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The 2016 Consolidated Appropriations Act (H.R. 2822) is divided into several divisions, reflecting separate appropriations acts. A cursory reading of this massive legislation discloses a few environmental and regulatory provisions of interest:money

  • Almost all of these appropriations bills included language specifically forbidding the use of federal funds by the agencies to indirectly lobby the Congress on legislative actions;
  • $200,000,000 is appropriated to the Corps of Engineers for the administration of its permitting and regulatory programs regarding navigable waters and wetlands;

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In IRS Provides Additional Guidance on Treatment of Same-Sex Marriages under Benefit Plans, Pillsbury partner Peter Hunt and senior law clerk Benjamin Asch discuss the IRS’s guidance in IRS 2015-86, in which  provides guidance to sponsors and Rainbowadministrators of employee benefit plans regarding the application of the U.S. Supreme Court’s decision in Obergefell v. Hodges to plan participants with same-sex spouses.

Photo:  Steve Snodgrass March 3, 2012 – Creative Commons

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On Friday, the Court of Appeals for the District of Columbia declined to entertain EPA’s argument that it could dictate venue for review of its decision by including within the decision that it would have “nationwide scope or effect.” Pursuant to Section 307(b)(1) of the CAA, venue over challenges to EPA actions lie exclusively with the Court of Appeals for the District of Columbia only if (1) the final action taken by EPA is “nationally applicable” or (2) EPA found that its final action was based on a determination of “nationwide scope or effect” and it published this finding. Ultimately, the Court of Appeals, in Dalton Trucking, Inc., et al., v. EPA, et al., held that venue was not proper in the District of Columbia and dismissed the petitions for review of EPA’s authorization of the California Air Resources Board (CARB) regulations.

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In their alert “Reverse CEQA” Reversed, California Supreme Court Rejects CEQA Analysis of Impacts of the Environment on the Project, Pillsbury attorney David Farabee discusses the California Supreme Court’s recent rejection of a requirement of so-called “reverse CEQA” analysis, concluding that “CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents.” The case is California Building Industry Association v. Bay Area Air Quality Management District, Case No. S213478 (December 17, 2015).

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For several years, EPA has encouraged the regulated community to audit their facilities for compliance with environmental laws, and to self-disclose to EPA any violations noted in the audit to obtain reductions to or even eliminate altogether civil penalties if the report is made on a timely basis and demonstrates that the violations are being corrected promptly. epa web portalThese policies were announced in April 2000 with a special policy made available to small businesses (the Small Business Compliance Policy). In 2008, the benefits of the policy were extended to new owners to encourage them to undertake an environmental audit of the facilities they were purchasing to address and correct existing environmental violations and to take advantage of the opportunity provided by the Audit Policy to embark upon a “fresh start” with EPA. The result of these polices was to dramatically expand the scope of environmental auditing, which, EPA has concluded,  resulted in

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Public and private contractors take note of new law in Nevada that limits retainage for both public and private works contracts to five percent. Previously, for public works contracts, a public body undertaking a public work was permitted to withhold as a retainage at least five percent from progress payments made to a contractor during the first half of the project and, after completion of half of the project, the amount of the retainage became optional. Under amended Section 338.515(1) of the Nevada Revised Statutes (NRS), five percent must be withheld as retainage until 50 percent of the work required by the contract has been performed. In contrast to public works projects,

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In New Legislation Threatens to Further Erode Market Share of Non-Trade Union Contractors in California, Pillsbury attorneys Chris Rodriguez, Rob James, John Heisse, Andrew Bluth, and Marissa O’Connor discuss two new laws that go into effect in January 2016 that are expected to change the face of various public and private construction projects in California.  According to them, these new laws are part of an ongoing effort by the State Building and Construction Trades Council of California (SBCTC) to force public and private owners to use SBCTC-affiliated contractors for various construction work and to impose  obligations traditionally tied to public works—e.g., prevailing wage  requirements—even on private construction projects.

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For contractors who often subject to one or more of federal environmental laws or regulations, below is a brief report on some the significant environmental law and administrative cases decided since late June of 2015 by jurisdiction:

District of Columbia

Energy Future Coalition, et al. v. EPA, et al., 793 F.3d 141 (D.C. Cir. July 14, 2015) — The U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) rejected a challenge to 2014 EPA rules regulating emission testing requirements for new motor vehicles, 40 C.F.R. § 1065.701(a), concluding that EPA’s rules were simply reflecting the statutory scheme enacted by the Congress.

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Owners of some farms subject to EPA’s Spill Prevention, Control, and Countermeasures (SPCC) Regulation will be relieved to hear that some relief from the rigid requirements is here. EPA’s SPCC Regulation applies to nearly everyone—including farms—who manages “oil” in regulated quantities in locations where, due to the location of the oil storage facilities, any spill or release of that oil in harmful quantities could reasonably be expected to be discharged into the navigable waters of the United States in violation of the CWA. The SPCC Regulation requires the preparation of an SPCC plan that complies with 40 C.F.R. § 112.7, and can trigger training and plan certification by qualified engineers. For some farms, this is a burdensome and expensive compliance requirement.

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Everyone potentially exposed to civil penalties available under the Clean Water Act eight(CWA), 33 U.S.C. § 1321(b)(7), should familiarize themselves with the eight factors a court will consider when deciding what penalty should be assessed. In the case known as “Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010,” for Anadarko Petroleum Corporation, these factors made the difference between a penalty in the millions and one in the billions.

Upon consideration of the first six factors set forth in Section 1321(b)(8) of the CWA for the assessment of a civil penalty, on November 30, 2015, Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana issued a ruling finding Anadarko Petroleum Corporation, a “co-owner” of the Macondo Well, liable to the United States for civil penalties in the amount of $159.5 million. The maximum penalty that could have been assessed was $3.5 billion, but Judge Barbier concluded, after weighing the eight factors, that a civil penalty of $159.5 million would be appropriate because, as a non-operating co-owner, Anadarko’s penalty should be limited to $50 per barrel, and not $1100 per barrel. 

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