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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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On Tuesday, the U.S. Court of Appeals for the DC Circuit, in the case of Sierra Club, at al., v. FERC, rejected most of the arguments made against the Federal Energy Regulatory Commission’s (FERC) decision to approve the construction and operation of three interstate natural gas pipelines that would serve customers in the southeast.

The Court of Appeals was notably unconvinced by the environmental justice arguments made by the petitioners. However, the Court of Appeals decided, on a 2 to 1 vote, that FERC’s environmental impact statement (EIS) was deficient in that it failed to come to grips with the argument that the downstream greenhouse gas emissions generated by the burning of this gas by the customers of the pipelines would have adverse impacts.

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The U.S. Court of Appeals for the Second Circuit, in the case of Constitution Pipeline Company, LLC v. New York Department of Environmental Conservation, et al. (released August 18, 2017), rejected the Constitution Pipeline Company, LLC ’s (Constitution) petition for review after the New York Department of Environmental Conservation (NYDEC) denied its application for a Clean Water Act (CWA) 401 certification. NYDEC denied the application on the ground that Constitution had not complied with requests for relevant information.

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The Financial Crimes Enforcement Network (FinCEN) announced on August 22, 2017, that it is expanding its earlierHonalulu-300x169 Geographic Targeting Orders (GTO) that require U.S. title insurance companies to identify the natural persons who are behind shell companies used to buy high-end residential real estate. The GTOs now will include the City and County of Honolulu, Hawaii.

In addition, the GTOs will capture a broader range of transactions and include transactions that involve wire transfers. This addition comes after the recent enactment of the Countering America’s Adversaries through Sanctions Act.

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On August 14, the U.S. Court of Appeals for the Fifth Circuit issued its opinion in the case of ExxonMobil Pipeline Company v. U.S. Department of Transportation.  In May of 2013, ExxonMobil Pipeline Company’s (ExxonMobil) Pegasus Pipeline spilled several thousand barrels of oil near Mayflower, AK. The Pipeline and Hazardous Materials Safety Administration (Administration) cited Exxon for several violation of the pipeline integrity and safety rules (49 C.F.R. Parts 190-199), and levied a fine of $2.6 million and ordered the company to take corrective actions to ensure compliance with these rules.

On appeal, the Fifth Circuit held that the Administration’s findings were arbitrary and capricious. This is an important regulatory and administrative law decision, and it will be interesting to see how the Administration and the pipeline industry react to this ruling.

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