The Environmental Protection Agency (EPA) is required by Section 108 of the Comprehensive Environmental Response, Compensation, and liability Act of 1980, 42 U.S.C. §§ 9601–9675 (CERCLA), to establish financial assurance and responsibility rules for classes of facilities that are associated with the production, transportation, treatment, storage or disposal of hazardous substances. Despite the deadlines provided by the law, more than 30 years have passed without any rules or proposed rules being published by EPA.
The Presidio Army Base in San Francisco, once the headquarters of the Sixth Army and a favorite post of many soldiers and their families, is now a National Park and a National Historic Landmark. For many years, plans to renovate and protect the old post have been thoroughly discussed and vetted. On January 27, 2016, the U.S. Court of Appeals for the Ninth Circuit removed one more obstacle to the consummation of these plans by affirming the district court’s summary judgment in favor of the Trust.
In the case of Center for Biological Diversity, et. al v. U.S. Forest Service, the U.S. Court of Appeals for the Ninth Circuit, in an unpublished opinion released on January 12, 2016, reversed the lower court’s dismissal of a Resource Conservation and Recovery Act (RCRA) Citizens Suit filed against the U.S. Forest Service which alleged that the U.S. Forest Service violated the RCRA by failing to regulate the disposal of spent lead ammunition in a national forest. Reviewing the allegations in the complaint, the Court of Appeals held that the plaintiffs had established standing—their claims are “not wholly insubstantial or frivolous.” The Court of Appeals noted that the government could make the argument in the lower court that the U.S. Forest Service was not a “contributor” to the solid waste problem, something the RCRA Citizen Suit provision requires.
Photo: ClickFlashPhotos / Nicki Varkevisser, Painty Legs – Creative Commons
In Government Contractors Brace For Continuing Changes in Cybersecurity Regulations, my Pillsbury colleagues Brian Cruz, Travis Mullaney and I caution that the federal government is making cybersecurity a top priority and government contractors should expect a number of new regulation’s, policies and standards aimed at protecting against increasingly sophisticated cyber-warfare. As the government invigorates its own cybersecurity, contractors are and will be subject to parallel requirements. All federal contractors need a cybersecurity strategy that aligns with their business strategy with the federal government that will make them more competitive as requirements are invigorated through ongoing federal regulatory changes.
The ability of churches and other religious institutions to engage in ordinary business activities can be unexpectedly and adversely affected by provisions in some state constitutions which can be interpreted to exclude them from having access to public funds and public resources based on nineteenth century constitutional amendments. On January 15, 2016, the U.S. Supreme Court has agreed to hear an important case from Missouri, which should result in a definitive review of a long-time prohibition in the case of Trinity Lutheran Church v. Pauley. The Court will review a decision of the U.S. Court of Appeals for the Eighth Circuit, which held that the Missouri state constitution which provides that “no money shall be taken from the public treasury, directly or indirectly, in aid of any church,” serves to disqualify a church from participating in a state program which makes state funds available to organizations to purchase recycled tires to resurface playgrounds. The dissenting judge on the Eighth Circuit panel observed that “school children playing on a safer rubber surface made from environmentally-friendly recycled tires has nothing to do with religion.”
Photo: crabchick, Tyres at Sharpness – Creative Commons
On January 25, 2016, the U.S. Supreme Court, in FERC v. Electric Power Supply Association, et al., a 6 to 2 ruling, reversed the May 2014 decision of the D.C. Court of Appeals, which had held that a final rule of FERC governing the “demand response” in which operators of wholesale markets (regulated by FERC) pay electricity consumers (arguably subject only to state regulation) for commitments not to use electricity at certain times (such as those times when the demand for this power is greatest) was invalid. According to the Court of Appeals, this rule was not authorized by the Federal Power Act (FPA), which is careful to delineate the regulatory powers granted to the federal government and those powers reserved by the FPA to the states. This is obviously a very technical rule and a complicated energy market the Supreme Court was construing, but it should be noted that this is the third reversal by the Court of a recent decision of the D.C. Court of Appeals.
A company’s ability to contest in federal court what it views as unfair oversight by a federal government regulatory committee is still subject to obstacles posed by the “standing doctrine” by which access to the courts is limited to cases and controversies actually needing resolution. A recent example of this is the case of R. J. Reynolds Tobacco Company, et al. v. U.S. FDA, et al. On January 15, 2016, the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court’s ruling and summary judgment for the plaintiffs and issuance of an order dissolving the U.S. Food and Drug Administration committee and enjoining use of the FDA committee’s report on the safety of menthol cigarettes due to alleged unlawful conflicts of interest relating to three of the FDA committee’s members. The Court of Appeals vacated the district court’s order, holding that the plaintiff tobacco companies lacked standing to complain at this time because the FDA has not yet issued a final rule for regulation of the at-issue cigarettes, although it was acknowledged that three committee members had testified in lawsuits against tobacco-products manufacturers and were paid substantial fees for doing so.
Thanks in part to the current standoff at the Malheur National Wildlife Refuge—and the 2014 armed confrontation in Nevada that preceded it, the contentious issue of grazing rights on federal lands is more front of mind nationally than it’s been in decades.
With the federal government owning and controlling millions of acres of land, particularly in the western states, business activities conducted on federal land are subject to close scrutiny and often require that a relevant permit be obtained and maintained. A failure to possess appropriate federal authorization can result in acrimonious legal action, and as illustrated in U.S. v. Estate of E. Wayne Hage, et al. On January 15, 2016, the Ninth Circuit reversed the district court’s ruling (a federal court sitting in Nevada) that the federal government could not prosecute an action for damages or injunctive relief against ranchers who were grazing their cattle on federal land without a federal grazing permit. Continue reading
In PATH Act Changes to FIRPTA, Pillsbury attorneys Brian Wainwright and Bob Logan discuss
important changes to the U.S. federal income tax treatment of U.S. real estate investments by non-U.S. persons under the Foreign Investment in Real Property Tax Act of 1980.
Additional Source: Protecting Americans from Tax Hikes Act of 2015 (the PATH Act, Division Q of the Consolidated Appropriations Act, 2016, P.L. 114-113, enacted December 18, 2015); Technical Explanation of the Protecting Americans from Tax Hikes Act of 2015, House Amendment #2 to the Senate Amendment to H.R. 2029 (Rules Committee Print 144-40)
Photo: DonkeyHotey, Taxes – Illustration – Creative Commons
In an insurance case attracting the attention of many insurance companies, Century Indemnity Company v. Marine Group, LLP, et al., a U.S. Magistrate Judge with the U.S. District Court for the District of Oregon (Portland Division), in its opinion and order on Marine Group’s motion for clarification and reconsideration, held that an insurance policy provision which excludes coverage for environmental claims brought by governmental agencies extends to Superfund or CERCLA natural resource damage claims asserted by Indian tribes that are members of a Superfund Trustee Council. The Indian tribes are members of the Portland Harbor Natural Resource Trustee Council, and the Court held that the claims asserted by members of the Council, including the tribes, triggered the insurance exclusion.