Real Estate and Construction Law Blog

On April 10, 2008, the Army Corps of Engineers ("Corps") and the Environmental Protection Agency ("EPA") issued a final rule governing mitigation requirements for unavoidable impacts to wetlands and other waters of the United States under the section 404 program of the Clean Water Act.  70 Fed. Reg. 19594. This rule is a major change to the Section 404 program.  It was published with nearly 80 pages of preamble in the Federal Register, and the rules itself is more than 30 pages.  It will take some time for the Corps staff and the regulated community to learn the new rule.  The rule is sufficiently complex that it will be many years before the effect of the changes will be fully understood.

By Olivier F. Theard and Maria J. Gangemi

I. Introduction

On November 5, California filed suit for an injunction to compel EPA to rule on California's requested waiver from the Clean Air Act's prohibitions of states enforcing their own greenhouse gas emissions standards for automobiles.  Several other states have intervened, seeking to adopt California's standards as well.

People of the State of California v. General Motors Corporation et al. (Sept. 17, 2007, C06-05755) ___Cal.App.4^th ___;

By Maria J. Gangemi

Introduction/Holding:

In a major case brought by the State of California seeking to hold automakers liable for global warming, District Judge Martin Jenkins in San Francisco granted defendants' motion to dismiss the State's nuisance causes of action under federal and state law.  The judge determined that it was a non-justiciable political question.

By Randolph C. Visser and Olivier F. Theard

Pursuant to AB 32 (the Global Warming Solutions Act) the California Air Resources Board (CARB) recently announced that it would go beyond the minimum statutory requirements and has proposed additional “early action measures” designed to help California achieve its statutory goal of reducing greenhouse gas emissions to 1990 levels by the year 2020.  If adopted, the new measures will significantly increase the current list of early action measures which were approved by CARB in June 2007.

The California Court of Appeal, Second District, threw out a jury award of $14,275,237 in damages against Shell Oil Co. in an action by plaintiff Watson Land Company concerning groundwater and soil contamination from a gasoline pipeline leak. The appellate court ruled that the jury erred when it found that Shell derived a $14,275,237 "benefit" from the leak and resulting contamination, and misapplied Civil Code section 3334 in awarding that amount to plaintiff.

The federal court of the Eastern District of California has published its decision in Kotrous v. Goss-Jewett Co. of Northern California, Inc. (2005 WL 1417152, E.D. Cal. Jun. 16, 2005), concerning whether a potentially responsible party in CERCLA hazardous waste cases may bring a contribution claim.