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On February 1, the Congressional Research Service published a report entitled Evolving Assessments of Human and Natural Contributions to Climate Change. The report traces evolution of scientific understanding and confidence regarding drivers of recent global climate change. Some very useful historical references are provided.

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cracked-wall-picture-id524885417-300x200On January 18, 2018, in McMillin Albany LLC v. Superior Court, the California Supreme Court published a closely followed decision resolving a lower court split interpreting California’s Right to Repair Act (S.B. 800, Civ. Code § 895 et seq.). The Court determined that the legislature intended to alter the common law when it came to economic loss and property damage, making the Act the exclusive remedy for construction defects.

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On February 5, the U.S. Court of Appeals for the Ninth Circuit decided an interesting Outer Continental Shelf Lands Act (OCSLA) case, Newton v. Parker Drilling Management Services, Ltd. The Ninth Circuit reversed the Central District Court’s dismissal of a California wage and hour complaint brought by a worker employed on an offshore oil and gas drilling platform fixed and located in federal waters and otherwise subject to the OCSLA and federal law.

The Ninth Circuit held:

[T]he absence of federal law is not, as the district court concluded, a prerequisite to adopting state law as surrogate federal law under the [OCSLA].

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Today, our colleagues Richard Oliver and Travis Mullaney published their Alert titled SBA Proposed Rule Standardizes SDVO SBC Ownership & Control Standards. The Small Business Administration’s (SBA) proposed new rule would reconcile and clarify the ownership and control standards required for qualify as either a Veteran-Owned (VO) or Service-Disabled Veteran-Owned (SDVO) Small Business Concern (SBC) under the programs offered by the SBA and the Department of Veterans Affairs (VA).

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On February 6, the new rule promulgated by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers which establishes an “applicability date” for the 2015 Rule redefining the regulatory definition of “Waters of the United States,” as used in many Clean Water Act (CWA) rules and as enforced and implemented by these agencies, was published. This action follows the Supreme Court’s January 22, 2018 ruling in the case of National Assoc. of Manufacturers v. Department of Defense, which held that original jurisdiction to hear legal challenges to the 2015 Rule lies in the federal district courts and not the federal courts of appeal. The “applicability date” of the 2015 Rule is February 6, 2020, and this additional time will provide the agencies with an opportunity to review and revise, as appropriate, the provisions of the 2015 Rule.

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On October 11, 2016, a panel of the U.S. Court of Appeals for the District of Columbia consisting of Judges Henderson and Kavanaugh and Senior Circuit Judge Randolph decided the case of PHH Corp. v. Consumer Financial Protection Bureau. The panel majority held that the structure of Consumer Financial Protection Bureau (CFPB), a creation of the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111–203, H.R. 4173, commonly referred to as Dodd–Frank), was unconstitutional, in that it vested enormous power in an agency headed by a Director who cannot be adequately supervised by the President because of the five year term the Director’s serves, the lack of Congressional control over the CFPB’s funding, and the fact that the President can only remove the Director “for cause” even though in theory the President should have more authority over such officials. The panel concluded that this structure thus violates the U.S. Constitution’s separation of powers.

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In the case of Hawaii Wildlife Fund, et al., v. County of Maui, decided on February 1, 2018, the U.S. Court of Appeals for the Ninth Circuit affirmed the decision of the U.S. District Court for Hawaii that the County of Maui’s longtime use of state-permitted wastewater disposal wells at is municipal waste water treatment plant required National Pollutant Discharge Elimination System (NPDES) permits because the indirect discharge of pollutants into the Pacific Ocean through groundwater triggered the NPDES provisions of the Clean Water Act (CWA). This is a significant case, and it may have significant ramifications for CWA permitting and enforcement.

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The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have released a pre-publication copy of a Final Rule that was proposed on November 22, 2017 and which will soon be published in the Federal Register. The new rule will establish an “applicability date” for the controversial “waters of the United States” (or WOTUS) rule that was published in the Federal Register on June 29, 2015. The 2015 rule had an effective date of August 28, 2015, but the rule was first stayed by the U.S. District Court for North Dakota on August 27, 2015 for the 13 states challenging the rule in that court, and then by a nationwide stay by the U.S. Court of Appeals for the Sixth Circuit on October 9, 2015.

Last week, the U.S. Supreme Court, in the case of National Association of Manufacturers v. Department of Defense (NAM decision), ruled that the federal District Courts, and not the U.S. Courts of Appeals, had original jurisdiction to hear these appeals, so it appears there will be multiplicious litigation around the country.

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On January 29, the U.S. Court of Appeals for the Tenth Circuit became the latest federal Court of Appeals to issue a ruling reviving federal District Court challenges to the 2015 Environmental Protection Agency’s (EPA)/U.S. Army Corps of Engineers’ (Corps) Clean Water Act (CWA) rule redefining “Waters of the United States.” The United States District Court for the Northern District of Oklahoma dismissed challenges to this rule filed by the Chamber of Commerce, the National Federation of Businesses, Tulsa Regional Chamber, Portland Cement Association, and the State Chamber of Oklahoma, holding that the appeal must be brought in the US Court of Appeals. The Tenth Circuit abated these appeals, pending the decision of the U.S. Supreme Court in National Assoc. of Manufacturers v. Department of Defense (the NAM Decision). On January 22, 2018, the Supreme Court held that such challenges must be filed in the federal district courts, causing the Tenth Circuit to lift the abatement, and return the case to the District Court. The Tenth Circuit case is Chamber of Commerce of the U.S, et al. v. EPA, et al.

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On January 29, the U.S. Court of Appeals for the Fifth Circuit, in an interesting unpublished ruling, affirmed the District Court’s denial of a motion to vacate an arbitration order of the Civilian Board of Contract Appeals (Board). The Board rejected an appeal made by the Louisiana Department of Natural Resources (LDNR) objecting to a determination of the Federal Emergency Management Agency (FEMA) that millions of dollars in federal funds should be made available for the restoration of 16 barrier islands off the coast of Louisiana that suffered substantial damage from Hurricanes Rita and Katrina in 2005. The case is Louisiana Department of Natural Resources through the Coastal Protection Restoration Authority v. FEMA.

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