Texas Court Upholds Arbitration Award in Bitterly-Disputed South Texas Oil and Gas Contamination Dispute

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The First Court of Appeals, sitting in Houston, has affirmed the decision of an arbitration panel which had ruled in favor of the claims for personal injury and property damages resulting from Forest Oil Corporation's oil and gas exploration and production activities on the McAllen Ranch in South Texas. The ranch comprises over 27,000 acres, and its value, unimpaired by environmental contamination, is more than $65 million.

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Texas Court of Appeals rules that courts have no jurisdiction over agency's refusal to promulgate new rules, and sidesteps discussion on the public trust doctrine

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The Austin Court of Appeals issued an interesting ruling on whether the courts in Texas have the power to review an agency's refusal to engage in rulemaking. In Texas Commission on Environmental Quality v. Bonser-Latin, et al., the Court of Appeals agreed with TCEQ that the lower court had no jurisdiction over a complaint that the TCEQ unlawfully refused to promulgate new Greenhouse Gas rules.

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Operative August 28: Revised Missouri Public Prompt Payment Act

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On June 20, 2014, Missouri Governor signed into law Senate Bill 529. The Act revises and expands the scope of the Missouri Public Prompt Payment Act and the law relating to public works projects. The revised provisions are operative August 28, 2014. Of note, under existing law, all public works contracts made by a political subdivision for a public works project must provide for prompt payment to the contractor. Under the revised Act, these contracts must also provide for prompt payment of any professional engineer, architect, landscape architect, or land surveyor.

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New Federal Advisory Act Ruling: Court Finds Advisory Committee Report "Suspect and Untrustworthy"

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Judge Richard J. Leon of the US District Court for the District of Columbia has ruled that a federal advisory committee appointed by the FDA to issue a report consistent with the agency's new authority over the sale of tobacco products was illegally constituted. Three of the voting committee members had conflicts of interest in that they received compensation from companies manufacturing tobacco cessation products, and that they were also frequent expert witnesses in tobacco litigation. The conflicts were so significant that the court held that the committee's "Menthol Report" was "suspect and untrustworthy", and barred its use.

The case is Lorillard, Inc. v. US Food and Drug Administration, decided July 21, 2014.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

Operative July 18: Revised Nebraska Construction Prompt Pay Act

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In mid-April 2014, Nebraska Governor signed into law Legislative Bill 961. Of note, it includes revisions to the Nebraska Construction Prompt Pay Act. The Act is set forth in Nebraska Revised Statutes §§ 45-1201 to 45-1210 and Section 8 of L.B. 961. The revised provisions are operative July 18, 2014.

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DC Circuit Affirms $72 Million Adverse Judgment Against Volvo Powertrain

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By Pillsbury Winthrop Shaw Pittman

In a decision released Friday in the case of United States of America v. Volvo Powertrain Corp., the DC Circuit affirmed the lower court's decision finding that a Consent Decree entered into by several engine manufacturers to settle civil complaints that they had violated federal law by equipping certain engines with "defeat devices" to suppress emissions during EPA tests applied to Volvo Powertrain. The terms of the Consent Decree also required these manufacturers to attain EPA emissions standards ahead of schedule.

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Presidential Order Contemplating No Judicial Review Is No Bar When Issue Raised Is Due Process

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Recently, the DC Circuit held that a Presidential Order prohibiting a transaction to develop wind farms in Oregon because of unspecified national security issues, was violative of the constitutional guarantees of due process. The case is Ralls Corporation v. the Committee on Foreign Investment in the United States (an Executive Branch committee created by the Defense Production Act of 1950). Ralls is an American corporation, but the owners are Chinese nationals. For this reason the purchase of four American limited liability wind farm companies was subject to review by the Committee and a Presidential Order implementing the Committee's recommendation that the transaction be prohibited.

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7th Circuit Declines To Step Into Carp Controversy

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The Seventh Circuit, in the case of State of Michigan, et al. v. US Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago, once again denied a request by five states bordering on Lake Michigan seeking an injunction against the Corps and the Water Reclamation District. The Asian carp threatens to overwhelm the Great Lakes unless its migration through the Chicago Area Waterway System which connects Lake Michigan with the Mississippi River. The states appear to favor a hugely expensive and environmentally questionable project to physically separate these bodies of water to prevent the carp from entering and pillaging the Great Lakes. The court denied relief, but the opinion by Judge Wood is a masterful exposition of federal common law principles, nuisance law, and the way the 1899 River and Harbors Act is intended to work. The court declined the invitation to step into the middle of this controversy, while it acknowledges that some progress has been reported.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

"Enhanced Coordination Process" Memo Is a "Procedural Rule" Not A "Legislative Rule"

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By Pillsbury Winthrop Shaw Pittman

Recently, the DC Circuit decided the case of National Mining Association v. McCarthy. Reversing the lower court, the court held that an "Enhanced Coordination Process" memo and guidance authored by EPA and the Corps of Engineers to coordinate their joint review of coal mining Clean Water Act, 33 U.S.C. §§ 1251, et seq. ("CWA"), water discharge permits was only a procedural rule and not a "final action" subject to review under the APA. The Court of Appeals concludes that the memo only enhances these agencies' ability to coordinate the application of their duties under the CWA, and does not change their substantive statutory responsibilities.

