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On September 14, 2017, the Council on Environmental Quality (CEQ), which oversees compliance with the National Environmental Policy Act (NEPA) by federal agencies, announced a list of planned actions to implement President Trump’s Executive Order (EO) on streamlining federal environmental reviews and approvals.

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On September 15, the U.S. Court of Appeals for the First Circuit released a significant Oil Pollution Act (OPA) ruling. The case is Ironshore Specialty Insurance Company v. U.S., et al. The Court of Appeals affirmed the District Court’s decision that neither the U.S. nor American Overseas Marine Company, LLC (AMSEA) , a contractor that provided specified services to the U.S. Navy in connection with the operation of “the FISHER,” a government-owned transport vessel and vehicle cargo ship, were liable under the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701-2761 (OPA), for a fuel oil discharge. However, Ironshore Specialty Insurance Company (Ironshore), BSR’s insurer, negligence claims against the U.S. (but not AMSEA) were remanded to the District Court for further proceedings.

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Whenever a claim is made that a state law has  been prempted by an analogous federal law, the courts will rigorously test the strength of the claim.  As as example, in a preemption case decided on September 15, by the U.S. Court of Appeals for the Ninth Circuit, Association des Éleveurs de Canards et d’Oies du Québec, et al., v. Becerra, the Ninth Circuit reversed the holding of the District Court that California’s statutory ban against the sale of products made from force-fed birds such as foie gras was preempted by the provisions of the federal Poultry Products Inspection Act (PPIA).

As described, the practice of force-feeding these birds to enlarge their livers is especially brutal. The California Assembly found that the process is “so hard on the birds that they would die from the pathological damage it inflicts if they weren’t slaughtered first.” Nevertheless, the District Court held that California statutory ban imposes an “ingredient requirement,” which was the sole province of the federal law.

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The Federal Energy Regulatory Commission’s (FERC) decision in the matter of Millennium Pipeline Company, LLC was issued on September 15, 2017. FERC determined that the New York State Department of Environmental Conservation (NYDEC) waived its right to act on a state Clean Water Act (CWA) 401 water qualification by failing to act before the statutory deadlines established by the CWA, 33 U.S.C. § 1341(a)(1), expired. This certification, required of most pipeline applications under the Natural Gas Act (NGA), provides that the State must act on a request for certification “within a reasonable time (which shall not exceed one year) after receipt of such request,” or “the certification requirements of this subsection shall be waived with respect to such Federal application.”

According to FERC, Millennium’s application was received by the NYDEC on November 23, 2015, and NYDEC was required by law to make its certification decision by November 23, 2016 and at least this obstacle to the construction of the “Valley Lateral Project” in Orange, NY has been surmounted.

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On September 7, the U.S. Court of Appeals for the Fifth Circuit granted a stay of a Federal Deposit Insurance Corporation (FDIC) order, following a hearing conducted by an agency administrative law judge (ALJ), assessing a civil penalty against a former banking officer and also requiring his withdrawal from the banking industry. The case is Burgess v. FDIC.

In so ruling, the Fifth Circuit joined the U.S. Court of Appeals for the Tenth Circuit, which concluded, in Bandimere v. SEC, that the Securities and Exchange Commission (SEC) ALJs were “inferior Officers” who are subject to the provisions of the U.S. Constitution’s Appointments Clause, U.S. CONST. art. II, § 2, cl. 2..

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In an unusual case, Western Watersheds Project, et al v. Michael, Attorney General of Wyoming, decided on September 7, 2017, the U.S. Court of Appeals for the Tenth Circuit reversed the District Court’s decision upholding recently-enacted Wyoming laws which impose civil and criminal liability on any persons who “cross private land to access adjacent or proximate land where he collects resource data.”

The Court of Appeals concluded that the statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property. Although trespassing does not enjoy First Amendment protection, the statutes at issue target the ‘creation’ of speech by imposing heightened penalties on those who collect resource data.

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On August 28, the U.S. Court of Appeals for the Ninth Circuit decided the case of Sierra Club, et al., v. State of North Dakota, et al., a Clean Air Act (CAA) Citizen lawsuit. The Ninth Circuit affirmed, in a 2-1 ruling, the District Court’s approval of a Consent Decree between the Environmental Protection Agency (EPA) and Sierra Club that established a schedule by which EPA would promulgate “designations” determining which geographic locations met the National Air Quality Standards (NAAQS) for 1-Hour Sulfur Dioxide (SO2) under the CAA.

These NAAQS must, by law, be revised periodically. When EPA fails to make these designations in a timely manner and fails to adhere to the statutory deadlines, EPA was subject to Citizen Suits under the law, as happened here, and several states intervened in this litigation. Continue reading

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In the case of EQT Production Company v. Wender, et al., on August 30, the U.S. Court of Appeals for the Fourth Circuit affirmed, in a 2-1 ruling, the lower court’s decision that a West Virginia county’s ordinance effectively barring the operation of a state-licensed injection well was preempted by a “web of state and federal laws comprehensively regulating oil and gas production and wastewater disposal in West Virginia.”

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On August 15, 2017, President Trump issued Executive Order 13807 (EO 13807), which seeks to streamline federal environmental review and approvals of major infrastructure projects by imposing new timelines and procedures. The EO aims to hold federal agencies accountable to a two-year deadline for all federal authorizations for infrastructure projects, including highways and transit, airports and ports, fossil, nuclear and renewable energy, pipeline and water projects.

EO 13807 defines “major infrastructure projects” as those which require both a full Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) and multiple permits, approvals and/or other forms of authorization from federal agencies, and for which sufficient and reasonably available funding has been identified. The EO requires the Office of Management and Budget (OMB) to establish a federal goal of completing NEPA review and permitting in “not more than an average of approximately two years” from the notice of intent to prepare an EIS. The goal must be incorporated in each federal agency’s strategic and annual performance plans and progress must be reviewed by agency leadership.

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The recent Spanish Peaks decision from the Ninth Circuit (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) deepens the split in case law on the ability to strip off leases in a landlord/borrower bankruptcy. This decision, which joins the Qualitech decision from the Seventh Circuit (covering Illinois, Indiana and Wisconsin), may significantly impact and complicate sales in bankruptcy of real property for lenders and non-debtor tenants alike.

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