The American Arbitration Association (AAA) recently revised its Construction Industry Arbitration Rules and Mediation Procedures, effective July 1, 2015. Some changes are relatively modest, but others expand the powers of the arbitrator and may alter traditional assumptions underlying the selection of arbitration as a dispute resolution process for construction projects.
On July 20, 2015, the U.S. Court of Appeals for the Fifth Circuit again turned aside a challenge to the State of Texas’ “flexible permit” program, which is reserved for Clean Air Act permitting of minor sources of air pollution. The program has been in effect since 1994, but a 2010 EPA disapproval of the Texas State Implementation Plan (SIP) was appealed to the Fifth Circuit, which reversed the EPA’s determination. See Texas v. US EPA, 690 F. 3d 670 (5th Cir. 2012). EPA thereafter conditionally approved the Texas State Implementation Plan (“SIP”) and the flexible permit program, but a group of citizen/environmental groups challenged the EPA’s approval. Concluding that “our earlier opinion controls here”, the court held that the EPA’s action was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law; “to the contrary, it was explicitly in accordance with the law set out in our 2012 opinion”. The case is Environmental Integrity Project, et. al. v. EPA.
In the case of Energy Future Coalition, et al. v. EPA, decided July 14, 2015, the D.C. Circuit Court of Appelas rejected a challenge to 2014 EPA rules regulating emission testing requirements for new motor vehicles– 40 C.F.R. § 1065.701(a). The rule requires that a “test fuel” be used by the manufacturers that is “commercially available”. The petitioners, representatives of biofuel producers whose fuel contains 30% ethanol, complain that since their fuel is not designated as being “commercially available” by EPA, the rule adversely affects them and is arbitrary and capricious. The Court of Appeals rejected this challenge because EPA’s rules were simply reflecting the statutory scheme enacted by the Congress.
In a ruling issued July 13, 2015, the U.S. Court of Appeals for the Tenth Circuit affirmed the decision of the lower court dismissing the claim of the Energy and Environment Legal Institute (EELI) that Colorado’s renewable energy mandate, as approved by Colorado voters, violates the “dormant commerce clause” of the U.S. Constitution. The case is Energy and Environment Legal Institute, et al., v. Epel, Tarpey, Patton, Commissioners of the Colorado Public Utilities Commission.
Recently, Pillsbury attorneys Fred Lowell , Emily Erlingsson, Anita Mayo and Kathy Donovan published their client alert titled D.C. Circuit Upholds 44-Year-Old Ban, The answer is still “no” for individual federal contractors wishing to contribute to federal candidates and parties. The Alert discusses the U.S. Court of Appeals for the District of Columbia Circuit’s recent decision in Wagner, et al., v. Federal Election Commission, upholding the ban on individual federal contractor contributions to federal candidates and political parties. The same rationale should apply to corporate federal contractors. The Court of Appeals did not address the ban on federal contributions by corporate federal contractors or whether federal government contractors may make independent expenditures or contributions to Super PACs.
Additional Source: Federal Election Commission, Court of Appeals Issues Opinion in Wagner, et al. v. FEC
On July 8, 2015, the Eighth Circuit Court of Appeals rejected petitioner Lion Oil Company’s appeal of EPA’s denial of this small El Dorado, Arkansas’ refinery’s petition that its exception from the Renewable Fuel Standard program be extended for another year (through 2013), citing disruption to a key supply pipeline and noting its “financial position has not improved.” Lion Oil Company previously received exemptions through 2012. The case is Lion Oil Company v. EPA.
By law, “small” refineries (those that process 75,000 or less of crude oil on a daily basis) were excepted from the RFS obligations for two years (until 2011), and this exception could be extended for additional periods if the refinery could demonstrate a “disproportionate economic hardship”. See, generally, 42 U.S.C. § 7545. EPA must coordinate its review of such petitions with the Department of Energy (DOE), which was directed to conduct a study to determine whether Lion Oil Company would face such hardships.
