Pillsbury Winthrop Shaw Pittman has posted a client advisory reporting on some of the significant U.S. Supreme Court actions from January through June 2016 related to environmental and administrative law.

The Supreme Court decisions discussed in the advisory involve energy regulation, public lands/statutory interpretation, land regulation/tribal, rico/offenses committed abroad, clean water act/administrative procedure act finality, standing, agency interpretation/chevron deference, clean air act/epa clean power plan, mercury air toxics standard.

The court declined to hear two cases involving CWA/American Farm Bureau Federation, and Groundwater Contamination/Exxon Mobil.

The advisory also covers two cases of interest in the upcoming term, involving regulatory takings and  presidential appointments.

Read the article.

The Council of State Governments has posted a two-part series of on-demand webinars exploring the status of nuclear waste management in the United States, with a focus on how the lack of a disposal facility affects electricity customers, the communities that are home to nuclear power plants, and the utilities that own and operate the plants.

Both parts of the series are available on the Council’s website. Part one is here.

The Nuclear Waste Policy Act of 1982 established a national program for the safe, permanent disposal of highly radioactive waste. In 2002, Congress approved a site at Nevada’s Yucca Mountain; however, that project was stalled and defunded in 2010. Consequently, there currently is no disposal facility in the United States for spent fuel rods from 99 operating commercial nuclear reactors across the country.

Watch the on-demand webinars.

Corporations seeking to avoid enforcement of foreign judgments they contend are based on corrupt proceedings may have a new weapon now, thanks to a ruling by a federal appeals court over Chevron’s long-running Ecuadorian pollution litigation, reports BloombergBusinessWeek.

The court affirmed that a lawyer for victims engaged in wrongdoing to secure a $9.5 billion verdict in the South American country.

“The decision hands well-heeled corporations a template for avoiding legal accountability anywhere in the world,” says Deepak Gupta, the lawyer representing Steven Donziger, the controversial New York attorney who has been battling Chevron over pollution liability in Ecuador for decades.

Paul Barrett explains that “the case began with pollution in oil fields operated by Texaco Inc. in the rain forests of Ecuador in the 1970s and 1980s. In 1993, Donziger and other U.S. lawyers sued Texaco in New York on behalf of villagers and indigenous tribe members. Chevron acquired Texaco and its potential liabilities in 2001. The pollution case was dismissed by U.S. courts and restarted in Ecuador in 2003.”

Read the article.

“While each crisis is unique, proper preparation can stabilize the situation and mitigate potential liability and damages,” the firm says. “A particular area of focus should be the preparation of an incident investigation report – when to prepare a report, who should prepare a report, how the report should be prepared and what may happen with the report in subsequent litigation.”

Watch the on-demand video.

A.M. Best and Best’s Directories of Insurance Professionals will host a webinar to explore the legal and insurance issues surrounding lead injuries.

The one-hour complimentary event will begin at 2 p.m. EDT on Wednesday, August 3.

Lead was once used in a variety of construction materials, especially paint. Lead poisoning can be disastrous, if not deadly, the company says on its website. A panel of legal and insurance professionals will discuss the sources of lead injury claims, developing liability issues and the industry impact of lead-based claims.

Panelists include:

• Phil Pizzuto, partner; Lindabury, McCormick, Estabrook & Cooper, P.C.;
• Eileen Buholtz, attorney/firm member; Connors, Corcoran & Buholtz, PLLC;
• Brian Hinton, attorney; Anderson Crawley & Burke, pllc; and
• Ken Gillespie, litigation specialist; Builders Mutual Insurance Company.

Best’s Directories’ Managing Editor John Czuba will moderate the discussion.

Register for the webinar.

USA Today is reporting that German automaker Volkswagen Group is expected to deliver a $10 billion settlement to cover government fines and compensate owners of vehicles fitted with software that cheated emissions standards.

The newspaper cited reports by Bloomberg and the Associated Press saying Volkswagen’s deal, which is due to be filed in a federal court by Tuesday, includes payments of up to $7,000 to owners of vehicles affected by the scandal.

