; ‘Ongoing’ Water Pollution from Mining in Alaska; and Collateral Estoppel Principles in Mining Pollution Case in Colorado November 2006

District Court Finds Publicly Operated Sewage Treatment Facilities Can Be Sued as PRPs for Hazardous Materials Dumped into Their Sewers December 2009

District Court Allows Sewer Contamination Nuisance Action against City to Proceed, Rejecting Immunity Claims December 2008

District Court Holds Commuter Line Cannot Be Derailed by Citizen Group’s Challenge to Corps’ Issuance of Clean Water Act Fill Permit November 2006

Third District Court Ruling in Bad Faith Insurance Case Likely to Impact Water Agency Negotiations in Groundwater Contamination Cases November 2007

Fourth Circuit Rejects Maryland’s Sovereign Immunity Claim for Liquefied Natural Gas Project Involving the Clean Water Act and Discharges into Navigable Waters February 2010

Third Circuit Vacates CERCLA Cost Recovery Judgment Finding in Part that a Previous Settlement Limited Suit to a Contribution Action May 2010

District Court Grants Summary Judgment for Insurance Company Holding No Duty to Indemnify for Voluntary Cleanup Costs August 2008

U.S. Supreme Court Holds That the Agins ‘Substantially Advances’ Test Is Not an Appropriate Inquiry when Reviewing a Regulatory Taking July 2005

California Supreme Court Finds U.S. Constitution Authorizes Fair Political Practices Commission To Sue Indian Tribe For Alleged Violations of Political Reform Act February 2007

Sixth Circuit Dismisses Clean Water Act Citizen Suit Based on City’s Improvement to Wastewater Treatment Systems. July 2004

Industry Brings Legal Challenge to Albuquerque’s Green Building Codes August 2008

Florida Fails to Prove Take of Endangered Species in On-Going ACF River System Battle October 2006

The Fish and Wildlife Service’s Endangered Species Act Listing of the Alabama Sturgeon Is Upheld by Eleventh Circuit Court of Appeals May 2007

New York Appellate Division Confirms Damage Claims by Upstream Residents as a Result of Dam Failure August 2009

Parties Battle over Revenues from Power Plant as Sacramento Superior Court Denies Cross-Motions for Summary Judgment and Case Moves to Trial June 2008

State Water Project Contractors File Suit against the Department of Water Resources Alleging Improper Billing Practices June 2005

Sacramento Superior Court Issues Tentative Decision in State Water Project Hyatt-Thermalito Litigation October 2009

U.S. Supreme Court Upholds the Ability of the Environmental Protection Agency to Reject a State’s Permitting Decision as Unreasonable under the Clean Air Act March 2004

Shell’s Plans for Oil Exploration Off the Artic National Wildlife Refuge Temporarily Thwarted By Adverse Ninth Circuit Decision January 2009

Coastal Commission to Hear Appeal of Malibu’s Approval of Beachfront Development February 2009

Court of Appeal: Third District Finds that Albertson's Grocery Store Is Not a Traditional Public Forum for Free Speech Purposes May 2003

District Court Holds that Contribution Protection under CERCLA May Extend beyond Immediate Case November 2003

Illinois Supreme Court Addresses Riparian Water Rights to Artificial Water Bodies and Historic ‘Ownership’ of Water Beds in Non-Navigable Waters November 2008

United States Supreme Court Strikes Down Private Right of Action in Disparate Impact Civil Rights Suits and Compromises Environmental Justice Litigation July 2001

Sixth District Court Validates Affordable Housing Deed Restriction April 2009

Allegretti v. County of Imperial: Return to Reason April 2007

Court of Appeal Rules that Imperial County Did Not ‘Take’ a Landowner’s Overlying Water Rights when Conditioning a Use Permit to Limit Pumping May 2006

New York State Not Liable to Homeowner Down-Gradient from Dam for Flood Damage May 2008

District Court Holds that a Recently Decided Court Case Does Not Constitute an ‘Other Paper’ for Purposes of Removal December 2005

Second Circuit Finds Environmental Group’s Article III Standing to Sue under the Clean Water Act Must Be Established before Dismissal for Lack of Statutory Standing March 2006

Environmental Groups File Legal Challenge to Lynx Critical Habitat Designation on Climate Change Basis July 2009

U.S. District Court Limits U.S. EPA Discretion to Veto a Permit under Section 404 of the Clean Water Act June 2009

New Court Challenge Filed over Virginia’s King William Reservoir Challenging the Corps’ Issuance of a Clean Water Act Dredge and Fill Permit October 2006

Newport News Pulls Plug on Proposed King William Reservoir—After 22 Years, Abandons Plans to Build Reservoir December 2009

