At Oral Argument, Ninth Circuit Appeared Poised to Preempt Hawaii GMO Ordinances

9thCirOn 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

WLF’s Annual End-of-Term Review Assesses Key Supreme Court Free-Enterprise Decisions

The U.S. Supreme Court: October 2015 Term Review

Speakers: The Honorable Jay Stephens, Kirkland & Ellis LLP; Andrew J. Pincus, Mayer Brown LLP; Elizabeth P. Papez, Winston & Strawn LLP; Jeffrey B. Wall, Sullivan & Cromwell LLP

Our speakers discussed Court rulings in the areas of class actions, arbitration, the federal False Claims Act, intellectual property, federal regulation, and property rights.

Supreme Court Observations: U. S. Army Corps of Engineers v. Hawkes, Co.

sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP with Ben Tannen, Sidley Austin LLP

On May 31, 2016, the US Supreme Court held that a Clean Water Act (CWA) “jurisdictional determination” (JD) was final agency action subject to review under the Administrative Procedure Act (APA)  U.S. Army Corps of Engineers v. Hawkes, Co.  Hawkes empowers landowners to challenge decisions that the CWA applies to a specific parcel of property immediately after that determination, rather than after an enforcement action or completion of the lengthy and burdensome permitting process.  The judgment was unanimous, with seven of eight justices signing on to Chief Justice Roberts’ opinion for the Court; Justice Ginsburg concurred in the judgment.

The underlying dispute involved the CWA’s most controversial provision: Section 404, which prohibits the discharge of pollutants from a point source into “waters of the United States” without a permit.1  Section 404 directs the Army Corps to issue permits authorizing the discharge of dredged or fill material into waters of the United States, including wetlands. Continue reading

Federal Lawsuit Challenges Water-Resource Commission’s Authority over Natural Gas Exploration in Pennsylvania

sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP with Joel Visser, Sidley Austin LLP

Delaware River Basin Commission (“DRBC”) in federal court in Pennsylvania seeking a declaratory judgment that the DRBC lacks authority to review and approve activities associated with natural gas exploration and development.  Wayne Land and Mineral Group, LLC v. Delaware River Basin Commission, Case No. 16-897 (M.D. Penn.).  WLMG owns the surface and mineral rights to 180 acres of land in Wayne County, Pennsylvania, 75 of which are located in the Delaware River Basin.  WLMG asserts that a declaratory judgment is necessary because the DRBC’s self-imposed moratorium on reviewing permit applications for oil and natural gas development related to hydraulic fracturing effectively prevents the landowners from otherwise seeking judicial review of the scope of the DRBC’s authority. Continue reading

EPA Poised to Attempt Fracking Ban Through Orchestrated Settlements?

white flagReturning to the topic of hydraulic fracturing (see Mark Chenoweth’s May 4 post below), we note the lawsuit that the Natural Resources Defense Council (NRDC) and other environmental activists filed on May 4 against EPA, alleging that the agency simply is not doing enough to regulate fracking. Just two days earlier, the Colorado Supreme Court held that state law preempts efforts by local governments to regulate fracking. Perhaps that outcome dictated the timing of NRDC’s action. Such local ordinances are part of NRDC’s three-pronged approach to attacking this oil and natural-gas extraction method. The coalition of plaintiffs includes Earthworks, which intervened to defend the local ordinance in one of the Colorado cases. Continue reading

Kudos to Colorado Supreme Court for Protecting Private-Property Rights from Special-Interest Enviro Groups

natural gasFracking is alive and well in Colorado.  This past Monday, the Colorado Supreme Court delivered a unanimous and resounding victory to property-rights owners in two important hydrofracking cases.  Joining states like Texas, Oklahoma, and Ohio, the Centennial State determined that local activism must give way to state law when it comes to permitting the fracking of oil and gas wells.

A 2012 vote in Longmont (pop. 90,000+) had banned fracking there by adding Article XVI to the municipality’s home-rule charter, and a 2013 vote in Fort Collins (pop. 156,000+) adopted a city ordinance that imposed a five-year moratorium on fracking or storing fracking waste in city limits.  The state’s oil and gas association took both cities to court, prevailing against each in 2014.  Longmont and Fort Collins appealed to the Colorado Court of Appeals, which transferred the cases to the state supreme court.  Although this maneuver sped the cases to final resolution, the local laws remained in place during the pendency of the appeal, so half of the Fort Collins moratorium already elapsed before the supreme court could overturn it for good. Continue reading

Will Popular Proposition 65 Carcinogen-Listing Device Survive Constitutional Challenge?

grimaldi-bio-photo-warmGuest Commentary

By Ann Grimaldi, Principal, Grimaldi Law Offices

In a significant challenge to the so-called “Labor Code mechanism” of adding chemicals to the California Proposition 65 list, Monsanto Company filed a lawsuit against the California Office of Environmental Health Hazard Assessment (“OEHHA”) in response to the agency’s September 2015 proposal to list glyphosate—the active ingredient in Roundup® weed and grass herbicide products—as a carcinogen. Monsanto Company v. Office of Environmental Health Hazard Assessment, et al. (Fresno County Superior Court). Asserting violations of the U.S. and California Constitutions, Monsanto seeks an injunction against the agencies’ listing of glyphosate and a court declaration that the Labor Code listing mechanism violates the U.S. and California Constitutions as applied to the proposed listing. Continue reading