Barry M. Hartman, K&L Gates LLP*
Editor’s Note: This is the sixth in a series of guest commentary posts that address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.
The WLF Timeline notes that in 2005, the Environmental Protection Agency (EPA) started co-locating its civil and criminal offices; it turns out this was just the tip of the iceberg. There has been a long pattern of convergence of criminal and civil environmental enforcement at EPA, jointly with the Department of Justice’s (DOJ) Environmental Division. When the difference between a criminal and regulatory offense—the “knowledge” or “scienter” requirement—was clear, a company knew what the stakes were if it was being investigated civilly. But over the last 25 years, the continuing relaxation of the “scienter” requirement in the environmental arena has blurred that distinction, so that the only articulation an EPA or DOJ lawyer will typically give to that standard is, “I know it when I see it,” allowing the government to use criminal sanctions where administrative or civil penalties would be more appropriate. Continue reading
Ed. Note: This morning at a press conference (the video on-demand for which can be accessed here), Washington Legal Foundation released the third edition of its Timeline: Federal Erosion of Business Civil Liberties. Joining the author of this post, WLF General Counsel Mark Chenoweth, at the briefing were former Associate Attorney General of the U.S. Jay Stephens and National Association of Criminal Defense Lawyers’ Executive Director Norman Reimer. Over the next six days, the WLF Legal Pulse will be featuring commentary by leading white-collar criminal law voices on each of the six topics covered in the Timeline.
Overcriminalization is a term that came into vogue about ten or so years ago as a catch-all phrase to describe several interrelated legal policy problems. Washington Legal Foundation (WLF) has been at the forefront of the debate on overcriminalization, helping to popularize the term and offering thought leadership to policymakers, judges, and other participants in the criminal justice system. One concrete manifestation of this leadership is the new third edition of WLF’s Overcriminalization Timeline, which tracks the federal erosion of business civil liberties. Continue reading
Featured Expert Column − Complex Serial and Mass Tort Litigation
By Richard O. Faulk, Hollingsworth LLP
Can a public-nuisance lawsuit be based solely on property owners’ fear that their property values will be diminished by proximity to an adjacent contaminated tract? The U.S. Court of Appeals for the Eighth Circuit recently—and correctly—rejected a creative, but flawed, attempt by landowners to recover damages for such claims in Smith v. ConocoPhillips Pipeline Co.
The use of public nuisance litigation to redress environmental claims has proven extraordinarily controversial—and generally unsuccessful. Perhaps the most famous failure occurred when plaintiffs employed nuisance theories to redress environmental contamination at Love Canal, in which case over a decade of litigation failed to produce a solution.1 Thereafter, appellate courts generally rejected the tort’s use for a wide variety of claims ranging from lead paint contamination to climate change.2 Continue reading
Featured Expert Column – Environmental Law and Policy
by Samuel B. Boxerman, Sidley Austin LLP with Ben Tannen, Sidley Austin LLP
On September 30, 2015, a Wyoming federal judge issued a preliminary injunction prohibiting the U.S. Department of Interior’s Bureau of Land Management (“BLM”) from enforcing its final rule governing hydraulic fracturing on federal and Indian lands pending resolution of the case. Wyoming v. U.S. Dept. of Interior. The decision itself is a major victory for industry, but if adopted elsewhere, the Court’s stated rationale—that the Congress has not authorized federal agencies to regulate hydraulic fracturing unless it involves the use of diesel fuels—could have even more far-reaching benefits for oil and gas development. Continue reading
Featured Expert Column – Environmental Law and Policy
by Samuel B. Boxerman, Sidley Austin LLP, with Joel F. Visser, an associate with the firm.
On September 1, 2015 a federal district court in Texas vacated a United States Fish and Wildlife Service (“FWS”) rule listing the lesser prairie chicken as threatened under the Endangered Species Act (“ESA”). In Permian Basin Petroleum Association v. Department of the Interior, the court found FWS failed to follow its own procedures for evaluating the effects of a voluntary state-lead program designed to protect the species. This decision could serve to limit future ESA listing decisions when state-lead conservation efforts designed to protect species are in place.
The federal government has been considering whether the lesser prairie chicken (a member of the grouse family) should be listed since 1995. The process has drawn substantial attention pitting environmental NGOs asserting the species’ needed ESA protection against landowners concerned with restrictions on their rights to make beneficial use of land across several western states. Oil and gas interests, among others, have been extremely concerned with a potential listing, as the bird’s habitat includes areas with active oil and gas exploration. Continue reading
The usual spate of articles by Supreme Court scribes pronouncing the Roberts Court staunchly pro-business were noticeably sparser as the latest term ended. When journalists are reduced to using the Obamacare and same-sex marriage cases as their main exhibits to prove the Supreme Court’s supposed pro-business tilt, you know it wasn’t a banner year for business.
Of course there were a few notable losses (King v. Burwell itself, Oneok, and Texas Dept. of Housing come to mind). But the fact that free enterprise did not fare well this term had comparatively little to do with the decisions the Supreme Court issued. Rather, business civil liberties suffered more overall from the various state supreme court and federal courts of appeals cases that the high court left on the cutting-room floor.
The tally that follows comprises more than just the cases of a disappointed cert seeker. WLF did not participate in more than half of the examples discussed below. However, the cert petitions mentioned here are all cases where free enterprise, individual and business civil liberties, or rule of law interests were at stake. From the free-market vantage point, it once again appears that the Court did not make enough room on its docket for cases implicating significant liberty interests. By choosing a lighter load, the Court allows legal uncertainty to linger, lower-court disobedience to fester, adventuresome new legal theories to propagate, and injustices implicating millions, if not billions, of dollars to prevail. Continue reading
By Rachael Stein, a summer law clerk at Washington Legal Foundation who is entering her third year at the University of Georgia School of Law this fall.
The U.S. Court of Appeals for the Ninth Circuit recently decided that the National Marine Fisheries Service (NMFS) need not perform a thorough balancing of the costs and benefits of an Endangered Species Act (ESA) critical habitat designation, and its decision not to exclude certain areas is judicially unreviewable. The ruling directly impacts over 12,000 square miles of waters, shorelines, and land areas of California, Oregon, and Washington. Its broader impact, however, will be much greater. NMFS and other agencies implementing the ESA, as well as the activists that sue under the law, will feel emboldened to take an even more aggressive approach, to the detriment of property owners, builders, and the entire development industry. Continue reading