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On August 10, the U.S. Court of Appeals for the Ninth Circuit decided the case of ASARCO LLC v. Atlantic Richfield Company, which involves the ongoing liability to clean up the East Helena Superfund Site, located “in and around an industrial area in Lewis and Clark County, Montana.” The Ninth Circuit, vacating the U.S. District Court in Montana’s grant of summary judgment, held that

[Ansarco’s] 1998 RCRA Decree did not resolve Asarco’s liability for at least some of its response obligations under that agreement. It therefore did not give rise to a right to contribution under CERCLA § 113(f)(3)(B). By contrast, the 2009 CERCLA Decree did resolve Asarco’s liability, and Asarco has brought a timely action for contribution under that agreement.

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In the case of Plains All American Pipeline L.P. v. Cook, et al., decided on August 9, the U.S. Court of Appeals for the Third Circuit largely affirmed the dismissal of Plains All American Pipeline L.P.’s (Plains) complaint that the State of Delaware’s proposed escheat audit of the pipeline is unconstitutional. The Third Circuit held that, at present, Plains’s claims are unripe and not suitable to be decided by the courts. Except that it reversed the District Court’s dismissal of Plains’s procedural due process claim, and remanded it to the District Court for further consideration.

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On August 4, the U.S. District Court for the Middle District of Tennessee issued a very significant ruling in the case of Tennessee Clean Water Network, et al., v. Tennessee Valley Authority. The District Court has ordered the Tennessee Valley Authority (TVA) to excavate huge quantities of coal ash waste generated over many years by the TVA’s coal-fired power plant located in Gallatin, Tennessee, and adjacent to the Cumberland River.

Two large unlined surface impoundments have been used to store this waste: the Non-Registered Site and the Ash Pond Complex. According to the District Court, these waste pits are located in an area with “karst geological features, with sinking streams, shallow bedrock, and sinkholes.” These site characteristics caused the District Court to note that “it is difficult to imagine why anyone would choose to build an unlined ash pond in karst terrain immediately adjacent to a river.”

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In Americans for Clean Energy, et al v. EPA, decided July 28, 2017, the U.S. Court of Appeals for the District of Columbia Corn-300x225Circuit upheld the Environmental Protection Agency’s (EPA) 2015 rule establishing renewable fuel volume obligations for the years 2014 through 2017, with one exception: the court held that EPA cannot consider demand-side constraints in setting annual renewable fuel volumes.

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On July 31, 2017, the Federal Transit Administration (FTA) published a notice of proposed rulemaking in the Federal Register, for a proposed regulation that would establish new, experimental procedures to encourage use of public-private partnerships (P3s), joint developments and other private investment mechanisms in surface transportation capital projects. The rulemaking is linked to a statutory provision in the Moving Ahead for Progress in the 21st Century Act, which requires FTA to identify provisions at 49 U.S.C. chapter 53 and any regulations or practices thereunder that impede greater use of P3s and private investment. Potential private investors in public transportation infrastructure projects, as well as local and state transportation agencies that may be considering mechanisms of private funding, should be aware of the proposed new procedures. Public comments on the proposal are due September 29, 2017.

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On Wednesday, July 26, the California Office of the Attorney General (Attorney General) issued an Opinion answering the question:

Does Health and Safety Code section 13146 prohibit fire protection district chiefs from enforcing the State Fire Marshal’s building standards and regulations as they relate to R-3 dwellings?

The Attorney General confirmed that California Health and Safety Code § 13146 does not prohibit fire protection district chiefs from enforcing the State Fire Marshal’s building standards and regulations as they relate to R-3 dwellings, which “encompasses residential occupancies including single-family homes, as well as a variety of licensed facilities such as adult care centers, day-care centers, foster family homes, and drug recovery homes.”

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iStock-182408547-mall-real-estate-retail-300x200Search “Death of Retail” on Google.com and, as of July 26, you will get approximately 855,000 hits, many of which stress the negative impact that online sales and Amazon, in particular, have had on traditional retailers. However, predicting the future of the retail industry cannot be reduced to an easy slogan. Amazon itself is a retailer, and it is facilitating sales on its site by other retailers, including many that previously had difficulty bringing goods and services to market. Moreover, retail sales overall rose almost 4% in the past year, and the National Retail Federation expects growth to continue due to low unemployment and a strong stock market. Clearly, the retail industry is not in a meltdown, but it is experiencing great change, and the industry must adapt.

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Balancing the interests of the Federal Government as owner of thousands of acres surrounding Crooked Lake and private owners’ rights, on July 26, CrookedLake-2-300x169in a 2 to 1 ruling, the U.S. Court of Appeals for the Sixth Circuit ruled that the U.S. Forest Service exceeded its authority when issuing rules restricting recreational use of Crooked Lake. The federal legislation acquiring the property for the Federal Government contained a provision protecting “valid existing rights.” According to the Court of Appeals, relevant Michigan law established such an existing right, granting owners of property surrounding the lake the right to reasonable use of the lake, and this law must be respected. The case is Herr v. U.S.  Forest Service, et al.

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On July 17, the U.S. Court of Appeals for the Second Circuit decided the case of Olin Corporation v. OneBeacon America Insurance Company, an environmental insurance recovery lawsuit. Olin Corporation has filed such lawsuits against several of its insurance carriers with respect to the contamination indemnification claims generated by Olin Corporation’s ongoing cleanups at its manufacturing facilities around the country. The Court of Appeals affirmed Olin Corporation’s right to recover and also agreed with OneBeacon America Insurance Company (OneBeacon) that the U.S. District Court for the Southern District of New York should have factored in the “prior insurance provision” of OneBeacon’s policies “thereby reducing the limits of its policies by those of any prior policies covering the same loss.”

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Data centers trigger visions of windowless, concrete boxes located at the periphery of suburban office parks. That perception may fade in the coming years. With new technologies, such as cloud computing, blockchain platforms, the Internet of Things, artificial intelligence, big data and mobile apps demanding instant access to data, the industry is seeing global growth and innovation, including “micro” centers closer to end users, underwater and floating data centers, “mega” centers and green data centers.

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