ENVIRONMENTAL LAW CASES

• Smith v. Carbide & Chems. Corp.
• Our Children's Earth Found. v. US Envtl. Prot. Agency

U.S. 6th Circuit Court of Appeals, November 02, 2007
Smith v. Carbide & Chems. Corp., No. 04-5323
In an environmental case involving a uranium enrichment facility, brought by plaintiffs claiming harm to their real property based on contamination caused by imperceptible particles, summary judgment for defendants on an intentional trespass claim is reversed and remanded pursuant to answers to certified questions from the Kentucky Supreme Court, specifically that: 1) proof of actual harm is not required to state a claim for an intentional trespass; and 2) the diminution in property value is a recognized measure of damages which can be used once an "actual injury–an interference with an owner's use of the land," has been established. Summary judgment on permanent private nuisance and strict liability claims is also reversed as: 1) the lower court erred in concluding that plaintiffs must produce evidence that defendants' contamination constituted a health hazard to proceed on the nuisance claim; and 2) plaintiffs have shown a genuine issue of material fact with respect to harm ! to their real property that would give rise to a claim of strict liability based on an abnormally dangerous activity under Restatement (Second) of Torts section 519. Read more...

U.S. 9th Circuit Court of Appeals, October 29, 2007
Our Children's Earth Found. v. US Envtl. Prot. Agency, No. 05-16214
In a suit alleging that the EPA has failed to fulfill its mandate to review effluent guidelines and limitations in a timely manner and in accord with technology-based standards, a judgment for the EPA is affirmed in part, but reversed in part and remanded where: 1) the decision whether to revise the effluent guidelines falls within EPA's discretion; but 2) in its periodic review of the guidelines, EPA does not have discretion to ignore the technology-based criteria in favor of a hazard-based review. Read more...