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Maryland’s “Disclosing Sexual Harassment in the Workplace Act” goes into effect on October 1, 2018, creating new potential liability and obligations for employers. Our colleagues Jean Kuei and David Grossman recently published their Client Alert titled Maryland Employers Face New Sexual Harassment Disclosure Obligations, identifying key takeaways from the new law:

  • The Act invalidates any employment contract or policy that waives an employee’s right to sue in court for sexual harassment or retaliation.
  • The Act also requires employers with more than 50 employees to submit a report detailing settlements of any sexual harassment claims.
  • Employers may not take any adverse action against an employee who refuses to sign an agreement that requires mandatory arbitration of sexual harassment claims.

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On July 19, the U.S. District Court for the Southern District of New York decided the case of City of New York v. BP P.L.C., et al., granting the defendants’ motion to dismiss and dismissing the City of New York’s amended complaint. The amended complaint alleged three causes of action:  (1) public nuisance; (2) private nuisance; and (3) trespass, and sought compensatory damages and an equitable order ascertaining damages and granting an injunction to abates these injuries, which would not, however, take effect unless the defendants failed to pay court-determined damages.

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Unlike other Terms, only a handful of cases addressed administrative and environmental law issues in the U.S. Supreme Court’s 2017-2018 Term. However, the next Term of the Court promises to be more active in these areas.

  • On January 22, 2018, the Court issued a unanimous opinion in the Clean Water Act (CWA) case, Nat’l Assoc. of Mfrs. v. Dep’t of Defense, holding that the plain language of the CWA requires the appeal of the Environmental Protection Agency’s (EPA) redefinition of “waters of the United States” (WOTUS Rule) must be heard first in the federal district courts. Whereas all appeals of most EPA CWA effluent limitation rules must be heard in the federal Courts of Appeals, Congress chose not to do this with respect to this definitional rule.

The Court points out that reviews in the Courts of Appeals must take place within 120 days of the rule’s promulgation, but any review of a rule in the federal district court must take place within 6 years of the date the claim accrues.

The Sixth Circuit was without jurisdiction over this direct appeal.

The Court also notes (in Justice Sotomayor’s opinion) that the administrative actions regarding the WOTUS rule issued by the new administration did not moot this appeal.

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On July 10, the U.S. Court of Appeals for the Ninth Circuit issued its much anticipated and a pro-contractor ruling in MP Nexlevel of California, Inc. v. CVIN LLC. The appeal arose from a dispute over the scope of a California specialty contractor’s license and, more particular, involved whether the subcontractor’s performance of certain work was outside the scope of its license constituting a breach of contract and resulting in the contractor not being entitled to payment for its work (Cal. Bus. & Prof. Code § 7031(a)). In an unpublished opinion, the Ninth Circuit reversed and remanded the matter, finding that “Nexlevel’s work here was ‘incidental and supplemental’ to the installation of these fiberoptic systems,” as contemplated by Cal. Code Regs. Tit. 16, § 831.

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On July 10, the U.S. Court of Appeals for the D.C. Circuit decided another Federal Energy Regulatory Commission (FERC) case, Delaware Riverkeeper Network and Maya Van Rossum v. FERC. The plaintiffs levelled a broad US. Constitutional Due Process Clause challenge at the statutory mandate from Congress that FERC recover its costs from the industries it regulates. The plaintiffs argued that this provision “improperly incentivizes” FERC to grant more new natural gas pipeline applications to ensure itself of sufficient future funding. This argument was dismissed by both the U.S. District Court and the Court of Appeals.

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On July 6, the U.S. Court of Appeals for the D.C. Circuit decided the case of Sierra Club and Natural Resources Defense Council v. EPA. Senior Judge Sentelle, writing for a unanimous panel, mostly granted the environmental petitioners petition for review of an Environmental Protection Agency (EPA) Clean Air Act (CAA) rule, establishing National Emissions Standards for Hazardous Air Pollutants (NESHAP) hazardous air pollutant emissions limits for Brick and Structural Clay Products Manufacturing and Clay Ceramics Manufacturing. These rules were initially promulgated in 2003, only to be vacated later by the D.C. Circuit.

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Another important case was decided by U.S. Court of Appeals for the D.C. Circuit on July 6, American Rivers and Alabama Rivers Alliance v. FERC. The Alabama Power Company, whose application to re-license its electrical power generating facility serving Coosa River Basin in Alabama, GA, and TN was at issue, is an Intervenor in the case. In 2013, FERC granted Alabama Power a 30 year renewal license to operate this plant, consistent with some new conditions attached to the renewed license. This action was challenged before the FERC by these petitioners, but FERC denied their requests for reconsideration. They argued that FERC, in re-licensing this facility, violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The Court of Appeals , noting that the ecosystem was in a “fragile condition” after decades of power plant operations and development, agreed with the plaintiffs that the actions taken by FERC and as supported by a Biological Opinion of the U.S. Fish and Wildlife Service (Service), were in violation of these statutes. FERC’s licensing decision was vacated and the matter was remanded to FERC.

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Today, our colleagues Cathie Meyer and Amy Pierce published their Client Alert titled California Enacts Mini-GDPR Effective January 1, 2020. Under the new law, covered businesses will need to update policies and procedures for responding to customer inquiries about collection, use, sale and disclosure of customers’ personal information or face stiff enforcement actions. Takeaways from the Client Alert include:

  • The California Consumer Privacy Act of 2018 provides consumers with broad rights to control use of their personal information by covered businesses.
  • Covered businesses will need to review and revise their existing privacy policies to make the required disclosures and to provide two methods for customers to inquire about use of their personal information.

The new law is effective January 1, 2020.

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1200px-Lametro_svg-300x135The Los Angeles County Metropolitan Transportation Authority (Metro) is the agency that operates public transportation for all of Los Angeles County. With the passage of Measure M by voters in 2016, Metro has signaled their intent to improve and expand public transit in L.A. County. Just this year, Metro adopted “Twenty-Eight by ’28,” an initiative spearheaded by Mayor Eric Garcetti. The initiative aims to complete 28 major transportation projects by the 2028 Summer Olympic Games, set to be hosted in Los Angeles. This is an ambitious goal. Of the projects listed, 17 are already scheduled to be completed by 2028; however, eight have schedules that would need to be advanced, and three would need new funding resources.

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On June 27, the U.S. Court of Appeals for the Seventh Circuit decided the case of Orchard Hill Building Co. v. U.S. Army Corps of Engineers. The Court of Appeals vacated the decision of the District Court granting the U.S. Army Corps of Engineers’ (Corps) motion for summary judgment dismissing the Orchard Hill Building Company’s (Orchard) complaint that the Corps’ jurisdictional determination erroneously found that the waters at issue were “jurisdictional waters” under the Clean Water Act (CWA) subject to the Corps’ jurisdiction. Acknowledging that the Corps and EPA had promulgated a new rule re-defining “waters of the United States” in 2015—which is now being challenged in the courts—the Court of Appeals noted that this case is controlled by the pre-2015 definition of “waters of the United States.” The Court of Appeals remanded the case to the Corps, directing it to determine if there was a significant nexus, as required.

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