North Dakota Becomes First Petitioner to Challenge EPA’s Methane Rule

sboxermanFeatured 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

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

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

Fifth Circuit Allows Maliciously Prosecuted Company to Sue US Government for Damages

EPAcrimIn 1996, a heavily armed team of EPA criminal investigators raided a facility of Louisiana company Trinity Marine Products, Inc. Three years later, the federal government indicted the company and manager of the raided facility, Hubert Vidrine, for illegally storing hazardous waste without a permit. The U.S. Attorney dismissed the indictment in 2003. On February 8, 2016, 20 years after the EPA raid, the U.S. Court of Appeals for the Fifth Circuit has cleared the path for the company to at last pursue Federal Tort Claims Act (FTCA) remedies against the government. As we explained in a WLF Legal Pulse post, Mr. Vidrine, with assistance from WLF attorneys, won a $1.7 million malicious-prosecution claim under the same law in 2011. Continue reading

Accountability for Thee, But Not for Me: EPA, the Animas River and “Environmental Crime”

Cement Creek, Silverton, Colorado

Cement Creek, Silverton, Colorado

Over the past two weeks, several executives for a now-bankrupt chemical supply company in West Virginia received prison sentences for discharges of a pollutant and for failing to have a pollution-prevention plan. At the same time these developments unfolded, a U.S. House of Representatives committee released a report shedding further light on the role of Environmental Protection Agency employees and contractors in the release of toxic wastewater from a Silverton, Colorado mine on August 5, 2015. The juxtaposition of the two cases amply demonstrates the double standard that prevails where federal government employees evade accountability for their actions while demanding full environmental compliance from everyone else. Continue reading

Federal Officials Display Disregard for Due Process in Opposing “Mens Rea” Reform

barsFair notice of the law is a basic principle that separates liberal democracies like the United States from more authoritarian governments. Fair notice is an especially critical due-process check against government’s power to criminally prosecute. Government must not only prove that a person did the unlawful act, but also that he intentionally engaged in wrongful conduct or knew the conduct was illegal—that it, that he had a guilty mind. So why, then, is the Obama Administration and other elected representatives opposing reforms to ensure that federal criminal laws include a clear criminal-intent standard?

The idea being advanced seems far from revolutionary or controversial, which may explain why politicians and interest groups of every ideological stripe support it: Federal laws with criminal provisions must require prosecutors to prove that the accused possessed the mens rea, or culpable mental state, to commit a crime. If a law lacks such language, then a default intent provision will apply, such as showing that the defendant acted “willfully” or “recklessly.” Continue reading