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On September 4, 2015, the U.S. Court of Appeals for the Fifth Circuit issued an important ruling concerning the scope of the Migratory Bird Treaty Act of 1918, 16 U.S.C. § 703 (MBTA), and the federal government’s use  of an EPA rule regulating the operation of petroleum refinery wastewater treatment systems in a criminal prosecution.  The case is U.S. v. CITGO Petroleum Corporation; CITGO Refining and Chemical Company, L. P.  The Court of Appeals , in a unanimous opinion, reversed not only the jury’s determination that CITGO was guilty of violating the Clean Air Act (CAA), but also the trial court’s determination that CITGO was  guilty of violating the MBTA.  As a result, a $2 million criminal fine levied against CITGO, and separate $15,000 fines against CITGO for violating the MBTA, were set aside.

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California Governor Edmond G. (Jerry) Brown Jr. recently signed into law Senate Bill 633 (Hill), a bill that modernizes California’s “Made in U.S.A.” labeling standard to reflect the real-world market in which companies make products using components from around the globe. Continue Reading ›

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Starting January 1, 2016, New Hampshire will require persons who perform residential “mold assessment” services for remuneration to possess a valid national “third party certification” for mold assessment. Under the new law, any professional hired by a homeowner, in which the primary work contracted for is not mold assessment, will be exempt from the certification requirement.
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On September 1, 2015, the U.S. District Court for the Western District of Texas issued a ruling which vacates the April 2014 listing of the Lesser Prairie Chicken (LPC) as a threatened species pursuant to the Endangered Species Act.  The case is Permian Basin Petroleum Association, et al. v. Department of the Interior, et al. The lawsuit challenging the listing was filed on June 9, 2014.  The plaintiffs argued, and the District Court agreed, that the U.S. Fish and Wildlife Service was obliged to evaluate the LPC rangewide plan in accordance with the agency’s 2003 Policy for Evaluation of Conservation Efforts When Making Listing Decisions, and it failed to do so.  Accordingly, the listing of the LPC was arbitrary and capricious, and must be vacated.

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On August 30, 2015, U.S. District Court Judge Lynn Hughes of the U.S. District Court for the Southern District of Texas issued an opinion dismissing the Government’s lawsuit asserting that Thomas Lipar, a real estate developer, violated the Clean Water Act by discharging fill material into jurisdictional wetlands without a permit. According to Judge Hughes, the Government failed to establish that the wetlands in issue were jurisdictional waters.  In addition, Judge Hughes determined that EPA acted in bad faith, and throughout the 10 years these sites have been under investigation or in litigation, it has been “intractable, uncooperative and defiant”; indeed, its behavior has been “reprehensible”.  Consequently,  Judge Hughes has sanctioned the Government, requiring the United States to pay the defendant and the other defendant’s the reasonable attorney’s fees they incurred in defending this lawsuit.  The case is U.S. v. Lipar, et al.

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On July 29, 2015, Illinois Governor Bruce Rauner signed into law House Bill 2635 to amend Illinois’ Mechanic’s Lien Act (Act) to permit the substitution of an “eligible surety bond,” as defined, for a mechanic’s lien.  The new law expressly contemplates that a person may file a petition to substitute a bond for the lien on a property with the court of the county in which the property is located, and if there is a pending mechanic’s lien foreclosure action, the application may be filed at any time prior to 5 months after the filing of the mechanic’s lien foreclosure action complaint or counterclaim by a mechanic’s lien claimant.  If the court finds that an eligible surety bond has been posted, it is required to issue an order (1) substituting the bond for the property securing the lien claim; and (2) substituting the lien claimant’s right to recover on the bond for the lien claimant’s causes of action that could be asserted under Section 9, 27, or 28 of this Act. The new laws is effective January 1, 2016.

 

 

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On August 27, 2015, the U.S. Court of Appeals for the Eighth Circuit issued a Clean Water Act (CWA)  ruling affirming the decision of the lower court that STABL, Inc. the former owner and operator of a rendering plant in Lexington, Nebraska, violated the CWA and the Nebraska Environmental Protection Act.  The case is U.S., et al., v. v. STABL, Inc., formerly known as Nebraska By-Products, Inc.  This decision points out the heavy burden confronting defendants who argue that their discharge monitoring reports (DMRs) are unreliable, a burden the defendant was unable to overcome. Continue Reading ›

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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.

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Yesterday, Pillsbury attorney Robert Wallan published his client alert titled In Reversal, California Supreme Court Allows Assignment of Coverage for Liability Claims.  The Alert discusses the California Supreme Court’s reversal of its own heavily criticized decision in Henkel Corp. v. Hartford Accident & Indem. Co. (2003) 29 Cal. 4th 934.  The case is Fluor Corp. v. Superior Court.  The California Supreme Court announced that its rule against assignment, set forth in Henkel, must be reversed because the earlier decision failed to consider a 19th-century statute that dictates a ruling favoring assignability.

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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.