Wetlands mitigation banking agreements are subject to the rules of the U.S. Army Corps of Engineers (the Corps); they can serve a useful public purpose by assisting with the restoration and preservation of waterways subject to the Clean Water Act.
Beginning in 2014, every person engaging in business within San Francisco is subject to an annual Gross Receipt Tax ("GRT") measured by the person's gross receipts from all taxable business activities attributable to San Francisco. The GRT will be phased in and the existing Payroll Expense Tax phased out over a 5-year period. During this phase-out period, taxpayers must report their GRT and Payroll Expense Tax liabilities on a single tax return, the first of which is due March 2, 2015. A person engaging in business within San Francisco must file a single GRT and Payroll Expense Tax return on a combined basis with all of that person's related entities.
Readers may find helpful this recapitulation of recently-decided environmental law cases by the federal and state courts. The U.S. Supreme Court has issued two important rulings, and the court will be deciding important administrative law and Clean Air Act cases before the current term ends in June.
1. FEDERAL COURTS
A. Supreme Court
Kansas and Nebraska share the waters of the Republican River that flow through their states, as well as Colorado. Their disputes resulted in the Republican River Compact, which the states agreed to in 1943 to fairly allocate the water resources of the Republican River; the Compact was approved by the Congress in appropriate legislation. In 1998, Kansas and Nebraska argued over Nebraska's increased pumping of groundwater, which resulted from the construction of thousands of wells hydraulically connected to the Republican River and its tributaries. A Special Master was appointed to sort out these complaints, and a settlement was signed in 2002 which included new procedures to promote compliance with the Compact. After the experience of some lingering droughts, Kansas complained that Nebraska was exceeding its authorized allocation of water. Another Special Master was appointed, who determined that Nebraska had knowingly failed to comply with the Compact in consuming excessive amounts of Republican River water, and the Master awarded Kansas $3.7 million for its loss and an additional sum of $1.8 million against Nebraska as a "partial disgorgement". Both parties filed exceptions to the Special Master's report, which the Supreme Court approved in the latest Kansas v. Nebraska decision, decided February 24, 2015.
Today, in a narrow 5 to 4 decision, the United States Supreme Court reversed the opinion of the Eleventh Circuit Court of Appeals which had affirmed the felony conviction of John Yates, a commercial fisherman, who was suspected of having caught undersized red grouper in federal waters off the coast of Florida and convicted for concealing evidence of a violation of the federal conservation laws. This is an important ruling affecting the enforcement of the federal conservation laws and interpreting the scope of the Sarbanes-Oxley Act of 2002, which was enacted in the wake of the Enron collapse and the destruction of financial documents that abetted its demise. The case is Yates v. United States, decided February 25, 2014.
Yesterday, in the United States Supreme Court's decision in Kansas v. Nebraska, several members of the Court strongly disagreed with the determinations of Justice Kagan, including that "disgorgement" was proper. The Chief Justice, and Justices Thomas, Scalia and Alito argued that the Court's equitable power was not sufficient to alter the accounting principles the states had agreed to in earlier settlements. For his part, Justice Scalia advised his colleagues not to treat the Restatements of the law as an authoritative description of the law: "Over time, the Restatements' authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be". For his part, Justice Thomas took the view that ordinary contract principles should have been applied to this dispute, which the majority ignored, and observed that this dispute involves the "inherent authority of sovereign states to regulate the use of water" and that "authority over water is a core attribute of state sovereignty". These views may play a role in all manner of cases in the future.
The California Contractors State License Board has made available a study guide for the trade examination for the various contractor license and specialty license classifications and one for the law and business examination; a trade examination is not required for the C-61 limited specialty classification. It has also made available a study guide for the asbestos certification and hazardous substances removal certification. Each study guide provides: (1) a breakdown of examination topics, (2) several sample examination questions, (3) resource information to help the license applicant study for the examination, (4) test site policies, and (5) a test strategy.
