Articles Posted in Environmental

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The issue of the relentless growth and penetration of administrative law remains a compelling topic for those operating in heavily regulated industries like the construction industry. Chris DeMuth, a Fellow at the Hudson Institute, recently wrote Can the Administrative State be Tamed?, an interesting essay in which Demuth provides his perspective on this topic. The administrative state has continued its inexorable growth regardless of whether the President is a Democrat or a Republican. Demuth’s essay was recently published in the Journal of Legal Analysis. It does not address last year’s King v. Burwell decision of the U.S. Supreme Court, which held that some legislation is too fundamentally important to give an agency “Chevron Deference” when it interprets the law it is implementing, but it does mention a Department of Agriculture regulation requiring magicians using rabbits in their acts to prepare and submit to the appropriate authorities a disaster response and contingency plan.

Additional Source: Complexities of Administrative State Lead to Win for Regulated Community

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offshoreOn July 5, the U.S. Court of Appeals for the DC Circuit, in Public Employees for Environmental Responsibility v. Hopper, Acting Director of the U.S. Bureau of Ocean Energy Management, reviewed the District Court’s dismissal of a lawsuit alleging that the Government’s approval of a Cape Cod offshore wind energy project violated several environmental statutes. The Court of Appeals held that the National Environmental Policy Act (NEPA) finding made by the primary permitting agency, the U.S. Bureau of Ocean Energy Management (Bureau), did not take a sufficiently “hard look” at the proffered geophysical evidence, and that an Endangered Species Act (ESA) “incidental take” determination must be set aside because the U.S. Fish and Wildlife Service should have considered the submissions of the plaintiffs. Otherwise, the Court of Appeals was satisfied with the project’s compliance with the other permitting and development requirements. The Court of Appeals notes that “[o]ffshore energy providers like Cape Wind must comply with a slew of federal statutes designed to protect the environment, promote public safety, and preserve historic and archeological resources on the outer continental shelf.”

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On July 5, the U.S. Court of Appeals for the District of Columbia Circuit issued an important ruling interpreting the reach ofemail. the federal Freedom of Information Act (FOIA) in the case of Competitive Enterprise Institute v. Office of Science and Technology Policy. The Office is located in the Executive Branch, and it has been engaged in a long-running dispute with the Competitive Enterprise Institute (CEI) with respect to a short, two-minute video released by the Director of the Office, John Holdren. In the instant action, the Court of Appeals reviewed the CEI’s attempts to obtain the records of the Director found in emails sent to or from the Director’s private, non-governmental email account.

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This decision is reminiscent of a fairytale about a princess and her frog prince and the croaking chorus of the Frogs of Aristophane. frogOn June 30, the U.S. Court of Appeals for the Fifth Circuit issued a significant ruling involving critical habitat designations on private land. The case was decided on a 2 to 1 vote, with Judge Owen providing a strong dissent. The majority was at pains to state that “critical habitat designations do not transform private land into wildlife refuges.” Nevertheless, the extension of the Endangered Species Act (ESA) to this private land may conceivably have federal permitting consequences later if the future development of the land triggers Clean water Act considerations.

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Two recently issued decisions are important because they clarify how the formidably complex legal structure affecting a growing American business—the export of liquefied natural gas (LNG) –will be interpreted by the one federal Court of Appeals that has singular expertise in interpreting such requirements. On June 28, the U.S. Court of Appeals for the DC Circuit denied two petitions to review National Environmental Policy Act (NEPA) environmental issues affecting two separate FERC LNG export terminal facilities; the two cases are Sierra Club and Galveston Baykeeper v. FERC ( pertaining to the Freeport, Texas terminal ) and Sierra Club v. FERC (regarding the Sabine Pass Terminal). These cases were argued by and decided by the same attorneys and panel of judges. The Court of Appeals found that the petitioners had demonstrated sufficient standing, but the basic flaw in their argument seems to have been that FERC’s role is fairly circumscribed by law, and the major complaint was that the export of LNG would inevitable reduce the supply of natural gas for domestic purposes, thus increasing reliance on cheaper sources of energy such as coal.

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A recent decision by the U.S. Court of Appeals for the Fifth Circuit is a reminder to important federal agencies that they must take care to adhere to the requirements of the Administrative Procedure Act (APA) when they issue not only new rules, but also other regulatory documents as well, and that the federal courts can, in appropriate cases, step into a controversy at an early stage. On June 27, the Fifth Circuit ruled, in a 2 to 1 opinion, that a 2012 Equal Employment Opportunity Commission (EEOC) Enforcement Guidance, entitled “Enforcement Guidance on the Consideration of Arrest and Conviction Record in Employment Decisions Under Title VII of the Civil Rights Act of 1964” was a final action, and the lower court erred in dismissing a declaratory judgment action filed by the State of Texas. The case is State of Texas v. Equal Opportunity Commission.

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Today, my colleague Norman Carlin published an interesting piece discussing a pair of recent decision issued by the Fourth District Court of Appeal upholding a public-private partnership (P3) water project against two California Environmental Quality Act (CEQA) challenges. The two decisions are Delaware Tetra Technologies, Inc. v. County of San Bernardino, 247 Cal. App. 4th 352.(2016) and Center for Biological Diversity v. County of San Bernardino, 247 Cal. App. 4th 326 (2016). Norman’s alert is Saving Private Partnerships: Court Upholds P3 Project against CEQA Challenge under Save Tara.

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Recently there have been some interesting developments in environmental and regulatory law, including litigation, administrative and regulatory actions, and legislation.  I’ve provided you with a little lite reading to ease into your week:roundup-300x227

Litigation

The Supreme Court will review a U.S. Court of Appeals for the D.C. Circuit decision, in NLRB v. Southwest General, Inc., regarding the Federal Vacancies Reform Act, which determines when nominees for agency positions can serve in those positions while their nominations are pending in the Senate. This case involves a controversy affecting that NLRB’s Acting General Counsel. Because of the lower court’s ruling, many administrative decisions were imperiled. It may also affect the actions of EPA’s Acting Deputy Administrator.

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In Texas Extends ‘Accommodation Doctrine’ To Groundwater, I provide a broader analysis of the issue presented in my earlier blog When Contract is Silent, Accommodation Doctrine Applies to Water Rights Disputes. texaswater

Pillsbury summer associate Brittney Sandler made significant contributions to this article. Sandler is currently enrolled at Georgetown University Law Center where she serves as editor for the Georgetown Law Journal and as a legal research and writing fellow.

Photo: Greg Westfall, Just Another Day at the Park, Taken August 24, 2013 – Creative Commons

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On June 20, 2016, the U.S. District Court for the Northern District of California held, in Center for Environmental Health, et. al. v. Vilsack, that a United States Department of Agriculture (USDA) guidance document, intended to provide guidance with respect to the Organic Foods Act, was a legislative rule, not merely an interpretive statement of agency policy. The Act establishes the standards a product must satisfy to be labeled “organic.” The California Department of Food and Agriculture (CFDA) is certified by the USDA to administer the program in California, and in 2009, the California agency’s inspectors found detectable levels of bifenthrin in three compost products used in organic agricultural operations. Since the substance is not on a “National List” of approved synthetic substances, the USDA rules prohibit this use in compost products. In response to inquiries made by the manufacturer, the USDA issued the guidance document in question which allows the use of this substance under certain conditions.

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