As seen in our prior posts on Niagara Mohawk v. Chevron, 596 F.3d 112, in the two appeals and remands prior to the Second Circuit’s February decision, the District Court failed to properly address Niagara Mohawk’s (NiMo’s) argument under § 113(f)(3)(B), asserting that it has a (more…)

Our last post discussed the Second Circuit’s recent decision in Niagara Mohawk v. Chevron, 596 F.3d 112 (2d Cir. Feb 24, 2010).  We left off when the District Court was about to review its prior decision in light of the Supreme Court’s decision in Cooper Industries v. Aviall Services (“Aviall”).

The Aviall Court held that a private party could only maintain a § 113(f)(1) action for contribution if it has first been sued itself judicially under §§ 106 or 107.  After the Second Circuit remanded the case for a ruling consistent with Aviall, NiMo had to concede that it could not (more…)

James Periconi describes the kinds of environmental criminal charges that Attorney General Holder’s investigation may result in, for example, release of pollutants dangerous to the environment (Clean Water Act), and the negligent if not knowing endangerment of the lives of the workers aboard the Deepwater Horizon rig that led to the deaths of 11 workers.

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The Second Circuit’s recent decision in Niagara Mohawk Power Corp v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. Feb 24, 2010), is a study (yet again) in the claims available to private parties to (more…)

I’m speaking about the Gulf of Mexico oil crisis that began in late April, of course.  Few environmental catastrophes have shocked the nation more than the huge, continuing, unremitting flow of many thousands of gallons per hour of oil for seemingly an interminable period, with no end in sight.  The Deepwater Horizon drilling rig blew (more…)

The First Department, in the Matter of East River Realty v. N.Y. State Department of Environmental Conservation, 2009 NY Slip Op 9381 (N.Y. App. Div., 1st Dep’t 2009), recently upheld a Supreme Court ruling that the New York State Department of Environmental Conservation (”NYSDEC”) cannot use a “but-for” test in determining (more…)

Continuing with our prior post, this post discusses the Court of Appeal’s ruling in In the Matter of Lighthouse Pointe Property Associates, LLC v. New York State Department of Environmental Conservation,  2010 NY Slip Op 1377,  2010 N.Y. LEXIS 35, (Ct. App. Feb. 18, 2010), and the implications of that decision.

Court of Appeals’ Decision

First, the Court struck down the Appellate Division’s ruling that the DEC is to be given deference in interpreting the Brownfield Cleanup Act.  The Court reasoned that, (more…)

On February 18, 2010, New York’s highest court overturned the DEC’s denial of an upstate New York development’s application for admission into the State’s Brownfield Cleanup Program (”BCP” or “Program”).  In the Matter of Lighthouse Pointe Property Associates, LLC v. (more…)

On March 2, 2010, the EPA listed the Gowanus Canal in Brooklyn on the National Priorities List (NPL), making it a federal Superfund site.  The New York State Department of Environmental Conservation urged EPA to consider (more…)

The District Court for the District of Maine relied on the Supreme Court’s recent decision in Burlington Northern & Santa Fe Railway Co. v. United States, No. 07-1601, –U.S.– (U.S. May 4, 2009) (“BNSF”), in denying a motion to (more…)