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Today, my colleague Sheila McCafferty Harvey and I published our client alert discussing the House Rules Committee meetings this week during which the committee discussed resolutions for
overturning regulations passed under the Obama Administration. The roll-back efforts could include key energy and environmental regulations, including the Bureau of Land Management’s new methane restrictions related to the oil and
gas industry, the Security and Exchange Commission’s requirement for  reporting payments to foreign governments, the Department of Interior’s Stream Protection Rule requiring coal companies to restore mining lands back to their original state, and the Department of Energy’s efficiency requirements, among others. Congress may seek to overturn hundreds of agency rules recently promulgated under the Obama Administration. These efforts are being given a high priority. The Alert is titled Congress Begins Congressional Review Act Rollbacks of Energy & Environmental Regulations This Week.

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New directions in environmental and regulatory policy are outlined in these Executive Orders and Presidential seal-300x207Memorandums that have been issued in the past few days:

  1. An Executive Order, dated January 30, 2017, requiring federal executive departments and agencies, whenever they propose to add a new regulation, to delete two existing regulations (Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs);
  2. A Memorandum dated January 24, 2017, directing the Secretary of Commerce to develop a plan by which, to the extent possible, all new pipelines or the retrofitting of older pipelines, shall, to the maximum extent, be constructed with pipeline components that are “produced in the United States”, and the Secretary shall provide this plan to the President in 180 days (Presidential Memorandum Regarding Construction of American Pipelines)
  3. A Memorandum dated January 24, 2017, ordering the relevant government agencies, in particular the Army Corps of Engineers, to expedite the provision of all the authority needed to complete the Dakota Access Pipeline (Presidential Memorandum Regarding Construction of the Dakota Access Pipeline);
  4. A Memorandum dated January 24, 2017, inviting the owners and operators of the Keystone XL Pipeline to reapply for all necessary permits needed to construct the pipeline and the Secretary of State shall issue a final permitting decision in 60 days (Presidential Memorandum Regarding Construction of the Keystone XL Pipeline);
  5. A Memorandum dated January 24, 2017 directed to the Heads of Executive Departments and Agencies to support the expansion of domestic manufacturing by streamlining the permitting process and reducing regulatory burdens (Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing); and
  6. A Memorandum dated January 24, 2017 instructs departments and agencies, with respect to regulations that have been published in the Federal Register but that have not taken effect, as permitted by applicable law, to A) temporarily postpone their effective date for 60 days for the purpose of reviewing questions of fact, law, and policy they raise, B) where appropriate, to consider proposing for notice and comment a rule to delay the effective date for regulations beyond that 60 day period, and C) in cases where the effective date has been delayed in order to review questions of fact, law, or policy, departments and agencies are to consider potentially proposing further notice-and-comment rulemaking (Memorandum: Implementation of Regulatory Freeze). Exclude from these actions are any regulations “subject to statutory or judicial deadlines.”

The Secretary of Commerce will take the lead in conducting “outreach” to stakeholders concerning the impact of federal regulations and how to streamline the process.

Quote in Title:  Alfred, Lord Tennyson

Photo:  Dave Newman, Presidential Seal, Taken January 11, 2011 – Creative Commons

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Today, my colleague Jay Silberg and I published our client alert discussing the Nuclear Regulatory Commission’s (NRC) decision to consider revisions to applicable security and accountabilityhttps://www.gravel2gavel.com/files/2017/01/radioactive.-300x225.jpg regulations in response to a Government Accountability Office (GAO) sting operation which identified certain regulatory weaknesses. If adopted, these revisions could significantly affect the ability to efficiently use and transfer certain radioactive sources and increase the cost of doing so. Our alert is titled Potential Revisions to NRC Regulations Could Significantly Affect the Oil & Gas Industry.

Photo:  Blake Burkhart, Radioactive (Taken Sep. 7, 2011) – Creative Commons

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Something light for your Monday morning. On January 23, the U.S. District Court for the Northern District of Oklahoma issued a ruling dismissing the plaintiff’s pro se complaint that the recycling practices of the Tulsa City-County Library Commission placed an “undue obstacle” on the plaintiff’s practice of “Environmentalism.” The case is Krause v. Tulsa City-County Library Commission. Plaintiff alleged that the Tulsa City-County Library Commission’s placement of “fake” recycling bins in the downtown Central Library mounted to a hindrance to his faith, and warrants the protections of the First Amendment because the exercise of his “secular and political choices,” being rooted in environmental advocacy, constitutes a religion. The District Court noted that the complaint contains no factual support for the plaintiff’s conclusory assertion that Environmentalism is religious, and not a secular practice or lifestyle. The District Court also notes that this claim is a matter of first impression in the Tenth Circuit, but that the U.S. District Court for the Eastern District of California, in the case of McDavid v. Cty. of Sacramento, 2006 U.S. Dist. LEXIS 43711, at *7-8 (E.D. Cal. June 26, 2006), addressed an analogous claim, and held that veganism is not a religion:

All courts recognize some distinction between a religious belief and a non-religious lifestyle decision; courts will protect the former, but not the latter.

The complaint suffered from other defects, requiring its dismissal.

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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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