Pillsbury attorneys Julia Judish and Osama Hamady recently published their client alert titled Second Circuit Develops “Primary Beneficiary” Test to Evaluate Unpaid Internships. The Alert discusses the Court of Appeals for the Second Circuit’s adoption of a “primary beneficiary” test for evaluating whether unpaid interns are employees for purposes of the Fair Labor Standards Act (FLSA). Rejecting a six-factor test that the U.S. Department of Labor has used for over forty-five years, the Second Circuit, in held “the proper question is whether the intern or the employer is the primary beneficiary of the relationship.” The Second Circuit’s decision in Glatt, et al., v. Fox Searchlight Pictures, Inc., et al., Case Nos.13-4478-cv, 13-4481-cv, decided on July 2, 2015, vacated a district court judgment that two interns on the movie Black Swan had been improperly classified as unpaid interns rather than employees. The Second Circuit also held that, under the “primary beneficiary” standard, “the question of an intern’s employment status is a highly individualized inquiry,” and therefore vacated the district court’s orders conditionally certifying a nationwide FLSA collective action and certifying a class of New York interns.
Today, Pillsbury attorneys Jon Russo, Peter Hunt and Matthew Kane, and summer associate Royce Liu published their client alert titled SEC Proposes Broad Executive Compensation Clawback Rules in Connection with Accounting Restatements. The Alert discusses the SEC’s proposed recovery provisions that would apply on a no-fault basis to executive officers of virtually all exchange-listed companies who received incentive-based compensation during the 3 fiscal years preceding an accounting restatement to correct a material error. The Alert encourages issuers to consider how the proposed rules may affect their executive compensation policies and plans, clawback policies, employment agreements and indemnification arrangements.
The Third Circuit Court of Appeals has unanimously affirmed the lower court’s ruling that the Chesapeake Bay “total maximum daily load” (TMDL), developed over many years to address pollution in Chesapeake Bay, was consistent with the Clean Water Act (CWA) and the U.S. Constitution’s division of powers between the states and the federal government. The case is American Farm Bureau Federation, et al., v. EPA, et al.
In 2010, EPA published the TMDL for nitrogen, phosphorus and sediment that can be released into Chesapeake Bay. The Bay’s watershed consists of 64,000 square miles and contains tens of thousands of lakes, rivers streams and creeks all flowing into the Bay. It has a surface area of 4500 square miles and almost 12,000 miles of shoreline, and it is estimated that by 2030, 20 million people will live in the watershed–by any measure, this TMDL–and the environmental problems it confronts–is very significant. Many trade associations, led by the American Farm Bureau Federation, have argued that all aspects of the Chesapeake Bay TMDL, which go beyond the tally of the allowable sum of pollutants that the Bay can safely absorb every day, exceeds the scope of EPA’s authority under the CWA. Moreover, they argue that EPA’s actions will have the effect of unlawfully intruding upon the states’ traditional role in regulating land use. However, this latter argument has not been successful with the states immediately involved with the TMDL–Virginia, West Virginia, Maryland, Delaware, Pennsylvania and the District of Columbia–that ceded authority to EPA to devise this plan, nor with the District Courts or the Court of Appeals.
Today, Pillsbury attorneys Julia Judish, John Scalia and Paula Weber published their client alert titled The U.S. Department of Labor Moves to More Than Double Minimum Salary Levels. The Alert discusses the U.S. Department of Labor’s (DOL) long-awaited Notice of Proposed Rulemaking to amend the Fair Labor Standards Act regulations implementing the exemption from minimum wage and overtime pay for executive, administrative, professional, outside sales and computer employees (known as the “white collar” or “EAP” exemptions). The proposed rule would more than double the minimum salary level required to meet the executive, administrative, or professional exemption to $50,440 annually with automatic increases every year. The DOL estimates that 21.4 million currently exempt EAP employees would become eligible for overtime payments if the proposed rule goes into effect.
