On April 26, 2018, a North Carolina jury awarded 10 neighbors $51 million in the first North Carolina hog farming case to be heard before U.S. District Judge W. Earl Britt.  Almost a week later on May 9, 2018, Judge Britt reduced the jury’s award of $23 million in punitive damages to nearly $3 million in punitive damages because of a North Carolina state law that limits punitive damages to $250,000-per-plaintiff.  This was the first case tried of 26 lawsuits brought by 500 neighbors complaining about hog operations in eastern North Carolina against Smithfield Foods, the world’s largest pork producer.

Continue Reading Punitive Damages in North Carolina Hog Farm Cases Reduced

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

On January 8, 2018, the United States Supreme Court heard oral argument on the decision issued by Special Master Ralph Lancaster in the long-running dispute between Florida and Georgia over the fate of water use in the Apalachicola-Chattahoochee-Flint (ACF) Basin.  The Special Master sided with Georgia, less on the merits than for procedural reasons, finding that Florida had failed to meet its burden of showing how Florida’s proposed remedy of a consumption cap on Georgia would be effective to curb alleged excessive water use by Georgia due to control of impoundments on the Chattahoochee River by the U.S. Army Corps of Engineers (“the Corps”), not a party to the suit.

Continue Reading Florida and Georgia Square Off In High Court; Mixed Signals from Justices

The United States Supreme Court announced today that it will hear oral argument in the Florida v. Georgia lawsuit on January 8, 2018.  In that case, Florida sought to mandate a statewide water usage cap for Georgia but was held to have failed to establish by clear and convincing evidence that such a remedy would be effective where the U.S. Army Corps of Engineers, a major manager of impoundments along the Chattahoochee River, was not a party to the lawsuit.  The lawsuit represents the most recent battle in the long-running “water wars” among the Southeastern states over the Apalachicola-Flint-Chattahoochee River Basin.

Continue Reading Supreme Court Takes Up Florida v. Georgia Lawsuit in January

On November 9, 2017, on the heels of New Jersey’s move to set a maximum contaminant level for certain perfluoroalkyl substances, California’s Office of Environmental Health Hazard Assessment (OEHHA) added perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) to the list of chemicals known to the state of California to cause reproductive toxicity (also known as the Prop 65 list).

Continue Reading California Adds PFOA and PFOS to Prop 65 Warning Requirements

A new chapter opened last week in the perennial water wars between Georgia and Florida.  After briefing by both sides, including amici, relative to whether Special Master Ralph Lancaster correctly decided that Florida had failed to carry its burden in this original jurisdiction action, the Supreme Court in an October 10, 2017 Order granted oral argument in the case to be heard “in due course.”  Presumably, that will yield an argument during the Court’s October Term which usually completes in June or July.  Spokesmen for Georgia and Florida welcomed the opportunity to address the Court on the merits.

The dispute involves the water of the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”), a network of rivers, dams, and reservoirs that begins in northern Georgia and ends in the Florida panhandle.  Georgia and Florida have been disputing the extent of each state’s use of the ACF Basin waters for years but recently, in 2014, the dispute made its way to the United States Supreme Court.   There, Florida argued that overconsumption of waters in Georgia, particularly in connection with agribusiness uses on the Flint River, have led to dangerously low flows of waters into Florida from the ACF Basin and the downfall of the Apalachicola Bay’s oyster fishery.  Florida requested that the Court cap the amount of water Georgia can use at levels that existed in 1992. Continue Reading Supreme Court Orders Oral Argument On GA-FL Water Wars

A key brief from the United States has set the United States Supreme Court on a path towards finally resolving the original jurisdiction dispute between Georgia and Florida over the Apalachicola-Chattahoochee-Flint River Basin (“ACF Basin”).  On August 7, 2017, the Trump Administration filed a brief in the United Stated Supreme Court as an Amicus Curiae in the disputed “water wars” case between Georgia and Florida.  Postured where Florida is asking the Court to set aside the ruling of the Special Master who found that it had stated no redressable injury, the government brief sided with the Special Master’s ruling.

Continue Reading Southern Water Wars Teed Up For Ruling

On July 14, 2017, three environmental groups (Environmental Integrity Project, Sierra Club, and Earth Justice) petitioned the Court of Appeals for the D.C. Circuit for a full review of its May decision that the EPA properly withheld testing data in response to a Freedom of Information Act (“FOIA”) request.  The petition for rehearing en banc asks that the full Court of Appeals for the D.C. Circuit reconsider the environmental groups’ arguments as opposed to the three judge panel that originally heard the case.

Continue Reading Greens seek rehearing on EPA withholding power plant data

In a seventy page opinion, Special Master Ralph Lancaster issued his recommendation to the Supreme Court today concluding that Florida had not met its burden of demonstrating by clear and convincing evidence that Georgia should be burdened with a consumption cap on its water use.  Key to the Special Master’s ruling was a finding that because the U.S. Army Corps of Engineers would not be controlled by any decree of Court, a consumption cap remedy would be ineffectual.  The Apalachicola-Chattahoochee-Flint (ACF) river basin is composed of two major forks, the Apalachicola-Chattahoochee fork that is highly regulated by the Corps in terms of streamflows, and the Flint fork for which there is little to no regulation.

Continue Reading Special Master Rejects Florida’s Claim For More Water From Georgia