Update: Supreme Court to Decide Whether the CWA Regulates Discharges through Groundwater to Waters of the United States

Sam Boxerman, Featured Expert Contributor, Environmental Law and Policy

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As we anticipated in our post last year, the Supreme Court has granted a petition for a writ of certiorari from the Ninth Circuit in County of Maui v. Hawaii Wildlife Fund. The justice will decide whether the Clean Water Act (CWA) regulates discharges through groundwater that reach a water of the United States (WOTUS). The certiorari grant embraced the Solicitor General’s view, who filed an amicus brief urging the Court to take the case and decide the groundwater discharge issue.

This issue has become a prominent one in CWA jurisprudence recently, with three circuit courts of appeals weighing in on the issue in five decisions in 2018 alone. The circuits are split; the Ninth Circuit and the Fourth Circuit have determined that the CWA does regulate discharges to groundwater, while the FifthSixth, and Seventh Circuits have held that it does not.

If the Court ultimately sustains the Ninth Circuit’s approach, Maui will have far reaching implications for CWA regulation and enforcement, particularly for spills and other releases that reach groundwater. Moreover, the Court is addressing the case at the same time that EPA and the Corps are receiving comments on their proposed revised definition of what is a water of the United States.  Although Maui is not expected to address the definition of WOTUS, the decision will bear close reading for any Supreme Court insights into that all-important Clean Water Act term.

The Court added Maui to the docket for its October Term 2019, which begins this fall on October 7.

*Sam Boxerman is a Partner in the Washington, DC office of Sidley Austin LLP.

 

Proposed Federal Alcohol Labeling Revisions Retain Constitutionally Suspect Review Standards

TTBOn November 26, 2018, the Alcohol and Tobacco Tax and Trade Bureau (TTB) published an extensive proposed rule that seeks to “reorganize and codify [labeling and advertising] regulations in order to simplify and clarify regulatory standards … and reduce the regulatory burden on industry members where possible.” The agency is accepting public comments on the proposal until June 26, 2019.

TTB’s efforts to streamline the rules and finally recognize long-standing First Amendment precedents are welcome. But parts of the proposed rule do not adequately protect the commercial speech rights of alcohol-beverage producers and consumers. We’ll focus here (as WLF will in its forthcoming public comment) on the prohibition of statements on labels or in advertisements that are disparaging, false, misleading, obscene, or indecent.

While encouraging civility in the wine, beer, and spirits marketplace may be a noble cause, simply stating that such regulation “reflects … longstanding ATF and TTB policy” will not save rules that restrict commercial speech from successful court challenges. Continue reading “Proposed Federal Alcohol Labeling Revisions Retain Constitutionally Suspect Review Standards”

Supreme Court’s DeVries Decision Doesn’t Spell the End of “Bare Metal” Defense in Asbestos Cases

Featured Expert Contributor, Mass Torts—Asbestos

RobertWrightRobert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

Last month, the United States Supreme Court rejected the “bare metal” defense to products liability claims in maritime cases.  Air & Liquid Systems v. DeVries, No. 17-1104, 2019 WL 1245520 (U.S. Mar. 19, 2019).  Some have predicted that the decision marks the beginning of the end for that defense even outside the maritime context.  But the prediction is premature.  The DeVries decision comes after the highest courts in some states have already embraced the “bare metal” defense and in doing so rejected the same arguments that the DeVries majority has now endorsed.  Those state decisions will continue to control in those jurisdictions, at least in non-maritime cases.  Further, those state courts are unlikely to reverse course and accept arguments that they so recently rejected.

In DeVries, the families of naval veterans who had died of cancer brought products liability claims against the manufacturers of pumps, blowers, and turbines used on naval ships, claiming that the manufacturers were negligent in failing to warn of the risks of asbestos-containing insulation the Navy used with their products.  The district court granted summary judgment for the manufacturers, holding that under the “bare metal” defense, the manufacturers were not liable for failing to warn about asbestos-containing products that they did not manufacture or supply.  The U.S. Court of Appeals for the Third Circuit reversed, holding that the manufacturers had a duty to warn because it was “foreseeable” that the asbestos-containing products would be used with their products. Continue reading “Supreme Court’s DeVries Decision Doesn’t Spell the End of “Bare Metal” Defense in Asbestos Cases”

Third Circuit Limits the FTC’s Authority to Challenge Ceased Conduct

Featured Expert Contributor, Antitrust & Competition Policy — Federal Trade Commission

M. Sean Royall, a Partner at Gibson, Dunn & Crutcher LLP, with Richard H. Cunningham, a Partner and Emily Riff, an Associate, both with the firm.