Virginia Supreme Court Deals with Pre-National Indian Treaty Rights January 2006

To Count, or Not to Count: Lawsuit Challenges NMFS’ Election to Not Count Hatchery-Spawned Salmon in Rendering ESA Listing Determinations February 2006

Federal: Ninth Circuit Requires NOAA Fisheries to Develop New Rule to Address Hatchery Fish in Endangered Species Act Listing Decisions April 2004

Business May Challenge the Validity of Environmental Protection Act Violations Notice where It Has Ceased Operations December 2004

Circuit Court: Second Circuit Vacates Dismissal of Lawsuit Alleging Pesticide Applications in Wetlands Violate Federal Law December 2002

District Court in New York Holds Citzen’s Group Cannot Sue United States to Prevent Mosquito Spraying. February 2005

Second District Upholds County’s Immunity from Suit Due to Design of Public Road Retaining Wall December 2009

Sixth Circuit Finds Groups Have Standing in Clean Water Act Litigation: American Canoe Association Paddles Local Sewer Commission December 2004

CEQA Challenge to Development Based on Climate Change Rejected by Napa County Superior Court August 2007

First District Court Holds that Public Resources Code 21166 Applies to Second Phase of Project that Included ‘Big Box’ Store—But Overturns City’s Decision to Forego Further Environmental Review February 2007

D.C. Circuit Finds Industry Groups Lack Standing to Challenge Department of Transportation Hazardous Materials Rule December 2006

U.S. Environmental Protection Agency Ordered to Delete Methyl Ethyl Ketone from the Toxics Release Inventory List July 2005

D.C. Circuit Court of Appeals Rejects Challenge to Allegedly Overbroad Definition of Hazardous Waste October 2003

D.C. Circuit Rejects Coke and Coal Industry Association’s Challenges to EPA’s Revised Clean Water Act Pretreatment Standards October 2006

Court of Appeals: Provisions in EPA's "Regional Haze Rule" Requiring Air Pollution Sources to Retrofit Plants with New Controls to Reduce Haze-forming Emissions Are Ruled Unlawful August 2002

First Circuit Allows Prejudgment Interest in CERCLA Section 113 Contribution Action October 2004

Idaho Supreme Court Suggests that First in Time Is Not Necessarily First in Right May 2007

Idaho Supreme Court Hearing Nears in Ongoing Battle between Surface and Ground Water Users December 2006

Massachusetts District Court Grants Summary Judgment to Seller of Contaminated Property in Action to Recover for Environmental Contamination October 2003

District Court Dismisses Insurers Claims against Federal Government on Lack of Subject Matter Jurisdiction June 2005

District Court Rules ‘Imminent and Substantial Endangerment’ under RCRA Must Be Measured ‘At The Time Of Suit' March 2010

District Court Holds Duty to Defend and Indemnify in Case of Suit Arises only after a Lawsuit Is Filed in a Court of Law. July 2004

D.C. Circuit Finds EPA Used Proper Methods to Validate Tests for “Whole Effluent Toxicity”. February 2005

District Court Rejects EPA’s Definition of ‘Navigable Waters’ in Its 2002 Spill Prevention Control Rule July 2008

District Court Rejects EPA’s Definition of ‘Navigable Waters’ in its 2002 Spill Prevention Control Rule June 2008

News from the West—Protecting Salmon December 2006

Federal District Judge Implicates Idaho Stored Water Supplies in Sharply Worded Remand Order Overseeing Salmon Recovery Efforts November 2006

Oregon District Court Invalidates 2005 Upper Snake River Biological Opinion but Stops Short of Requiring Single Biological Opinions for the Federal Columbia River Power System and Upper Snake River Project October 2006

D.C. Circuit Finds the Clean Air Act’s 60-Day Time Bar for Judicial Review of Regulations May Not Circumvented by Challenging EPA’s Denial of a Later Petition for Rulemaking February 2010

State of California Settles Lawsuit with American States Water Company Regarding Contamination Emanating from Property Owned by Aerojet May 2003

D.C. Circuit Holds EPA’s Approval of Emission Limits on In-Use Non-Road Engines Within California Is Consistent with Clean Air Act Standards June 2010

Circuit Court of Appeals: D.C. Circuit Court of Appeals Holds Particulate Matter and Ozone NAAQs neither Arbitrary nor Capricious May 2002

Tenth Circuit Finds States Are Not Required to Adopt Regulatory Systems for Nonpoint Source Pollution at the Antidegradation Stage under the Clean Water Act November 2001

Tenth Circuit Upholds Montana's Water Quality Laws October 2001

District Court Holds that Temporary, “Straw-Man” Ownership Does Not Make One an “Owner” for Purposes of CERCLA Liability May 2007

