On August 21, 2015, the U.S. District Court for the Northern District of Texas, presiding over a Clean Air Act (CAA) enforcement proceeding, granted the defendants’ motion to dismiss several alleged violations of the CAA on the basis that the prosecution of these violations was time-barred. The case is U.S. v. Luminant Generation Company, LLC, and Big Brown Power Company, LLC.
On August 27, 2015, the U.S. District Court for the District of North Dakota, Southeastern Division, issued a preliminary injunction enjoining the new rule jointly promulgated by EPA and the U.S. Army Corps of Engineers redefining “Waters of the United States,” which is a linchpin of federal regulatory jurisdiction under the Clean Water Act. Twelve States, and representatives of New Mexico executive departments filed a lawsuit challenging the new rule, and also requested the issuance of a preliminary injunction. Ruling that the new rule has only “an attenuated connection to any permitting process”, the District Court held that it had jurisdiction to hear this case, and that the plaintiffs demonstrated a substantial likelihood that they would succeed on the merits and met the other criteria necessary to obtain a preliminary injunction. The case is State of North Dakota, et al., v. EPA and U.S. Army Corps of Engineers.
The U.S. Court of Appeals for the Ninth Circuit issued a ruling Friday in the case of ONRC Action v. United States Bureau of Reclamation. Affirming the district court, the Court of Appeals held that the transfer of water into the Klamath River by means of the Klamath Straits Drain, as part of the Klamath Irrigation Project operated by the Bureau of Reclamation (Bureau) in parts of California and Oregon, is not the discharge of pollutants into waters of the United States without a permit. Continue Reading ›
On August 19, 2015, the U.S. Court of Appeals for the Second Circuit issued a ruling discussing the impact of New York State’s “Fracking Moratorium” on some existing oil and gas leases. The case is Beardslee, et al., v. Inflection Energy, LLC, et al. The Court of Appeals affirmed the district court’s decision to grant a motion for summary judgment filed by a group of landowners located in Tioga County, New York. The district court had concluded that the parties’ five-year oil and gas leases had expired by their terms and that the leases’ force majeure clauses did not extend the leases’ primary terms. It did so despite the energy companies’ arguments that New York Fracking Moratorium amounted to a force majeure automatically extending the term of these leases.
In the latest ruling in the case of National Association of Manufacturers, et al., v. SEC, a divided panel of the U.S. Court of Appeals for the District of Columbia held today that the Secuiety and Exchange Commission’s “conflict minerals” rule’s compelled disclosures—affecting the acquisition of certain minerals produced in the Democratic Republic of the Congo—and indeed Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 203, H.R. 4173) (commonly referred to as Dodd-Frank), violate the First Amendment and are unconstitutional. Two Senior Circuit judges (Randolph and Sentelle) formed the majority, and Judge Srinivasan dissented.
On August 11, 2015, the U.S. District Court for the Northern District of California, San Jose Division, issued a long ruling deciding a challenge to a new rule, adopted by the U.S. Fish and Wildlife Service (FWS) in December 2013, which increased the maximum duration of a “programmatic permit” to “take” bald and golden eagles incident to otherwise lawful activities from 5 to 30 years. The case is Shearwater, et. al. v. Dan Ashe, Director, U.S. Fish and Wildlife Service, et al.
In Minnick, et al., v. Commissioner of Internal Revenue, decided on August 12, 2015, involves conservation easements. The U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. Tax Court’s decision that disallowed a charitable deduction under Treasury Regulation § 1.170A-14(g)(2) claimed by the taxpayers for the donation of a conservation easement, a widely-used vehicle to safeguard lands from commercial development that could adversely affect environmental values. Continue Reading ›
The U.S. Court of Appeals for the Fifth Circuit issued an interesting ruling on July 31, 2015 that is excellent guide to this esoteric corner of federal government regulation and practice. In the case of Bodie S. Knapp dba The Wild Side v. U.S.D.A, the Court of Appeals largely upheld a governmental order levying a fine of $398,900 against Knapp for buying and selling regulated animals without a license, in violation of the Animal Welfare Act.
On August 10, 2015, the U.S. Court of Appeals for the Ninth Circuit issued a very rare Writ of Mandamus, directing the EPA to issue a “full and final response” by October 31, 2015 to a pesticide regulatory petition filed several years ago by the Pesticide Action Network North America. The case is In re Pesticide Action Network North America and Natural Resources Defense Council, Inc. v. EPA.
In another recent Fifth Circuit case, Cox Operating , L.L.C. v. St. Paul Surplus Lines Insurance Company, decided July 30, 2015, the Court of Appeals issued an important environmental/insurance ruling in an insurance recovery controversy. The Court of Appeals affirmed the lower court’s decision that the insurance company breached its policy commitments to Cox, by failing to cover Cox’s costs for the millions of dollars that the company spent to clean up the pollution and debris caused to Cox’s Louisiana oil and gas facilities after they were severely damaged by Hurricane Katrina in 2005.
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