Failure To Present Expert Testimony Resulted In Dismissal

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On March 13, 2015, the U.S. Court of Appeals for the First Circuit affirmed the dismissal of a lawsuit seeking recovery of funds from the president of Environmental Careers Organization (ECO), a defunct Massachusetts non-profit company whose business was to place interns with the Environmental Protection Agency (EPA). ECO received compensation from the EPA for its costs of placing students in agency internships. EPA audited the accounts of ECO and then sought recovery of more than $6 million from it, forcing ECO into bankruptcy.

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Important New CWA Cases

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On March 10, 2015, the U.S. Court of Appeals for the Fourth Circuit issued an unpublished opinion in Precon Development Corporation, Inc., v. U.S. Army Corps of Engineers. For several years, Precon has been contesting the Corps' assertion of Clean Water Act (CWA) jurisdiction over Precon's planned commercial and residential development in Chesapeake, Virginia. At issue is the jurisdictional status of 4.8 acres of wetlands that Precon wants to fill in: Is this land subject to the Corps' permitting authority under Section 404 of the CWA because the wetlands are "water of the United States" on the basis of Justice Kennedy's "significant nexus" test, as explicated in the 2006 Supreme Court case of Rapanos v. United States, 547 U.S. __ (2006)?

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Supreme Court Decides 2 Important Administrative Law Cases

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Without dissent, but with strong concurring opinions, the Supreme Court has decided two cases that could, over time, significantly affect the relationships between the federal government and the regulated community. In the first case, the Court was asked to review the distribution of regulatory powers between Amtrak, which operates many railroad operations, and its rail competitors, resulting from a transportation law enacted in 2008. In enacting this law, the question is whether the Congress illegally delegated some of its regulatory powers to Amtrak. The Court ruled that it did not, but the case was returned to the lower court to decide some important constitutional issues. In the second case, the Court held that federal agencies, when they issue interpretive rulings, are not required to follow the standard notice and comment procedures that govern federal rulemaking, even though these interpretive rulings may have a very important effect on the parties that it regulates. While legal, the practice clearly troubles some of the Justices.

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DC Circuit Denies Challenge to DOI's Outer Continental Shelf Leasing Program for 2012-2017

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In the case of Center for Sustainable Economy v. Sally Jewell and the Bureau of Ocean Energy Management, decided on March 6, 2015, the U.S. Court of Appeals for the District of Columbia Circuit denied the Center's petition to review the Department of Interior's ("DOI") latest proposed leasing program. Section 18 of the Outer Continental Shelf Lands Act requires the Department to balance competing economic, social and environmental values in determining when and where to make offshore leases in federal waters available. According to the Center, the DOI's actions fell short of complying with the law's mandate and, in particular, some of the economic analysis.

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Reality TV ~ CSLB Discussion Forum for Contractors

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In the fall of 2014, the California Contractors State License Board (CSLB) launched a new forum -- CSLB TV -- for engaging in discussions with contractors about issues and challenges that affect the construction industry. The first event, an interactive webinar on September 19, 2014 titled Doing It Right: HVAC Permits & Title 24 Energy Regulations Webinar, discussed issues and challenges in the HVAC industry related to California Energy Commission Title 24 energy efficiency regulations and the permitting process with local building divisions. Topics for future CSLB TV are being discussed. To submit a webinar topic recommendation, email social@cslb.ca.gov.

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3D Printed 5-Story, 1,100 Sq. Meters Villa?

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Recently it was reported that Shanghai WinSun Decoration Design Engineering Co. has used 3D printing technology to create a 5-story, 1,110 square meters villa using construction waste. Pictures of the villa are included in the articles Chinese firm 3D-prints 5-story house using construction waste 'ink' and Exclusive: WinSun China builds world's first 3D printed villa and tallest 3D printed apartment building. WinSun's website also features more pictures of its 3D projects.

Lining Up to Bid Protest

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Today, my colleague Alex Tomaszczuk and I published our client alert Lining Up to Protest Bid -- protest dismissed as company fails to allege it was "next in line" for award. The Alert discusses the U.S. Court of Federal Claims' February 10, 2015 decision in Universal Marine Company, K.S.C. v. United States, No. 14-1115C, dismissing the bid protest complaint filed because the protester was not "next in line" for award of the contract and, therefore, lacked standing to protest. As noted in the Alert, this decision serves as a critical reminder for bid protesters of the necessity of demonstrating, through a carefully crafted complaint, that they were "prejudiced" by the agency's actions.

U.S. Court of Federal Claims Answers Jurisdiction Question

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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.

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San Francisco Gross Receipts Tax Update: New Regulations Impact Returns Due Today

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By Pillsbury Winthrop Shaw Pittman

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.

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Environmental Case Law Update (As of Feb. 26, 2015)

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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.

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Supreme Court Addresses What Is A "Tangible Object" Under the Sarbanes-Oxley Act

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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.

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Divided Supreme Court Upholds Special Master's Report in Disagreement Between Kansas and Nebraska

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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.

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CA CSLB License Exam/Certification Study Guides

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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.

Additional Sources: California Contractors License Law & Reference Book (2014 Ed.); CSLB, Apply for a Contractors License - Exam Required; CSLB, Step 2: Applying for a Waiver of the Examination; CSLB, Step 7: Studying for the Examination

DOE Issues the Part 810 Final Rule: Summary and Compliance Steps for Industry

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By Pillsbury Winthrop Shaw Pittman

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.

Texas Supreme Court Will Consider Scope of Texas Clean Air Act Preemption

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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 .