Over the past 30 years, we have been fortunate to provide technical assistance (litigation support) for our clients involved in lawsuits. These tend to be some of our more challenging projects, involving a number of technical disciplines.
With our roots in the litigation support area, we are always interested in cases, both developing and those that have already been decided. Below are some recent developments/rulings that may be of interest to you. For those wishing to dig deeper into any of the cases, we have provided links to the news/legal sources.
Gold King Mine Developments and Dramatic Video of Release
Gold King Lawsuit(s). On August 5, 2015, the Environmental Protection Agency (EPA) was conducting an investigation of the Gold King Mine near Silverton, Colorado. While conducting an excavation, pressurized water began leaking above the mine tunnel, spilling about three million gallons of water (containing heavy metals) stored behind the collapsed material into Cement Creek, a tributary of the Animas River (see the video of “blowout”).
In the ensuing months and years, there have been more than 400 individual lawsuits filed, including farmers, ranchers, resorts, business owners, the States of New Mexico & Utah, and the Navajo Nation. Recently, a federal judge centralized four of the lawsuits with respect to the Gold King Mine spill. The “target” of the legal action is the EPA, their contractors, and mining companies (see Transfer Order).
As this case involves the EPA and a variety of plaintiffs, it has garnered a lot of media attention. Among the FAQs on the EPA’s website are questions specific to agricultural use of the water in the affected rivers (Animas and San Juan). Further complicating this case is the change in administrations in Washington, D.C.
How all these factors converge, and what the resulting outcome may be, will be worth watching. Stay tuned…
PFAS Settlement, TSCA, and State Supreme Court Ruling
3M’s $850 Million PFAS Settlement. State and federal regulators, as well as environmental groups, continue to focus on per- and polyfluoroalkyl (PFAS) substances in the environment. We have written about the quickly-developing issue on several occasions. Perhaps an indication of the importance of this issue in the current “environmental zeitgeist,” is the February 2018 settlement in which 3M agreed to pay $850,000,000. As reported by Bloomberg, “The agreement materialized just as jury selection got underway Tuesday, and after Judge Kevin S. Burke urged the parties to compromise, saying that it wasn’t in the best interests of the state’s citizens or 3M’s shareholders for the case to drag on.”
Look for more PFAS litigation in the near future.
TSCA Litigation. While TSCA reform (Toxic Substance Control Act) was widely supported, there were dissenting opinions. Some of those opinions suggested that the changes will result in more TSCA-related lawsuits. As stated in a recent report in Chemical Watch, “…no one in the legal community doubted litigation was in our collective future. We have not been disappointed.” Among those initiating TSCA lawsuits are Safer Chemicals, Healthy Families, and 11 other organizations. In each instance, they have sued the EPA in the U.S. Court of Appeals in the for the Ninth Circuit Court in San Francisco challenging the risk prioritization and risk evaluation final rules.
Natural Resource Defense Council has also been involved in legal action (January 5, 2018). The tone for TSCA litigation was set early when, soon after new TSCA rules were passed in late 2016, Food & Water Watch filed under the new TSCA rules seeking to ban fluoridation of drinking water, which was denied by the court.
For those companies that have materials that are chemical substances, mixtures, or articles as defined under TSCA, keep a watchful eye turned toward TSCA developments.
California State Supreme Court Ruling. The California State Supreme Court has denied a request by Briggs Law and Creed-21 to unpublish a “precedent-setting opinion” with respect to a case involving the California Environmental Quality Act (CEQA) and a Wal-Mart project in Riverside County. At issue was the siting of a Wal-Mart Store that was approved by the City of Windomar.
Creed-21 alleged that the City and Walmart “…failed to prepare an adequate environmental impact report and they violated the planning and zoning law within the meaning of Government Code section 65860. Creed-21 sought to stop the Wildomar Defendants from taking any action on the Project until they complied with CEQA and the planning and zoning laws.”
Wal-Mart argued that Creed-21 lacked standing and asked Briggs law to produce a client for deposition. Briggs refused to do so.
“Wal-Mart’s attorney in the case, Keli Osaki, told inewsource [an on-line publication] the opinion confirms that parties on the receiving end of these lawsuits ‘may conduct discovery on issues such as whether a CEQA petitioner is a shell corporation used by its attorney to obtain attorneys’ fees’” (inewsource.org).
Again, if you want to dig deeper into any of these brief updates, the links provided should be a good starting point.