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On June 28, the U.S. Court of Appeals for the Ninth Circuit decided the case of Center for Biological Diversity, et al., v. Export-Import Bank of the U.S., affirming the ruling of the District Court, which granted Export-Import Bank of the United States’ (Ex-Im Bank) summary judgement motion finding that, “as a threshold matter,” the plaintiff environmental groups lacked standing to pursue either of their National Historic Preservation Act (NHPA) or Endangered Species Act (ESA)] claims. On appeal, the Ninth Circuit held “that the action is not moot [but] affirm the district court on the question of standing.”

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Today, our colleague Tom Shoesmith published his Client Alert titled China: Are Joint Ventures the Answer to Trump’s Trade Wars?  In the Alert, Tom discusses how U.S. companies may respond to the Trump Administration’s tariff wars. This could including entering into a joint venture (JV) with a Chinese partner, enable the U.S. company to respond nimbly to changes in the global trade environment. However, Tom notes that JVs in China are subject to structural requirements and a regulatory regime unlike those found in Western countries and encourages U.S. companies to consider whether the JV should be organized in a non-People’s Republic of China (PRC) jurisdiction.

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Recently, our colleague Trevor Wood published a Client Alert titled LIBOR and the Transition to Risk-Free Rates, discussing the Chief Executive of the UK Financial Conduct Authority’s (FCA) recent announcement that, because of insufficient trading in the underlying markets, the London Interbank Offered Rate (LIBOR) will no longer be supported by the FCA after 2021. Take always from the Client Alert include:

  • Work continues on the transition to risk-free rates, but progress is slow—FCA has published timetable and milestones.
  • The London Loan Market Association (LMA) issued guidelines, but changes may not be readily accepted by market participants.
  • A “synthetic” or “zombie” LIBOR will likely continue to be published in order to deal with legacy transactions.

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At the end of April, the U.S. Fish & Wildlife Service issued new guidance regarding the evaluation and negotiation of Endangered Species Act Section 10(a)(1)(b) incidental take permits (ITPs). The guidance has significant implications for private project proponents considering whether to undertake the often time-consuming and costly process of seeking an ITP and preparing a habitat conservation plan (HCP) in support of that application. In a recent article for Law360, colleagues Wayne M. Whitlock and Eric Moorman examined the background and legal framework of the ESA and the implications of the FWS guidance memorandum for prospective permittees.

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On June 25, the Environmental Protection Agency (EPA) issued a Notice of Proposed Rulemaking (NPRM) (83 F.R. 29499 (June 25, 2018)) regarding Clean Water Act Hazardous Substances Spill Prevention.

“EPA has determined that the existing framework of regulatory requirements serves to prevent CWA HS discharges.”

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On June 22, the Texas Supreme Court decided an important environmental case, City of Laredo, TX v. Laredo Merchants Assoc. Without dissent, the Court held that the City of Laredo’s 2014 ordinance, enacted to create a “trash-free” city, was preempted by the Texas Health & Safety Code and, in particular, Section 361.0961(a)(1)). The “local antilitter ordinance prohibit[s] merchants from providing ‘single use’ plastic and paper bags to customers for point-of-sale purchases.”

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This morning, our colleagues on the State & Local Tax team published their Client Alert titled The U.S. Supreme Court Changes Sales and Use Tax Collection Nexus. In South Dakota v. Wayfair, Inc., the Court overrules the “physical presence” requirement as “unsound and incorrect.” Takeaways from the Court’s decision include:

  • South Dakota law satisfies the Commerce Clause “substantial nexus” requirement based on the “economic and virtual contacts” with the State.
  • The Wayfair decision does not prohibit the retroactive application of this new standard for Commerce Clause “substantial nexus.”
  • The decision strikes a blow to the Court’s stare decisis jurisprudence.

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On June 20, the U.S. Court of Appeals for the Fourth Circuit decided what be a very important decision for companies with mining interests in West Virginia, impacting their ability to comply with the Clean Water Act (CWA). Ohio Valley Environmental Coalition, et al., v. Pruitt, Administrator of EPA involves claims by several environmental groups against the Environmental Protection Agency (EPA) alleging that EPA failed to perform its nondiscretionary duty under the CWA to promulgate pollutant limits for biologically impaired waters in West Virginia. Although it found that the environmental plaintiffs have standing, the Court of Appeals reversed the District Court’s order granting summary judgment in their favor.

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On June 20, 2018, the U.S. Court of Appeals for the Fourth Circuit decided the case of In re: KBR, Inc. Burn Pit Litigation, affirming the ruling of the U.S. District Court for the District of Maryland that the “political question” doctrine bars the plaintiff servicemembers’ personal injury lawsuits against Kellogg Brown & Root and Halliburton (KBR), government contractors providing environmental services to the U.S. military in Iraq and Afghanistan.

“The Constitution entrusts the President and Congress, not the courts, with the power to resolve political questions.”

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Today, our colleague Mark Litvack published his Client Alert titled The Supreme Court Narrows Its Holding in American Pipe & Construction Co. v. Utah. Takeaways include:

  • The Court bars previously absent class members from bringing subsequent class actions outside the applicable statute of limitations period.
  • The Court’s decision in China Agritech, Inc. v. Resh cements a new limit on the filing of successive class actions.

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