Tenth Circuit Denies Attorney Fees in Mooted Clean Water Act Case June 2003

Court Declines to Vacate Opinion Regarding EPA Final Administrative Order when EPA Vacates Order before Appeal Is Heard January 2001

Second Circuit Holds City and Fire Company Are Not CERCLA ‘Operators’ in Responding to an Emergency where Hazardous Materials Are Released December 2009

Second Circuit Says Definition of ‘Operator’ under CERCLA Is a Question for the Trier of Fact June 2006

District Court Finds EPA Pollution Limits Violate Clean Water Act; Vacatur Stayed to Mitigate Disruptive Effects August 2010

Nevada Supreme Court Issues Ruling Reaffirming Protected Status of Vested Water Rights May 2008

Third District Court Upholds EIR for Proposed Wal-Mart on All Grounds Except Traffic Mitigation Fees August 2005

Urban Decay—The Uncertain Intersection of CEQA and Economic Analysis November 2005

Minnesota Court Affirms Summary Judgment for Defendants against Claim of Harm to Bees from Application of Insecticide April 2004

Minnesota Supreme Court Allows Negligence Claim for Pesticide Spraying on Defendant’s Own Property that Harms Migratory Bees May 2005

Fifth District Court Finds Installation of Fiber Optic Cable Permitted in Public Right-of-Way Easement July 2005

Wisconsin Court of Appeals Rules Public May Challenge State Department of Natural Resources’ Permit System Alleging Clean Water Act Violation June 2010

Second District Court Recognizes Landlord’s Contractual Duty to Preserve Tenants’ Quiet Enjoyment Implied in Every Lease Agreement March 2005

Massachusetts Appellate Court Reverses Finding of ‘Spot Zoning’ in Deference to Municipal Regulation Designed to Address Flood Control April 2007

District Court Finds Pennsylvania Town Not Liable for Flooding Caused by Permit to Fill in Wetlands Granted to Private Party December 2009

First District Holds Trail Immunity under California Government Code Applies to Claims Arising from Design and Location of Trail December 2006

Superior Court Rules Antelope Valley Aquifer Is Hydrologically Connected January 2009

Neighbor’s Challenge to County Excusing Developer from Completing Road Improvements Was Barred under the Subdivision Map Act’s Statute of Limitations May 2004

Second District Upholds Ordinance Imposing Rent Control on New Apartments—Finds Elements of Ellis Act Survive Passage of Costa Hawkins Rental Housing Act July 2009

Eighth Circuit Affirms Mootness of Non-Permitted Discharge under the Clean Water Act April 2003

Colorado Water Judge Voids State Engineer Well Regulations February 2003

State Decisions: California Court of Appeal Precludes Use of "Minimum Level" Standards Application to NPDES Permit Compliance under the Clean Water Act January 2003

Los Angeles Inspection Fee Imposed upon Landlords Relates to the Activity of Renting Residential Property — so It Does Not Run Afoul of Proposition 218 March 2001

D.C. Circuit Upholds Ozone Transport Rule under Rule 126 of the Clean Air Act July 2001

Environmental Groups File Challenge to Department of Energy’s Tax Credit Allocation to Coal Based Energy Projects July 2008

Virginia State Court of Appeals Upholds Decision to Issue Permit for Coal-Fired Power Plant July 2010

District Court Using Equitable Factors Dismisses Polluters’ Claims for Contribution February 2010

District Court Finds a Party Subject to a CERCLA Section 106 Order Is Limited to a Section 113 Claim January 2010

District Court Dismisses CERCLA Section 107 Claim Noting that Section 113 Was Defendant’s Exclusive Remedy October 2008

Second Circuit Holds Cleanup Of New York City Post Office Anthrax Not An Emergency Removal Under Cercla November 2003

Florida Supreme Court Holds Florida Cleanup Contribution Statute Creates Strict Liability Cause of Action December 2004

Ninth Circuit Holds that CERCLA Does Not Apply to Contamination at Former Military Bases in the Philippines August 2005

Sixth District Rejects City’s Argument that Statute of Limitations for Challenge to Extension of Land Use Restriction Runs from Original Enactment February 2009

Sixth District Court Finds Substantial Evidence to Support Finding that Monterey County’s “Old Jail” Has Historic Value Requiring an EIR Before Demolition May Occur December 2004

News from the West April 2009

Colorado Supreme Court Imposes New Quantification Requirement for the Adverse Possession of Water Rights March 2009

Colorado Court of Appeals Denies District Court Jurisdiction for Claims of Adverse Possession of Water Rights August 2006

Ninth Circuit Upholds the U.S. Fish and Wildlife Service’s Critical Habitat Designation for the Mexican Spotted Owl August 2010

