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On October 11, 2016, a panel of the U.S. Court of Appeals for the District of Columbia consisting of Judges Henderson and Kavanaugh and Senior Circuit Judge Randolph decided the case of PHH Corp. v. Consumer Financial Protection Bureau. The panel majority held that the structure of Consumer Financial Protection Bureau (CFPB), a creation of the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111–203, H.R. 4173, commonly referred to as Dodd–Frank), was unconstitutional, in that it vested enormous power in an agency headed by a Director who cannot be adequately supervised by the President because of the five year term the Director’s serves, the lack of Congressional control over the CFPB’s funding, and the fact that the President can only remove the Director “for cause” even though in theory the President should have more authority over such officials. The panel concluded that this structure thus violates the U.S. Constitution’s separation of powers.

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In the case of Hawaii Wildlife Fund, et al., v. County of Maui, decided on February 1, 2018, the U.S. Court of Appeals for the Ninth Circuit affirmed the decision of the U.S. District Court for Hawaii that the County of Maui’s longtime use of state-permitted wastewater disposal wells at is municipal waste water treatment plant required National Pollutant Discharge Elimination System (NPDES) permits because the indirect discharge of pollutants into the Pacific Ocean through groundwater triggered the NPDES provisions of the Clean Water Act (CWA). This is a significant case, and it may have significant ramifications for CWA permitting and enforcement.

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The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have released a pre-publication copy of a Final Rule that was proposed on November 22, 2017 and which will soon be published in the Federal Register. The new rule will establish an “applicability date” for the controversial “waters of the United States” (or WOTUS) rule that was published in the Federal Register on June 29, 2015. The 2015 rule had an effective date of August 28, 2015, but the rule was first stayed by the U.S. District Court for North Dakota on August 27, 2015 for the 13 states challenging the rule in that court, and then by a nationwide stay by the U.S. Court of Appeals for the Sixth Circuit on October 9, 2015.

Last week, the U.S. Supreme Court, in the case of National Association of Manufacturers v. Department of Defense (NAM decision), ruled that the federal District Courts, and not the U.S. Courts of Appeals, had original jurisdiction to hear these appeals, so it appears there will be multiplicious litigation around the country.

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On January 29, the U.S. Court of Appeals for the Tenth Circuit became the latest federal Court of Appeals to issue a ruling reviving federal District Court challenges to the 2015 Environmental Protection Agency’s (EPA)/U.S. Army Corps of Engineers’ (Corps) Clean Water Act (CWA) rule redefining “Waters of the United States.” The United States District Court for the Northern District of Oklahoma dismissed challenges to this rule filed by the Chamber of Commerce, the National Federation of Businesses, Tulsa Regional Chamber, Portland Cement Association, and the State Chamber of Oklahoma, holding that the appeal must be brought in the US Court of Appeals. The Tenth Circuit abated these appeals, pending the decision of the U.S. Supreme Court in National Assoc. of Manufacturers v. Department of Defense (the NAM Decision). On January 22, 2018, the Supreme Court held that such challenges must be filed in the federal district courts, causing the Tenth Circuit to lift the abatement, and return the case to the District Court. The Tenth Circuit case is Chamber of Commerce of the U.S, et al. v. EPA, et al.

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On January 29, the U.S. Court of Appeals for the Fifth Circuit, in an interesting unpublished ruling, affirmed the District Court’s denial of a motion to vacate an arbitration order of the Civilian Board of Contract Appeals (Board). The Board rejected an appeal made by the Louisiana Department of Natural Resources (LDNR) objecting to a determination of the Federal Emergency Management Agency (FEMA) that millions of dollars in federal funds should be made available for the restoration of 16 barrier islands off the coast of Louisiana that suffered substantial damage from Hurricanes Rita and Katrina in 2005. The case is Louisiana Department of Natural Resources through the Coastal Protection Restoration Authority v. FEMA.

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Today, our colleagues Mark Elliott and Kevin Ashe published their Alert titled Getting the Lead Out of California Schools.  The Alert discusses California’s new water supply permit requirements and the State Water Board’s Drinking Water for Schools Grant Program, which allocates up to $9.5M in funding to improve access to and the quality of public school drinking water. Key takeaways include:

  • Water purveyors serving K-12 schools must now collect & analyze school’s samples from water fountains and faucets, if requested by school or district.
  • In November 2017, the State Water Board began accepting grant applications to fund projects that improve drinking water quality in public schools.
  • Grants. which may be used toward a number of eligible projects and/or interim supplies, will be awarded until the $9.5M in fund runs out or June 30, 2019, whichever occurs first.

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Today, our colleagues Kevin Ashe, and Eric Moorman posted their Alert titled Natural Resources Agency Launches CEQA Guidelines Rulemaking. The Alert  discusses the California Natural Resources Agency’s issuances of a notice of proposed rulemaking (NPRM) on January 26, 2018. The NPRM proposes a comprehensive update to the California Environmental Quality Act (CEQA) Guidelines, Title 14, Division 6, Chapter 3 of the California Code of Regulations, to reflect recent legislative changes to CEQA, clarify certain portions of the existing CEQA Guidelines, and update the CEQA Guidelines consistent with recent court decisions.” Key takeaways include:

  • The proposed CEQA Guidelines amendments are the most comprehensive update since 1998.
  • The proposal would also adopt the Vehicle-Miles-Traveled (VMT) methodology for transportation impact analysis.
  • Comments on the proposed CEQA Guidelines are due to the Natural Resources Agency by March 15, 2018.

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The Federal Emergency Management Agency (FEMA) and New York City have announced that they will be working together to update the City’s flood flood-300x200maps. The need for updating FEMA’s flood maps has become more than apparent since at least 2005. Cities like New York, Houston, and Baton Rouge, which have been devastated by floods in recent years, are all too familiar with the shortcomings of FEMA’s flood maps. New York City, in particular, suffered in the wake of Hurricane Sandy, when approximately 80% of those who experienced flood damage did not have flood insurance.

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With so many extracontractual parties often involved in work that necessarily implicates others in construction, the economic loss doctrine can present serious hurdles to a harmed party’s recovery of damages actually incurred. The doctrine, which has long stood for the proposition that one cannot recover purely economic damages in tort, can often come into play with design professionals, who commonly contract directly with only the owner of a project, but issue reports, plans and specifications that are for the purpose of, and must be relied upon by, other parties for the performance of their work on the project.

In a recent article in Under Construction, the ABA Forum’s newsletter on construction law, colleagues Clark Thiel, Matthew Stockwell, and Jessica Bogo explore the different approaches taken by New York and California in applying the economic loss doctrine with regard to damages resulting from services provided by design professionals on a construction project.

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On January 24, the U.S. Court of Appeals for the First Circuit decided the case of Conservation Law Foundation, Inc., v. Pruitt. The Pruitt case involves a consolidated appeal from the decisions of the U.S. District Courts in Massachusetts and Rhode Island dismissing the Clean Water Act (CWA) Citizen Suits filed against the Environmental Protection Agency (EPA) and its administrator, Scott Pruitt. These cases involve EPA’s approval of total maximum daily loads (TMDLs) which establish the maximum amount of a particular pollutant that can be released by storm water discharges into a designated body of water located in Massachusetts and Rhode Island.

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