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In Center for Biological Diversity, et al., v. Bureau of Land Management, the U.S. Court of Appeals for the Ninth Circuit held that the Bureau of Land Management (BLM) did not violate the Endangered Species Act (ESA) when its analysis of plans to expand access for off-road vehicles in the Imperial Sand Dunes Special Recreation Area (located in California) did not include a Biological Opinion with an “Incidental Take Statement” for the species of plant known as the Peirson’s milkvetch that is categorized as a “threatened species” under the ESA. Construing Sections 7 and 9 of the ESA, the Ninth Circuit agreed with BLM’s argument that Incidental Take Statements are reserved solely for fish and wildlife, and not plant species. When these sections of the law are read together, the Ninth Circuit concluded the ESA prohibits the taking of fish and wildlife only; therefore, the law does not require that the Biological Opinion contain an Incidental Take Statement for endangered plants. The remaining challenges were analyzed by the Ninth Circuit under the “arbitrary and capricious” rubric of the Administrative Procedures Act (APA), and were similarly rejected.

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An earlier case, decided by the U.S. Court of Appeals for the Sixth Circuit on June 3, 2016, is noteworthy because it resulted in an opinion affirming the government’s use of the criminal restitution laws to require a defendant to pay EPA $10.4 million in restitution for EPA’s cleanup efforts. The case is U.S. v. Sawyer.

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On August 11, the U.S. Court of Appeals for the Fifth Circuit issued an opinion rejecting the ExxonMobil Pipeline Company’s request for a stay pending appeal of a Compliance Order issued by the Pipeline and Hazardous Materials Safety Administration (PHMSA) of the Department of Transportation. The case is ExxonMobil Pipeline Company v. U.S. Department of Transportation, et al. The Court of Appeals, applying its standard criteria for evaluating such stays requests, held that the pipeline has not established that it can prevail on the merits, and otherwise seems to express serious misgivings about ExxonMobil’s line of defense at this time. In any case, the parties have been ordered to follow an expedited briefing schedule.

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The U.S. Court of Appeals for the Sixth Circuit has decided a new federalism case. stopIn State of Tennessee, et al., v. Federal Communications Commission, decided on August 10, 2016, the Court of Appeals held that Section 706 of the Telecommunications Act of  1996 does not authorize the Federal Communications Commission (FCC), acting as a federal agency, to preempt laws enacted by the legislatures of Tennessee and North Carolina to confine municipalities engaged in telecommunications services (by providing internet service) to their current territorial boundaries. This decision is important because it helps to define federal agencies’ authority to act.

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Can the federal government at times and, in all places, commandeer the states to act in a certain way? “Commandeering” refers to a federal requirement that state officials enact, administer, or enforce a federal regulatory program. There are limits to the federal government’s constitutional authority to do so, which are discussed in a recent decision by the U.S. Court of Appeals for the Third Circuit. On August 9, the Court of Appeals held that a 2014 New Jersey law, which partially repealed the state’s prohibitions on sports betting, was preempted by the federal Professional and Amateur Sports Protection Act.  Consequently, the federal law prohibiting sports betting will prevail in New Jersey, where the Legislature was hoping to find a way to generate more revenues for its casinos and racetracks. The en banc Court of Appeals rejected New Jersey’s arguments that the federal law was unconstitutional because it “commandeered” the states to act in a way that violates the Constitution. This case is NCAA v. Governor of New Jersey. Of interest, the U.S. Supreme Court has held that, under the commandeering doctrine, the federal government cannot compel or coerce the states, as separate sovereigns, to enact legislation demanded by the federal government.

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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.

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Also on August 9, 2016, the U.S. Court of Appeals for the DC Circuit held that the gaveladministrative 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

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The Nevada State Contractors Board’s annual Contractor Training Day is scheduled for August 23 from 8:30 a.m. – 12:00training 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

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On August 8, the U.S. Court of Appeals for the Third Circuit released an opinion rejecting several challenges to pipeline-300x225environmental 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).

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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:

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  • On August 8, the U.S. Court of Appeals for the Second Circuit issued a very long (127 pages) ruling  affirming in all respects the (400-page) opinion of the U.S. District Court for the Southern District of New York which found that a massive judgment obtained by the Ecuadorian plaintiffs against Chevron for alleged pollution in the Ecuadoran rain forest by Texaco many years ago was, in fact, procured by fraud. The case is Chevron Corporation v. Donzinger, et. al. The District Court enjoined Donzinger and his associates from seeking to enforce in the United States an $8.6 billion judgment; imposed a constructive trust for Chevron’s benefit on any property that Donzinger and his associates received that is traceable to this judgment or its enforcement; and held that the conduct of this litigation against Chevron violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (RICO) and also warranted relief under the common law of New York. The defendants-appellants argued that Chevron had no Article III standing to pursue this action, and that to uphold the judgment for Chevron would violate principles of international comity and judicial estoppel. This result confirms again the inestimable value of an independent, fearless judiciary, which is so sadly wanting in many areas of the world.

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