Justia Environmental Law Opinion Summaries

The government alleged, under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601, that API and seven other companies caused $1 billion in PCB contamination in the Fox River near Green Bay, Wisconsin, and hired a consultant to prepare reports on the companies’ percentages of responsibility. API unsuccessfully sought discovery of these reports by challenging a consent decree between the government and another company, then filed a Freedom of Information Act request seeking the material. The government refused under the FOIA exemption covering attorney work product. The district court ruled in favor of the government. The Seventh Circuit affirmed. The government used portions of its reports in two consent decrees, but that use does not waive work product immunity for all the related content. API misconstrued the privilege, erroneously suggesting that facts underlying the conclusions are unprotected.View "Appleton Papers Inc. v. Envtl. Prot. Agency" on Justia Law

Enviro-Chem conducted waste-handling and disposal operations at three sites north of Zionsville, Indiana, until it ceased operations in 1982, leaving considerable amounts of pollutants. The U.S. Environmental Protection Agency undertook cleanup and identified potentially responsible parties (PRPs), including former owners, their corporate entities, and their insurers. A trust was established to fund cleanup and trustees sued to recover cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9607(a) (CERCLA), the Indiana Environmental Legal Actions Statute (ELA), and more. Work continues at the site at issue. The district court dismissed, in part, on limitations grounds, construing the complaint as seeking contribution. The Seventh Circuit reversed dismissal of three counts, holding that claims to recover costs incurred pursuant to the 2002 Administrative Order by Consent between the EPA and PRPs and that related claims, including the ELA claim, were not moot. The court upheld denial of an insurer’s motion for summary judgment on preclusion grounds. View "Bernstein v. Bankert" on Justia Law

Since at least the late 1990s, the U.S.EPA and the Wisconsin Department of Natural Resources (WDNR) have worked on a remedial plan for the Fox River. One of companies that was designated as a “potentially responsible party (PRP),” responsible for undertaking remedial work with respect to PCBs dumped in the river, was NCR. Acting under administrative orders, NCR has performed significant cleanup, but in 2011 it announced that it had done more than its share. The EPA and WDNR obtained an injunction and NCR has complied. The Seventh Circuit affirmed. NCR did not show that the harm to the river is capable of apportionment under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9606(a). View "United States v. NCR Corp." on Justia Law

Insurers sought a declaration that they had no duty to defend or indemnify in tort suits brought against the insured village, concerning discovery of "perc," a carcinogenic common dry cleaning solvent, in one of its wells and the village's continued use of the well without disclosure. The district court, relying on a pollution exclusion in the policies, granted summary judgment for the insurers. The exclusion refers to "actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of 'pollutants'" and excludes from coverage expenses for "cleaning up ... or in any way responding to, or assessing the effects of pollutants." After exploring the reasons for the exclusion, the Seventh Circuit affirmed. The court rejected an argument that this was not a pollution case, because the amount of perc in the water was below the maximum level permitted by environmental regulations. The complaints actually filed "describe in copious detail the conduct giving rise to the tort suits, and in doing so inadvertently but unmistakably acknowledge the applicability of the pollution exclusion." View "Scottsdale Indem. Co. v. Vill. of Crestwood" on Justia Law

Environmental groups obtained an injunction against timber harvest projects planned for the Chequamegon-Nicolet National Forest. The district court lifted the injunction after finding that the defendants took appropriate corrective action to comply with the National Environmental Policy Act, 42 U.S.C. 4321. The Seventh Circuit affirmed, rejecting an argument that a project proposed after presentation of draft environmental impact statements should have been included in the cumulative impacts analysis of the final EIS. The Forest Service's failure to supplement was not arbitrary; the agency complied with applicable rules by making clear that it lacked sufficient information to meaningfully discuss the subsequently-proposed project. View "Habitat Educ. Ctr., Inc. v. U.S. Forest Serv." on Justia Law

ESBC, billing agent for the Fire Department, determined that each of the individual defendants owned a vehicle involved in a collision to which the Fire Department responded and each had insurance coverage, and billed response costs incurred for each collision. The defendants refused to pay and ESBC sought a declaration that defendants were liable under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601. Under CERCLA, the owner of a “facility” from which hazardous substances have been released is responsible for response costs that result from the release. Insurer-defendants counterclaimed for injunctive relief from ESBC’s billing practices and alleging violation of the Fair Debt Collection Practices Act, 15 U.S.C. 1692, unjust enrichment, unlawful fee collection, fraud, constructive fraud, and insurance fraud. The district court granted defendants judgment on the pleadings and dismissed counterclaims without prejudice. The Seventh Circuit affirmed. Motor vehicles for personal use fall under the "consumer product in consumer use” exception to CERCLA’s definition of facilityView "Emergency Serv. Billing Corp., Inc. v. Allstate Ins. Co." on Justia Law

Plaintiffs' insurance policy indemnifies them against liability under several federal environmental protection laws or the state-law equivalents. They attempted to invoke their policy for up to $10 million in coverage following an explosion on one of their vessels that resulted in an oil spill in the Chicago Sanitary and Ship Canal. The district court granted the insurer judgment on the pleadings that: it owed $5,000,000 per vessel, per incident and had fully honored the policy with respect to one vessel; it owed no coverage for either two others for in rem liability. It granted the insureds summary judgment on their breach of contract claim, finding that the insurer owed $5,000,000 in coverage for a vessel, was obligated to pay defense costs up to that amount, and had breached its contract by not doing so. It denied summary judgment on a claim of breach of the duty of good faith and fair dealing. The Seventh Circuit affirmed.

In 2000 the conservancy purchased property, but allowed the farmer to remain as a tenant through 2003. The farmer/seller was required to perform removal of specified substances and warranted that there were no undisclosed underground tanks. The conservancy withheld funds pending clean-up. In 2006 the conservancy sued for breach of the warranty and failure to complete the clean-up. The district court allowed the conservancy to amend and claim damages with respect to newly-discovered contamination and entered judgment in favor of the conservancy. The Seventh Circuit affirmed. The claim is within the Illinois 10-year limitations period for actions and written contracts; the doctrine of laches does not apply.

Asian carp have migrated up the Mississippi River and are at the brink of the man-made Chicago-Area Waterway System path to the Great Lakes. The carp are dangerous to the eco-system, people, and property. States bordering the Lakes filed suit, alleging that the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago manage the system in a manner that will allow carp to move into the Great Lakes, in violation of the federal common law of public nuisance. The district court denied a preliminary injunction that would have required additional physical barriers, new procedures to stop invasive carp, and an expedited study of how best to separate the Mississippi and Great Lakes permanently. The Seventh Circuit affirmed. Plaintiffs presented enough evidence to establish a likelihood of harm, a non-trivial chance that carp will invade Lake Michigan in numbers great enough to constitute a public nuisance and that harm to the plaintiff states would be irreparable. The defendants have, however, mounted a full-scale effort to stop the carp and has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play and an interim injunction would only get in the way.

Original defendants wanted to build a power plant in southern Illinois. In the first appeal, the Seventh Circuit concluded that defendants' Prevention of Significant Deterioration (“PSD”) permit (42 U.S.C. 7475(a)), had expired. After the ruling, the district court assessed a penalty of $100,000 on all defendants, jointly and severally, and awarded attorneys' fees to Sierra Club. The Seventh Circuit affirmed, first holding that defendant waived constitutional arguments by not raising them before the district court. The court acted within its discretion; it considered all of the relevant statutory factors and did not make any clearly erroneous findings of fact in assessing a penalty and awarding fees.