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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

 

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Today, we published our alert Supreme Court’s Environmental and Administrative Law Decisions in 2015-2016 Term. ScotusStairsIn 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

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On July 29, 2016, the U.S. Court of Appeals for the DC Circuit released a very longno (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.

 

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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

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My colleague Matt Morrison today published a client alert titledairplane 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

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My colleagues Dick Oliver and Selena Brady recently published an alert discussing the Small Business Administration’s (SBA) long-awaited Final Rule regarding “Small Business Mentor Protégé Programs” that establishes a government-wide mentor protégé program for all small businesses, including Historically Underutilized Business Zone businesses, Women-Owned Small Businesses, Service-Disabled Veteran-Owned small businesses, and small businesses generally. Of note, the Final Rule enables virtually all federal contractors to quickly begin participating in the small business mentor protégé program. The alert is titled SBA’s Small Business Mentor Protégé Program Expands Opportunities for Small and Large Businesses.

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Today, the Financial Crimes Enforcement Network (FinCEN) announced, effective August 28, 2016golden and continuing for 180 days, it is expanding its earlier Geographic Targeting Orders (GTO) requiring information about the natural persons behind shell companies used to purchase high-end residential real estate for “all cash.” FinCEN has been collecting this data on Manhattan and Miami-Dade County, Florida since January and believes it is “on the right track” in its anti-money laundering (AML) efforts and investigation of possible money laundering using real estate deals. It will collect this information in California for San Francisco, San Mateo and Santa Clara counties; Los Angeles County; and San Diego County. It will expand to all boroughs of New York City and to Broward and Palm Beach counties in Florida. Bexar county in Texas, that includes San Antonio is also included. Monetary thresholds for each area identified are provided in FinCEN’s announcement. Title insurance companies are required to comply with the GTO and provide the information.

Additional Source:  FinCEN’s First GTOs of 2016 Directed at U.S. Title Insurance Companies and “All Cash”

Photo: Images by John ‘K’, Blue and Gold, Taken April 1, 2013 – Creative Commons

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My colleagues Anthony Raven, Olivia Matsushita and Andrew White recently published an interesting advisory onco2 the future of carbon dioxide (CO2) injection enhanced oil recovery (EOR). The Future of Carbon Dioxide Injection EOR in the United States is the first advisory in a periodic series exploring legal issues relating to CO2 EOR and serves as an introduction to the EOR process. Their next advisory will focus on issues relating to the regulatory regime for CO2 transportation.

Photo:  Zappys Technology Solutions, CO2, Taken September 21, 2013 – Creative Commons

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In the latest installment in this long-running dispute, the U.S. Court of Appeals for the DC Circuit today, in Mingo Logan Coal Company v. EPA, ruled, in a 2 to 1 decision, that EPA satisfied its duties under the Clean Water Act (CWA) and Administrative Procedures Act (APA) when it vetoed a 404 dredge and fill permit Mingo Logan Coal Co. received from the U.S. Army Corps of Engineers (Corps) in 2007 with the concurrence of EPA, only to have EPA exercise its veto power in 2011. Mingo Logan also received a 402 permit from the State of West Virginia pursuant to its delegated authority. The dispute has been the subject of two district court rulings and now two DC Circuit Court of Appeals rulings.

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Pillsbury’s Policyholder Pulse Law blog recently posted an interesting blog,flood2 Use Contractor’s Pollution Liability Insurance to Clean Up Potential Gaps in Your CGL Coverage by , on the importance of contractors having the right liability coverage in place in the event that a flash flood or other natural disaster causes damage that is classified by the insurer as a pollution event.

Photo:  Erich Ferdinand, Deluge, Taken Nov. 29, 2012 – Creative Commons