Litigators in Beveridge & Diamond’s New York and Washington, DC offices secured a major victory for firm client Waste Connections last week in New York’s Appellate Division. The court issued published decisions dismissing two putative class action lawsuits against landfills in the Albany, NY area owned or operated by Waste Connections. The lawsuits asserted public nuisance and negligence claims against the Dunn Landfill and Colonie Landfill on behalf of proposed class members living around the landfills, based on alleged impacts of landfill odors on private property rights. The Appellate Division opinions reversed three trial court decisions and are published at Davies v. S.A. Dunn & Co., LLC, --- N.Y.S.3d ---, 2021 WL 4897211 and Duncan v. Capital Region Landfills, Inc., --- N.Y.S.3d ---, 2021 WL 4897570 (N.Y. A.D. 3d Dept. Oct. 21, 2021). 

These important decisions will deter plaintiffs’ frequent use of common law nuisance and negligence theories for lawsuits targeting solid waste facilities and other regulated industries regarding their air emissions. In particular, the Appellate Division agreed with Waste Connections and amici U.S. Chamber of Commerce, National Waste & Recycling Association, and Town of Colonie that the lawsuits, which alleged odor-based impacts on the plaintiffs’ property use and value, did not satisfy New York’s requirements that (a) private claims for public nuisance allege a special injury different than that alleged for the relevant community, and (b) negligence claims allege either physical injury or property damage. In doing so, the court confirmed that precedent of New York’s Court of Appeals controls despite conflicting case law from the federal Third Circuit and New York district courts. The Appellate Division also concluded that in cases such as these, “the available remedy must be through effective governmental compliance and enforcement measures.”

Patrick Shea, Waste Connections’ Executive Vice President, General Counsel and Secretary, commented that “Waste Connections appreciates this important ruling from the New York Appellate Division properly interpreting Court of Appeals precedent on the tort of public nuisance as a limited claim, typically handled by public authorities, and recognizing that landfills are regulated by experienced state agencies, not private lawsuits.”

Jim Riley, Chief Counsel and Senior Vice President, Government Affairs for amicus National Waste & Recycling Association, and an attorney admitted to practice in the State of New York, commented that “NWRA applauds these important decisions from New York’s appellate court, which supports the critical work done by waste management facilities throughout the state by affirming the importance of consistent regulation by experienced public agencies. These decisions should give our members a level of comfort that New York courts will support them in challenges to overreaching private litigants.” 

Beveridge & Diamond’s team was led by litigators Megan Brillault (Principal, New York), Michael Murphy (Principal, New York), John Paul (Principal, New York), Jimmy Slaughter (Principal, Washington, DC),  Katelyn Ciolino (Associate, New York), and Katrina Krebs (Associate, New York). Michael Murphy presented oral argument to the Appellate Division in the two cases.

The precedent-setting decision was covered by Law360 (subscription required).

B&D’s Litigation practice spans federal and state trial and appellate courts across the United States and includes a wide range of class action, nuisance, and toxic tort defense. Beveridge & Diamond’s Waste Treatment, Recycling, and Disposal Services practice helps clients across industry sectors to minimize exposure to liability, ensure regulatory compliance, and develop business opportunities.