Leftover on the Next EPA Administrator’s Plate: Supersized Portions of Fracking Regulation?

natural gasAs several news reports surrounding the resignation of Environmental Protection Agency Administrator Lisa Jackson noted (such as this Reuters story), the federal agency’s role in regulating hydraulic fracturing is one of many high stakes issues her replacement must address this year.

One fracking item left unaddressed is a petition filed by a coalition of activist groups with EPA last October.  The activists want fracking-related emissions reported to the government’s “toxic release inventory” (TRI) under the Emergency Planning and Community Right to Know Act.

Activist groups like the Environmental Integrity Project (EIP), which leads the petitioning coalition, want us to believe that fracking is an unregulated activity desperately in need of federal control.  In reality, the states have been actively regulating the industry for decades and continue to modify their rules to reflect recent developments.

In seeking to impose the Right to Know Act, the petitioners faced a major complication: the emissions from many of the fracking facilities would fall well below the Act’s reporting thresholds.  The TRI initiative applies to facilities processing more than 25,000 pounds or using more than 10,000 pounds of one of the listed chemicals.  Continue reading

5th Circuit Splits with Other Federal Courts on CAFA and Attorney General Suits

5thCir

Directly conflicting with three other circuit courts, the U.S. Court of Appeals for the Fifth Circuit has ruled that the Mississippi Attorney General’s parens patriae antitrust suit against various LCD display makers qualifies as a “mass action” under the Class Action Fairness Act and must be litigated in federal court (Mississippi v. AU Optronics Corp.).

Under CAFA, an action may be removed to federal court if it involves claims of 100 or more persons, includes common questions of law or fact, and seeks at least $5 million in damages. In deciding jurisdiction for the Mississippi Attorney General’s suit, the Fifth Circuit stated that the “decisive question” was “whether the suit involves the claims of ‘100 or more persons.’ If so, the suit is a mass action and removal is proper.”

The three-judge Fifth Circuit panel said that it was guided by a precedential 2008 case, Louisiana v. Allstate. In that case, a panel adopted what is now known as the “Caldwell claim-by-claim approach” and ruled that the interested persons in the case against the insurance industry were the individual policy holders and not the Louisiana Attorney General. The Fifth Circuit explained that the Caldwell approach instructs the court to “pierce the pleadings and look at the real nature of the state’s claims” to determine if the state is the plaintiff or if the state is suing on behalf of individuals. Continue reading

Appeals Court’s Limited Remand Should Not Give Hope to Trespassing Plaintiffs

31_train_trackIn October, the U.S. Court of Appeals for the First Circuit vacated and remanded back to the U.S. District Court for the District of Massachusetts a premises liability case that could have a significant impact on landowner rights.

In Menard v. CSX Transportation, Inc., a trespasser named Menard injured himself as he walked across an active rail yard on his commute home.  Menard argued that CSX employees breached their duty of care by failing to warn him to leave the property.  However, both the District Court and the First Circuit determined that, as a trespasser, “the duty owed to him – unless and until a specific peril threatened him and this became known to CSX – was only to avoid willful, wanton or reckless conduct.”

At issue on the limited remand is whether Menard was in fact in peril and, if he was, whether CSX employees acted negligently.  The District Court should reassert its previous position and, following Massachusetts case-law, hold that absent aggravating circumstances, an adult who chooses to trespass upon railroad tracks is not entitled to recover. Continue reading