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On February 25, 2019, the Third Circuit issued a decision affirming the District of Delaware’s dismissal of the FTC’s “sham petitioning” case against Shire ViroPharma (Shire), the manufacturer of the branded drug Vancocin.  The Court of Appeals held that to proceed pursuant to § 13(b) of the FTC Act, the FTC must plead facts plausibly showing that Shire is “about to violate” the antitrust laws, but failed to do so because the challenged conduct ceased years before the lawsuit and the FTC’s allegations were otherwise insufficient to meet the “about to violate” standard.

The decision may substantially limit the FTC’s ability to invoke § 13(b) in cases where the challenged conduct is not ongoing.  This is significant because the agency has, for years, successfully used § 13(b) to challenge past conduct in both the antitrust and consumer-protection contexts in federal court to obtain injunctive and equitable monetary relief.   Continue reading “Third Circuit Limits the FTC’s Authority to Challenge Ceased Conduct”

U.S. Government Should Champion Foreign-Commerce Authority in Washington Export Terminal Legal Dispute

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Port of Longview, WA

Lighthouse Resources, Inc. v. Inslee, a federal lawsuit of great national consequence pending in the U.S. District Court for the Western District of Washington (here and here are our past posts on it), has reached a critical point after a year of pre-trial developments. In its January 3, 2018 complaint, Lighthouse Resources (LHR) and BNSF Railway (which intervened as a plaintiff) allege that several Washington State officials, including Governor Jay Inslee, violated the U.S. Constitution and federal laws by blocking approval of a water-port terminal in Longview, Washington. Earlier this month, the plaintiffs moved for partial summary judgment on their claim that the officials intruded on the U.S. government’s exclusive authority over foreign commerce.

Given the lawsuit’s enormous implications for the American economy and federal foreign-affairs power, the U.S. government should file a “statement of interest” with the court urging it to enjoin Washington’s actions. Those actions—motivated, LHR and BNSF assert, by state officials’ desire to block foreign sales of a single disfavored commodity, coal—contravene a federal directive encouraging U.S. exports of energy resources to U.S. allies in Asia. Continue reading “U.S. Government Should Champion Foreign-Commerce Authority in Washington Export Terminal Legal Dispute”

Love Regulation or Hate It, the National Debt Is Not Your Friend

barbariansBy the end of the reign of Trajan, in what would later be called AD 117, the impending decline of the Roman Empire could be seen by anyone who looked closely at the coins. In the days of Nero, a half-century before, more than nine parts in ten of a denarius was silver. When Trajan died the ratio was approaching eight in ten, and by the time Septimus Severus gained power in the late second century, it was scarcely more than five in ten.

The Roman state became ever more elaborate, and it incurred ever-mounting administrative, redistributive, and military expenses. Spending less was hard, as was collecting more, so the government on the whole did neither; it just debased the currency. “The inflation that would inevitably follow would tax the future to pay for the present,” writes Joseph Tainter in The Collapse of Complex Societies; “but the future could not protest.”

The United States is $22 trillion in debt. It is set to add another $12.4 trillion over the next ten years. That amounts to a deficit of around $1 trillion a year, or $2.5 billion a day. The country now sustains, as a matter of course, an annual deficit of a size formerly seen only during an economic slump or a major war. It is the de facto policy of the federal government to borrow 20 cents of every dollar it spends. Continue reading “Love Regulation or Hate It, the National Debt Is Not Your Friend”

A Material Change: FCA Defendants Confront Altered Pleading Standard in Ninth Circuit after Rose and Campie

Featured Expert Contributor, False Claims Act

Stephen_Wood_03032014Stephen A. Wood, Chuhak & Tecson, P.C.

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In 2016 the U.S. Supreme Court handed down its decision in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), a watershed in False Claims Act jurisprudence.  The Petitioner asked the Court to decide whether the statute permitted liability for falsely certifying compliance with federal requirements where that certification was not expressly stated, but implied by a defendant’s conduct.  On that issue, the High Court held unanimously in the affirmative, resolving a conflict among the courts of appeals.

In response to defense arguments that the theory would dramatically expand the scope of False Claims Act liability, the Court sought to reassure government contractors that certain pleading and proof principles applicable to these cases would constrain post-Escobar expansion of False Claims Act liability.  Expansive liability “‛can be effectively addressed through strict enforcement of the Act’s materiality and scienter requirements.’ Those requirements are rigorous.”  Escobar, 136 S. Ct. at 2002 (citations omitted).  The Court’s statements regarding the element of materiality in particular have spawned significant litigation in federal courts throughout the country over what type and quantum of evidence bears on the question of whether a claimed violation is material. Continue reading “A Material Change: FCA Defendants Confront Altered Pleading Standard in Ninth Circuit after Rose and Campie