Environmental Litigation

The Court’s decision has prompted the US Army Corps of Engineers to freeze jurisdictional determinations for permitted activities pending additional guidance.

By Michael G. Romey, Lucas Quass, and Peter R. Viola

On May 25, 2023, by a narrow 5-4 majority, the US Supreme Court ruled in Sackett v. EPA that the Clean Water Act (CWA) only extends to wetlands that have a “continuous surface connection” with “waters of the United States” (WOTUS) — the term in the CWA’s definition of “navigable waters” that determines the jurisdiction of the US Army Corps of Engineers (the Corps) and the Environmental Protection Agency (EPA) (together, the Agencies) over projects and other activities requiring permits to dredge, fill, or discharge into federally protected waters.[1]

Public agencies prevailed in 71% of decisions involving the California Environmental Quality Act in 2022.

By Marc Campopiano, Lucas Quass, Natalie Rogers, and Kevin Homrighausen

Latham lawyers tracked key developments in California Environmental Quality Act (CEQA) case law throughout 2022. On April 20, 2023, Latham lawyers held a webcast highlighting important cases from the past year, summarizing practical takeaways, and covering trends in CEQA. (See the webcast and the corresponding 2022 CEQA Year in Review presentation.) Below is a compilation of the information from that annual review and patterns that emerged.

LIDW23 member-hosted event provided insights into current and future trends in the greenwashing space.

By Sophie J. Lamb KC and Aleksandra Dulska

Latham & Watkins recently hosted a panel discussion during London International Disputes Week on the topic of greenwashing and how English law continues to evolve and adapt in order to meet the needs of international businesses and other stakeholders engaging with this issue. The event provided a platform to explore:

(1) The key drivers of greenwashing complaints

(2) The challenges organisations face when trying to define and explain their sustainability plans (including against the backdrop of rapidly evolving reporting guidelines)

(3) The associated litigation trends as observed globally

The panel included the Honourable Mrs Justice Cockerill DBE (Commercial Court Judge, High Court), Sophie J. Lamb KC (Partner, Latham & Watkins), Adam Heppinstall KC (Barrister, Henderson Chambers), and Meghan Sheehan (Director and Head of ESG and Sustainability, Kekst CNC).

This blog post summarises the key themes of discussion that took place and provides interesting insights as to what may lie ahead.

A federal court heard motions for summary judgment in challenge to first-in-nation rule requiring warehouses to adopt clean technologies.

By Joshua Bledsoe, Nick Cox, and Jennifer Garlock

On April 17, 2023, a US federal judge heard arguments in a lawsuit challenging the South Coast Air Quality Management District (SCAQMD or the District) adoption of Rule 2305 and will now decide whether to grant summary judgment to the plaintiffs and vacate the rule.

Rule 2305 is the Warehouse Indirect Source Rule (ISR) — Warehouse Actions and Investments to Reduce Emissions (WAIRE) Program. As described in this June 2021 blog post, the WAIRE Program applies to certain warehouses in the South Coast Air Basin and imposes a compliance obligation based on the number of truck visits to that warehouse per year. Warehouse operators can meet that obligation by taking any number of emissions-reducing actions, either from the “WAIRE Menu” or through a custom plan approved by the District.

Public agencies prevailed in 71% of CEQA cases analyzed.

By James L. Arnone, Daniel P. Brunton, Nikki Buffa, Marc T. Campopiano, Peter J. Gutierrez, John C. Heintz, Lauren E. Paull, Aron Potash, Lucas I. Quass, Natalie C. Rogers, Jennifer K. Roy, and Winston P. Stromberg

Latham & Watkins is pleased to present its fifth annual CEQA Case Report. Throughout 2021 Latham lawyers reviewed each of the 51 California Environmental Quality Act (CEQA) appellate cases, whether published or unpublished. Below is a compilation of the information distilled from that annual review and a discussion of the patterns that emerged.

