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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:

  1. Whether FERC correctly held that NYSDEC waived its right to act on Millennium Pipeline Company’s (Millennium) application; and
  2. Whether FERC appropriate accepted and reviewed the application as subject to its exclusive jurisdiction under the Natural Gas Act.

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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.

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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.

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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.

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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

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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.

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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.

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On February 27, the U.S. District Court for the Middle District of Louisiana granted a motion for a preliminary injunction filed by a group of environmental plaintiffs seeking to halt the construction of an oil pipeline in the Atchafalaya Basin in Louisiana, which has received Clean Water Act (CWA) permits from the U.S. Army Corps of Engineers (Corps). The case is Atchafalaya Basinkeeper, et al., v. U.S. Army Corps of Engineers.

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On March 2, the U.S. Court of Appeals decided the case of Bethpage Water Dist. v. Northrop Grumman Corp., and affirmed the lower court’s dismissal on New York statute of limitations grounds, the Bethpage Water District’s (BWD) lawsuit seeking damages from Northrop Grumman Corporation (Northrop) for alleged volatile organic compounds (VOC) contamination of the aquifer from which BWD draws drinking water.

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Today the U.S. Court of Appeals for the Ninth Circuit issued its opinion in In re United States of America. As summarized by the Ninth Circuit, “twenty one young plaintiffs” filed a complaint in the Portland, OR federal district court alleging that the defendant Executive Branch officials have known for many years that the burning of fossil fuels destabilizes the climate – contributing to climate change, violating their constitutional rights. The Government sought mandamus relief in the Ninth Circuit, “anticipating burdensome discovery,” and a stay of this litigation.

The Ninth Circuit denied relief, believing that it is best to let this litigation continue — at least for a while — and to more fully develop the record. The Ninth Circuit assures the Government that there are remedies available in the trial court and the Ninth Circuit if they are needed.