Articles Posted in Environmental

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On March 22, in the case of Delaware Riverkeeper Network, et al., v. FERC, the U.S. District Court for the District of Columbia dismissed the plaintiffs’ complaint that the statutory requirement that the Federal Regulatory Energy Commission (FERC) recover its annual operating costs directly from the entities it regulates results in perceived or actual bias against plaintiffs who contest applications for needed certificates from FERC. Because of this bias, the plaintiff asked the District Court either to declare FERC’s reimbursement mechanism to be unconstitutional or declare its power of eminent domain or authority to preempt state and local laws to be unconstitutional. Holding that the plaintiffs have failed to state a claim because allegations of actual bias cannot create structural bias where the court determines there is none, and the law does not on its face create an unconstitutional funding mechanism, the District Court granted FERC’s motion to dismiss.

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On March 21, 2017, the U.S. Supreme Court decided the case of NLRB v. SW General, Inc., dba Southwest Ambulance. This case concerns the operation and application of the Federal Vacancies Reform Act of 1998 (FVRA).

Section 3345(a) of the FVRA permits three categories of Government officials to perform acting service in a vacant office requiring Presidential appointment and Senate confirmation (PAS office). Subsection (a)(1) prescribes the general rule that, if a vacancy arises in a PAS office, the first assistant to that office“shall perform” the office’s “functions and duties temporarily in an acting capacity.” Subsections (a)(2) and (a)(3) provide that, “notwithstanding paragraph (1),” the President “may direct” a person already serving in another PAS office, or a senior employee in the relevant agency, to serve in an acting capacity instead. However, Section 3345 makes certain individuals ineligible for acting service. Subsection (b)(1) specifically states: “Notwithstanding subsection (a)(1),a person may not serve as an acting officer for an office under this section” if the President nominates him for the vacant PAS office and, during the 365-day period preceding the vacancy, the person “did not serve in the position of first assistant” to that office or “served in [that] position . . . for less than 90 days.”

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Two especially interesting decisions were released last Friday by the Texas Supreme Court.

In Engelman Irrigation District v. Shields Brothers, Inc., the Court affirmed the ruling of the Thirteenth Court of Appeals (sitting in Corpus Christi) that a decades-old (circa 1998) final judgment against a government entity—the Engelman Irrigation District—could not be declared void on the grounds that a 2006 ruling of the Texas Supreme Court on government immunity should be given retroactive effect in this instance. The Court refused to permit a collateral attack on a final judgment that became final several years before the 2006 decision was issued.

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Below is a brief summary of the Office of Management and Budget’s recently issued “America First, A budget Blueprint to Make America Great Again.”  The Blueprint only provides details on discretionary spending proposals. The full budget, to be released later this spring, will include specific tax proposals and a “full fiscal path.”

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Yesterday, the White House published a Presidential Executive Order on a Comprehensive Plan for Reorganizing the Executive Branch directing the Director of the Office of Management and Budget, after a period of review and consultation with the agencies, to propose a plan to streamline the federal government’s executive agencies, both reorganizing governmental functions and eliminating unnecessary agencies. It may take a year to formulate.

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On March 9, the U.S. Court of Appeals for the Fourth Circuit issued a ruling affirming the District Court’s rejection of Virginia common law property damage claims based largely on negligence, nuisance, trespass, and argument that   the Comprehensive Environmental Response, Compensation, and Liability Act , 42 U.S.C. §§ 9601 et seq. (CERCLA),  statute of limitations preempts the application of the Virginia’s five-year statute of limitations. The case is Blankenship v. Consolidation Coal company, et al. Relying on First United Methodist Church of Hyattsville v. U.S. Gypsum Co., the District Court rejected the Blankenships’ argument that Virginia’s statutes of limitations was been preempted by CERCLA, which provides a discovery rule in some circumstances for when state statutes of limitations begin to run and, alternatively, the District Court concluded that, even if CERCLA preempted the Virginia statute, the CERCLA discovery rule would not aid the Blankenships because “they reasonably should have known about their claims more than five years before they filed their actions.”

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On March 7, the U.S. District Court for the District of Columbia issued a ruling denying a motion for a preliminary dakota-access-300x173injunction filed by the Cheyenne River Sioux Tribe challenging an easement granted on February 8 by the U.S. Army Corps of Engineers to Dakota Access, LLC, the owners and operators of the Dakota Access Pipeline. It argued that the presence of oil in a pipeline constructed beneath Lake Oahe, a “federally regulated waterway that forms part of the Missouri River and straddles North and South Dakota,” will cause irreparable harm to its members’ religious beliefs in violation of the Religious Freedom Exercise Act (RFRA). According to the District Court, at the start of 2017, the Lake Oahe crossing is the only portion of the pipeline that is not finished. The case is Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. U.S. Army Corps of Engineers.

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In Board of Commissioners of the Southeast Louisiana Flood Protection Authority – East, et al., v. Tennessee Gas Pipeline Company, L.L.C., et al., the U.S. Court of Appeals for the Fifth Circuit issued a unanimous ruling affirming the District Court’s decision to: (a) reject the Board of Commissioners of the Southeast Louisiana Flood Protection Authority–East’s (Board) motion to remand this cost recovery and injunctive action to the state courts of Louisiana; and (b) dismiss the complaint alleging claims against 97 oil and gas companies in connection with their oil and gas operations and activities off the Gulf Coast for any years for failure to state a claim.

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In the case of Defenders of Wildlife. et al., v. Zinke., et al., the U.S. Court of Appeals for the DC Circuit reversed the U.S. Gray-Wolf-300x210District Court for the District of Columbia, and reinstated the U.S. Department of the Interior’s  2012 decision to delist the Wyoming Gray Wolf, which had been listed as an endangered species under the Endangered Species Act (ESA) in 1973. The District Court vacated the rule, holding that the Fish and Wildlife Service’s determination that that the State of Wyoming had put in place adequate regulatory mechanisms in the conservation management plan of the State of Wyoming (Wyoming Management Plan) to protect the wolf was arbitrary.

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In Government of the Province of Manitoba v. Zinke, the U.S. Court of Appeals for the DC Circuit reversed the U.S. District Court for the District of Columbia and held that the State of North Dakota could begin designing a water treatment plant for an area of North Dakota whose public drinking water quality has been substandard for a long time. The project is known as the Northwest Area Water Supply Project. The District Court had rejected the State’s request to modify an injunction that kept the project from moving forward. Reviewing the District Court’s ruling, the DC Circuit has held that the District Court abused its discretion in not accepting North Dakota’s argument that a significant change in circumstances warranted this relief.

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