Legal arguments that the laws a state enacts which take into consideration the interests of its own citizens unfairly impede the free flow of interstate commerce are difficult to win, as demonstrated by two recent U.S. Court of Appeals for the Second Circuit rulings. On March 29, the Second Circuit issued two Commerce Clause/Dormant Commerce Clause decisions:
Check out our colleague Tim Wright’s recent post on Pillsbury’s Sourcing Blog titled Oh No, Mr. Robot Just Hacked Our Smart Building…
On March 20, the U.S. Court of Appeals for the Sixth Circuit decided the case of Marquette County Road Commission v. U.S. EPA, et al. The opinion will not be published in the Federal Reporter. Both the trial court and the Sixth Circuit rejected the Marquette County Road Commission’s argument that the Environmental Protection Agency’s (EPA) actions and inactions amounted to a “veto,” and were thus a “final action” for purposes of the Administrative Procedure Act (APA).
Our colleagues Christine Richardson, Colleen Lamarre and Danielle Bradley recently posted their Alert titled Recent and Upcoming Changes to 401(k) Plans. In the Alert they discuss the Tax Cuts and Jobs Act (the Act) and the Bipartisan Budget Act of 2018 (the Budget), and the number of modifications they make to the 401(k) plan rules. The modifications are expected to make the administration of 401(k) plans simpler by removing operational burdens, while also giving plan sponsors the ability to offer more options to employees.
On March 5, the U.S. Court of Appeals for the Tenth Circuit issued a ruling that the general federal five-year statute of limitations which is applicable to the enforcement of any civil fines, penalties or forfeitures (28 U.S.C. § 2462) does not apply to a series of discrete misappropriations that occurred over many years. The case is SEC v. Kokesh. In reaching this conclusion, the Tenth Circuit referenced its own recent decision in Sierra Club v. Oklahoma Gas and Electric Co., a Clean Air Citizen Suit, involving Section 2462
Recently, the Trump Administration released a 53-page Legislative Outline for Rebuilding Infrastructure in America of legislative proposals to rebuild American infrastructure, which it defines as surface transportation, airports, passenger rail, ports and waterways, flood control, water supply, hydropower, water resources drinking water and waste water facilities, storm water facilities, and surprisingly, Brownfield and Superfund sites. Infrastructure projects can be located in both urban and rural areas.
The proposal lists specific laws that will require amendments, and would make available billions of dollars in federal funds to trigger the process. This is a brief review of its many provisions.
Section 1122 of the Water Resources Development Act of 2016 directs the Secretary of the Army, no later than 90 days after the enactment of this law (which took place on December 16, 2016), to establish a pilot program to recommend ten projects for the beneficial use of the tons of dredged material generated by the operations of the U.S. Army Corps of Engineers (Corps).
On February 9, the Corps published a Federal Register notice which solicits the submission of ten projects that will address the beneficial use of dredged materials. Proposals must be submitted to Headquarters U.S. Army Corps of Engineers on or before March 12, 2018. The Corps generates many tons of dredged material, so it makes sense to see if there are truly beneficial uses for this material.
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.
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].
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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