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On January 24, the U.S. Court of Appeals for the Eleventh Circuit dismissed an appeal of a decision by the U.S. District Court for the Southern District of Georgia that denied a preliminary injunction that would have enjoined the enforcement of the Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ redefinition of the regulatory term, “Waters of the United States” (the WOTUS rule). This action swiftly followed the Supreme Court’s unanimous ruling in National Association of Manufacturers v. Department of Defense, which held that the initial appeal of the WOTUS rule cannot proceed in the federal Courts of Appeals . The decision of the lower court was vacated and remanded for further proceedings in light of the National Association of Manufacturers decision. More such rulings are likely to follow soon. This case is State of Georgia, et al., v. Pruitt.

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Pursuant to the provisions of Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended, the Office of the Secretary, Department of Homeland Security, in her “sole discretion” has waived in their entirety the following laws (including all federal state, or other laws, regulations and legal requirements deriving therefrom) to expedite the construction of barriers and roads in the “project area” described as being located in the vicinity of the international land border of the U.S. near the Santa Teresa Land Port of Entry in the State of New Mexico: Continue Reading ›

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Today, our colleagues Michael Rizzo, Glenn Sweat and John Jensen published their Alert titled The 2018 Government Shutdown – How Can Contractors Preserve Rights? Takeways from the Alert include:

  • Communicate with your Contracting Officers early and often regarding approvals and responses to inquiries.
  • Analyze current contracts. Assess contract funding levels, determine which contracts which must continue, and become familiar with Suspension of Work, Stop Work, and Government Delay of Work clauses.
  • Minimize financial damage and maintain continuity of operations and high employee morale.

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Today, my colleague Anthony Cavender and I published our Alert titled Congress Expands the Oil Pollution Act to Reach Spills Originating Outside of the U.S.  In it we discuss the Foreign Spill Protection Act of 2017 and key takeaways from this new law:

  • New law establishes oil spill liability in the U.S. for foreign-based offshore exploration and production facilities.
  • Owners and operators of existing or planned foreign offshore exploration and production facilities must consider potential liability for spills reaching U.S. waters.
  • “Responsible parties” liable for damages and penalties include owners and operators of foreign-based offshore and abandoned oil facilities.

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Today, the U.S. Supreme Court announced its intention to hear a hotly-contested Endangered Species Act (ESA) case involving the “dusky gopher frog.” This frog’scritical habitat was determined by the lower courts to include areas in Louisiana although the species allegedly has not been seen there for many years. The Court’s ruling will be an opportunity for it to clarify the reach and correct interpretation of the ESA. The case is Weyerhaeuser Co. v. U.S. Fish and Wildlife Service.

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Today, the U.S. Supreme Court issued a unanimous opinion in National Assoc. of Manufacturers v. Department of Defense, et al. (the WOTUS case). The Court held that the plain language of the Clean Water Act (CWA) requires that appeals of such Environmental Protection Agency (EPA) rules as the redefinition of “waters of the United States” must be heard first in the federal district courts. Whereas all appeals of most EPA Clean Air Act (CAA) rules must be heard in the federal courts of appeals, Congress chose not to do this under the CWA. Congress can, of course, amend the law if it is a problem. The U.S. Court of Appeals for the Sixth Circuit’s ruling is reversed.

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On December 22, 2017, the Office of the Solicitor of the Department of the Interior issued a  Memorandum re: The Migratory Bird Treaty Act Does Not Prohibit Incidental Take, which substantially modifies the Department’s policy regarding the criminal enforcement of the Migratory Bird Treaty Act’s (MBTA) prohibition against the incidental taking or killing of migratory birds. In addition, this Memorandum withdraws a contrary opinion of the Solicitor’s Office that was issued on January 10, 2017 – Memorandum re: Temporary Suspension of Certain Solicitor M-Opinions Pending Review. This could be a very important change for the energy industry.

The opinion concludes by stating that:

“The text, history and purpose of the MTBA demonstrate that it is a law limited in relevant part to affirmative and purposeful actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs, by killing or capturing, to human control… Interpreting the MTBA to criminalize incidental takings raises serious due process concerns and is contrary to the fundamental principal that ambiguity in criminal statutes must be resolved in favor of defendants.” Continue Reading ›

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On December 18, 2017, the U.S. Court of Appeals for the Sixth Circuit employed recent U.S. Supreme Court Administrative Procedure Act (APA) rulings to decide whether the fans of the “Insane Clown Posse” group known as Juggalos could maintain an APA lawsuit against the federal government’s listing of the fans as “a loosely-organized hybrid gang.” The case is Parsons, et al,. v. U.S. Department of Justice, et al. The Sixth Circuit affirmed the District Court’s decision dismissing the lawsuit.

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On December 18, 2017, the U.S. Court of Appeals or the Second Circuit decided the case of Secretary of Labor v. Cranesville Aggregate Companies, Inc., dba Scotia Bag Plant. In this case, the Secretary of Labor sought review of an Administrative Law Judge’s (ALJ) decision that vacated a number of Occupational Safety and Health Administration (OSHA) workplace violations lodged against Cranesville’s mine facility located in Scotia, NY, in particular, working conditions at a unit known as the “Bag House.” The ALJ was persuaded that this unit was subject to the Secretary of Labor’s authority under the Mine Safety and Health Act, and not the Occupational Safety and Health Act, since the Bag House was principally engaged in milling operations which could be classified as mining activities. The ALJ’s ruling was appealed to the Occupational Safety and Health Review Commission, which could not render a decision because the two sitting members of the Commission were deadlocked, and so the ALJ’s determinations became final.

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On December 22, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued a unanimous opinion upholding most of the Occupational Safety and Health Administration’s (OSHA) 2016 revised workplace standard for respirable crystalline silica, 29 C.F.R § 1910.1053(a)(1). The case is North America’s Building Trades Unions v. OSHA. The new rule lowers by half the permissible exposure level (PEL) of a worker’s exposure during the workday for all covered industries including the foundry, brick, construction and hydraulic fracturing industries.

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