“The settlement has a provision to remove any VW diesel vehicle with a 2-liter engine that hasn’t been brought into compliance, said Elizabeth Cabraser, the court-appointed lead counsel for the plaintiff’s steering committee. Either they will have to be modified or VW will buy them back.” USA Today reports.

Read the article.

Image by Ron Mader | Planeta

At the Big Law Business Summit last week, New York State Attorney General Eric Schneiderman ripped into Exxon Mobil for its stance on climate change, reports Bloomberg.

The report says Schneiderman accused Exxon of glossing over the risks that climate change poses to its core businesses in its public securities statements, and then couching its disclosure as first amendment protected.

“The first amendment doesn’t protect fraud – it doesn’t protect fraudulent speech,” he said.

Seventeen state attorneys general are investigating whether fossil fuel companies mislead investors in public disclosures about the risks associated with climate change.

Read the article.

U.S. District Court Judge Dee Drell  of the Western District of Louisiana recently denied a motion to alter or amend the court’s judgment against CITGO Petroleum Corp. – allowing an $81 million judgment against the oil company to stand, report Jaclyn E. Hickman and Robert B. McNeal on the Energy Law Blog of Liskow & Lewis.

The article reports that the judgment is the latest in a suit the EPA filed against CITGO under the Clean Water Act for a 2006 spill at the oil company’s St. Charles refinery.

“Given that in 2015 all civil enforcement actions by the EPA yielded penalties totaling $205 million (excluding settlements), the CITGO judgment stands out as unusually large,” the authors write. … “The Fifth Circuit’s response to CITGO’s second appeal may provide guidance on whether these types of judgments could be a trend in future Clean Water Act enforcement actions.”

Read the article.

The Associated Press is reporting that Volkswagen and attorneys for vehicle owners affected by the company’s emissions cheating scandal are on target to meet a June deadline for a final settlement proposal, a federal judge said Tuesday.

A federal judge in San Francisco said the parties have made substantial progress in reaching a deal for that could affect more than 480,000 owners of polluting Volkswagens in the U.S.

“Many questions remain unanswered, including how much money owners can expect in a buyback and how much additional compensation beyond repairs and buybacks they’ll receive,” according to the report.

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From two different courts in two different states on two very different claims come the same concept: an agreement to arbitrate may be binding even without a signed contract, according to a report by Stan Martin on the Commonsense Construction Law website.

“One comes via an unsigned law firm partnership agreement, and the other via an agreement placed on the wrapping of a bundle of roofing shingles, held to be binding on the property owner who hired the contractor who engaged, in turn, the subcontractor purchasing the shingles,” he writes.

“These cases serve as a reminder that (1) a person or company can be bound by a contract without signing that contract, based on other actions, and (2) if that (unsigned) contract calls for arbitration, the person/company is bound to arbitrate disputes that arise under the contract.”

Read the article.

Environmental lawyer Laura Whiting has joined Gardere Wynne Sewell LLP as a partner in the firm’s Dallas office.

Whiting joins Gardere’s environmental practice group where she will assist clients with all aspects of compliance and permitting for heavily regulated industry and real estate development. For all businesses, she anticipates more state, federal and citizen enforcement, incident investigations, regulatory advocacy, and product stewardship requirements, as well as the ongoing need to conduct thorough due diligence and cost-effective remediation and cost recovery, the firm said in a release.

The release continues:

She brings more than 27 years of experience in the chemical manufacturing, power generation, airline, and oil and gas industries. Ms. Whiting joins the Firm from Occidental Chemical Corp. where she served as senior counsel for the company’s environmental, health, safety, process safety, product stewardship, quality assurance and security functions.

Ms. Whiting began her legal career at Gardere before joining the U.S. Environmental Protection Agency in 1992 as an assistant regional counsel and enforcement attorney for Region 6. While at the EPA, she represented the government in multimedia, hazardous waste, federal facility and release reporting enforcement cases, regulatory development and policy matters. Prior to joining Occidental, she was a partner at Hunton & Williams LLP and also practiced environmental law at Winstead PC.