In 2021, the California Courts of Appeal issued 51 opinions that substantially considered CEQA while the US District Court for the Northern District of California issued one opinion. Notably, 2021 saw an increased focus on CEQA wildfire analysis. In cases like Sierra Watch v. County of Placer, the Court of Appeal ruled that the County of Placer failed to adequately analyze wildfire risks by wrongly assuming first responders would provide traffic control in the event of an emergency. And in Newtown Preservation Society v. County of El Dorado, the Court upheld a mitigated negative declaration in the face of public concerns that a bridge reconstruction project would result in significant impacts on resident safety and emergency evacuation in case of a wildfire.

Also notable in 2021 was the rare occurrence of a Court of Appeal partially affirming the denial of an anti-SLAPP motion following a CEQA lawsuit. In Dunning v. Johnson, the Court found that a project developer had established a probability of demonstrating lack of probable cause for the underlying CEQA petition, as well as a probability of demonstrating that the petitioners pursued the CEQA litigation with malice.

The decision could complicate states’ ability to pursue groundwater natural resource damages actions.

By Kegan A. Brown, Gary P. Gengel, Thomas C. Pearce, and Taylor R. West

On November 22, 2021, the US Supreme Court held that equitable apportionment applies to a dispute between states about their respective interests in groundwater that flows through multiple states in Mississippi v. Tennessee.[1] The decision may have implications for natural resource damages (NRD) claims. Natural resource trustees often assert claims to pursue damages to groundwater. In assessing these claims, courts often must determine (1) whether the trustee has a trusteeship interest in the groundwater resource at issue, and (2) if so, the extent of the trustee’s interest in that groundwater resource relative to the interests of other trustees in the same groundwater.

The State and eNGOs seek to defend an emissions rule that trucking and airline trade groups are challenging in federal court.

By Joshua T. Bledsoe and Jennifer Garlock

On October 13, 2021, the State of California, on behalf of the Office of the Attorney General and the California Air Resources Board (CARB, and together, the State), filed a motion to intervene in a federal lawsuit challenging the South Coast Air Quality Management District (SCAQMD or the District) adoption of Rule 2305. Rule 2305 is the Warehouse Indirect Source Rule (ISR) – Warehouse Actions and Investments to Reduce Emissions (WAIRE) Program. Plaintiff, the California Trucking Association (CTA), filed a complaint in the US District Court for the Central District of California on August 5, 2021, to which the District filed an answer on October 7, 2021.[i] In addition to the State, Airlines for America filed a motion to intervene as a proposed plaintiff, while a group of environmental NGOs seek to intervene as proposed defendants. Each proposed intervenor is discussed further below.

Public agencies prevailed in 68% of CEQA cases analyzed.

By James L. Arnone, Daniel P. Brunton, Nikki Buffa, Marc T. Campopiano, and Winston P. Stromberg

Latham & Watkins is pleased to present its fourth annual CEQA Case Report. Throughout 2020 Latham lawyers reviewed each of the 34 California Environmental Quality Act (CEQA) appellate cases, whether published or unpublished. Below is a compilation of the information distilled from that annual review and a discussion of the patterns that emerged. Latham’s webcast discussing this publication and the key CEQA cases and trends of 2020 is available here.

The agency’s rulemaking to implement the AIM Act will offer stakeholders opportunities to shape a new market-based mechanism to reduce HFCs.

By Jean-Philippe Brisson, Stacey VanBelleghem, and Zaheer Tajani

Tucked inside the US$900 billion COVID-19 relief package signed into law on December 27, 2020, is a regulatory opportunity for the climate-focused Biden Administration: the American Innovation and Manufacturing Act of 2020 (the AIM Act). The AIM Act requires the US Environmental Protection Agency (EPA) to develop an allowance trading system to aggressively phase down the production and consumption of certain chemical refrigerants, called hydrofluorocarbons (HFCs), throughout the United States.