Troutman Sanders partners Douglas Henderson and Lindsey Mann and associate Nicholas Howell had an Insight piece published in Bloomberg Law titled, “Contamination ‘Issue’ Class Actions—Recent Certification Realities.”

In the article, the authors review the confusing outcomes and mistaken promise of environmental “issue” class actions under Rule 23(c). Two cases from 2018—involving virtually identical facts—reach fundamentally different conclusions on whether such “issue” classes are appropriate in environmental exposure cases.

The authors note: “[i]f the Behr-Dayton approach stands, claim-wide predominance and superiority become aspirational, rather than the requirements they were intended to be, so long as the ‘issue’ class will, in the court’s estimation, advance the litigation or push the parties to settle.” Based on the these cases, Henderson, Mann and Howell conclude Rule 23(c) “issue” class actions should not be interpreted to resuscitate flawed putative classes under Rule 23(b).

To read the entire article, click here.

The most recent development in the decades-long water wars between Georgia, Florida, and Alabama occurred today at the Supreme Court.  In a 5-4 decision, Justices Breyer, Roberts, Kennedy, Ginsburg, and Sotomayor overruled the Special Master’s February 14, 2017 decision and remanded the case back to him for further consideration on factual issues.  In his decision, the Special Master dismissed Florida’s claim against Georgia for its consumptive use of water from the ACF River Basin, stating that Florida failed to carry its burden of demonstrating that a limit on Georgia’s water consumption would make any difference to Florida’s economic and ecological harm.

Continue Reading SCOTUS Overrules Special Master’s Water Wars Decision, and Remands It Back for Further Consideration

Earlier this week, the Supreme Court ruled that federal district courts, rather than appellate courts, are the proper venue to challenge the “Waters of the United States” (“WOTUS”) Rule (discussed in a previous blog post here), an Obama-era regulation that expansively defined waters subject to Clean Water Act jurisdiction.  Following the Supreme Court decision, the Eleventh Circuit on Wednesday vacated its 2015 decision which held the opposite.  In doing so, it also remanded a challenge to the WOTUS Rule brought by a coalition of states (led by Georgia) in 2015 in the federal district court in Brunswick, Georgia.

Continue Reading Challenge to WOTUS Rule Heads Back to Georgia District Court

On July 21, 2017, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) proposed amendments to the regulations implementing Prop 65 – the California law that requires business to provide a “clear and reasonable warning” to consumers on products that contain any chemicals listed by California as causing cancer or reproductive harm.  According to OEHHA, these amendments are intended to clarify a previous round of amendments that were finalized in August 2016 that will become effective on August 30, 2018, discussed here .

Continue Reading California’s OEHHA Proposes Clarifying Amendments to Prop 65 Regulations

On November 29, 2016, EPA announced the first ten chemicals for which the Agency will perform a risk evaluation under the Toxic Substances Control Act (“TSCA”), as reformed by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, passed earlier this year.  As part of this review, EPA will evaluate whether the chosen chemicals “present an unreasonable risk of injury to health or the environment.”

Continue Reading EPA Begins Evaluating Chemical Risks Under Revised Toxic Substances Control Act

Recently, the Office of Environmental Health Hazard Assessment (“OEHHA”) in California finalized revisions to the regulations implementing Prop 65 – the California law that requires business to provide a “clear and reasonable warning” to consumers on products that contain any chemicals listed by California as causing cancer or reproductive harm.

Continue Reading California’s Prop 65 Labeling Requirement Is About to Get Even More Burdensome

On September 19, 2016, EPA extended the Chemical Data Reporting (CDR) rule report deadline from September 30, 2016 until October 31, 2016. As a reminder, the Toxic Substances Control Act (TSCA) requires manufacturers of chemical substances to periodically report their manufacturing, processing, and use of chemicals listed on the TSCA Inventory.  EPA granted the extension in response to the regulated community’s concerns about delays in CDR Reporting resulting from issues associated with electronic reporting.  This is a one-time extension that does not apply to subsequent submission periods, the next being in 2020. Continue Reading EPA Extends TSCA CDR Reporting Deadline until October 31, 2016

On Tuesday, May 24, compromise legislation to reform the Toxic Substances Control Act overwhelmingly passed the House of Representatives. Last week, the House and Senate announced the compromise legislation with the goal of reaching the President’s desk for signature before the Memorial Day recess.  That goal now appears to be in reach, with the White House already signaling plans to approve the legislation by calling it a “clear improvement” and a “historic advancement” for chemical safety. Continue Reading TSCA Reform Sails Through House of Representatives

On December 17, 2015, the U.S. Senate overwhelmingly passed legislation that would overhaul the Toxic Substances Control Act — S. 697, the “Frank R. Lautenberg Chemical Safety for the 21st Century Act.”  S. 697 is sponsored by Sens. Tom Udall, D-N.M., and David Vitter, R-La., with 60 bipartisan cosponsors, representing 38 states. Continue Reading Senate Passes Historic TSCA Reform Bill

In a memo directed to all federal law enforcement officials, including the Assistant Attorney General for the Environment and Natural Resources Division, the U.S. Department of Justice (DOJ) outlined a new policy that prioritizes the prosecution of individuals for corporate misconduct. Traditionally, DOJ has pursued companies — not individual corporate officials and managers — for alleged corporate wrongdoing. In its new policy, DOJ makes it clear that law enforcement officials will also target the individuals responsible for alleged company misconduct. Notably, these changes will be implemented in DOJ’s U.S. Attorneys Manual (USAM). This formal revision to the USAM reflects a concerted effort to fully implement the new policy outlined in the memo in future investigations. Because violations of environmental laws may lead to both civil and criminal enforcement by EPA and DOJ, this shift will have a direct impact on corporations and the individuals within those corporations that are responsible for environmental management decisions. Continue Reading New DOJ Policy Targets Individuals (Not Just Companies) For Alleged Violations of Environmental Law