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On June 29, the U.S. Court of Appeals for the Fourth Circuit issued an important ruling in the case of Murray Energy Corp., et al., v. EPA. At issue was the duty of the Environmental Protection Agency (EPA) under Section 321 of the Clean Air Act (CAA) to conduct “continuing evaluations of potential loss or shifts of employment” which may result from EPA’s regulatory actions. The Court of Appeals reversed the District Court, holding that, properly construed, Section 321’s provisions are open-ended, and establish no start-dates, deadlines or any other time-related instructions to guide EPA’s continuous evaluation efforts. It reasoned that EPA is therefore left with considerable discretion in managing its continuous evaluations, and thus it is not a non-discretionary obligation placed on EPA that is susceptible to a lawsuit under Section 304 of the CAA. It found that the U.S. District Court for the Northern District of West Virginia was therefore without jurisdiction to decide this case.

This is another case that illustrates the powerful role the federal courts play in the proper interpretation of the environmental laws that apply to many industries, including the real estate and construction industries, as well as to commercial and industrial activities.

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Treasury-logoIn their recent client alert “CFIUS and Real Estate,” colleagues Nancy A. Fischer, Jenny Y. Liu, Matthew R. Rabinowitz examine how an influx of foreign  investments in U.S. real estate has led three key U.S. Senators to request a review of how the Committee on Foreign Investment in the United States (CFIUS) examines real estate transactions.

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Today, the U.S. Supreme Court held that there was no compensable taking of Petitioners’ property in Murr v. Wisconsin. Petitioners who own two adjacent lots along a waterfront in Wisconsin were not deprived of all economically beneficial use of their property. A formalistic approach to the issue was rejected. Instead of relying solely on lot lines, the Court considered fairness and factual analysis, noting its regulatory takings jurisprudence is based on flexibility.

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A little lite reading for Friday. In the Matter of Nonhuman Rights Project, Inc.,  v. Lavery, decided June 8, 2017 by the New York Supreme Court, First Judicial Department, the Court considered the lower court’s judgment declining to extend habeas corpus relief to two adult male chimpanzees, Tommy and Kiko. The gravamen of the petitioner’s argument was that “chimpanzees are entitled to habeas relief is that the human-like characteristics of chimpanzees render them ‘persons’ for purposes of [The New York Civil Practice Law and Rules (CPLR)] article 70. A number of amicus briefs were filed with the court, including one by Laurence Tribe providing some perspective on the “long history” (chiefly from medieval times) of animals being tried for offenses such as attacking human being and eating crops. The Court found the petitioner’s position is without legal support or legal precedent.

These concerns may have their origin in Justice Douglas’ famous dissent in the case of Sierra Club v. Morton. In this case, the U.S. Supreme Court held that the Sierra Club had no standing to seek an injunction to restrain federal officials from approving an expansion of a skiing development in the Sequoia National Forest. Justice Douglas observed that

[T]the critical question of standing would be simplified and put neatly into focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where the injury is the subject of public outrage.

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frog-300x225Our latest environmental case law update covers the first six months of 2017, and it briefly reviews what we believe are the most significant environmental and administrative law decisions issued by the federal courts and selected state appellate courts. Although the U.S. Supreme Court’s environmental law docket is unusually small in numbers, the Court continues to issue important rulings that will eventually have an impact on future environmental law disputes.

The first six months of 2017 have seen the federal courts issue important rulings in Clean Water Act, Clean Air Act and Superfund matters, with more Endangered Species Act decisions being made every year. The state appellate courts continue to grapple with fundamental state law questions, with significant climate change decisions being made with some frequency.

Photo:  U.S. Department of Agriculture – Dusky Gopher Frog-a  – Creative Commons

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Only a few existing federal environmental rules have been set aside or overturned by the new Administration, and these actions were taken by the Congress in accordance with the special procedures of the Congressional Review Act (CRA). The repeal, rescission, postponement, or modification of existing rules generally must be accomplished in accordance with the procedures of the Administrative Procedure Act (APA). However, some rules which were promulgated but not effective by January 20, 2017 were delayed, consistent with established policy, to give the Administration sufficient time to review the new rules they will be charged with implementing.

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blockchain_icon-300x300The real estate industry is frequently identified as one of the most likely early adopters of blockchain technology and smart contracts. However, industry participants remain skeptical as to the timing and magnitude of the expected changes. That is understandable given the close association of blockchain technology with bitcoin controversies, other virtual currencies and some questionable crowdfunding ventures. Moreover, it is an emerging technology that includes confusing public, private and hybrid versions and involves imprecise terminology and standards. And smart contracts, which pre-date bitcoin, are still misunderstood and mistrusted.

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In the case of Kokesh v. SEC, decided on June 5, a unanimous U.S. Supreme Court held that the 28 U.S.C. § 2462, which apples to “any action, suit or proceeding for the enforcement of any civil fine, penalty or forfeiture, pecuniary or otherwise,” also applies to Security Exchange Commission (SEC) actions alleging claims for disgorgement imposed as a sanction for violating a federal securities law. At issue is Sections 2462’s five-year statute of limitations. A few years ago, in Gabelli v. SEC, the U.S. Supreme Court held that Section 2462 applies when the SEC seeks statutory monetary penalties. Both decisions may have application to other federal agency enforcement actions where the governing statute does not contain a specific statute of limitations period.

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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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