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In a decision released on June 11, 2015, the U.S. Court of Appeals for the Ninth Circuit, by a 2 to 1 decision, affirmed the lower court’s grant of summary judgments in favor of the Department of the Interior, the Bureau of Safety and Environmental Enforcement (the Bureau) and two Shell Oil entities, Shell Gulf of Mexico, Inc. and Shell Offshore, Inc. with respect to the Bureau’s approval of Shell’s oil spill response plans. These companies were awarded leases to explore for oil in the Beaufort and Chukchi Seas off Alaska’s Arctic coast, and the court noted Shell’s plans have been “waylaid by a variety of legal, logistical, and environmental problems, including multiple lawsuits, the wreck of one of its drilling rigs, and the temporary suspension of drilling activities in the Arctic after the Deepwater Horizon spill.” At least eight separate challenges to the Shell leases have been heard by the Ninth Circuit to date. Several environmental organizations challenged the decision of the government to approve two of Shell’s oil spill response plans, arguing that the approval was arbitrary and capricious in violation of the Administrative Procedure Act.
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In late May, the California Department of Insurance (CDI) issued a press release announcing that it was involved in a multi-agency team that conducted a statewide outreach and enforcement effort targeting what it describes as a “thriving underground economy.” The enforcements teams included the Department of Industrial Relations, Contractors State License Board, CDI, Franchise Tax Board and Employment Development Department and several district attorney investigators.
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In the case of GeorgiaCarry.Org, Inc., et al., v. U.S. Army Corps of Engineers, decided June 9, 2015, the Eleventh Circuit Court of Appeals affirmed the decision of the lower court to deny a request for a preliminary injunction against the enforcement of the Corps’ regulation that prohibits loaded firearms and ammunition form federal property managed by the Corps. The rule is located at 36 C.F.R. § 327.13.
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UPDATE: Cal/OSHA issued a high heat advisory today (June 16) advising employers to protect employees against the risks associated with heat illness. Temperatures are expected to be 15 to 25 degrees above normal in Southern California through Monday.

California’s Heat Illness Prevention Regulation was amended effective May 1, 2015. This regulation applies to all “outdoor places of employment” and to five enumerated industries: (1) agriculture, (2) construction, (3) landscaping, (4) oil and gas extraction, and (5) transportation or delivery of agricultural products, construction materials or other heavy materials (e.g. furniture, lumber, freight, cargo, cabinets, industrial or commercial materials), except for employment that consists of operating an air-conditioned vehicle and does not include loading or unloading. On May 14, 2015, the Department of Industrial Relations (DIR) and Cal/OSHA published a Guidance for Employers and Employees on the New Requirements (May 14, 2015), which is designed to provide guidance to employers and employees on how to implement the new requirements. On the same day, the DIR published a Heat Illness Prevention Enforcement Q&A . The new regulation requires, among other things, pre-shift meetings to review the high heat procedures, encourage employees to drink plenty of water and remind employees of their right to take a cool-down rest when necessary, the implementation of effective emergency response procedures, and the establishment, implementation and maintenance of a Heat Illness Prevention Plan.

Additional Source: Department of Industrial Relations, Heat Illness Prevention (English and Spanish)

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In the case if McClung v. Paul, decided June 8, 2015, the Eighth Circuit Court of Appeals affirmed the decision of the lower court that the District Corps Commander’s revocation of a federal permit to use the boat dock and concrete steps located on federal property adjacent to the McClungs’ residence in the Greers Ferry Lake, Arkansas area, was not arbitrary and capricious.
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On June 1, 2015, in a case about the interplay between the right of individual property owners to seek redress for the diminution in value of their properties caused by light, noise, and airborne chemical particulates originating from the operation of adjacent regulated energy production facilities and the right of the government to regulate emissions from those facilities, the Seventh Court of Appeals sitting in Amarillo issued a ruling reversing the grant of summary judgment to five energy production companies whose operations are located near DISH, Texas, and remanding the matter for further proceedings. The case is Sciscoe, et. al. v. Enbridge Gathering (North Texas), L.P., et. al.
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On June 4, 2015, U.S. District Judge Lee Rosenthal issued a long ruling, resolving a number of partial summary judgement motions filed in the case of Exxon Mobil Corporation v. United States.

Exxon’s predecessors owned and operated large refineries located in Baytown, Texas and Baton Rouge, Louisiana (which are being operated by Exxon today), and they entered into extensive (and profitable) war production contracts with the United States Government to produce large quantities of high-octane aviation gas and synthetic rubber at these plants. These operations also generated large quantities of hazardous waste which were disposed of in the Houston Ship Channel and the Mississippi River, which was the practice during World War II and the Korean War. Exxon has entered into administrative settlements with the States of Texas and Louisiana, and has spent, to date, $71 million to clean up and remediate this waste disposal. In 2010, Exxon sued the United States in federal court under Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq. (“CERCLA”), arguing that the government should also be held accountable as a “covered person” under the law.
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Tennessee House Bill 24 was signed into law by Tennessee Governor Bill Haslam on May 20, enacting the Go Build Tennessee Act. The Act amend Title 4 and title 62, Chapter 6 of the Tennessee Code, and creates the “Go Build Tennessee Program”. The Program will be administered by a 501(c)(3) nonprofit corporation whose duties will include “securing funding to promote and foster the development of a comprehensive statewide program designed to attract and increase career opportunities for secondary and postsecondary students in the construction industry.”

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California Assembly Bill 428 (Nazarian) proposes to allow, for taxable years beginning on and after January 1, 2016, and before January 1, 2021, a tax credit in an amount equal to 30% of the qualified costs paid or incurred by a qualified taxpayer for seismic retrofit construction on a qualified building. The tax credit could be claimed at the rate of 1/5th of the credit amount for the taxable year in which the credit is allowed and 1/5th of the credit amount for each of the subsequent 4 taxable years (reduced by any grant provided by a public entity for the seismic retrofit construction); as applicable, an excess credit may be carried over to the reduce the net tax in the following taxable year. Prior to seismic retrofit construction, the taxpayer would be required to obtain certification from the appropriate jurisdiction with local building code enforcement authority that the building has been certified as an at-risk property. The taxpayer would also be required to obtain a certification that the seismic retrofit construction had been completed, and to provide both certifications to the Franchise Tax Board upon request. The bill would take effect immediately as a tax levy.
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On June 3, the U.S. Court of Appeals for the District of Columbia issued another major Resource Conservation and Recovery Act (RCRA) decision, albeit in an unpublished opinion. The case is Solvay USA v. EPA. In 2011, EPA issued rules to classify non-hazardous secondary materials under RCRA as “solid waste” for the purpose of Clean Air Act emission standards applicable to sludge incinerators and other combustion units. The rule is codified at 40 C.F.R. Part 241. As noted by the Court of Appeals , whether a facility is regulated by Clean Air Act (CAA) Section 7429 or 7412 has significant practical consequences for the regulated facilities. The Court of Appeals rejected the arguments of both the environmental and industry petitioners, holding that EPA’s interpretation of both RCRA and the CAA was entitled to considerable deference by the courts, and that the Administrative Procedure Act will only allow a court to set aside an action that arbitrary and capricious, and there is no evidence that it was. The Court of Appeals’ opinion is very brief (four pages) and will not be published. However, the Court of Appeals directed the clerk not to issue the mandate for seven days to give the parties time to seek rehearing or rehearing en banc.