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"Permit Shield" Defense Unavailable When Presence of Pollutant Was Not Disclosed In Permit Application Process

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The Fourth Circuit Court of Appeals has issued a ruling in the case of Southern Appalachian Mountain Stewards v. A & G Coal Corporation. The Court of Appeals affirmed the lower court's decision in a Clean Water Act, 33 U.S.C. §§ 1251, et seq. ("CWA"), citizen suit lawsuit that A & G could not assert the "permit shield" defense. A & G operates a coal mine in Virginia, and has a National Pollutant Discharge Elimination System ("NPDES") permit; the permit application did not list selenium as a pollutant because the coal company argued that it had no reason to believe that this toxic pollutant was discharged from its facility, and that the permit shield defense of CWA Section 1342(k) was available. Sampling at the outfalls disclosed the presence of selenium, but the parties disagree as to whether the concentrations violate any state water quality standards. The Court of Appeals closely examined the disclosures required of an NPDES permit applicant, and determined that A & G had not made an adequate disclosure to trigger the permit shield defense. The failure to fully comply with these disclosure requirements, especially regarding a substance like selenium, meant that A & G could not deploy this defense to liability.

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English Contract Law: Has the Camel's Nose of "Good Faith" Crept Under the Tent Flap?

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorney Ray Sweigart posted his client advisory English Contract Law: Has the Camel's Nose of "Good Faith" Crept Under the Tent Flap? The Advisory discusses Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd [2014] EWHC 2104 (Comm), which involves a challenge brought under Section 67 of the English Arbitration Act 1996 that the tribunal lacked substantive jurisdiction.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Ray Sweigart, the author of this blog.

Second Circuit - Architect's Faulty Designs Were Two Separate Defects

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On June 23, 2014, the Second Circuit Court of Appeals issued a decision in the case Dormitory Authority of the State of New York v. Continental Casualty Company (2014 WL 2808073), a declaratory judgment action filed by a building owner against the architect's insurance carrier over the faulty design of a dormitory. The issue in this case was whether two design defects in the structure of the building were "related." The owner sought a declaration that the design flaws were two separate defects because, if so, two separate policies would have responded to the claims, but if not, there would not have been sufficient limits to remediate both defects. Although this decision has not received much attention yet, the importance lies in the Second Circuit's agreement that the defects were separate, notwithstanding policy language that attempted to group related wrongful acts.


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Avoid License Application Being Denied ~ CA Live Scan Fingerprinting

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California's Contractors' State License Law, Bus. & Prof. Code
§§ 7000, et seq., requires all contractor's license applicants to submit a full set of fingerprints for a criminal background check. Once submitted, the fingerprints are compared to the records of the California Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) to determine if the applicant has a criminal history. The Contractors State License Board (CSLB) has confirmed that "[t]he number one reason that an application may be denied is the applicant's failure to accurately disclose his/her conviction record."

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FCC "Accessing Social Media" Event

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The Federal Communications Commission's Accessibility and Innovation Initiative will host an "Accessing Social Media" event on Thursday, July 17, 2014 from 9 a.m. to 4 p.m. in the Commission Meeting Room in its headquarters located at 445 12th Street, S.W., Washington, D.C. The event will be webcast without open captioning. The event is open to the public, however, RSVPing for in-person attendance is encouraged.

The FCC's stated purpose of the event is "to facilitate a collaborative, cross-sector exchange of information about making social media tools and content accessible to people with disabilities, including information about authoring tools, client apps and best practices." The event will include panels of industry, consumer and government representatives and feature technology demonstrations in an exhibit area.

Additional Sources: Social Media, Not Just For Everyone Else

One More Reason To Treat Yourself To A McFlurry...

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The Sacramento Ronald McDonald House recently broke ground on a project to double the capacity of its housing facility located at 49th Street on the U.C. Davis Medical Center campus with a $6 million expansion. The expansion will add 20 bedrooms to the existing 18 bedroom facility, and add a kitchen, dining area, indoor playroom and fitness facilities. The 18,000 square foot expansion was made possible from a variety of fundraising efforts.

There are a total of 11 Ronald McDonald's Houses in California. Reportedly, McDonald's funds approximately 16% of the financial needs, which includes donating $0.15 for each McFlurry sold.

Additional Source: Sacramento Ronald McDonald's House will double capacity in $6 expansion; Ronald McDonald House Charities