On August 8, the U.S. Court of Appeals for the Seventh Circuit, in a decision affirming the final energy efficiency regulations issued by the Department of Energy (DOE) for commercial refrigeration equipment, held that DOE’s use of a measure of carbon emissions known as the “Social Cost of Carbon” was proper under the law; that the Department was authorized to consider such environmental factors in its standards. The case is Zero Zone, Inc., et al., v. US Department of Energy.
Also on August 9, 2016, the U.S. Court of Appeals for the DC Circuit held that the 
administrative law judges (ALJ) employed by the Securities and Exchange Commission were not “Officers” as that term is employed by the Constitution because their actions were also subject to review by the Commission. Since they are not constitutional officers, their decisions cannot be set aside simply because they were not appointed in accordance with the Appointments Clause. This case is Raymond J. Lucia Companies, Inc., et al., v. SEC. This ruling would appear to apply to many ALJS employed by the federal government.
Photo: KOMUnews, Airport Advisory Determines Future Plans After Election Results, Taken April 3, 2013 – Creative Commons
The Nevada State Contractors Board’s annual Contractor Training Day is scheduled for August 23 from 8:30 a.m. – 12:00
p.m. at 5400 Mill Street, Reno, NV 89502 and September 13 at the Clark County Building Department in Las Vegas. The free half-day event will cover (1) Liens and Contract Law and (2) Issues in Labor and Employment Law. For more information, contact Scott Smith at (702) 486-1165 or ssmith@nscb.state.nv.us.
Photo: Steve S., Studying, Taken November 9, 2006 – Creative Commons
On August 8, the U.S. Court of Appeals for the Third Circuit released an opinion rejecting several challenges to 
environmental permits and authorizations granted by environmental regulatory agencies in New Jersey and Pennsylvania. The consolidated cases are Delaware Riverkeeper Network, et al., v. Secretary Pennsylvania Department of Environmental Protection and New Jersey Conservation Foundation, et al, v. New Jersey Department of Environment of Environmental Protection, et al. At the outset, however, the Court of Appeals considered, and rejected, the arguments the states made that the Court of Appeals was without jurisdiction to review these petitions, particularly concerning those state actions assessing the water quality impacts of this pipeline expansion under Section 401 of the Clean Water Act (CWA).
The state and federal appellate courts have issued a surprising number of significant rulings in a variety of environmental and administrative law controversies in late July and early August:
The federal Consumer Financial Protection Bureau (CFPB) was urged this week by some in Congress to speed up its rulemaking aimed at arbitration provisions in consumer contracts used by companies offering payment services or financial products to consumers. In May, the preliminary rule was released. In Arbitration Provisions Mauled by Consumer Watchdog, my colleagues Amy Pierce, Andrew Caplan, and I discussed the proposed rule and the potential new reality for all consumer facing companies. At the heart of the proposal, the CFPB would ban consumer financial services providers from requiring consumers to waive class action rights in connection with pre-dispute arbitration clauses. (In a minor victory for the industry, the CFPB has not outright banned pre-dispute arbitration agreements—at least not yet.)
Additional Sources: CFPB’s Report to Congress: To Arbitrate Consumer Financial Services Claims or Not; CFPB’s Arbitration Study—A Warning to Consumer Financial Service Companies
Photo: CafeCredit.com, CFPB, Uploaded June 13, 2016 – Creative Commons
Today, we published our alert Supreme Court’s Environmental and Administrative Law Decisions in 2015-2016 Term. 
In the Advisory, we provide a brief report on some of the significant U.S. Supreme Court actions from January through June 2016 related to environmental and administrative law.
*Pillsbury summer clerk Brittney Sandler made significant contributions to this article. Sandler is currently enrolled at Georgetown University Law Center where she serves as editor for the Georgetown Law Journal and as a legal research and writing fellow.
Photo: Phil Roeder, Supreme Court of the United States, Taken March 15, 2011 – Creative Commons
On July 29, 2016, the U.S. Court of Appeals for the DC Circuit released a very long
(156 pages) opinion essentially upholding every regulatory decision made by the EPA in three major Clean Air Act (CAA) rulemakings: the “Major Boilers Rule”; the “Area Boilers” rule; and the “Commercial/Industrial Solid Waste Incinerators” (CISWI) rule. The consolidated cases are United States Sugar Corporation v. EPA; American Forest & Paper Association, et al. v. EPA; and American Chemistry Council v. EPA. These new rules , according to the Court, “set emissions limits on certain combustion machinery known to release hazardous air pollutants (HAPs),” and each rule was promulgated on March 21, 2011.
My colleagues Mark Elliott, Kevin Fong and I, in Lesson of Ninth Circuit CERCLA Decision: Prepare to Prove Recoverable Costs, discuss the lesson to be learned from the Ninth Circuit Court of Appeals’ June 13, 2016 decision in Whittaker Corp. v. United States. The Ninth Circuit held that a party which has settled its liability pursuant to a Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) section 107 cost recovery claim may recover any response costs not covered by the settlement under CERCLA section 107. This decision confirms that a responsible party is not necessarily limited to a claim for CERCLA contribution under section 113 merely because it has been sued under section 107. Although Whittaker does not present a sea change for CERCLA claims, it serves as a reminder that documentation and segregation of costs sought in a CERCLA action are important to simplify recovery and to preserve recovery options
My colleague Matt Morrison today published a client alert titled
U.S. EPA Finds Greenhouse Gas Emissions from Aircraft Endanger Public Health—a First Step in Adoption of New ICAO Standards. The Alert discusses the U.S. Environmental Protection Agency’s (EPA) issuance of a finding that aircraft greenhouse gas (GHG) emissions endanger public health and welfare in the wake of the International Civil Aviation Organization (ICAO) release of a draft rule in February of this year proposing a new standard for reducing GHG emissions in new and in-production commercial aircraft. The EPA’s finding is a prerequisite for new U.S. regulations setting standards for GHG emissions, which will be adopted after ICAO’s standard is finalized in March 2017.
Photo: Ikarasawa, JA67AN, Taken December 21, 2013 – Creative Commons