“We are excited that Laura is rejoining Gardere as a partner in our environmental practice group,” says Gardere Chair Holland N. O’Neil. “Laura’s extensive environmental background, including her experience in the chemicals industry, will further enhance our expertise in this practice area.”

Ms. Whiting currently serves on the board of directors with the Dixon Water Foundation, an organization dedicated to ensuring that present and future generations of Texans have the water resources they need. She is also a Texas state trustee for The Nature Conservancy and previously chaired the Environmental Health Commission for the City of Dallas, as well as the Dallas Nature Center, now Audubon’s Cedar Ridge Preserve.

“It is a great pleasure to rejoin the Firm where I started my career,” says Ms. Whiting. “Gardere’s environmental attorneys are among the most respected in their field, and I am honored to join this highly regarded group of professionals.”

A coalition of U.S. state attorneys general received guidance from well-known climate scientists and environmental lawyers in March as some of them opened investigations into Exxon Mobil for allegedly misleading the public about climate change risks, documents seen by Reuters showed, Reuters is reporting.

The report says Peter Frumhoff of the Union of Concerned Scientists, which has urged action on climate change, and Matt Pawa, who litigated against Exxon in a global warming case, were listed as presenters at a March 29 meeting of more than a dozen state prosecutors. That information came from emails between the offices of attorneys general in New York and Vermont.

Environmental groups are pushing in court, at the U.S. Securities and Exchange Commission and in the offices of pension funds to demand more accountability on climate issues from big oil companies,” the report says.

Read the article.

Twenty-four states are suing to block the Obama administration from implementing its new clean power regulations — the cornerstone of a promise that the United States will reduce greenhouse gas emissions to limit global warming, but some Texas energy companies are not as unanimous in their opposition. That’s because Texas’ energy sector is transforming rapidly, reports Mose Buchele for NPR.

“We really see what we are promoting as a very Texas way to do this,” says Brett Kerr, a lobbyist and spokesperson for Houston-based Calpine Energy, the largest independent power producer in the country. Kerr says Calpine consumes 15 percent of the gas produced in Texas.

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On March 17, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a major proposal to revise the safety standards for onshore natural gas pipelines, reports Kevin A. Ewing of Bracewell LLP.

“The proposed rule follows years of study as well as specific direction from Congress requiring new pipeline safety initiatives. The proposal spans over 500 pages and contains numerous major and minor revisions and agency statements that together demonstrate PHMSA’s intention to assert substantially more control over the design, operation and maintenance of pipelines to prevent incidents,” he writes.

More pipelines would be subject to Integrity Management requirements if the rule is approved, he explains. “It would also expand the definition of regulated gathering lines, accelerate pipeline repairs, and set a higher bar for data gathering and analysis of risk, among other changes. The proposed rule does not address underground gas storage, valves and leak detection, or quality management systems.”

Read the article.

Soft-spoken and bookish litigator Elizabeth Cabraser stood out from the cloud of alpha lawyers when made her low-key pitch to a federal judge as to why she should be selected to lead a massive consumer-fraud case against Volkswagen AG, reports The Wall Street Journal, via NASDAQ.

Her eloquence and focus on the clients contrasted with dozens of others who pitched the judge that day, bragging about their most recent newspaper awards, school credentials and trial prowess, the report says.

“U.S. District Judge Charles Breyer hours later named Ms. Cabraser to lead a team of 21 lawyers handling the plaintiffs’ cases, which consolidate more than 500 lawsuits. Volkswagen has admitted its diesel cars were installed with software meant to trick emissions tests and is working with regulators on a fix,” according to the report.

“The San Francisco Bay Area native has built a reputation for her encyclopedic knowledge of class-action law, effectiveness in oral arguments, and ability to diplomatically manage large cases, lawyers say.”

Read the story.

