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On November 27, 2018, the U.S. Supreme Court issued a ruling vacating and remanding the U.S. Court of Appeals for the Fifth Circuit’s decision in Weyerhaeuser Company v. U.S. Fish and Wildlife Service. The Court of Appeals had affirmed the District Court’s ruling that the U.S. Fish and Wildlife Service (Service) properly designated, under the Endangered Species Act (ESA), a large tract of land located in Louisiana as a critical habitat suitable for the endangered Dusky Gopher Frog, which currently is only found in Mississippi. This is an important ruling under the ESA, and it will be very interesting to see what happens when the case is returned to the Fifth Circuit.

The Louisiana land is owned by the Weyerhaeuser Company and a group of family landowners, who have challenged these decisions of the Service and the lower federal courts. Weyerhaeuser Company v. United States Fish and Wildlife Service was argued on October 1, 2018. Justice Kavanaugh did not participate because he was not on the Court at the time of the oral argument. Continue Reading ›

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This update follows an earlier post discussing Proposition 10’s potential impacts and pre-election prospects, available here.

What happened on Election Day
Despite California’s sky-high rents, voters just rejected a ballot measure that would have allowed cities to expand rent control. With 100% of precincts reporting, 61.7% of voters opposed Prop 10, while 38.3% voted to approve the measure. The ballot measure only achieved a majority in one of California’s fifty-eight counties, San Francisco. In Los Angeles County, 47.2% of voters supported the proposition. However, the ballot measure fared substantially worse in Sacramento, San Diego, Fresno and Orange counties. These results highlight the measure’s widespread unpopularity.

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On November 7, the Office of the Attorney General issued a Memorandum re: Principles and Procedures for Civil Consent Decrees and Settlement Agreements with State and Local Governmental Entities. This Memorandum is based largely on federalism concerns. It is anticipated that the policy on consent decrees with state and local governments is likely to have an impact on environmental enforcement actions.

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Pillsbury attorneys Stephan E. Becker, Charles F. Donley II, Emily B. Erlingsson, Brian E. Finch, Aimee P. Ghosh, Meghan C. Hammond, Laura E. Jennings, The Honorable Gregory H. Laughlin, Jeffrey S. Merrifield, Matthew Oresman, Craig J. Saperstein, Edward W. Sauer, and  Deborah S. Thoren-Peden discuss the 2018 Midterm Election and assess some of the top issues where the incoming 116th Congress will likely be most active, including:

  • Congressional Investigations
  • Financial Services
  • Tax Reform
  • Cybersecurity and Privacy
  • Foreign Policy, International Trade, and Sanctions
  • Energy and the Environment
  • Transportation and Aviation
  • Health Care
  • State and Local Government
  • Compliance, Ethics, and Campaign Reform

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Pillsbury energy partner Rob James authored Energy 2019: USA, in which he provides an overview of the current U.S. energy marketplace and discuss

  • Ongoing incentives at the state level for offshore wind, other forms of renewable power, and electric storage;
  • Impacts of dueling tariffs and trade restrictions on the energy industry;
  • Reversals of federal policy on greenhouse gas emissions and on lands open to hydrocarbon development;
  • The Federal Energy Regulatory Commission’s decision in Calpine v. PJM Interconnection and its consequences for wholesale electricity markets; and
  • Cybersecurity and blockchain developments affecting the national grid.

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On October 30, in Sinnok, et al. v. State of Alaska, et al., the Superior Court, sitting in Anchorage, AK, granted the state’s motion to dismiss the plaintiffs’ (a “group of Alaska youth ages 5 to 20”) complaints that the state has contributed to climate change through its actions with respect to fossil fuels and carbon emissions. The plaintiffs sought injunctive relief in the form of a court order to the state to prepare an accounting of carbon emissions and to create a climate recovery plan. They also sought a declaratory ruling that the state’s actions violated their fundamental rights to a “stable climate system.”

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On September 30, the U.S. District Court for the District of Massachusetts issued a ruling dismissing claims that the operation of a municipal waste landfill violated the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) provisions making actionable any “substantial endangerment to human health and the environment.” The case is Toxics Action Center v. Casella Waste Sys., Inc., et al..

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On October 29, the U.S. Department of Transportation (DOT) published a final rule in the Federal Register which amends and revises the environmental National Environmental Policy Act (NEPA) procedures rules employed by the Federal Highway Administration (FHWA), the Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA). There is a renewed interest in transportation infrastructure projects, and recent legislation is intended to accelerate required environmental reviews.

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On October 30, the U.S. Court of Appeals for the Third Circuit decided the case of Transcontinental Gas Pipe Line Co., LLC v. Permanent Easements for 2.14 Acres, et al. , affirming the District Court’s grant of a preliminary injunction to Transcontinental Gas Pipe Line Company, LLC (Transcontinental). This case involves the construction of the “Atlantic Sunrise Expansion Project,” a natural gas pipeline that runs through Pennsylvania, Maryland, Virginia, North Carolina and South Carolina.

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On October 18, the Illinois Supreme Court decided the case of Ameren Transmission Co. of Illinois v. Hutchings, et al. According to the Illinois Supreme Court, there is no presumption that Illinois courts have subject-matter jurisdiction over administrative actions. The availability of any review of this determination was controlled by the Public Utility Act (PUA), and under that law, the Circuit Court had no authority to assess the constitutionality of the Illinois Commerce Commission’s (Commission) proceedings when it was sitting as a court of general jurisdiction.

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