• Mark Ryan

Four New Cases

Here are four new, but not-terribly-earth-shattering CWA cases. The last one, Earth Island Institute, will likely be appealed because of the statutory interpretation question. It could be argued that the judge overreached.

In an unrelated, but interesting note, I quote this lovely piece of judicial writing from Judge Young of the D. of Mass. He opens his opinion with: "The parties offer the Court sharply diverging theories of this case. As Exxon Mobil Corporation tells it, Massachusetts has brought this suit to hold a single oil company liable for global climate change. To the Commonwealth, this case is about seismic corporate fraud perpetrated on millions of consumers and investors. Yet as it reaches this Court on a motion to remand, this case is about the well-pleaded complaint rule -- nothing more and nothing less. That rule, in turn, implicates the fault lines dividing the federal and state judiciaries." Mass. v. Exxon Mobil Corp., 2020 WL 276981 (D. Mass. 2020) at 1. Clarity and moderation in communication, I think most would agree, are welcome qualities these days.

City of Highland Park v. EPA, 2020 WL 2520627 (6th Cir. 2020) (unpublished) (affirming dismissal of case, held that plaintiff failed to state a claim that Great Lakes Water Authority violated a permit provision requiring compliance with the Financial Capability Guidance; plaintiffs failed to properly allege a violation of the CSO policy; court rejected other minor and ill-founded claims)

United States v. E.R.R., LLC, 2020 WL 2769881 (E.D. La. 2020) (denying defendant’s motion to exclude the government’s expert witnesses in OPA cost recovery case, held that the two experts, who are leaders in the field of oil spill sample analysis and oil spill planning, response and assessment, respectively, are highly qualified and relied on relevant and trustworthy evidence to produce their expert reports; rejected defendant’s arguments that the reports did not meet the Daubert standard)

Brewster v. Swaggerty Sausage Co., Inc., 2020 WL 2764620 (E.D. Tenn. 2020) (in case where plaintiff alleges he was fired for reporting illegal bypasses into creek at meat processing plant, court denied motion to dismiss state law wrongful termination claim, held that § 1367 (the CWA whistler blower protection provision) is not an exclusive remedy and does not preempt state claims)

Earth Island Institute v. EPA, 2020 WL 2850285 (N.D. Cal. 2020) (denying EPA’s motion to dismiss, held that EPA has a nondiscretionary duty under § 1321(d)(3) to update or amend the NCP; “The EPA’s duty here is quite clear: to revise or amend the NCP in light of new information.”; denied American Petroleum Institute’s motion to intervene because the lawsuit addresses the EPA’s procedure, not its substantive decision)

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