Litigation

A federal appellate court is endorsing a lower court’s fact findings that parties who sold polychlorinated biphenyl (PCB)-contaminated buildings intended to arrange for disposal of hazardous substances, reinforcing the evidentiary bar that trial courts must meet to determine if a party is liable as an “arranger” under the Superfund law for response costs.

A federal appeals court has vacated portions of the Obama EPA’s Clean Water Act (CWA) power plant effluent rule as too lenient, agreeing with environmentalists that the agency acted “arbitrarily” when it left in place decades-old technology standards designating impoundments as the “best” technology for treating some forms of waste.

Appellate judges are expected to require the Federal Energy Regulatory Commission (FERC) to expand consideration of greenhouse gas emissions when approving natural gas pipelines with a known upstream producer, which would extend a two-year-old precedent requiring FERC to address downstream GHGs when the end user is known.

New York is planning to sue EPA over its decision to certify the upper portion of the Hudson River cleanup as complete even though the agency left the door open to additional future cleanup requirements by issuing a separate review that defers until a future date whether the cleanup is “protective.”