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On May 30, a panel of the U.S. Court of Appeals for the DC Circuit decided the case of Environmental Integrity Project, et al. v. EPA. Affirming the District Court, the Court of Appeals held that Exemption 4 of the Freedom of Information Act (FOIA) trumps Clean Water Act Section 308’s authorization to the Environmental Protection Agency (EPA) to disclose to the public certain commercial and financial information EPA had obtained from power plant operators.

Reviewing the text of both FOIA and the CWA, the Court of Appeals notes that Exemption 4 was enacted in 1967, or a few years before the CWA was enacted and concludes that FOIA’s exemptions, being part of the Administrative Procedure Act, cannot be supplanted by later-enacted legislation that does not expressly revoke that exemption.

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Seeking regulatory relief from even an exotic statute like the the Commodity Exchange Act requires adherence to the relevant provisions of the law. Failure to comply with, for example, a provision governing timely pursuing a claim may be cause for denial of relief even for otherwise meritorious claims.

On May 25, a matter that was argued on May 18, was decided by the U.S. Court of Appeals for the Seventh Circuit in The Conway Family Trust v. Commodity Futures Trading Commission. This is another statute of limitations case involving on this occasion the Commodity Exchange Act. The Court of Appeals, which affirmed the CFTC’s ruling, and in doing so also held that the Trust failed to establish that the two-year statute of limitations should be equitably tolled.

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In an interesting decision by the U.S. District Court for the District of Columbia on May 22, the District Court again held that metro-300x200a Supplemental Environmental Impact Statement (SEIS) must be provided by the Federal Transit Administration (FTA) and the Maryland and local District of Columbia public transit officials regarding the planned expansion of the “Purple Line Project” into Maryland. The District Court considered whether FTA’s action was arbitrary and capricious, i.e., if it “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of  the problem, offered an explanation for a decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the  product of agency expertise.” The case is Friends of the Capital Crescent Trail, et al., v. FTA. Continue Reading ›

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Many large and complicated construction projects require the issuance of several differed permits having different requirements. Courts strive to interpret their requirements in a rational and reasonable manner.

On May 23, the U.S. Court of Appeals for the DC Circuit decided the case of Delaware Riverkeeper Network, et al. v. FERC. This case involves three federal statutes: the Natural Gas Act, 15 U.S.C. §§ 717 et seq. (NGA), the Clean Water Act,  formally titled the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251 et seq. (CWA); and the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (NEPA). Although the Federal Energy Regulatory Commission (FERC) administers only the NGA, all three statutes applied to FERC’s issuance of a Certificate of Public Convenience and Necessity (Certificate Order) conditionally approving the construction and operation of the proposed Leidy Project. This project is an expansion of the capacity of Transcontinental Gas Pipe Line Company, LLC’s (Transco) existing natural gas pipeline and addition of new facilities in Pennsylvania and New Jersey (the Leidy Project). FERC issued the Certificate Order prior to Transco obtaining a Section 401 of the CWA water quality certification from Pennsylvania (the state in which the discharge would originate).

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In Ouachita Watch League, et al., v. U.S. Forest Service, et al., decided May 30, the U.S. Court of Appeals for the Eighth Circuit dismissed for lack of jurisdiction an appeal of the District Court’s ruling that the plaintiff environmental groups could not obtain injunctive relief to stop further mineral leasing in the Ozark National Forest in Arkansas. It reasoned that insofar as the organizational plaintiffs relied on the generalized affidavit of the President of the Ozark Society to establish standing,  the affidavit fails to allege that a “particular member has a specific plan to use that forest” and consequently “there is no case or controversy before us, and we lack authority to adjudicate this dispute.”

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la densityAs Los Angeles continues to struggle with lagging development pace as compared to the national pace of housing creation, communities across the city grapple with the potential implications of permitting increased density. The dueling priorities of providing much-needed housing in one of the nation’s fastest-growing markets and maintaining neighborhood history and character continue to square off as the city assesses development across its many communities.

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Fundamental fairness requires that before a company doing business in several states is sued in a particular state that it has substantial contacts with that state. Merely being present in that state will not satisfy the jurisdictional requirement’s of a federal law such as the Federal Employers’ Liability Act, 45 U. S. C. §51 et seq. (FELA), as the U.S. Supreme Court just ruled in a closely watched case.

On May 30, the U.S. Supreme Court decided the case of BNSF Railway Company v. Terrell, et al., reversing the Montana Supreme Court.  The Montana Supreme Court held that Montana state courts had jurisdiction over two FELA lawsuits filed by on behalf of former employees against BNSF Railway Company even though, “while doing business in Montana, [it] was not incorporated in Montana nor did it maintain its principal place of business there.”

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Infrastructure investment is a global phenomenon with long-term implications for the regions and countries involved. As illustrated by two announcements last week, the United States and China have very different visions.

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san-fran-downtownAlmost 18 months after it was introduced, the San Francisco Board of Supervisors recently approved Ordinance 150969, which creates development bonuses for private development projects where at least 30% of the units are subject to affordability restrictions. Known as the HOME-SF Program, the legislation allows qualifying projects to exceed otherwise applicable height restrictions by up to 20 feet and allows developers to select three additional zoning modifications from a menu of options, which includes reductions in required rear-yard setbacks and modifications to parking, exposure, and open space requirements. HOME-SF projects must also include on-site family-friendly amenities, such as dedicated bicycle parking and stroller storage, open space, and yard dedicated for use by children.

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The recent Lightning Oil Company v. Anadarko E&P Onshore, LLC F/K/A Andarko E&P Company, LP, decision of the Texas Supreme Court, which clarified the rights and obligations of owners of the surface property and the mineral interests below, is very important to oil and gas law practitioners in Texas. The Court’s reasoning, and its measured opinion, may nevertheless be of interest to many lawyers in practicing in other areas. The Texas Supreme Court affirmed the ruling of the Fourth Court of Appeals sitting in San Antonio. The question before the Court was: “[W]hose permission is necessary for an oil and gas operator to drill through a mineral estate it does not own to reach minerals under an adjacent tract of land.” Is the mineral estate, through which the company wished to drill, the dominant estate whose permission is required before such directional drilling can begin?

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