1. Contaminated Property and CERCLA Disputes
Contaminated property disputes often turn on when contamination was discovered, which parties fall within CERCLA liability categories, and which response costs can be attributed to them. Environmental assessments, ownership history, disposal activities, and contractual records can therefore become important evidence.
Phase I and Phase II Environmental Assessments
A Phase I assessment generally examines historical uses, records, site conditions, and other information without intrusive sampling. When recognized environmental conditions are identified, buyers or lenders may seek Phase II sampling to investigate potential contamination through Environmental Review.
CERCLA Liability and PRP Negotiations
Under CERCLA, liability for hazardous-substance cleanup is strict and may be joint and several when environmental harm is indivisible. Current owners, certain former owners or operators, arrangers, and qualifying transporters may fall within CERCLA PRP categories. Environmental Liability disputes may require historical and technical evidence to evaluate responsibility among PRPs.
Cost Recovery, Contribution, and Settlement
CERCLA Section 107 permits qualifying parties that incur response costs to seek cost recovery from liable parties, subject to statutory requirements and defenses. Section 113 provides contribution rights in specified circumstances, while CERCLA settlements may provide contribution protection for matters addressed by the settlement.
2. Regulatory Enforcement Actions and Penalty Disputes
Environmental enforcement can proceed through notices of violation, administrative orders, civil actions, or other procedures authorized by the governing statute. The available response depends on agency authority, the alleged violation, and procedural rights under the applicable environmental law.
Agency Orders and Penalty Factors
Federal and state environmental agencies may use different enforcement mechanisms depending on the regulatory program. Civil penalties likewise depend on the governing statute and agency policy, which may consider economic benefit, violation gravity, and compliance history. Environmental Compliance and Litigation disputes may also involve self-disclosure or documented compliance efforts.
Challenges and Environmental Settlements
Entities receiving agency orders may contest findings through available administrative or judicial procedures or negotiate a settlement. Judicial review depends on the governing statute, available administrative remedies, and applicable standard of review.
3. Nuisance Claims over Industrial Operations
Industrial operations can produce private or public nuisance claims involving emissions, discharges, odors, noise, or contamination. New York law distinguishes interference with an individual's use and enjoyment of land from interference with rights held by the public.
Private and Public Nuisance Claims
Private nuisance generally requires substantial and unreasonable interference with another person's right to use and enjoy land, caused by the defendant's conduct. Public nuisance concerns substantial interference with a right common to the public, and a private plaintiff generally must show a special injury different in kind from that suffered by the community.
Evidence and Available Remedies
Evidence may include air monitoring, soil or groundwater testing, property records, and expert analysis connecting the alleged condition to the claimed injury. Available remedies depend on the cause of action, causation, and proven injury and may include damages or injunctive relief where permitted.
4. Developer and Lender Environmental Liability
Environmental conditions discovered before or after a transaction can create both statutory and contractual disputes. The analysis differs for sellers, purchasers, developers, and secured lenders because contractual risk allocation does not necessarily determine liability under environmental statutes.
Contractual Environmental Claims
Environmental representations and warranties can become disputed when contamination is discovered after closing. Sellers may face indemnification claims when the condition falls within negotiated representations, warranties, or indemnity provisions.
CERCLA Lender Protection
Lenders may qualify for CERCLA's secured-creditor protection when statutory requirements are satisfied. Participation in the management of a contaminated facility can affect that protection, making the lender's actual conduct relevant to the statutory analysis.
5. Wetlands and Section 404 Permitting Conflicts
Wetlands disputes can involve both the geographic reach of federal jurisdiction and conditions imposed through the Clean Water Act Section 404 permitting process. Permit applicants may therefore face separate disputes over federal jurisdiction, permit conditions, mitigation requirements, or agency determinations.
Permits and Jurisdictional Determinations
Section 404 regulates discharges of dredged or fill material into waters of the United States, generally through permits administered by the U.S. Army Corps of Engineers. Permit denials, mitigation requirements, and Approved Jurisdictional Determinations can lead to administrative disputes or federal litigation.
WOTUS after Sackett
After Sackett v. EPA, federal wetlands jurisdiction remains tied to the governing WOTUS framework. EPA and the Army published a supplemental proposed rule in September 2026 as they continue rulemaking to implement Sackett; the proposal is not a final rule.
6. Climate Litigation and Disclosure Enforcement
Climate-related business disputes may involve securities disclosures, shareholder claims, decarbonization commitments, or asset-related allegations. The governing legal theory depends on the asserted disclosure duty, contractual obligation, corporate conduct, and applicable federal or state law.
Federal Climate Disclosure Developments
The SEC's 2024 climate disclosure rules remain stayed, and the SEC proposed rescinding them in their entirety in May 2026. Existing federal disclosure obligations continue to depend on applicable securities-law requirements, including materiality.
Contractual and Corporate Claims
Climate Change Litigation may also involve contractual commitments, shareholder allegations, or state-law claims concerning climate-related business conduct. Liability and available remedies depend on the source and scope of the asserted obligation.
7. Frequently Asked Questions
What is the difference between CERCLA cost recovery and contribution claims?
CERCLA Section 107 permits qualifying parties that incur response costs to seek cost recovery from liable parties, subject to statutory requirements and defenses. Section 113 provides contribution rights in specified procedural circumstances, including certain civil actions and settlements resolving CERCLA liability.
Can lenders be held liable for property contamination?
CERCLA contains secured-creditor protection for lenders that satisfy its statutory requirements. Participation in facility management can affect that protection, so ownership indicators and the lender's actual conduct matter.
How do parties dispute Section 404 wetlands jurisdiction?
An affected party may challenge an Approved Jurisdictional Determination through the Corps administrative appeal process under 33 C.F.R. Part 331, subject to the applicable filing requirements. Preliminary Jurisdictional Determinations are not appealable through that process, and judicial review depends on the agency action and applicable procedural requirements.
22 Apr, 2026