The rise of local bans on hydraulic fracturing, or “fracking,” by local governments has sparked a recent backlash in carbon-producing states, writes Kristen Van de Biezenbos of Texas Tech University School of Law in an article posted on the Social Science Research Network.

“In 2015, Texas, Oklahoma, and North Carolina passed laws that forbid any city, town, or other municipal body from banning fracking or passing certain regulations on the practice, by popular vote or otherwise. Other states are likely to follow suit,” she writes.

In an abstract, she says her article is the first to propose that cities and towns in those states could incorporate and enforce existing state environmental laws. “By doing so, those municipalities may be able to ensure compliance with those environmental regulations by oil and gas companies and minimize some of the environmental harms associated with fracking, even when they cannot enact outright bans on the practice. Further, this Article explains why the incorporation and enforcement of state environmental laws by cities and towns — and particularly cities and towns in states that have taken away local power to enact fracking bans — should not be expressly or impliedly preempted by those laws. Indeed, taking this approach would also further important policy goals inherent in federalism and help restore voter confidence in the democratic process.”

Read the article.

Two high-profile Texas attorneys were sued by a fishing boat captain who said they were involved in a scam to cheat BP Plc out of millions of dollars with false compensation claims for the Gulf of Mexico oil spill, reports Bloomberg.

Houston lawyer Tammy Tran said in a complaint Thursday that thousands of Vietnamese-American fishermen and women had their identities faked or stolen in the fraud, bankrolled by lawyers Bob Hilliard and John Cracken. Plaintiffs blame the lawyers in part for obstructing their efforts to pursue their own claims for payments under BP’s restitution program, the report says.

“Tran is seeking more than $100 million in punitive damages from Hilliard and Cracken to compensate the immigrants,” according to Bloomberg. “Many of them claim to have suffered mental anguish from “nightmarish memories” of Vietnam’s communist regime, revived by federal agents knocking on doors to investigate the identity thefts. Compensation is also sought for homes and businesses lost while waiting for BP to pay under its seafood accord.”

Hilliard denied the allegations.

Read the story.

Volkswagen has been given until March 24 to present an acceptable fix for bringing nearly 600,000 diesel cars into compliance with clean air laws, reports DW Akademie.

U.S. District Judge Charles Breyer told the car maker at a court hearing in San Francisco on Thursday that he has a “sense of urgency” about seeing a resolution.

The company has already admitted to using software that covers up the fact that some of their cars emit up to 40 times legally allowable emissions in vehicles sold since 2009.

Read the article.

A decade-old oil leak that could last for another century was caused by an “act of God” during a hurricane in the Gulf of Mexico, the president of the company responsible said Wednesday, according to an Associated Press report.

“This event hits home for us,” said Taylor Energy President William Pecue, the last remaining full-time employee at the New Orleans-based company. “This is our community. We live here and it is very special to us.”

The AP said the public meeting at an LSU research center is a requirement of a court settlement that Taylor Energy reached in September with environmental groups, which accused the company of withholding information about the leak.

Read the article.

John E. Griffith Jr., a partner in DLA Piper’s Baltimore office, has been selected to receive The Daily Record’s 2015 Leadership in Law award.

The award recognizes 27 members of the legal community for outstanding work throughout Maryland. Griffith was selected from more than 70 nominees. Winners must have devoted time and energy to bettering the legal profession, as well as the communities in which they live and work. They must also have mentored future professional and community leaders.

Griffith is co-chair of the firm’s global Environmental Health and Safety Group and chair of the US Environmental Practice Group. With more than 35 years of experience representing high profile clients in a broad range of matters involving environmental issues, he is highly regarded both within DLA Piper and the legal community. Additionally, Griffith is involved in a variety of pro bono projects, including the firm’s Combat Related Special Compensation (CRSC) program, which assists disabled veterans whose disability stems from military service, Conservation International (CI), a science-based conservation organization on legal agreements required for the implementation of forest carbon conservation projects in Peru and the Nature Conservancy on projects related to creation and restoration of oyster reefs.

The winners were honored at an awards dinner Nov. 19 at the BWI Hilton in Baltimore.