Articles Posted in Environmental

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On February 14, the U.S. District Court for the District of Columbia dismissed the complaint of the National American Butterfly Association (NABA) alleging that the U.S. Government’s border wall preparation and law enforcement activities at NABA’s National Butterfly Center, located in South Texas along the Rio Grande River, violated federal environmental laws (National Environmental Policy Act (NEPA)) and the Endangered Species Act (ESA)) as well as NABA’s constitutional rights. The case is National American Butterfly Association v. Nielsen, et al.

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On February 11, the U.S. Court of Appeals for the Ninth Circuit affirmed the District Court’s decision to grant a motion for summary judgment disposing of a complaint that the decision of the Secretary of Homeland Security (DHS) to expedite construction of border barriers in the San Diego and Calexico, CA border crossing areas was inconsistent with the Secretary’s powers under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as well as  the National Environmental Policy Act (NEPA) and other authorities. The case is In Re Border Infrastructure Environmental Litigation (Center for Biological Diversity, et al., v. U.S. Department of Homeland Security, et al.).

“As a threshold matter, we have jurisdiction to consider the ‘predicate legal question’ of whether IIRIRA authorizes the contested projects. Because the projects are statutorily authorized and DHS has waived the environmental laws California and the environmental groups seek to enforce, we affirm the district court’s grant of summary judgment to DHS.”

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On February 8, the U.S. District Court for the District of Columbia issued its latest ruling in a case which challenges the President’s January 30, 2017 Executive Order constraining the ability of federal agencies to issue new regulations and the Office of Management and Budget’s (OMB) implementation of that Order. The case is Public Citizen, Inc., et al. v. Donald J. Trump, President of the United States, et al. The District Court has not yet been convinced that the petitioning plaintiffs have standing to make this challenge to this Order, and its mandate that two existing rules be eliminated for each new rule promulgated.

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A Resolution has been proposed to the House for consideration that would recognize the Federal Government’s duty “to create a Green New Deal.”  It sets forth a very ambitious 10-year program to mobilize and transform every aspect of American life to combat the threats of climate change by transitioning to an economy based upon 100% clean and renewable energy.

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On February 4, the U.S. District Court for the District of Columbia held, in a Clean Air Act (CAA) Citizen Suit, that the U.S. Chemical and Safety Hazard Board (Board), an independent federal agency, has violated the Administrative Procedure Act (APA) by failing to promulgate the accidental release reporting rules required by Section 112(r )(6)( c )(iii) of the CAA. The Board was established by the 1990 Clean Air Act Amendments of 1990, but has failed in all these years to issue these rules. The case is Air Alliance Houston, et al., v. U.S. Chem. and Safety Hazard Investigation Bd.

As relief, the District Court directed the Board “to promulgate reporting regulations within 12 months of the date of the District Court’s order.”

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On January 25, the Texas Supreme Court issued a unanimous ruling in the case of Anadarko Petroleum Corp. and Anadarko E&P Co. v. Houston Cas. Co., et al., characterized as an “interlocutory permissive appeal,” reversing the decision of the U.S. Court of Appeals for the Ninth Circuit, sitting in Beaumont, TX, regarding Anadarko’s insurers’ obligation to pay a significant amount of Anadarko’s legal defense costs that resulted from its liability in the Deepwater Horizon oil spill.

“[W]e hold that the Joint Venture Provision does not limit the Underwriters’ liability for Anadarko’s defense expenses insured under section III.”

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Recently, our colleagues Amanda Halter, and Ashleigh Acevedo published their Client Alert titled BSEE Decommission-in-Place Discussions Present Opportunity discussing the Department of Interior’s Bureau of Safety and Environmental Enforcement’s (BSEE) Request for Information Regarding Potential Impacts of Decommissioning-in-Place of Pipeline-Related Infrastructure in Deepwater.  Takeaways include:

  • BSEE is asking for input on technical, safety and environmental and other factors that should be included as decom-in-place decision-making considerations for pipeline infrastructures in deepwater on the Outer Continental shelf (OCS).
  • Companies with potentially affected assets have an opportunity to advance more predictable and holistic decision-making by commenting on whether and under what circumstances the BSEE should allow decommissioning-in-place of these pipeline-related infrastructures.

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There were 442 bills passed by the 115th Congress and signed by the President. Most of these new laws have attracted very little attention, so it may be helpful to review a few of them. The list below provides a glimpse into the myriad issues that face each Congress, and the implementation issues that will be the responsibility of the federal agencies:

• PL 115-265, the Save our Seas Act of 2018. The law reauthorizes and amends the Marine Debris Act, located at 33 U.S.C. § 1952, to “promote international action to remove marine debris”. The law requires the Department of State and other federal agencies to develop outreach and educational strategies to address the source of marine debris and provide technical assistance reduce the incidence of marine debris and provide technical assistance to expand waste management systems on an international basis. In case of a “severe marine debris” event, to assist in the cleanup. It is also the sense of Congress that the President should support research and development on systems that result in the reduction of derelict fishing gear and land-based sources of debris that enters the marine environment. The law addresses the membership of an Interagency Marine Debris Coordination Committee. The enormous amount of plastic waste deposited in the ocean must have been a concern to the legislators. Continue Reading ›

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On January 14, the Colorado Supreme Court issued a unanimous opinion that the Colorado Oil and Gas Conservation Commission (Commission) properly declined to undertake a rulemaking proceeding that was designed to preclude the Commission from issuing new permits unless the “best available science,” as confirmed by the findings of an independent third-party organization, determines that the drilling will occur in a manner that does not cumulatively impair the state’s atmosphere, water, wildlife, land resources and does not contribute to climate change. The case is Colorado Oil and Gas Conservation Commission, et al., v. Martinez, et al.

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Today, the U.S. Supreme Court confirmed that it will review the U.S. Court of Appeals Ninth Circuit’s February 2018 ruling in Newton v. Parker Drilling Management Services, Ltd. which held that California’s wage and hour laws can apply to  claims made by workers employees on Outer Continental Shelf (OCS) platforms where federal law is preeminent—except where there is a gap in legal protection that can be filled by the laws of the  adjacent state.  This ruling, the Petition for Writ of Certiorari agues, was in conflict with the rulings of other federal circuit courts, especially the U.S. Court of Appeals for the Fifth Circuit. Otherwise, these OCS claims are subject to the Federal Fair Labor Standards Act.

Additional Source: Ninth Circuit Remands OCSLA Wage and Hour Complaint to Central District