• Mark Ryan

Two New Cases: Attorney Fees and State Law Preemption

The Charleston case below is unpublished, but it shows that the 4th Cir. when presented with the opportunity to declined the use of the catalyst test in section 505 attorney fees claims, sidestepped the issue. It's an interesting read. The attorneys in the Monsanto case below worked really hard to convince the judge to allow them to stay in federal court, but the judge wasn't buying it. There's the old saying that if you throw enough stuff against the wall, some of it will stick. In this case, it seems, the wall was teflon.

Sanitary Board of the City of Charleston v. EPA, 2020 WL 1815723 (4th Cir. 2020) (unpublished) (affirming denial of attorney fees in case against EPA to force it to timely review submitted state water quality standard, held that plaintiff did not meet the third prong of the catalyst test to show that its lawsuit caused EPA to act on the submitted standard; the record showed that EPA was considering the submitted standard before the lawsuit, and EPA ultimately acted on the states’ submission within 45 days of plaintiff’s motion on the pleadings, and before the district court ruled)

New Mexico v. Monsanto Co., 2020 WL 1812430 (D.N.M. 2020) (granting plaintiff’s motion to remand to state court in PCB cleanup, held that the 1972 amendments to the CWA displaced federal common law; rejected defendant’s argument federal common law governs claims for transboundary pollution; CWA does not completely preempt state law claims)

32 views0 comments

Recent Posts

See All

The Maui RTC

The EPA's Maui Guidance, which was finalized at the bleeding end of the Trump administration (see my blogpost from two days ago), has published in the Federal Register. See attachment FR notice below.

The Proposed Mens Rea Regs Never Went Final

In my Dec. 11 blogpost, I discussed the proposed new regulations to amend the EPA regulations used to approve state programs under 402 and 404. The public comment period ended last week, giving EPA a

EPA Finalizes the Maui Guidance

EPA quietly finalized the Maui Guidance this past week. I suspect the outgoing EPA administration was just too busy finalizing last-minute rules, policies and guidances to do more than the minimum. Th

© 2016 by Ryan & Kuehler PLLC.

  • Facebook Basic Black
  • LinkedIn Basic Black
  • Twitter Basic Black