• Mark Ryan

And Here Are Another Four New Cases

The Delaware Riverkeeper case below is an interesting attorney fee case. You seldom see the defendant seeking its fees. For those interested in cases tied to global warming, the Conservation Law Foundation v. Shell Oil Products U.S. below is an interesting one.

Center for Biological Diversity v. USACOE, 2020 WL 5642287 (D.C.D.C. 2020) (on motion to admit extra-record information in case challenging 404 permit issued for construction of plastics manufacturing facility, held that a post-record Corps report dealing with suspected existence of burial sites did not meet the test for admissibility that requires a showing of deliberate or negligent exclusion of documents that may have been adverse to the Corps decision; report is allowed to be offered to show that Corps committed a gross procedural error; if the record does not permit meaningful judicial review, extra-record documents may be admitted)

Delaware Riverkeeper Network v. Sunoco Pipeline L.P., 2020 WL 5653451 (E.D. Pa. 2020) (denying defendant’s request for $593,104 in attorney fees in failed case brought by plaintiffs alleging discharge without a stormwater permit, held that issue pressed by plaintiffs, although not successful, was one of first impression, and therefore not frivolous; award was also denied on the grounds that “imposition of some $600,000 in fees and costs would be ruinous to [plaintiffs].”)

American Steamship Owners Mutual Protection and Indemnity Association, Inc. v. United States, 2020 WL 5708715 (E.D.N.Y. 2020) (on motion for summary judgment in OPA cost recovery case, held that the NFPC was not arbitrary and capricious in denying claims where the NFPC had not authority to reimburse costs associated with administering a claims process and adjudicating claims; NFPC was correct in concluding that there was insufficient evidence to show that the oil spill caused claimant to lose business)

Conservation Law Foundation v. Shell Oil Products U.S., 2020 WL 5775874 (D.R.I. 2020) (on motion to dismiss in challenge to defendants’ failure to adapt a shipping terminal to prepare for global warming, held that plaintiffs state a plausible claim by arguing that NPDES permit required “good engineering practices” and SWPPP for dealing with catastrophic weather; prior owner of terminal may not be dismissed where record shows that it may have had operational control; dismissal not appropriate for violation that existed at time of filing of complaint, but which has subsequently ceased; rejected application of Burford abstention doctrine)

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