Articles Posted in Environmental

On June 1, the U.S. Court of Appeals for the Fifth Circuit decided the case of State of Texas v. U.S., et al. The Court of Appeals held that the petition for mandamus filed by the State of Texas essentially seeking to compel the Nuclear Regulatory Commission (NRC) to establish a schedule for the operation of the Yucca Mountain, NV nuclear waste depository was untimely filed. The depository is very controversial in Nevada, and as a consequence, none of the many deadlines established by Congress have been met. As a result, considerable amounts of nuclear waste are held in Texas which the State of Texas argues should be transferred to Yucca Mountain, NV. However, the Court of Appeals notes that the 1982 Nuclear Waste Policy Act includes a “timeliness requirement,” which provides that any complaint must be filed in court no later than 180 days after the date the administrative decision, action, or failure to act, occurred. Therefore, the State of Texas finds itself in the posture of complaining about NRC actions that “came and went years ago,” and its resort to a continuing violations argument was, under these circumstances, unavailing.

On June 6, the U.S. Court of Appeals for the Second Circuit held, in the matter of In re: World Trade Center Lower Manhattan Disaster Site Litigation, that the District Court’s decision to dismiss, as being time-barred, many claims alleging tort and labor law claims arising from the plaintiffs’ participation in post -9/11 cleanup efforts must be vacated. After the initial dismissal, the New York Legislature enacted a special law which revived for one year all of these otherwise time-barred claims. However, in response the arguments made by the defendant Battery Park City Authority, the District Court held that this new law was unconstitutional under the New York State Constitution. The Second Circuit certified two questions on state law to the New York Court of Appeals, which opined that the law is constitutional. With this opinion in hand, the Second Circuit held that the Battery Park City Authority lacked the capacity to challenge this law as unconstitutional, and therefore its challenge must be rejected. The case was then remanded to the District Court.

Municipalities wield considerable power over local businesses as a recent Colorado Supreme Court decision demonstrates.On May 21, the Colorado Supreme Court decided the case of Colorado Union of Taxpayers Foundation v. City of Aspen. The Court held, in a 4 to 3 ruling, that a City of Aspen ordinance imposing a charge of $0.20 on the right to use a paper bag at a grocery store was not a tax, subject to Colorado’s Taxpayer Bill of Rights (TABOR), which was enacted in 1992.

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The following notices were published yesterday:

1.  The Federal Energy Regulatory Commission (FERC) will be taking another look at its implementation of FAST Act Section 61003 regarding the security and resilience of energy infrastructure in the face of emergencies. EEI asked that FERC reconsider the rules it promulgated in November 2016 or at least clarify certain provisions with respect to Critical Energy/Electric Infrastructure Information (CEII). A clarification has been issued, effective July 30, 2018. (83 F.R. 24656)

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On May 22, the U.S. Court of Appeals for the Fifth Circuit, in an unpublished ruling, affirmed the District Court’s dismissal of a complaint that the actions and inactions of a City of Houston tax reinvestment zone, as well as the City of Houston, resulted in multiple serious flooding incidents that damaged their properties. The case is Residents Against Flooding, et al., v. Reinvestment Zone Number Seventeen, et al.

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Recently, our colleagues Matt Morrison and Brendan Hennessey published their Client Alert titled A New Path to Managing Risks from Upstream Oil and Gas Transactions, EPA incentivizes new owners to conduct compliance audits by offering penalty forgiveness for violations found. Takeaways include:

• The Environmental Protection Agency’s (EPA) newest enforcement proposal offers companies in the oil and gas production sector a valuable opportunity to reduce compliance risks inherent in the purchase of facilities
• EPA remains focused on ensuring storage tanks and associated equipment are properly sized and designed to prevent emission leaks
• EPA’s draft agreement recognizes that the timing of audits and corrective action should depend on the number of acquired facilities and the scope of the audit

On May 9, the U.S. District Court for the District of Alaska dismissed a challenge the constitutionality of the Congressional Review Act (CRA); the case is Center for Biological Diversity v. Zinke. While the District Court ruled that, while CBD had sufficient standing to make some of its arguments regarding the CRA, on the whole, it found that the constitutional and statutory arguments were inadequate to withstand the Government’s motion to dismiss.

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On May 7, the U.S. Court of Appeals for the Fourth Circuit affirmed the jury’s verdict that two shipping companies were guilty of criminal violations of the 1973 International Convention for the Prevention of Pollution from Ships, known as MARPOL. Both companies are headquartered in Greece, with Oceanic Illsabe Ltd. (Oceanic) being a Liberian corporation and Oceanfleet Shipping Ltd. (Oceanfleet) being a Marshall Islands corporation. The case is U.S. v. Oceanic Illsabe Ltd. and Oceanfleet Shipping Ltd.

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