A Court-Side Seat: May Brings Federal Appellate Courts Rulings and Executive Orders


Here are a few interesting new rulings from the federal appellate courts.


Like a Good Neighbor …? — State of Maryland v. EPA
On May 19, 2020, the D.C. Circuit decided a Clean Air Act case involving the use of the “Good Neighbor Provision” of the Act, which is triggered when one state has a complaint about emissions generated in a neighboring upwind state that settle in the downwind state. Here, Maryland and Delaware filed petitions with EPA seeking relief from the impact of emissions from coal-fired power plants that allegedly affect their states’ air quality. EPA largely denied relief, and the court largely upheld the agency’s use and interpretation of the Good Neighbor Provision. The opinion is valuable because of its clear exposition of this complicated policy.

A Volatile Underground Issue Wayne Land and Mineral Group v. the Delaware River Basin Commission
Also on May 19, 2020, the U.S. Court of Appeals for the Third Circuit issued a ruling involving the Delaware River Basin Commission. Established in 1961, the Commission oversees and protects the water resources in the Basin. Not long ago, the Executive Director of the Commission, citing a rule of the Commission, imposed very strict limitations on fracking operations in the Basin. This decision has been very controversial with the Third Circuit opining that the Commission’s authority to regulate fracking operations—thought to be a province of state authority—was not clear-cut. In this case, three Pennsylvania state senators filed motions to intervene in the case, but the lower court rejected their request. The Third Circuit has directed the lower court to take another look at their standing to participate in this litigation. This is a volatile issue in Pennsylvania.

A Batch of PFOA Decisions
On May 18, 2020, the Second Circuit Court of Appeals decided a batch of cases which invoked federal diversity jurisdiction regarding claims that the contamination of a village’s water supply through the release of quantities of PFOA chemicals during the manufacturing operations of the defendant (the Saint-Gobain Performance Plastics Corporation) made the defendant liable for damages. Saint-Gobain, citing New York state law, objected to the lower court’s ruling that allowed the litigation to proceed. The Second Circuit largely rejected these appeals. We can expect to see more of these PFOA cases, although EPA has not yet determined that the chemical is a hazardous substance.


“Regulatory Relief to Support Economic Recovery”
The President’s latest Executive Order was signed on May 19, 2020. The policy is pretty straightforward: “agencies must continue to remove barriers to the greatest engine of economic prosperity the world has ever known: the innovation, initiative, and drive of the American people.” Accordingly, the Order provides that: (1) “federal agencies” (which is broadly defined in the law) will address the economic emergency by rescinding, modifying, waiving, or providing exceptions from regulations and other requirements that may inhibit economic recovery, “consistent with applicable law and the protection of public health and safety; (2) the terms used in this Order are specifically defined; (3) the heads of all agencies are directed to use, to the extent of their authority to support the economic response to the COVID-19 outbreak; (4) except for the Department of Justice, all agencies shall accelerate procedures by which a regulated person or entity may receive a “pre-enforcement ruling”a feature of the President’s recent administrative reform Executive Orderwith respect to whether the proposed conduct is consistent with the laws and regulations administered by the agency; (5) the heads of all agencies shall consider the principles of fairness in administrative enforcement and adjudication; and (6) agency heads will review the regulatory standards they have temporarily suspended or modified. Typically, the Office of Management and Budget provides implementing guidance to the agencies.