Environmental Litigation

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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lawyers reviewed each of the 34 California Environmental Quality Act (CEQA) appellate cases, whether published or unpublished.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.

The consultation seeks to establish a strategic framework aimed at ensuring high standards of protection for workers.

By Paul A. Davies and Michael D. Green

On 7 December 2020, the European Commission (EC or the Commission) launched a public consultation (the Consultation) on the new EU Strategic Framework on Health and Safety at Work for 2021-2027 (the Framework). The Consultation follows a Roadmap adopted by the EC in October 2020 and builds on the feedback received following the Roadmap’s consultation and regarding occupational safety and health (OSH) factors.

The Sustainability Accounting Standards Board and the International Integrated Reporting Council merger aims to streamline ESG reporting to improve data for investors.

By Paul A. Davies and Michael D. Green

On 25 November 2020, the Sustainability Accounting Standards Board (SASB) and the International Integrated Reporting Council (IIRC) announced that they are merging into a unified organisation, the Value Reporting Foundation. This move reflects an effort to provide investors and corporates “with a comprehensive corporate reporting framework across the full range of enterprise value drivers and standards” and recognises “the need for data-driven information”.

Companies and their attorneys risk monetary penalties and DOJ enforcement if they fail to ensure that toxic tort and personal injury plaintiffs reimburse Medicare.

By Christine Rolph, Taiga Takahashi, and Holly Bainbridge

The US Department of Justice (DOJ) has filed numerous enforcement actions against defendant companies and law firms based on an alleged failure to reimburse the government for its share of personal injury and toxic tort settlements, pursuant to the Medicare Secondary Payer Act (MSP Act), as amended by Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007.[1] Medicare now seeks to enhance its enforcement of penalties for non-compliance, proposing a rule that implements the MSP Act’s reporting requirements. Under the MSP Act, inaccurate reporting of settlements, judgments, or other payments made to Medicare beneficiaries may result in a civil monetary penalty up to US$1,000 per day per Medicare beneficiary.

The new rule, if finalized, would provide guidance on how and when penalties should be assessed, as well as facilitate increased government monitoring of compliance. The clear message to all parties in toxic tort and personal injury litigation is to investigate whether any plaintiffs are Medicare recipients and, if so, to ensure full compliance with the reporting and reimbursement requirements in the MSP Act.

The pioneering case seeks an injunction to restrain the government from further promoting exchange-traded bonds until it complies with its duty of disclosure.

By Paul A. Davies and Michael D. Green

miningOn 22 July 2020, investors filed a class-action claim against the Australian government, alleging that it failed to disclose material climate change risks relating to its bonds (O’Donnell v. Commonwealth and Ors). The claim is thought to be the first of its kind against a national government.

The government provides further details on UK carbon pricing after Brexit.

By Paul A. Davies and Michael D. Green

On 14 July 2020, the UK government published the draft Greenhouse Gas Emissions Trading Scheme Order 2020 (the Order), establishing a framework for the potential UK Emissions Trading System (UK ETS). Subsequently, on 21 July 2020, the government published a consultation on the operation of a potential new carbon emissions tax.