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Many large and complicated construction projects require the issuance of several differed permits having different requirements. Courts strive to interpret their requirements in a rational and reasonable manner.

On May 23, the U.S. Court of Appeals for the DC Circuit decided the case of Delaware Riverkeeper Network, et al. v. FERC. This case involves three federal statutes: the Natural Gas Act, 15 U.S.C. §§ 717 et seq. (NGA), the Clean Water Act,  formally titled the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251 et seq. (CWA); and the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (NEPA). Although the Federal Energy Regulatory Commission (FERC) administers only the NGA, all three statutes applied to FERC’s issuance of a Certificate of Public Convenience and Necessity (Certificate Order) conditionally approving the construction and operation of the proposed Leidy Project. This project is an expansion of the capacity of Transcontinental Gas Pipe Line Company, LLC’s (Transco) existing natural gas pipeline and addition of new facilities in Pennsylvania and New Jersey (the Leidy Project). FERC issued the Certificate Order prior to Transco obtaining a Section 401 of the CWA water quality certification from Pennsylvania (the state in which the discharge would originate).

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In Ouachita Watch League, et al., v. U.S. Forest Service, et al., decided May 30, the U.S. Court of Appeals for the Eighth Circuit dismissed for lack of jurisdiction an appeal of the District Court’s ruling that the plaintiff environmental groups could not obtain injunctive relief to stop further mineral leasing in the Ozark National Forest in Arkansas. It reasoned that insofar as the organizational plaintiffs relied on the generalized affidavit of the President of the Ozark Society to establish standing,  the affidavit fails to allege that a “particular member has a specific plan to use that forest” and consequently “there is no case or controversy before us, and we lack authority to adjudicate this dispute.”

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la densityAs Los Angeles continues to struggle with lagging development pace as compared to the national pace of housing creation, communities across the city grapple with the potential implications of permitting increased density. The dueling priorities of providing much-needed housing in one of the nation’s fastest-growing markets and maintaining neighborhood history and character continue to square off as the city assesses development across its many communities.

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Fundamental fairness requires that before a company doing business in several states is sued in a particular state that it has substantial contacts with that state. Merely being present in that state will not satisfy the jurisdictional requirement’s of a federal law such as the Federal Employers’ Liability Act, 45 U. S. C. §51 et seq. (FELA), as the U.S. Supreme Court just ruled in a closely watched case.

On May 30, the U.S. Supreme Court decided the case of BNSF Railway Company v. Terrell, et al., reversing the Montana Supreme Court.  The Montana Supreme Court held that Montana state courts had jurisdiction over two FELA lawsuits filed by on behalf of former employees against BNSF Railway Company even though, “while doing business in Montana, [it] was not incorporated in Montana nor did it maintain its principal place of business there.”

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Infrastructure investment is a global phenomenon with long-term implications for the regions and countries involved. As illustrated by two announcements last week, the United States and China have very different visions.

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san-fran-downtownAlmost 18 months after it was introduced, the San Francisco Board of Supervisors recently approved Ordinance 150969, which creates development bonuses for private development projects where at least 30% of the units are subject to affordability restrictions. Known as the HOME-SF Program, the legislation allows qualifying projects to exceed otherwise applicable height restrictions by up to 20 feet and allows developers to select three additional zoning modifications from a menu of options, which includes reductions in required rear-yard setbacks and modifications to parking, exposure, and open space requirements. HOME-SF projects must also include on-site family-friendly amenities, such as dedicated bicycle parking and stroller storage, open space, and yard dedicated for use by children.

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The recent Lightning Oil Company v. Anadarko E&P Onshore, LLC F/K/A Andarko E&P Company, LP, decision of the Texas Supreme Court, which clarified the rights and obligations of owners of the surface property and the mineral interests below, is very important to oil and gas law practitioners in Texas. The Court’s reasoning, and its measured opinion, may nevertheless be of interest to many lawyers in practicing in other areas. The Texas Supreme Court affirmed the ruling of the Fourth Court of Appeals sitting in San Antonio. The question before the Court was: “[W]hose permission is necessary for an oil and gas operator to drill through a mineral estate it does not own to reach minerals under an adjacent tract of land.” Is the mineral estate, through which the company wished to drill, the dominant estate whose permission is required before such directional drilling can begin?

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Litigating parties may be so invested in the rightness of their cause that they neglect to check the calendar, and the relevant stature of limitations. On May 19, the Texas Supreme Court decided the case of  Town of DISH, et al., v. Atmos Energy Corp., et al. Reversing the Seventh Court of Appeals, sitting in Amarillo, TX, the Court reinstated the summary judgment ruling of the trial court which dismissed the Town of DISH’s and some of its residents’ complaint regarding the operations of the energy companies located just outside the Town of DISH and within a half-mile of the residents’ properties as time-barred. The Court recognized that

Claims for nuisance “normally do not accrue when a potential source is under construction,” but “once operations begin and interference occurs, limitations runs against a nuisance claim just as any other.” Trespass claims are no different. And although completion of construction is not dispositive of an accrual date, it is a logical starting point, as “plaintiffs will usually know of unreasonable discomfort or annoyance promptly.”

(Internal citations omitted).

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The endless variety of federal regulatory programs are subject to the requirements of federal administrative law, i.e., the Administrative Procedures Act (APA). The APA is chiefly the province of the U.S. Court of Appeals for the District of Columbia Circuit. In a recent case involving the U.S. Department of Energy’s (DOE) implementation of a clean energy loan program, the District Court believed, following the conclusion of hearings in the court, that appropriate redress would result if the complaint was remanded, at DOE’s request, for additional review by DOE. When those proceedings were unsuccessful, the District Court dismissed the complaint. The Court of Appeals has now ruled that the requested remand should not have been granted, consistent with earlier precedential rulings by the Court of Appeals.

On May 19, in Limnia, Inc., v. U.S. Department of Energy, the Court of Appeals, returning the matter to the District Court to resolve Limnia, Inc.’s challenge to DOE’s denial of its clean-energy loan applications, confirmed that although “[a] district court has broad discretion to decide whether and when to grant an agency’s request for a voluntary remand,” “a voluntary remand is typically appropriate only when the agency intends to revisit the challenged agency decision on review.” In Limnia, the DOE, instead, “offered to review any new applications Limnia chose to submit, assuming that Limnia remitted the then-required application fees” “even though a central allegation of Limnia’s complaint was that the Department had waived the application fee associated with the Loan Guarantee Program.

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cannabis legalizationFollowing cannabis legalization in California, municipalities are beginning to face difficult decisions related to land use and planning. The challenge in siting industrial and residential uses, often in conflict, is not new for cities and their planners. But the new twist of cannabis growing and processing, treated as an industrial use in most cities, adds an added layer of complexity to land use decisions where lack of housing is also an issue.

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