Environmental Week in Preview – Week of July 22, 2013
No DNR public hearings this week.
In the past couple of weeks, a number of opinions of note have been released.
United States of America, et al v. Midwest Generation, et al.: The U.S. Court of Appeals for the 7th Circuit concluded that enforcement of new source review (NSR) violations are limited to five years after the alleged violation has occurred and that NSR violations are not considered on-going violations. The court also clarified that the five year statute of limitation starts at the time of the violation rather than its discovery.
Bostco LLC v. Milwaukee Metropolitan Sewerage District: The Wisconsin Supreme Court concluded that Milwaukee Metropolitan Sewerage District (MMSD) was not entitled to immunity against suit for a private nuisance. The court found that the proper immunity analysis in the case rests on “whether immunity exists for nuisance founded on negligence depends upon the character of the negligent acts.” Where the negligent act was undertaken pursuant to legislative, quasi-legislative, judicial or quasi-judicial functions, immunity may apply. The court determine that the nuisance claim was grounded in the MMSD’s negligent maintenance of its Deep Tunnel which was not a legislative, quasi-legislative, judicial or quasi-judicial function and therefore it did not have immunity.
Scott N. Waller v. American Transmission Company, LLC: This case involves the determination of whether property subject to transmission line easements render the property uneconomic remnants. The court concluded that the parcels were uneconomic remnants and the plaintiffs should be compensated appropriately.
Showers Appraisals, LLC v. Musson Bros., Inc.: This case involves flood damage that occurred when the defendant was conducting sewer removal and installation as a contractor for the Wisconsin Department of Transportation. The Wisconsin Supreme Court concluded that where a third party’s claim against a governmental contractor is based on the allegation that the contractor negligently performed its work under a contract with a governmental entity, the governmental contractor must prove both that the contractor meets the definition of “agent” under Wis. Stat. § 893.80(4) and that the contractor’s act is one for which immunity is available under that section. Additionally, the court concluded that a governmental contractor seeking to assert the defense of immunity should clearly allege in the pleadings why the injury-causing conduct comes within a legislative, quasi-legislative, judicial or quasi-judicial function as set out in Wis. Stat. § 893.80(4).
Rock-Koshkonong Lake District v. DNR: See blog post on July 16th for a summary.
