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Litigating parties may be so invested in the rightness of their cause that they neglect to check the calendar, and the relevant stature of limitations. On May 19, the Texas Supreme Court decided the case of  Town of DISH, et al., v. Atmos Energy Corp., et al. Reversing the Seventh Court of Appeals, sitting in Amarillo, TX, the Court reinstated the summary judgment ruling of the trial court which dismissed the Town of DISH’s and some of its residents’ complaint regarding the operations of the energy companies located just outside the Town of DISH and within a half-mile of the residents’ properties as time-barred. The Court recognized that

Claims for nuisance “normally do not accrue when a potential source is under construction,” but “once operations begin and interference occurs, limitations runs against a nuisance claim just as any other.” Trespass claims are no different. And although completion of construction is not dispositive of an accrual date, it is a logical starting point, as “plaintiffs will usually know of unreasonable discomfort or annoyance promptly.”

(Internal citations omitted).

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The endless variety of federal regulatory programs are subject to the requirements of federal administrative law, i.e., the Administrative Procedures Act (APA). The APA is chiefly the province of the U.S. Court of Appeals for the District of Columbia Circuit. In a recent case involving the U.S. Department of Energy’s (DOE) implementation of a clean energy loan program, the District Court believed, following the conclusion of hearings in the court, that appropriate redress would result if the complaint was remanded, at DOE’s request, for additional review by DOE. When those proceedings were unsuccessful, the District Court dismissed the complaint. The Court of Appeals has now ruled that the requested remand should not have been granted, consistent with earlier precedential rulings by the Court of Appeals.

On May 19, in Limnia, Inc., v. U.S. Department of Energy, the Court of Appeals, returning the matter to the District Court to resolve Limnia, Inc.’s challenge to DOE’s denial of its clean-energy loan applications, confirmed that although “[a] district court has broad discretion to decide whether and when to grant an agency’s request for a voluntary remand,” “a voluntary remand is typically appropriate only when the agency intends to revisit the challenged agency decision on review.” In Limnia, the DOE, instead, “offered to review any new applications Limnia chose to submit, assuming that Limnia remitted the then-required application fees” “even though a central allegation of Limnia’s complaint was that the Department had waived the application fee associated with the Loan Guarantee Program.“

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cannabis legalizationFollowing cannabis legalization in California, municipalities are beginning to face difficult decisions related to land use and planning. The challenge in siting industrial and residential uses, often in conflict, is not new for cities and their planners. But the new twist of cannabis growing and processing, treated as an industrial use in most cities, adds an added layer of complexity to land use decisions where lack of housing is also an issue.

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iStock-157310650-money-construction-264x300Most construction loans contemplate multiple advances or disbursements of funds at various stages of the construction project. The construction loan agreement will set forth the conditions that the borrower must satisfy to receive each advance of funds. Given that a construction loan concerns an active construction project, there is a risk that a lender could lose its lien priority in an advance (secured by the insured mortgage) to a mechanic’s lien. This post addresses how a title insurance policy and endorsements can insure against such a risk. Continue Reading ›

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On May 9, the U.S. Court of Appeals for the District of Columbia issued a significant ruling in Kahl v. Bureau of National Affairs, Inc. The Court of Appeals addresses (i) whether Yorie Von Kahl is a public figure for First Amendment purposes; and (ii) if so, whether he has produced sufficient evidence of actual malice by the Bureau of National Affairs, Inc. (BNA) to overcome BNA’s motion for summary judgment.

Some of these issues may play a role in a defamation lawsuit that is now before the local District of Columbia courts, Michael Mann v. Competitive Enterprise Institute, which concerns the hotly debated topic of climate change and global warming. On December 22, 2016, the District of Columbia Court of Appeals held that a jury could reasonable conclude that articles published in the National Review magazine “were false, defamatory and published with actual malice.”

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On May 4, the U.S. District Court for the District of Columbia issued a “Deepwater Horizon” ruling in Center for Biological Diversity v. Zinke. The Center for Biological Diversity’s (Center) claims concerns the Department of the Interior’s (Department) ongoing review of its “categorical NEPA exclusions” with respect to offshore oil and gas operations, which are subject to the Department’s scrutiny. The District Court dismissed the Center’s lawsuit, holding that the Center was unable to prove that the Department failed to take an action that is both discrete and mandatory under the Administrative Procedure Act (APA). Also, the District Court’s review of the pertinent Council on Environmental Quality (CEQ) regulations indicated that the rule, as properly construed, does not require agencies to complete their review of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370h (NEPA), procedures even after they have embarked on such a review.

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Federal government records, including business records submitted to the government, are subject to disclosure under the federal Freedom of Information Act (FOIA). However, FOIA exempts nine categories of government records from this disclosure obligation. A May 9 ruling by the U.S. Court of Appeals for the District of Columbia in AquAlliance v. U.S. Bureau of Reclamation discusses the scope of Exemption 9. Exemption 9 provides that there is no duty to disclose “geological and geophysical information, data, including maps, concerning wells.”

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Company records and communications are typically subject to disclosure in government investigations. They may be protected from disclosure if they are protected by the attorney client privilege or attorney-work product doctrine. However, invocation of these privileges is not automatic, as confirmed in a May 4 ruling by the U.S. States Court of Appeals for the Fifth Circuit. In EEOC v. BDO USA, LLP, the Court of Appeals issued a ruling clarifying the use of a privilege log to invoke the protections of the attorney-client privilege when responding to an agency’s request for documents as part of an investigation of employment discrimination claims.

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iStock-519917363-coastal-real-estate-300x203Climatologists predict that sea levels will continue to rise in the coming years and that temperatures will increase, causing the frequency and intensity of hurricane-like storms to grow. These scenarios present challenges for waterfront buildings and residences—both existing and new construction.

New properties are still being built along coastal areas. Some developers are marketing homes and buildings that are designed to withstand major storms. Property owners are taking costly measures to protect existing properties. In fact, in the wake of Superstorm Sandy, numerous companies now offer various flood protection measures for both residential and commercial buildings, such as paneling, barrier systems, gates, removable stop logs and raised foundations. Continue Reading ›

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The Consolidated Appropriations Act of 2017 authorized appropriations for the Fiscal Year 2017. This large and copious bill provides funding for all Federal agencies for this fiscal year. The Congressional committees included many environmental policy statements and directives to these agencies.

Section II, Division G—The Departments of the Interior, the Environment and Related Agencies

Within 60 days, the Department of Interior (Interior), Environmental Protection Agency (EPA) and U.S. Forest Service (Service) are directed to provide the House and Senate Committees on Appropriations with a detailed Equal Access to Justice report which will make their litigation costs transparent.

Regarding new Executive Order 13783, the Committees expect Interior and EPA to keep the committees fully appraised of any actions taken to comply with this new Order affecting domestic energy resources.

The Committees expect the departments and agencies to provide their Inspectors General with timely access to all appropriate agency records as needed.

The departments and agencies are reminded that there can be no lobbying of Congress with appropriated funds.

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