Today, Pillsbury attorneys Jim Glasgow and Elina Teplinsky posted their client advisory DOE Issues the Part 810 Final Rule: Summary and Compliance Steps for Industry. The Advisory discusses the U.S. Department of Energy's (DOE) final rule amending its regulations at 10 C.F.R. Part 810 on "Assistance to Foreign Atomic Energy Activities" ("Part 810"). The rule takes effect on March 25, 2015. The rulemaking to amend Part 810, which the DOE has been undertaking since it published in the Federal Register a notice of proposed rulemaking (NOPR) seeking to amend Part 810 on September 7, 2011, constitutes the most substantial change to these foreign nuclear assistance regulations since 1986 and, arguably, in the history of Part 810.
The Texas Supreme Court is scheduled to hear oral arguments in City of Houston v. BCCA Appeal Group, Inc., on March 25, 2015 regarding whether the application of a City of Houston registration ordinance which purports to regulate air pollution within the City of Houston's borders is preempted by the Texas Clean Air Act of 1967 (TCAA). The First District Court of Appeals held that the defendants "failed to show that the Legislature intended to preempt the Ordinance with 'unmistakable clarity,' and thus, failed to meet its extraordinary burden to establish that the ordinance is invalid, 2013 Tex. App. LEXIS 11089 (Tex. Ct. App. Aug. 29, 2013). The City of Houston is clearly concerned that the Texas Commission on Environmental Quality's enforcement of the TCAA has not been very vigorous. We should expect to see a decision in this important case a few months .
S.1 -- 114th Congress (2015-2016) was introduced on January 6, 2015. Recently, it was passed by both the House (February 11, 2015) and Senate (January 29, 2015). The President has indicated he will veto the bill. Nevertheless, it is interesting to see what's in the bill.
As I previously reported, on January 27, 2015, the U.S. District Court for Minnesota granted summary judgment to EPA and two environmental groups defending EPA's decision to release personal data submitted by a group of Concentrated Animal Feeding Operation (CAFO)-farm facilities who were also applicants for Minnesota wastewater discharges. The case is American Farm Bureau Federation and National Pork Producers Council v. EPA. However, on February 6, 2015, the District Court released an Amended Protective Order pursuant to an agreement reached by the plaintiffs and defendants to limit the disclosure of the confidential information that is at issue in this case.
A unanimous panel of the Illinois Appellate Court recently held that three insurers have a duty to defend any case in which the bare underlying allegations - if proved - would render their insured liable, regardless of extrinsic facts. This sweeping ruling confirms that the duty to defend is a form of "litigation insurance," protecting the insured against the costs of being wrongly sued, however groundless the claims against it may be. The case is Illinois Tool Works Inc. and ITW Finishing LLC v. Travelers Casualty and Surety Company, et al.
Today, Pillsbury attorneys Julia Judish, Rebecca Carr Rizzo and Keith Hudolin published their client alert titled The Legal Landscape Rapidly Changes for D.C. Employers. The Alert discusses how District of Columbia employers now face and are soon to face a number of new laws affecting a wide range of issues, including wage payments, recording of hours worked, pregnancy accommodations, concealed weapons in the workplace, and the use of criminal background checks and drug testing during the hiring process. While most of the changes impose new requirements on employers, emergency legislation passed by the D.C. Council on February 3rd also contained a win for employers by changing existing D.C. law that had previously required that employers keep records of hours worked by both exempt and non-exempt employees. Employers must be aware of these new requirements, some of which require employers to change their current practices, and should carefully review their employee handbooks and other policies to ensure timely compliance.
Friday, the Texas Supreme Court issued a unanimous opinion in the case of Environmental Processing Systems, L.C. v. FPL Farming Ltd., reversing the Court of Appeals for the Ninth District of Texas's finding that EPS had the burden of establishing an affirmative defense that it had the landowner's consent, and that Texas recognizes a common law trespass cause of action for deep subsurface water migration. The environmental and property rights issues affected by deep subsurface wastewater disposal are important to the oil and gas industry as well local and state government permitting agencies and environmental groups.