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Today, our colleagues Julia Judish, Rebecca Carr Rizzo and John Scalia published their alert discussing a U.S. District Court’s very recent issuance of a nationwide preliminary injunction preventing the Department of Labor from implementing and enforcing its new overtime regulations. Those regulations, which would have more than doubled the minimum salary level required to exempt executive, administrative, professional, and salaried computer professional employees from eligibility for overtime, would otherwise have been effective December 1. They note that although a preliminary injunction is a temporary court order, in light of the timing of the preliminary injunction and the upcoming change of Presidential administration, the ruling may foreclose the overtime regulations from ever taking effect. The alert is titled Preliminary Injunction Creates Uncertain Fate For Overtime Regulations.

Additional Source: U.S. Department of Labor More Than Doubles Minimum Salary Levels for FLSA Overtime Exemptions; Court Issues Nationwide Preliminary Injunction of DOL’s Overtime Rules Effective Dec 1

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In Federal Court Rules New Overtime Requirements Won’t Go Into Effect on December 1, our colleague Scott Flick discusses the U.S. District Court for the Eastern District of Texas’ ruling in a civil action challenging the Department of Labor’s (DOL) new overtime regulations. The civil action that was brought by the State of Nevada and 20 other states and recently consolidated with a related civil action brought by the Plano Chamber of Congress and over 50 other business organizations. Today, in response to a motion filed by states, the District Court granted a nationwide preliminary injunction, preventing the new salary threshold (and scheduled increases to it in future years) from going into effect until the District Court has had an opportunity to rule on the legality of the rule change. Effective December 1, the Final Rule would have, among other things, increased the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $921 per week ($47,892 annually). In its ruling, the District Court made it clear that the DOL will have a hard time defending the rule change.

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On November 18, the U.S. Court of Appeals for the Ninth Circuit issued three unanimous decisions affirming the U.S. District Court for the District of Hawaii’s rulings that three local county ordinances—enacted by the counties of Maui, Kauai and Hawaii—are preempted by the laws of the State of Hawaii or the federal Plant Protection Act (PPA), 7 U.S.C. § 7756(b). The ordinances purported to regulate pesticides and genetically engineered plants or even banning the cultivation and testing of genetically-engineered plants. The published opinions are Atay, et al., v. County of Maui, et al., and Syngenta Seeds, Inc., et al., v. County of Kauai. The unpublished opinion is Hawai’i Papaya Industry Assoc., et al., v. County of Hawaii.

The Maui County ordinance was the result of a citizens’ initiative, and the Kauai ordinance was enacted in the regular course of county business. In the Syngenta Seeds case, the Ninth Circuit ruled that the “field preemption” test devised by the Hawaii Supreme Court required the rejection of Kauai County ordinance. In the Atay case, the Ninth Circuit concluded that the provisions of the Maui County ordinance were preempted by both the PPA and impliedly by the laws of the State of Hawaii.

In the third case, the Ninth Circuit held that a recently-enacted ordinance of the County of Hawaii which bans the “open air testing of genetically engineered organisms of any kind” and “open air cultivation, propagation, development or testing of genetically engineered crops of plants” was preempted by federal and state law.

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On November 16, the U.S. Court of Appeals for the Ninth Circuit decided the case of State of Missouri ex rel. Chris Koster, et al., v. Harris, in which it largely affirmed the lower court’s decision that the States of Missouri, Nebraska, Oklahoma, Alabama, Kentucky and Iowa lack standing to challenge the California laws and policies that mandate that no eggs can be sold in California that are the produced in states that do not adhere to California’s conditions under which chickens must be kept. One lesson to draw from this is that it’s very difficult to persuade the courts that the Commerce Clause always limits what the state legislatures can do. Continue Reading ›

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On November 17, the U.S. Court of Appeals for the Sixth Circuit decided the case of Sherwood, et al. v. Tennessee Valley Authority.  The Court of Appeals reversed the lower court’s ruling that a complaint filed by many property owners that the Tennessee Valley Authority (TVA) violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 to 4370m–12 (2012) (NEPA) was now moot because TVA had filed assurances with the lower court that the policy had been suspended. Continue Reading ›

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Our colleagues Jay Silberg and Vince Morgan report on a U.S. Government Accountability Office (GAO) sting operation in Texas during which GAO investigators obtained a radioactive material license in the name of a fictitious business permitting it to purchase dangerous quantities of radioactive material, and the related fallout.  The client alert is titled Texas Sting Operation Increases Focus On Radioactive Material Pre-Licensing Activities.

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Yesterday, our colleagues David Livdahl, Jenny (Jia) Sheng, and Wenjun Cai published an informative client alert discussing the State Administration of Industry and Commerce’s (SAIC) October 18, 2016  Guiding Opinion on Opening-up Enterprise Name Database and Promoting the Reform of Enterprise Name Registration (Guiding Opinion). Now applicants for a company registration in the People’s Republic of China will be able to check the names of existing companies in the database to avoid using a duplicate name that will result in the application being rejected by the SAIC’s local counterparts (AICs). This is expected to simplify the company establishment process and, furthermore, SAIC indicated that it will abolish the name pre-approval requirement in the near future. The client alert is titled Another Step to Speed Up the Company Registration Process in China.

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Environmental Protection Agency (EPA) recently released its “EJ 2020 Action Agenda.” EPA confirms that it will three basic goals:

  1. Deepen the environmental justice (“EJ”) practice within EPA programs;
  2. Work with it “partners” — other federal agencies and state and local governments — to advance EJ programs; and
  3. Demonstrate progress in significant EJ challenges, namely, lead disparities, drinking water, air quality, and hazardous waste sites.

Continue Reading ›

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On April 8, 2016, the Texas Court of Appeals, Third District, at Austin, issued an important decision interpreting the standard of review that applies to the judicial review of certain administrative enforcement orders issued by the Texas Commission on Environmental Quality (TCEQ). The case is TCEQ v. Exxon Mobil Corporation, et al., and involves the cleanup of the Voda Petroleum State Superfund Site (VPSSS).  The Court of Appeals held that the appropriate standard for the judicial review of the TCEQ’s order was the “preponderance of the evidence” test, where the TCEQ has the burden to prove the defendants are liable parties under the law. The TCEQ argued that the “substantial evidence” test was applicable. On October 31, 2016, following a motion for rehearing filed by the TCEQ, the Court of Appeals withdrew that opinion, and substituted a new opinion which essentially clarified the original ruling, and denied the TCEQ’s motion. Continue Reading ›

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Affirming the district court, the U.S. Court of Appeals for the Ninth Circuit rejected LakeTahoeclaims that the environmental impact statement (EIS) adopted by the Tahoe Regional Planning Agency supporting the Regional Plan Update (RPU) failed to comply with the requirements of the Regional Planning Compact between California and Nevada (Compact). The case is Sierra Club, et al., v. Tahoe Regional Planning Agency, decided on November 2, 2016.

Continue Reading ›