• 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The Charleston case below is unpublished, but it shows that the 4th Cir. when presented with the opportunity to declined the use of the catalyst test in section 505 attorney fees claims, sidestepped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Sanitary Board of the City of Charleston v. EPA, 2020 WL 1815723 (4th Cir. 2020) (unpublished) (affirming denial of attorney fees in case against EPA to force it to timely review submitted state water quality standard, held that plaintiff did not meet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)

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