On April 11, the U.S. Court of Appeals for the District of Columbia Circuit reversed the lower court and held, 
in a unanimous opinion, that the American Forest Resource Council has standing to challenge the U.S. Fish and Wildlife Service’s 2012 designation of 9.5 million acres of federal forest lands as a protected critical habitat for the northern spotted owl. The case is Carpenters Industrial Council, et al., v. Zinke.
On April 11, the U.S. Court of Appeals for the District of Columbia Circuit vacated the
Environmental Protection Agency’s December 18, 2008 CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste at Farms rule (Rule) that created hazardous substance reporting exemptions for all farms, except large animal raising operations known as concentrated animal feeding operations (CAFO). The case is Waterkeeper Alliance, et al. v. EPA. The case was argued in December 2016, or almost eight years after the rule was promulgated.
For builders working in California—already one of the most expensive states for new construction—a new bill winding its way through the legislature could add yet more costs. For this reason, Senate Bill 71 (SB 71) should be on the radar of developers and construction companies that do business in California. SB 71 would require all “solar-ready buildings” constructed on or after January 1, 2018, to include a solar electric or solar thermal system on their roofs. “Solar-ready buildings” include single-family residences in subdivisions with 10 or more single-family residences with an approved subdivision map; low-rise multi-family buildings; high-rise multi-family buildings and hotel/motel occupancies; and all other non-residential buildings. The solar systems would be required to be installed during construction because, as the bill explains, installing systems at that stage is more cost effective.
The U.S. District Court for the Western District of Oklahoma has dismissed the Sierra Club’s Resource Conservation and Recovery Act (RCRA) citizen suit, filed against several oil and gas producers seeking declaratory and injunctive relief. The District Court invoked the Burford abstention doctrine (Burford v. Sun Oil Co.) and primary jurisdiction doctrine to step away from this case, dismissing the RCRA citizen suit without prejudice. The case is Sierra Club v. Chesapeake Operating, LLC, et al.
On April 4, the U.S. Court of Appeals for the Third Circuit decided the case of Mirabella v. Villard, et al., a civil rights case brought under 42 U.S.C. § 1983, alleging, inter alia, violations of their First Amendment rights by local officials. Although the Court of Appeals concluded that the Mirabellas adequately alleged both a retaliation claim and a violation of their right to petition, it concluded that the rights allegedly violated “were not clearly established for the purpose of qualified immunity.” The Court of Appeal reversed the District Court’s ruling on the local officials motion to dismiss with instruction to enter judgment in their favor.
The U.S. Court of Appeals for the Fourth Circuit has decided the case of North Carolina v. Alcoa Power Generating, Inc. The Court of Appeals affirmed, in a 2 to 1 ruling, the decision of the U.S. District Court for the Eastern District of North Carolina that a relevant segment of North Carolina’s Yadkin River—on which Alcoa Power Generating, Inc. (Alcoa) has constructed and operated for many years hydroelectric dams to supply power to its neighboring aluminum smelter—was not “navigable” at the time of North Carolina’ statehood (1789). Consequently, the State could not claim title to this segment as an aspect of state sovereignty.
In Brexit: The UK’s Great Reform Bill, Pillsbury attorney Tim Wright discusses Prime Minister May’s “notice to quit” under Article 50 and start of what he aptly describes as the equivalent of a “difficult and protracted divorce proceedings.” The White Paper published sets out Prime Minister May’s plans for a great repeal bill, which at one strike will remove the United Kingdom from the purview of the European Court of Justice and restore the supremacy of domestic law. Currently, the European Communities Act 1972 enshrines the supremacy of European Union law in national law. That will come to an end on Brexit day, which will be 29 March 2019 unless an extension is agreed to by the EU27 and the European Parliament.
On March 23, the Colorado Court of Appeals issued a ruling reversing the trial court and the Colorado Oil and Gas Conservation Commission which had denied the petitioners’ request that the Commission, when promulgating rules affecting oil and gas production operations and activities in Colorado, be required to consider public health and environmental conditions to be determinative. The case is Martinez, et al., v. Colorado Oil and Gas Conservation Commission. The American Petroleum Institute and the Colorado Petroleum Association were intervenors, and a large number of environmental groups supported the petitioners. Continue Reading ›
In Potentially Costly Nuclear Rulemaking Proposed, NRC targets include oil & gas industry, cancer treatment providers, sterilization facilities and radiographers, Pillsbury attorney Jay Silberg discusses the Nuclear Regulatory Commission (NRC) staff’s recent recommendation that the NRC undertake a rulemaking requiring licensees to provide financial assurance (or set aside funds) to cover the cost of the disposition of certain Category 1 & 2 sources.
In Trump Jettisons Obama Climate Policies, President Trump signed a sweeping Executive Order initiating the rollback of the Clean Power Plan and requiring a broad regulatory review of energy and environmental regulation under a new “burden” standard, we discuss President Trump’s sweeping Executive Order initiating the rollback of the Clean Power Plan and requiring a broad regulatory review of energy and environmental regulation under a new “burden” standard.
Additional Source: Executive Order Promoting Energy Independent and Economic Growth (March 28, 2017)
