Featured Expert Column – Environmental Law and Policy
By Samuel B. Boxerman, Sidley Austin LLP
On July 15, 2016, North Dakota became the first petitioner to challenge the Obama Administration’s unprecedented Clean Air Act rule governing methane emissions from new and modified oil and gas sources (“Methane Rule”).1 More petitions are anticipated.
The rule—also referred to as the “QuadOa” rule,2—sets emissions standards for methane at certain new and modified upstream and midstream oil and gas sources and requires owners and operators of affected sources to implement a leak-detection program to identify and repair fugitive emission leaks. Home to the Bakken Shale formation and now the nation’s second largest oil-producing state, North Dakota has a substantial interest in the burdens and benefits of the rule. Continue reading
No one any longer contests that President Obama acted in excess of his constitutional powers when, on January 4, 2012—a day on which the Senate was not in recess—he purported to grant a recess appointment to Richard Cordray to head the Consumer Financial Protection Bureau (CFPB). Yet, in a troubling decision issued last week, the U.S. District Court for the District of Columbia indicated that it was of no moment that for a period of 18 months Cordray, although no more than a private citizen, issued dozens of significant decisions in the name of CFPB. Judge Ellen Huvelle ruled in State National Bank of Big Springs v. Lew that Cordray, after finally receiving Senate confirmation, could simply wave a magic wand and retroactively approve all of his unauthorized acts. That decision eviscerates the Constitution’s explicit limitations on the President’s appointment powers and encourages future Presidents to disregard those limitations. Continue reading
Featured Expert Column − Toxic Tort and Environmental Litigation
Richard O. Faulk, Esq., a Partner with Alexander Dubose Jefferson & Townsend LLP serving clients in Texas and Washington DC.
Since the United States Supreme Court’s Skidmore v. Swift & Co., and Bowles v. Seminole Rock & Sand Co. rulings, the role of judicial deference in administrative law has expanded exponentially. For example, agencies now receive deference, under the Court’s Auer v. Robins decision, even if their own drafting creates the very vagaries and ambiguities that require interpretation. Courts also defer to agencies’ interpretations of statutes they are charged to administer (Chevron U.S.A. Inc. v. NRDC) and to scientific conclusions reached in the course of the regulatory process (Baltimore Gas & Electric Co. v. NRDC). By indulging these perspectives, the courts necessarily surrender their constitutional authority to “say what the law is,”1 and contribute to an arrogation of administrative power that threatens not only our constitutional separation of powers, but also their balance.2
Regulatory agencies have grown into what some call a “fourth branch” of our federal government.3 The threat posed by this de facto branch, also known as the “Administrative State”4 or, more colorfully, our “Junior Varsity Congress,”5 has attracted the growing attention of a number of Supreme Court justices. Continue reading
Featured Expert Column: Judicial Gatekeeping of Expert Evidence
By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP
When there are multiple cumulative causes of an injury, an expert witness’s testimony attributing specific causation to one of those causes must employ a standard that at least crosses the threshold necessary to establish causation under the law. Otherwise, the testimony is unhelpful to the jurors—indeed, it may affirmatively mislead them. This principle was front and center in a decision released by the Georgia Supreme Court on July 5. In Scapa Dryer Fabrics v. Knight, the court held that an expert witness’s testimony must “fit” the pertinent causation inquiry for asbestos cases under Georgia state law.
In the late 1960s and early 1970s, the plaintiff worked at defendant Scapa Dryer Fabrics’ manufacturing facility as an independent contractor. During that time, the pipes and boilers in the defendant’s manufacturing facility were insulated with material containing asbestos, and the defendant used yarn containing asbestos to make textiles. Continue reading
Featured Expert Contributor – Intellectual Property (Patents)
Jeffri A. Kaminski, Venable LLP
The U.S. Supreme Court’s recent Halo Electronics, Inc v. Pulse Electronics, Inc. decision changes the standard for awarding enhanced damages in patent litigation. The ruling reversed a 2015 U.S. Court of Appeals for the Federal Circuit decision that maintained that court’s longstanding approach to awarding enhanced damages.
In Halo, the Court altered the law on enhanced damages in three ways: 1) it eliminated the requirement to show objective recklessness; 2) it lowered the standard of proof from “clear and convincing evidence” to “preponderance of the evidence;” and 3) it adopted an abuse-of-discretion standard for the Federal Circuit’s review of a district court’s decision to grant enhanced damages. Continue reading
On June 15, 2016, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in three related bids to invalidate separate Hawaiian county ordinances. The counties of Maui and Hawaii ban the cultivation of genetically engineered crops or plants, while Kauai County requires that cultivation of genetically modified organisms (GMOs) be annually disclosed to the county. Opponents allege that the ordinances are preempted by state and federal statutes and regulations governing agriculture and “plant pests.” Three separate federal district courts found that the ordinances were preempted, causing the counties, or their interested intervenors, to appeal to the Ninth Circuit. Continue reading
On June 20, 2016, the US Court of Appeals for the Federal Circuit declined to rehear en banc a panel’s decision in Acorda Therapeutics v. Mylan Pharmaceuticals from this past March. The panel in Acorda ruled that when a generic drug manufacturer files with the FDA an Abbreviated New Drug Application (ANDA) for approval to market a generic drug, that manufacturer is subject to personal jurisdiction in any jurisdiction in which it plans to direct sales of that drug if and once FDA approves its ANDA. Since then, three district courts in four separate decisions have applied Acorda to deny a generic manufacturer’s Federal Rule of Civil Procedure 12(b)(2) motion based, at least in large part, on the ANDA filing. Continue reading