Ag’s Big Win: A Follow Up

The latest ruling in an Iowa case against Des Moines Water Works represents another win for farmers and the agricultural community.

As we previously posted, in January the Iowa Supreme Court ruled against Des Moines Water Works on certified, state-law questions including whether drainage districts are immune from paying money damages. The case had come to the Iowa Supreme Court after the Federal District Court for the Northern District of Iowa had certified state-law questions. The ruling was a relief for the agricultural community, which had been concerned about the potential for large, economic liability associated with nutrient run-off.

Continue Reading

Run-Away Liability and the BNSF Ruling

On March 3, 2017, BNSF Railway entered into a proposed consent decree with multiple environmental groups, led by the Sierra Club. BNSF agreed to clean up what it characterized as “coal pollution” along its tracks in Washington, fund $1 million in additional environmental work, and study the feasibility of covering its railcars. In exchange, the environmental groups agreed to drop their suit. The agreement allowed BNSF to avoid potentially billions of dollars in penalties, but an earlier ruling in the case set the stage for similar suits to be brought across the country. BNSF may have won its battle, but did it and other railroads lose the war?

Continue Reading

Lessons Learned: Negotiating Covenants Not to Sue in Environmental Agreements

Parties that settle environmental claims with the government frequently include covenants not to sue in their settlement agreements. But how does a party ensure that a covenant not to sue prevents the government from suing it again? By negotiating a broad covenant not to sue that contemplates all the ways in which the government may hold it liable at a site.

Continue Reading

Monsanto Uses the Constitution to Challenge Warning Labels for Herbicide

Monsanto has, at least temporarily, lost its fight to avoid a Prop 65 warning label on its products containing glyphosate, a chemical used in the popular herbicide Roundup.  On January 27, 2017, a California judge tentatively dismissed Monsanto’s claims that the State of California unconstitutionally turned to an unelected, European organization to decide whether glyphosate posed a cancer risk. Continue Reading

Keeping Information Confidential: What Businesses Need to Know About Recent Developments under FOIA and the CWA

Most businesses face numerous privacy concerns. Businesses that provide confidential information to regulatory agencies face a unique challenge: How can they keep this information private?

Recently, several hundred power plants faced this challenge when environmental groups sued EPA to compel disclosure of confidential information the plants had provided to EPA. The case highlights the different tactics groups may take to obtain information, and reminds businesses to be aware of the laws governing confidentiality of information. Continue Reading

Renewable Energy Development Can Still Look to PURPA as New Administration Moves In

With the inauguration of President Trump as the 45th President of the United States, stakeholders in various sectors of the energy industry have speculated about the future of energy policy in the new administration. While the early days of the administration have seen a clear commitment to the oil and gas sectors with action on the Dakota Access and Keystone XL pipelines, the question remains regarding the president’s anticipated support of the renewable energy sector. Continue Reading

Ag’s Big Win: Iowa Supreme Court Denies Water Utility’s State Law Claims against Drainage Districts

In a big win for the agricultural community, the Iowa Supreme Court recently ruled against Des Moines Water Works (DMWW) in its state law claims against upstream drainage districts for nitrate pollution in the Raccoon River. See Bd. of Water Works Trs. of Des Moines v. SAC Cty. Bd. of Supervisors, No. 16-0076, 2017 WL 382402 (Iowa Jan. 27, 2017). The ruling instructs the federal court to dismiss DMWW’s state law claims (leaving only DMWW’s federal claims, which concern whether the districts should be regarded as ‘point sources’ under the Clean Water Act (CWA)). The ruling means that even if DMWW wins on its federal claims, DMWW—and thus the citizens who consume DMWW water—will have to foot the bill for any future nitrate processing. Continue Reading

Supreme Court to Decide Proper Forum to Review WOTUS Rule Challenges

The U.S. Supreme Court on January 13, 2017, granted the National Association of Manufacturers’ request to determine whether the U.S. Court of Appeals for the Sixth Circuit was correct in concluding that it had jurisdiction to hear legal challenges to the Waters of the United States rule (WOTUS Rule). Continue Reading

LexBlog