Marten Law News

Environmental and Energy Law Briefing No. 333 - April 2, 2014

Landmark Agreement Near in Upper Klamath Basin: Implementation Uncertain

By Douglas MacDougal

The Upper Klamath Basin water users, the Klamath Tribes, the United States, and the State of Oregon tentatively reached an agreement on March 4, 2014 which may resolve years of litigation over water rights in the Klamath basin. The Agreement, known as the Proposed Upper Klamath Basin Comprehensive Agreement balances the rights of the Klamath Tribes to attain their goals of fish and habitat restoration in the Basin, while with the interests of water users including irrigators, to achieve “a stable, sustainable basis for the continuation of agriculture” in the Basin. …”

Implementation of the tentative agreement depends on federal funding and on successful implementation of a host of ancillary issues, and its success remains uncertain. Still, after many years of protracted disputes, the Agreement offers the best hope for all participants to move forward.

The parties came together following judicial rulings last summer which turned down water users’ petitions to stay implementation of Tribal instream water rights. The talks were initially sponsored by Oregon Senator Ron Wyden, and carried forward by Richard Whitman, Governor Kitzhaber’s Natural Resources Advisor, who acted as facilitator in the process.

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Supreme Court to Decide Whether CERCLA Statute Can Revive Otherwise Time-Barred Toxic Tort Suit

By Brian Ferrasci-O’Malley

A corner of Superfund rarely explored by most CERCLA lawyers is the subject of a U.S Supreme Court case that will be heard this term. The case is not about cleanup, but about whether CERCLA can be used to revive otherwise time-barred toxic tort claims brought under a state statute.

The Supreme Court will hear oral argument in CTS Corp. v. Waldburger, 723 F.3d 434 (4th Cir. 2013), cert. granted, 134 S. Ct. 896 (U.S. Jan. 10, 2014) (No. 13-339), on April 23, 2014. Briefing can be found here.

The case arises from a nuisance suit brought under North Carolina law against the former owner of a manufacturing plant for contamination of the plaintiff landowners’ well water. The plant owner moved to have the case dismissed based on a North Carolina statute that places a ten-year limitation on the accrual of real property claims. The district court granted the motion to dismiss, but on appeal the Fourth Circuit held that a provision in CERCLA – specifically, § 9658 of CERCLA – preempts the state statute of limitations, and thus that the landowners’ claim survived.

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Marten Law Secures Victory in Washington Supreme Court Upholding Scope of GHG Review for Biomass Cogeneration Project

In one of the first rulings of its kind, the Washington Supreme Court has determined that the State properly treated the burning of biomass fuel as not contributing to a pulp mill’s greenhouse gas emissions. This ruling upholds the air permit for a biomass-fired cogeneration project for Port Townsend Paper Corporation. Read more ›


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