Green Chemistry

There are two mammoth environmental programs wending their way through the rule-making process in California now, CARB's proposed cap-and-trade regulations and DTSC's green chemistry initiative. The latter promises to have a far larger effect on products sold in California even than Proposition 65, which has generated its own litigation specialty. DTSC's acting director has reportedly said that DTSC will release a new draft of its green chemistry regulations within the next few days with very short 15-day public comment period.

-Morgan

Declaratory Relief in CERCLA Actions

The Ninth Circuit today held that a CERCLA plaintiff that fails to prove liability for recoverable response costs may not obtain declaratory relief for future response costs that it may incur. In City of Colton v. American Promotional Events, Inc., the Ninth Circuit first affirmed summary judgment for defendants on plaintiff's claims for responses costs because plaintiff had admittedly not complied with the National Contingency Plan. The court then held, in a case of first impression in the Ninth Circuit, that plaintiff was not entitled to declaratory relief for future costs.

-Morgan

Ninth Circuit Decides CERCLA Current Owner Issue

In State of California Department of Toxic Substances Control v. Hearthside Residential Corp., the Ninth Circuit answers one of the unanswered questions of CERCLA liability -- is the "current owner" of a CERCLA facility, one of the four categories of responsible parties, the owner at the time a lawsuit is filed, or at some other time? The Ninth Circuit holds that the "current owner" is the owner at the time that response costs are incurred. The decision also provides a very handy statement of the various purposes of CERCLA, and will probably be cited far more for those purposes than for its holding. The decision makes sense, because costs are usually incurred from the time of discovery of a release, and any other rule would create a game of hot potato in which parties have an incentive to transfer the property after discovery of contamination but before a lawsuit is filed. One interesting ramification is that because costs may be incurred over a long period of time, there may be more than one "current owner," and perhaps many.

-Morgan