Environmental/Property Damage

Monsanto officially lost its fight to avoid a Prop 65 warning label on its products containing glyphosate, a chemical used in the popular herbicide Roundup. As we previously reported, Monsanto argued that the State of California’s reliance on an unelected, European organization to decide that glyphosate poses a cancer risk was improper. Last month, a California superior court rejected Monsanto’s arguments. Continue Reading California Prop 65 Decision Raises New Potential Conflict with Federal Pesticide Product Registration and Labeling Requirements

The gloves are off in a lawsuit in the Southern District of New York where an insurer and an oil and gas company disagree about whether the company’s insurance policy covers claims that fracking causes earthquakes. On June 27, 2016, insurer Lloyd’s sued New Dominion, arguing that the Lloyd’s pollution liability policies do not provide coverage because fracking is not a “pollution condition.” (See: Complaint for Declaratory Relief.) The Lloyd’s lawsuit relates to five other Oklahoma lawsuits addressing the same issue. (See: Complaints in Oklahoma lawsuits.)

With this lawsuit, the fracking debate moves into a new arena: insurance coverage disputes. Continue Reading Fracking Debate Moves into Insurance Realm

In its June 30, 2015 opinion, Landra v. New Dominion, LLC, the Oklahoma Supreme Court held that a personal injury tort action alleging that fracking-related activity caused an earthquake that then caused the plaintiff’s injuries can proceed in an Oklahoma district court. The Oklahoma Supreme Court made no factual or legal findings with respect to the merits of the claims of causation, it simply held that the district court has jurisdiction to hear the suit based on the allegations made.

The Landra plaintiff is a resident of Prague, Oklahoma, and her lawsuit seeks compensatory and punitive damages for injuries allegedly proximately caused by the defendants wastewater disposal practices. The plaintiff claims that in November 2011 she was watching television in her living room when a 5.0 magnitude earthquake struck causing rock facing on the two-story fireplace and chimney to fall onto her causing injury to her knees and legs. She claims personal injury damages in excess of $75,000. Continue Reading Fracking-Related Personal Injury Tort Claim Allowed to Proceed in Oklahoma Court

The EPA released a draft of its study, U.S. EPA Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (External Review Draft), EPA, Washington, DC, EPA/600/R-15/047, 2015, assessing the impact of hydraulic fracturing (fracking) on drinking water in early June (the draft Assessment). According to the EPA’s press release, the study finds that “hydraulic fracturing activities have not led to widespread, systemic impacts to drinking water resources,” but “identifies important vulnerabilities.”  Continue Reading Draft EPA Study Finds Fracking Has Not Led to Widespread Drinking Water Contamination

The Ninth Circuit’s recent decision in Allen v. The Boeing Company may pave the way for removal of more mass tort claims to federal court. Allen held that an environmental mass tort occurring over many years is removable under the Class Action Fairness Act (CAFA), finding the “local single event” rule did not apply. Continue Reading Ninth Circuit Opens the Door to a Federal Forum for Environmental Mass Torts

Texas now outlaws local municipalities from passing bans on hydraulic fracturing.  The bill proposing the law sailed through the Texas Legislature by large majorities and was signed by Governor Gregg Abbott on Monday, May 18, 2015.   The law prohibits cities and towns from imposing local ordinances preventing “fracking” activities.

The bill, known as House Bill 40 (HB40), passed the Texas Senate earlier this month by a 24 – 7 vote, after previously passing the Texas House of Representative by wide margin.  The new law stems from a fracking ban passed by the north Texas town of Denton last November.  Denton’s November 2014 ballot proposal to ban oil and gas fracking was supported by 59% of Denton voters.  Continue Reading Texas Bans Fracking Bans

A team of Schiff Hardin attorneys compiled the chapter on “Recent Developments in Toxic Torts and Environmental Law” for the American Bar Association’s Tort Trial & Insurance Practice Law Journal published in the winter of 2015 (Vol. 50:2) on the evolving landscape of the environmental and toxic tort areas of law. The Schiff team was led by partners Edward Casmere, Joshua R. More, and J. Michael Showalter.  The article covers new court decisions, proposed and final regulations, and interpretations of regulations in ten areas: class actions, medical monitoring, asbestos, hydraulic fracturing, emerging product regulations and tort claims, punitive damages, the Resource Conservation Act, the Clean Air Act, the Clean Water Act, and the Comprehensive Environmental Response Compensation and Liability Act. Continue Reading Schiff Hardin Lawyers Author ABA’s Annual Update of Recent Developments in Toxic Torts and Environmental Law

On Tuesday, February 17, 2015, a sharply divided Ohio Supreme Court held in a 4-3 decision that Ohio local governments do not have authority to enact certain local zoning ordinances restricting hydraulic fracturing. The Court found that an Ohio statute regulating oil and gas well production operations that gives state government “sole and exclusive authority” to regulate such operations does not allow for a municipality to impose its own permit requirements on oil and gas drilling operations.

The Court found that Ohio’s home rule authority does not allow a municipality to “discriminate against, unfairly impede, or obstruct oil and gas activities and production operations.” Accordingly, the local ordinances at issue were found to conflict with the state regulatory scheme.  Justice Judith L. French authored the Supreme Court’s lead opinion, stating that “[t]his is a classic licensing conflict under our home-rule precedent.”  “We have consistently held that a municipal-licensing ordinance conflicts with a state-licensing scheme if the ‘local ordinance restricts an activity which a state license permits.’”  The opinions further states that the state, not local governments, has the “right to regulate ‘all aspects’ of the location, drilling, and operation of oil and gas wells, including ‘permitting relating to those activities.’”  Continue Reading Ohio Supreme Court Invalidates Local Fracking Restrictions

A recently published study finds that hydraulic fracturing (fracking) activity triggered numerous earthquakes in Ohio in March 2014.  According to the study, published online this month by The Bulletin of the Seismological Society of America (BSSA), the fracking activities did not create a new fault, but rather activated a fault that was previously unknown.  The study, “Earthquakes Induced by Hydraulic Fracturing in Poland Township, Ohio” was authored by Robert J. Skoumal, Michael R. Brudzinski, and Brian S. Currie affiliated with Miami University of Ohio.  Continue Reading Study Suggests Fracking Activity Induced Earthquakes

CrossFit, the widely popular fitness methodology, has a noise problem.  Each day, loyal CrossFitters flock to their local gym, or “box,” for the workout of the day (WOD).  In line with CrossFit’s philosophy of constantly varied functional movements performed at high intensity, these WODs often involve high repetitions of pull-ups, kettlebell swings, box jumps and barbell movements, such as squats, presses and Olympic lifts.  Couple that with WOD formats requiring as many repetitions as possible in a certain time, or a certain amount of repetitions as quickly as possible, and the result is a measurable level of performance.  While the CrossFit community is united by its dedication to the program, neighbors to local boxes are not as appreciative of the cacophony of sounds that accompany the WODs. Continue Reading Boxing Your Ears: CrossFit’s Noise Conundrum