On March 20, the U.S. Court of Appeals for the Sixth Circuit decided the case of Marquette County Road Commission v. U.S. EPA, et al. The opinion will not be published in the Federal Reporter. Both the trial court and the Sixth Circuit rejected the Marquette County Road Commission’s argument that the Environmental Protection Agency’s (EPA) actions and inactions amounted to a “veto,” and were thus a “final action” for purposes of the Administrative Procedure Act (APA).
Many lawsuits have been filed in the U.S. Court of Federal Claims alleging that the U.S. Army Corps of Engineers’ (Corps) management of the Missouri River flood control system has resulted in the serious flooding of many properties located in several states that are located adjacent to the river, and that this amounts to an unconstitutional “taking” of their property in violation of the U.S. Constitution. On March 13, 2018, a very long opinion (more than 250 pages) was released following extensive hearings which holds that these claims have merit, and now the court will decide whether the plaintiffs may be entitled to an appropriate amount of compensation. The case is Ideker Farms, Inc., et al,., v. The United States, based on the evidence submitted regarding 44 plaintiffs selected as representative or “Bellwether” plaintiffs.
On Friday, March 9, the U.S. Court of Appeals for the Ninth Circuit issued another significant ruling in a Clean Water Act (CWA) Citizen Suit case. Affirming the District Court, the Ninth Circuit held
“pipes, ditches, and channels that discharge pollutants from non-concentrated aquatic animal production facilities are point sources within the meaning of 33 U.S.C. § 1362(14).”
The case is Olympic Forest Coalition v. Coast Seafoods Corp.
On March 12, the U.S. Court of Appeals for the Second Circuit issued a decision interpreting Clean Water Act (CWA) Section 401 and the Federal Regulatory Energy Commission’s (FERC) permitting authority, which may have settled some lingering legal issues for the construction of pipelines. The case is New York State Department of Environmental conservation, et al., v. FERC.
The Second Circuit considered two issues:
The Office of Federal Contract Compliance Programs (OFCCP) has issued its Directive (DIR) 2018-01 as part of ongoing efforts to increase transparency of preliminary findings with federal contractors, and to achieve consistency across regional and district offices, standardizing the use of Predetermination Notices (PDN). A PDN is a letter that OFCCP uses to inform federal contractors and subcontractors (contractors) of OFCCP’s preliminary findings of employment discrimination. Directive 2018-01 provides a uniform protocol for OFCCP staff to follow for using PDNs in both individual and systemic discrimination cases.
Our colleague John Jensen recently published his Alert titled Proposals Should Carefully Address Pending Corporate Deals Lockheed Martin’s recent success in overcoming GAO protests shows that fully explaining a transaction in the works can be a key proposal element. In the Alert, John discusses the U.S. Government Accountability Office’s (GAO) recently announced denial of three protests filed by disappointed offerors Enterprise Services LLC, Accenture Federal Services LLC and CSRA LLC challenging the Social Security Administration’s award of an IT contract to Lockheed Martin Corp.
Our colleagues Christine Richardson, Colleen Lamarre and Danielle Bradley recently posted their Alert titled Recent and Upcoming Changes to 401(k) Plans. In the Alert they discuss the Tax Cuts and Jobs Act (the Act) and the Bipartisan Budget Act of 2018 (the Budget), and the number of modifications they make to the 401(k) plan rules. The modifications are expected to make the administration of 401(k) plans simpler by removing operational burdens, while also giving plan sponsors the ability to offer more options to employees.
On March 5, the U.S. Court of Appeals for the Tenth Circuit issued a ruling that the general federal five-year statute of limitations which is applicable to the enforcement of any civil fines, penalties or forfeitures (28 U.S.C. § 2462) does not apply to a series of discrete misappropriations that occurred over many years. The case is SEC v. Kokesh. In reaching this conclusion, the Tenth Circuit referenced its own recent decision in Sierra Club v. Oklahoma Gas and Electric Co., a Clean Air Citizen Suit, involving Section 2462
On February 26, the U.S. District Court for the District of Columbia dismissed, for lack of jurisdiction, a challenge to the President’s Executive Order 13771, and two guidance documents issued by the Office of Management and Budget (OMB) that instruct the affected federal agencies on how to administer EO 13771. The case is Public Citizen, Inc., et al., v. Trump. However, the District Court stated it would hold another hearing (on March 1, 2018) to determine whether it should dismiss the complaint outright or give the plaintiffs an opportunity to amend their pleading.
On February 27, the U.S. District Court for the Northern District of California rejected motions filed by the cities of Oakland and San Francisco to remand two global warming public nuisance lawsuits filed by the cities in state court against several large energy companies (BP P.L.C., Chevron Corporation, ConocoPhillips Company, Exxon Mobil Corporation and Royal Dutch Shell plc). The case is The People of the State of California v. BP P.L.C., et al.
