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Last week, the U.S. Supreme Court heard oral argument in two significant cases: Nat’l Assoc. of Mfr. v. Dep’t of Defense and Jesner v. Arab Bank, PLC.

In National Association of Manufacturers, the Court is being asked to determine which court is authorized to review the recent redefinition of “Waters of the United States” promulgated by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps of Engineers). The relevant statute is 33 U.S.C. § 1369(b)(1) and (2), and it is notorious for its complex provisions. If jurisdiction lies in the federal district courts, then many lawsuits are likely to be filed in courts throughout the country, creating uncertainty and stretching out the effective date of the new rule. If jurisdiction is limited to the courts of appeal, this should reduce the cost of litigation, but may be contrary to other provisions of the Clean Water Act (CWA).

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On October 3, in the case of Boerschig v. Trans-Pecos Pipeline, LLC, the U.S. Court of Appeals for the Fifth Circuit affirmed the lower court’s denial of request for a preliminary injunction to enjoin Texas state condemnation proceedings initiated by the pipeline defendant because, it was argued, these proceedings violated the Due Process Clause of the U.S. Constitution. The plaintiff landowner argued that the Texas law illegally delegated condemnation authority to a private party (the pipeline company), and that the process failed to provide an opportunity for the plaintiff to participate in a “predeprivation hearing” where the condemnation can be challenged. The Fifth Circuit concluded that the plaintiff was unable to establish a likelihood of success on the merit, a sine qua non for obtaining a preliminary injunction.

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On March 22, during the U.S. Supreme Court’s 2015 Term, the Court issued a unanimous ruling that the Ninth Circuit’s interpretation of the scope of the National Park Service’s authority to ban the use of a hovercraft on Alaska’s Nation River within the Yukon-Charley Rivers National Preserve was erroneous in that it failed to recognize that the Alaska National Interests Lands Conservation Act (ANILCA) had the effect of carving out an exception for the use of hovercraft in these waters that was permitted by Alaska. The petitioner, John Sturgeon, was warned by Park Service Rangers that his use of the hovercraft within the boundaries of the Yukon-Charley preserve was prohibited, and that he was committing a crime by doing so. After reviewing ANILCA and the different laws and accommodations that were enacted to facilitate Alaska’s entry into the Union, the Court concluded that the law “repeatedly recognizes that Alaska is different,” and the judgment of the Ninth Circuit was vacated, and remanded for further proceedings. This was the only issue decided by the Court, whose decision is reported as Sturgeon v. Frost.

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Title III of the Americans With Disabilities Act imposes a proactive duty on businesses subject to the ADA to remove architectural barriers and other obstacles that impede disabled persons’ access to an existing public accommodation. For years, lawmakers have grappled with how to protect disabled persons and, at the same time, not overburden those subject to the ADA. The House of Representatives’ so-called ADA Education and Reform Act of 2017 (H.R. 620) introduced earlier this year appears to be gaining some momentum after the House Judiciary Committee voted to advance it on September 7. Disabled persons interest groups are opposed to this bill, contending that it would chill businesses from being proactive about ensuring that disabled persons have access to their facilities.

In contrast, for years, businesses subject to the ADA have struggled to comply with the ADA and to contend with what they perceive as meritless complaints filed by drive-by plaintiffs alleging ADA violations without ever encountering a barrier to access. For new construction subject to the ADA, an occupancy permit issued by a local jurisdiction (or a building inspection), although not required to ensure ADA compliance, will often require review of the project for compliance with the accessibility requirements. Ensuring compliance with the access requirements for existing developments and redevelopments in many cases poses greater challenges because, as originally constructed, the structure may not have design features that are conducive to ADA compliance, requiring extraordinary expenditures to bring them into compliance.

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On September 27, the U.S. Court of Appeals for the Fifth Circuit issued its long-awaited opinion in the case of U.S. v. Moss, et al. The Fifth Circuit affirmed the District Court’s ruling that the Outer Continental Shelf Lands Act (OCSLA) regulations do not apply to the appellees.

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On September 14, 2017, the Council on Environmental Quality (CEQ), which oversees compliance with the National Environmental Policy Act (NEPA) by federal agencies, announced a list of planned actions to implement President Trump’s Executive Order (EO) on streamlining federal environmental reviews and approvals.

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On September 15, the U.S. Court of Appeals for the First Circuit released a significant Oil Pollution Act (OPA) ruling. The case is Ironshore Specialty Insurance Company v. U.S., et al. The Court of Appeals affirmed the District Court’s decision that neither the U.S. nor American Overseas Marine Company, LLC (AMSEA) , a contractor that provided specified services to the U.S. Navy in connection with the operation of “the FISHER,” a government-owned transport vessel and vehicle cargo ship, were liable under the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701-2761 (OPA), for a fuel oil discharge. However, Ironshore Specialty Insurance Company (Ironshore), BSR’s insurer, negligence claims against the U.S. (but not AMSEA) were remanded to the District Court for further proceedings.

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Whenever a claim is made that a state law has  been prempted by an analogous federal law, the courts will rigorously test the strength of the claim.  As as example, in a preemption case decided on September 15, by the U.S. Court of Appeals for the Ninth Circuit, Association des Éleveurs de Canards et d’Oies du Québec, et al., v. Becerra, the Ninth Circuit reversed the holding of the District Court that California’s statutory ban against the sale of products made from force-fed birds such as foie gras was preempted by the provisions of the federal Poultry Products Inspection Act (PPIA).

As described, the practice of force-feeding these birds to enlarge their livers is especially brutal. The California Assembly found that the process is “so hard on the birds that they would die from the pathological damage it inflicts if they weren’t slaughtered first.” Nevertheless, the District Court held that California statutory ban imposes an “ingredient requirement,” which was the sole province of the federal law.

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The Federal Energy Regulatory Commission’s (FERC) decision in the matter of Millennium Pipeline Company, LLC was issued on September 15, 2017. FERC determined that the New York State Department of Environmental Conservation (NYDEC) waived its right to act on a state Clean Water Act (CWA) 401 water qualification by failing to act before the statutory deadlines established by the CWA, 33 U.S.C. § 1341(a)(1), expired. This certification, required of most pipeline applications under the Natural Gas Act (NGA), provides that the State must act on a request for certification “within a reasonable time (which shall not exceed one year) after receipt of such request,” or “the certification requirements of this subsection shall be waived with respect to such Federal application.”

According to FERC, Millennium’s application was received by the NYDEC on November 23, 2015, and NYDEC was required by law to make its certification decision by November 23, 2016 and at least this obstacle to the construction of the “Valley Lateral Project” in Orange, NY has been surmounted.

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On September 7, the U.S. Court of Appeals for the Fifth Circuit granted a stay of a Federal Deposit Insurance Corporation (FDIC) order, following a hearing conducted by an agency administrative law judge (ALJ), assessing a civil penalty against a former banking officer and also requiring his withdrawal from the banking industry. The case is Burgess v. FDIC.

In so ruling, the Fifth Circuit joined the U.S. Court of Appeals for the Tenth Circuit, which concluded, in Bandimere v. SEC, that the Securities and Exchange Commission (SEC) ALJs were “inferior Officers” who are subject to the provisions of the U.S. Constitution’s Appointments Clause, U.S. CONST. art. II, § 2, cl. 2..

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