The U.S. District Court for the Western District of Oklahoma has dismissed the Sierra Club’s Resource Conservation and Recovery Act (RCRA) citizen suit, filed against several oil and gas producers seeking declaratory and injunctive relief. The District Court invoked the Burford abstention doctrine (Burford v. Sun Oil Co.) and primary jurisdiction doctrine to step away from this case, dismissing the RCRA citizen suit without prejudice. The case is Sierra Club v. Chesapeake Operating, LLC, et al.
On April 4, the U.S. Court of Appeals for the Third Circuit decided the case of Mirabella v. Villard, et al., a civil rights case brought under 42 U.S.C. § 1983, alleging, inter alia, violations of their First Amendment rights by local officials. Although the Court of Appeals concluded that the Mirabellas adequately alleged both a retaliation claim and a violation of their right to petition, it concluded that the rights allegedly violated “were not clearly established for the purpose of qualified immunity.” The Court of Appeal reversed the District Court’s ruling on the local officials motion to dismiss with instruction to enter judgment in their favor.
The U.S. Court of Appeals for the Fourth Circuit has decided the case of North Carolina v. Alcoa Power Generating, Inc. The Court of Appeals affirmed, in a 2 to 1 ruling, the decision of the U.S. District Court for the Eastern District of North Carolina that a relevant segment of North Carolina’s Yadkin River—on which Alcoa Power Generating, Inc. (Alcoa) has constructed and operated for many years hydroelectric dams to supply power to its neighboring aluminum smelter—was not “navigable” at the time of North Carolina’ statehood (1789). Consequently, the State could not claim title to this segment as an aspect of state sovereignty.
On March 23, the Colorado Court of Appeals issued a ruling reversing the trial court and the Colorado Oil and Gas Conservation Commission which had denied the petitioners’ request that the Commission, when promulgating rules affecting oil and gas production operations and activities in Colorado, be required to consider public health and environmental conditions to be determinative. The case is Martinez, et al., v. Colorado Oil and Gas Conservation Commission. The American Petroleum Institute and the Colorado Petroleum Association were intervenors, and a large number of environmental groups supported the petitioners. Continue Reading ›
In Potentially Costly Nuclear Rulemaking Proposed, NRC targets include oil & gas industry, cancer treatment providers, sterilization facilities and radiographers, Pillsbury attorney Jay Silberg discusses the Nuclear Regulatory Commission (NRC) staff’s recent recommendation that the NRC undertake a rulemaking requiring licensees to provide financial assurance (or set aside funds) to cover the cost of the disposition of certain Category 1 & 2 sources.
In Trump Jettisons Obama Climate Policies, President Trump signed a sweeping Executive Order initiating the rollback of the Clean Power Plan and requiring a broad regulatory review of energy and environmental regulation under a new “burden” standard, we discuss President Trump’s sweeping Executive Order initiating the rollback of the Clean Power Plan and requiring a broad regulatory review of energy and environmental regulation under a new “burden” standard.
Additional Source: Executive Order Promoting Energy Independent and Economic Growth (March 28, 2017)
UPDATE: U.S. Supreme Court asked to review feds’ prairie dog regulation
On March 29, in the case of People For the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, et al., the U.S. Court of Appeals for the Tenth Circuit issued a unanimous decision that the Endangered Species Act (ESA) and its implementing regulations can, consistent with the Commerce Clause in the U.S. Constitution, regulate the “take” of the Utah prairie dog, a threatened and purely intrastate species, even when it is located in nonfederal land.
On March 22, in the case of Delaware Riverkeeper Network, et al., v. FERC, the U.S. District Court for the District of Columbia dismissed the plaintiffs’ complaint that the statutory requirement that the Federal Regulatory Energy Commission (FERC) recover its annual operating costs directly from the entities it regulates results in perceived or actual bias against plaintiffs who contest applications for needed certificates from FERC. Because of this bias, the plaintiff asked the District Court either to declare FERC’s reimbursement mechanism to be unconstitutional or declare its power of eminent domain or authority to preempt state and local laws to be unconstitutional. Holding that the plaintiffs have failed to state a claim because allegations of actual bias cannot create structural bias where the court determines there is none, and the law does not on its face create an unconstitutional funding mechanism, the District Court granted FERC’s motion to dismiss.
On March 21, 2017, the U.S. Supreme Court decided the case of NLRB v. SW General, Inc., dba Southwest Ambulance. This case concerns the operation and application of the Federal Vacancies Reform Act of 1998 (FVRA).
Section 3345(a) of the FVRA permits three categories of Government officials to perform acting service in a vacant office requiring Presidential appointment and Senate confirmation (PAS office). Subsection (a)(1) prescribes the general rule that, if a vacancy arises in a PAS office, the first assistant to that office“shall perform” the office’s “functions and duties temporarily in an acting capacity.” Subsections (a)(2) and (a)(3) provide that, “notwithstanding paragraph (1),” the President “may direct” a person already serving in another PAS office, or a senior employee in the relevant agency, to serve in an acting capacity instead. However, Section 3345 makes certain individuals ineligible for acting service. Subsection (b)(1) specifically states: “Notwithstanding subsection (a)(1),a person may not serve as an acting officer for an office under this section” if the President nominates him for the vacant PAS office and, during the 365-day period preceding the vacancy, the person “did not serve in the position of first assistant” to that office or “served in [that] position . . . for less than 90 days.”
Two especially interesting decisions were released last Friday by the Texas Supreme Court.
In Engelman Irrigation District v. Shields Brothers, Inc., the Court affirmed the ruling of the Thirteenth Court of Appeals (sitting in Corpus Christi) that a decades-old (circa 1998) final judgment against a government entity—the Engelman Irrigation District—could not be declared void on the grounds that a 2006 ruling of the Texas Supreme Court on government immunity should be given retroactive effect in this instance. The Court refused to permit a collateral attack on a final judgment that became final several years before the 2006 decision was issued.
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