• Mark Ryan

Don't Piss Off the Judge

Of the three new cases below, United States v. Brace is the most interesting. The judge was clearly tired of defense counsel tactics. "Here, the sequence of events suggests a deliberate attempt by Defendants to surreptitiously expand the scope of permissible expert discovery (without leave of the Court) by belatedly appending a lengthy, complex, and previously undisclosed expert report to their Redrafted 60(b)(5) motion." There are lots of statements like this in the opinion. There's a practice point here.

The OVEC case provides an interesting twist on the 505(b)(1)(B) bar to citizen suits where the state has commenced and diligently prosecuted a case against the defendant for the same violations alleged by the citizen plaintiffs. In OVEC, the plaintiffs were able to show that the NPDES permit at issue was not properly modified, and the state therefore was enforcing the wrong permit limit. Hence no bar.

Atchafalaya Basinkeeper v. USACOE, 2020 WL 1450750 (M.D. La. 2020) (on motion for summary judgment in case challenging 404 permit for pipeline, held that Corps properly engaged in 404 public interest analysis by looking at the effects of possible oil spills; the Corps’ EA’s properly assessed the environmental impacts of the pipeline)

OVEC v. Eagle Natrium, LLC, 2020 WL 1443046 (N.D.W.V. 2020) (on motion for summary judgment in case alleging violations of NPDES permit, held that prior 2010 consent decree with state that provided for stipulated penalties barred present action with respect to benzene hexachloride discharges; “The fact that WVDEP may not have been as aggressive as the plaintiffs would like does not establish a lack of diligence.”; where state did not properly modify NPDES permit for mercury limits, its enforcement of the wrong limits does not preclude citizen suit under 505(b)(1)(B))

United States v. Brace, ___ F. Supp. 3d ___, 2020 WL 1324207 (W.D. Pa. 2020) (granting government’s motion to strike expert wetlands report and other documents, held defendant’s untimely submittal of wetlands expert report was not excused under Rule 26(a)(2); the failure to disclose was not substantially justified, was not harmless and exhibited bad faith; where expert report challenged conclusions on jurisdiction of CWA over wetland in question after parties had earlier stipulated to jurisdiction, report is not allowed in to relitigate that issue; scientific articles not produced during discovery are precluded)

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