On April 24, 2015, the U.S. Court of Appeals for the Fifth Circuit issued an interesting opinion in another challenge to the Affordable Care Act (ACA). In the case of Steven F. Hotze, M.D., et al., v. Burwell, the Court of Appeals considered a challenge to the Patient Protection and Affordable Care Act (ACA)--based on an alleged violation of the Constitution's Origination Clause, U.S. Const. art. I, § 7, cl. 1, which requires that all revenue raising legislation must originate with the U.S. House of Representatives.
On April 24, 2015, the Texas Supreme Court issued a per curiam opinion clarifying the evidentiary standards that will govern the application of the Texas Citizens Participation Act ("Act"). The Court balanced the need for open and vigorous discussion of important public issues--such as hydraulic fracturing--against a litigant's right to defend itself against unwarranted attacks. The law enacted in 2011, writes the Court, "protects citizens who petition or speak out on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them". If a lawsuit amounts to an attempt to stifle a defendant's ability to communicate to the public on a matter of public concern, the trial court's duty under the Act is to dismiss the lawsuit unless the plaintiff's "prima facie case" is supported by "clear and specific evidence"--a complicated formulation for the courts to administer. The case is In re: Steven Lipsky. This was a unanimous opinion by the Texas Supreme Court, written by Justice Devine.
On April 24, 2015, the United States Court of Appeals for the District of Columbia Circuit decided the case of Delta Construction Company, et. al. v EPA, denying petitions requesting the court's review of rules jointly issued by EPA and the National Highway Traffic Safety Administration regulating greenhouse gas emissions and mandating fuel economy rules affecting cars and trucks (the court describes these two rules as "the Car Rule" and the "Truck Rule"). In 2012, the Court of Appeals upheld the "Car Rule" in Coalition for Responsible Regulation, Inc., v. EPA, 684 F. 3d 102, reversed in part by the Supreme Court in Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427 (2014).
In late November of 2014, as part of President Obama's comprehensive Climate Action Plan to create American jobs, develop domestic clean energy resources and cut carbon pollution, Secretary of the Interior Sally Jewell, then Massachusetts Governor Deval Patrick and Bureau of Ocean Energy Management (BOEM) Acting Director Walter Cruickshank announced that more than 742,000 acres offshore Massachusetts would be offered for commercial wind energy development in a January 29, 2015, competitive lease sale. On January 29, 2015, the BOEM held the competitive lease auction, which reportedly lasted two rounds, and RES America Developments, Inc. was the winner of Lease Area OCS-A 0500 (approximately 187,523 acres) and Offshore MW LLC was the winner of Lease Area OCS-A 0501 (approximately 166,886 acres). Lease OCS-A 0502 (248,015 acres) and Lease OCS-A 0503 (140,554 acres) did not receive bids. BOEM signed the commercial wind energy leases on March 23, 2015, and the Commercial Lease OCS-A 0500 and Commercial Lease OCS-A 0501 will go into effect on April 1, 2015.
The Final Rule: Disposal of Coal Combustion Residuals from Electric Utilities was signed by EPA Administrator, Gina McCarthy, on December 19, 2014 and a pre-publication copy of the Final Rule was released several weeks ago, but the Final Rule is only now appearing in the Federal Register at 80 F.R. 21302, with an effective date of October 14, 2015. The EPA summarized the Final Rule as providing a comprehensive set of requirements for the safe disposal of coal combustion residuals (CCRs), commonly known as coal ash, from coal-fired power plants. It is purportedly the culmination of extensive study on the effects of coal ash on the environment and public health. The Final Rule establishes technical requirements for CCR landfills and surface impoundments under subtitle D of the Resource Conservation and Recovery Act (RCRA), the nation's primary law for regulating solid waste. The Final Rule makes a number of changes from the proposed rule, including providing greater clarity on technical requirements in response to questions received during the comment period on the proposed rule. The EPA states that any major enforcement of these new rules will primarily be the responsibility of the states and through RCRA's citizen suit authority. The Federal Register version of the Final Rule is almost 200 pages.
Recently, we learned that the California Department of Justice is sending out notices to entities that self-reported in their California tax return that they are a retail seller or manufacturer in connection with what the DOJ is referring to as its compliance review of disclosures required by California's Transparency in Supply Chain Act of 2010 (Act). The Act requires retail sellers and manufacturers doing business in the California and having $100,000,000 or more in annual worldwide gross receipts to disclose their efforts to eradicate slavery and human trafficking from their direct supply chains for tangible goods offered for sale, as specified. The Act was effective on January 1, 2012.
