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On January 11, the Commonwealth Court of Pennsylvania decided the case of EQT Production Company v. Department of Environmental Protection of the Commonwealth of Pennsylvania, and granted EQT Production Company’s (EQT) application for certain relief under the Declaratory Judgments Act, 42 PA. C.S. §§ 7531 et seq.,  with respect to the Department of Environmental Protection of the Commonwealth of Pennsylvania’s (DEP) interpretation of certain penalty provisions under The Clean Streams Law, 35 P.S. §§ 691.1-.1001.

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Today, our colleagues Stacie Yee and Kimberly Higgins posted their client alert discussing a City of Los Angeles ordinance, effective January 22, barring certain private employers doing business in the city from inquiring about a job applicant’s criminal history until a conditional offer of employment has first been extended. Under the ordinance, covered employers must follow a very demanding procedure before taking an adverse action based on an applicant’s criminal history. The alert is titled “Ban the Box” Has Arrived in the City of Los Angeles—Are You in Compliance?

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On January 12, the Supreme Court of the State of Washington issued a unanimous ruling holding that both the Court of Appeals and the state’s Shorelines Hearing Board (Board) had erroneously interpreted the state’s Ocean Resources Management Act, Rev. Code of Wash. §§ 43.143.005 et seq. (ORMA), as having no application to applications submitted to the Board to expand two large oil terminals located on the shores of Grays Harbor. The case is Quinault Indian Nation, et al., v. Imperium Terminal Services, LLC, et al.

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On January 19, the U.S. Court of Appeals for the Fourth Circuit upheld the criminal conviction of Donald Blankenship, the former Chairman and CEO of Massey Energy Company (MEC), the operator of the Upper Big Branch Coal Mine in Montcoal, West Virginia. In April 2010, an accident at this mine resulted in the death of 29 miners, and Mr. Blankenship was indicted and convicted of conspiring to violate federal mine safety laws. He was sentenced to be imprisoned for one year and to pay a fine of $250,000, the maximum punishment that could be assessed pursuant to 30 U.S.C. § 820(d). The case is U.S. v. Donald L. Blankenship.

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In Brexit and Procurement, Pillsbury partner Tim Wright discusses the UK Government’s January 23 publication of a 132-page strategy green paper—or consultation document—entitled Building our Industrial Strategy. The paper sets out the Government’s “buy British” plan aimed at helping UK-based suppliers, supply chains and infrastructure companies when
bidding for public sector contracts. The paper confirms that focusing Government buyers on “social and economic factors” when designing their procurements will “encourage innovative solutions and maximise the positive impact of public procurement on strengthening the [UK’s] economy.”

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On January 18, the U.S. Court of Appeals for the Second Circuit reversed the lower court and held that EPA’s 2008 promulgation of the “Water Transfers Rule” (Rule) published in the Federal Register at 73 FR 33697 on June 13, 2008, was entitled to Chevron deference, and reinstated the rule. The regulation is codified at 40 C.F.R. § 122.3(i), and provides that water transfers, as defined in the rule, do not require National Pollutant Discharge Elimination System (NPDES) permits because they do not result in the addition of a pollutant. The case is Catskill Mountains Chapter of Trout Unlimited, Inc., et al, v. EPA.

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Yesterday, our colleagues James Gallagher and Glenn Sweatt published their client alert discussing a recent and important decision issued by the Armed Services Board of Contract Appeals (ASBCA) in Lockheed Martin Integrated Systems, Inc., ASBCA Nos. 59508 and 59509. The decision exposes what has been in recent years an all-too-familiar practice by the Defense Contract Audit Agency (DCAA) of questioning the allowability of government contractor costs based on meritless arguments and the Defense Contract Management Agency’s (DCMA) related rubber- stamping of the DCCA’s disallowance of costs without proper exercise of its authority. The alert is titled Warning Shot Fired (Finally) at Improper DCAA Cost Disallowance Basis.

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“The old order changeth, yielding place to new.” January 2017 has been a very active month, with several important environmental and federal administrative court rulings being issued, and many significant rules being proposed and finalized. Here’s a selection: Continue Reading ›

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Today, our colleague Kevin Ashe posted his client alert on the California Environmental Protection Agency’s and Office of Environmental Health Hazard Assessment’s recent release of an “Update to the California Communities Environmental Health Screening Tool,” better known as CalEnviroScreen Version 3.0. CalEnviroScreen is a software tool used to identify and direct resources to communities affected by pollution, based on environmental exposure and population data. As guidance for prior CalEnviroScreen versions made clear, however, the tool’s approach to “cumulative impacts” is very different from that of environmental review under the California Environmental Quality Act (CEQA). While Version 3.0 omits a clear statement to that effect, lead agencies and project proponents should be confident that CEQA law has not changed and CalEnviroScreen remains the wrong tool for CEQA review of local projects and permitting decisions. The alert is titled CalEnviroScreen 3.0 – Still the Wrong Tool  for CEQA Review.

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Recently, our colleagues Emily Erlingsson, Kathy Donovan and Anita Mayo posted their client alert discussing the amendments made by the Office of Government Ethics to the executive branch gift rules. These changes included clarifications to existing gift exceptions that are commonly used by corporations and organizations whose employees interact with federal officials. The changes and clarifications seek to strengthen the executive branch gift rules and increase transparency. The alert is titled 2017 Brings Changes to the Federal Executive Branch Gift Rules.