District Court Rejects Claim that EPA’s Interpretation of Emergency Planning and Community Right-to-Know Act Amounts to Final Agency Action July 2010

Tenth Circuit Holds U.S. EPA Was Free to Adopt CAA Regulatory Plan when the Navajo Nation Did Not Submit a Tribal Implementation Plan June 2009

News from the West May 2006

Arizona Supreme Court Accepts Arizona Water Company v. ADWR for Review; Special Master Denies Summary Judgment in Arizona v. California April 2004

Recent Investigations, Settlements, Penalties and Sanctions March 2005

Arizona Supreme Court Upholds Arizona Water Conservation Requirements October 2004

Arizona Supreme Court Accepts Arizona Water Company v. ADWR for Review; Special Master Denies Summary Judgment in Arizona v. California April 2004

Arizona Court of Appeals Invalidates State Groundwater Management Plan October 2003

Oklahoma Suit against Arkansas Poultry Industry for Illinois River Pollution Continues after Supreme Court Refuses to Hear Arkansas’ Attempt to Stop the Suit May 2006

State and County Governments Held Liable in Inverse Condemnation for Negligent Maintenance of the Pajaro River Levee and Negligent Construction of Highway 1 August 2002

D.C. Circuit Strikes Down EPA Emission Standards for Polymer and Resin Manufacturering Equipment Leaks June 2003

Supreme Court of Connecticut Affirms Penalties Assessed against Light Manufacturer for Violations of Water Pollution Control Act November 2005

Court of Appeal: Court of Appeal Finds Planning Commission Justified in Requiring Environmental Impact Report for 21-Unit Segmented Residential Project November 2002

Court of Appeal Upholds Lower Court Ruling that Plaintiff Failed to Prove a Discharge in Violation of Proposition 65 March 2006

Idaho Supreme Court Sets Aside TMDL for Failure to Comply with Idaho Administrative Procedures Act July 2003

Court of Appeal Requires Agency to Consider the “Whole of an Action” When Determining whether a “Project” Exists under CEQA May 2004

aaa April 2008

Third District Rejects Holding in McCormick v. Board of Supervisors—Finds CEQA Requirement to Request a Hearing within 90-days Satisfied by Document Entitled “Request for a Hearing”. December 2004

Ninth Circuit Finds Association of California Water Agencies Is Entitled to Attorneys’ Fees after Related ESA Litigation Renders ACWA’s Suit Moot November 2004

Ninth Circuit Refuses to Overturn EPA’s Approval of California’s Central Valley Air Attainment Plan for Fine Particles—A 2010 Attainment Deadline Stays in Place October 2005

Abuse of Discretion Standard Upheld as Appropriate for EIR Review under CEQA June 2003

District Court Holds Private Plaintiffs Can File Citizen Suit under the Clean Air Act without Exhausting State Administrative Remedies August 2006

Fifth District Court Concludes that Air Pollution Control District Failed to Adequately Assess Impacts of Dairy Emissions Rule on Public Health January 2009

Court of Appeals: In an Issue of First Impression, the Ninth Circuit Holds that Mussel Harvesting Byproducts Are Not "Pollutants" under the Clean Water Act October 2002

Eleventh Circuit Does Not Hold Parent Corporations Responsible for CERCLA Environmental Cleanup Costs November 2006

Flordia District Court Dismisses Claims Based on Successor and Parental Liability Theories in CERCLA Manufactured Gas Plant Litigation May 2005

D.C. Circuit Upholds EPA Rulemaking Under Project XL, Finding the Challenge Unripe June 2003

Michigan Court of Appeals Affirms Finding of Divisible Harm under State's LUST Act March 2003

Second District Court Finds Bad Faith Trumps Claim of Vested Right to Operate Medical Laboratory Specializing in Autopsies July 2005

District Court Denies Aviall Remedial Investigation Costs under CERCLA 107(A) for Failure to Comply with Public Participation Requirements in National Contingency Plan May 2009

District Court Addresses CERCLA Notification— Holds Government Supervision May Be Insufficient to Sastisfy National Contingency Plan October 2008

District Court Distinguishes Third Circuit Precedent— Holds Federal Government May Pursue Cost Recovery Action under § 107 Despite Federal Agencies Status as PRP May 2007

District Court Holds a Potentially Responsible Party Can Sue for Contribution under CERCLA §107 May 2007

In Another Post-Aviall Decision the Seventh Circuit Found Voluntary Cleanup Created Implied Contribution Claim Rights under CERCLA § 107(a) March 2007

Court of Appeals: Fifth Circuit Decides CERCLA Contribution Claims Can Be Brought even where No Cost Recovery Action Is Pending January 2003

Fifth Circuit Bars CERCLA Contribution Claim in Absence of Prior CERCLA Action against Plaintiff October 2001