Recently, the California Contractors State License Board announced that it will be hosting a seminar/webcast to help contractors to comply with the new requirements imposed by Senate Bill 854, including the requirement that contractors register with the Department of Industrial Relations in order to bid or be listed on a bid for a public works project and to work on a public works project awarded on or after April 1, 2015.
Recently, the Louisiana State Licensing Board for Contractors updated its publication titled Important Information Regarding Reciprocity (Revised 3/17/2015). Like many other states, Louisiana may give an applicant for a contractor's license credit for having a contractor's license in another state in which Louisiana has a reciprocity or examination endorsement agreement, and vice versa. In order to qualify for reciprocity in Louisiana, the qualifier for the license application submitted to the Louisiana State Licensing Board for Contractors must be the qualifier on the contractor's license in the reciprocal state. Louisiana has a reciprocity or examination endorsement agreement with Alabama, Arkansas, Georgia, Kentucky, Mississippi, North Carolina, Ohio, South Carolina, Tennessee, Texas, Utah, and Virginia.
Today, Pillsbury attorneys Glenn Snyder and Matt Valdez published their client alert titled Enhanced Infrastructure Districts: A Flexible New Tool for Local Governments. The Alert discuss the developments occurring after the dissolution of California redevelopment agencies (RDAs) in 2011. In particular, many local governments desired a tool to raise capital to invest in infrastructure and community revitalization. On September 29, 2014, Senate Bill 628 was signed into law by Governor Jerry Brown. SB 628 grants cities and counties the power to create Enhanced Infrastructure Financing Districts (EIFDs) in order to finance public capital facilities or other specified projects of communitywide significance that provide significant benefits to the district or the surrounding community; and expands on the powers granted to cities and counties pursuant to Infrastructure Financing Districts (IFDs) and Community Facility Districts (CFDs). In turn, the EIFDs provide greater flexibility to local governments seeking to invest in infrastructure and community revitalization, including a lower voter approval threshold to issue bonds and a wider range of infrastructure investments.
On April 10, 2015, the U.S. Court of Appeals for the Eighth Circuit, in a very important ruling, held that the U.S. Army Corps of Engineers' Jurisdictional Determination ("JD") that the property under review was a wetland that constitutes "waters of the United States" and thereby subject to the permitting and enforcement authority of the Corps, can be reviewed by the federal courts on an immediate basis. The case is Hawkes Co., Inc. v. US Army Corps of Engineers. The Court of Appeal's approach was influenced by the Supreme Court's approach in Sackett v. EPA, 132 S. Ct. 1367 (2012)., and the Eighth Circuit held that this JD was indeed a final agency action subject to judicial review, particularly when the choices confronting a property owner who wishes to develop his property are so unappealing.
The Court of Appealst reviewed a long list of federal administrative actions whose serious consequences triggered judicial review, and took issue with the Fifth Circuit's recent in Belle Co., L.L.C., v. US Army Corps of Engineers, 761 F. 3d 383 (2014). There's now a conflict in the circuits, and an appeal to the Supreme Court may be in the offing.
Following two adverse rulings by the DC Circuit, issued in 2014 and reported at Sierra Club v. EPA, 755 F.3d 968 (D.C. Cir. 2014) and Natural Resources Defense Council v. EPA, 755 F.3d 1010 (D.C. Cir. 2014), EPA has removed two exclusions from the list of regulatory exclusions located at 40 C.F.R. Section 261.4(a). This action was made effective on April 8, 2015.
The U.S. District Court for the District of Columbia has denied a request for a preliminary injunction to stop the U.S. Department of Transportation from granting necessary permits to begin the reconstruction and repair of the Virginia Avenue Tunnel, a tunnel which for 111 years has facilitated rail transportation through and under the Capitol Hill neighborhood of Washington, DC. The case is Committee of 100 on the Federal City v. Anthony Foxx, Secretary of the US Department of Transportation, and it was decided on April 7, 2015.
Federal district courts are often confronted with the issue of whether "Narrative Water Quality Standards" are incorporated into National Pollutant Discharge Elimination System (NPDES)permits and enforceable as permit conditions as they preside over citizen suits filed under the Clean Water Act (CWA). Two District Court's recently weighed in on this issue.