JANUARY 2020
FEDERAL APPELLATE COURTS
U.S. Court of Appeals for the Fifth Circuit
El Paso County, Texas, et al. v. Donald J. Trump, et al.
On January 8, 2020, a divided panel of the court quickly granted a stay of the lower
court’s injunction against using appropriated DOD funds to build a section of the
“border wall” in the El Paso area. The court noted that a similar stay was granted
by the Supreme Court last year in Trump v. Sierra Club, 140 S. Ct. 1 (2019), and the
Government is “entitled to the same relief” here. In addition, the court suggested that
the plaintis lacked Article III standing. Judge Higginson dissented because, without
further discussion, he was unable to conclude that the Government has shown a
likelihood of success on the merits or irreparable harm in the absence of a stay.
BP Exploration and Production, Inc. v. Claimant ID 100354107
On January 14, 2020, the court upheld the lower court’s denial of BP’s request for
“discretionary review” of several claims for damages resulting from the April 2010
Deepwater Horizon explosion and fire that released millions of gallons of crude
oil into the waters of the Gulf of Mexico. (BP negotiated a Settlement Agreement
and implementing procedures with representatives of many parties claiming
they suered economic damages from the spill.) In this case, the claimants were
the operators of Walmart stores located along the Gulf Coast. Their claims were
accepted, and awards totaling over $15 million were granted. BP argued that a
change in Walmart’s accounting system made it very dicult to determine the scope
of the damages suered by these stores. However, the court, as has done in many of
these cases, rejected BP’s arguments after the Claims Administrator, the Appeals
Panel and the district court agreed that there was sucient evidence under the
terms of the Settlement Agreement to uphold these awards.
General Land Oce of Texas v. The U.S. Department of the Interior, et al.
Fish and Wildlife Service initially listed the Warbler as an endangered species in
1990—but did not designate a critical habitat—and many years later the General
Land Oce (GLO) challenged the original listing and also submitted a petition for
to reconsider that listing. Agreeing with the lower court, the Fifth Circuit held that
the request to set aside the initial listing decision was time-barred, but the Fish
and Wildlife Service’s decision to deny the reconsideration petition was based on
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Anthony B. Cavender
Senior Counsel, Houston
+1.713.276.7656
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Environmental Law –
The Year in Review
by Anthony Cavender, excerpted from gravel2gavel.com
the incorrect legal standard must be remanded to the
Service. It should be noted that the court also held that the
Service’s listing decisions were not subject to traditional
NEPA considerations.
Energy Intelligence Group, Inc., et al. v. Kayne
Anderson Capital Advisors, et al.
In this case, the plaintis published an energy industry
newsletter, the Oil Daily, whose content is largely
developed by the plainti’s employees. The use of this
material is authorized by a copyright license purchased
by the defendants, which places strict controls on its use
within the licensee’s oce. The publication provides
sophisticated coverage of the North American petroleum
industry, and the defendants are a “boutique investment
firm,” where energy securities are an important
component of its business. Believing that the defendants
were not adhering to the terms and conditions of the
copyright license, the plaintis filed a copyright infringe-
ment lawsuit seeking substantial “statutory damages”
under the Copyright Act and the Digital Millennium
Copyright Act (DMCA). The defendants argued that the
plaintis, when they learned that the defendants were
not adhering to the terms of the license, were obliged to
mitigate their damages by more forceful action. The lower
court agreed with this argument, but the Fifth Circuit
disagreed, and held that the plaintis were entitled to
an additional award of over $1 million in addition to
substantial legal fees which are permitted under the law.
U.S. District Court for the Eastern District
of Pennsylvania
Giovani, et al. v. Department of the Navy
On January 15, 2020, the court dismissed the plaintis’
lawsuit which alleged that they could seek relief under
Pennsylvania’s Hazardous Sites Cleanup Act because
two chemicals—PFOS and PFOA—were found in area
groundwater and drinking water wells. While the
court held that the Navy could not assert the defense of
sovereign immunity, its defense that neither chemical
was listed as a “hazardous substance” in the Pennsylvania
statute requiring the dismissal of the lawsuit was granted.
The court noted that these facts may change in the future,
but litigants must take the statute as they find it.
STATE COURTS
Supreme Court of the State of Washington
Association of Washington Businesses, et al. v.
Washington State Department of Ecology
On January 16, 2020, the Supreme Court of the State of
Washington ruled in a 5-to-4 decision that the Washington
Clean Air Act does not authorize the state’s Department of
Ecology to “establish and enforce greenhouse gas emission
standards for business and utilities that do not directly
emit greenhouse gases, but whose products ultimately
do.” The majority opinion, written by the Chief Justice,
concluded that “by its plain language and structure, the
Act limits the applicability of emission standards to actual
emitters.” The rule was promulgated in 2016, argued
before the Supreme Court in March 2019 and decided
in January 2020. The court held that this provision of
the Rule could be severed from the rest of its validly
authorized provisions.
FEBRUARY 2020
FEDERAL APPELLATE COURTS
U.S. Court of Appeals for the D.C. Circuit
Narragansett Indian Tribe Historic Preservation Oce
v. Federal Energy Regulatory Commission (FERC)
The Narraganset Tribe, located in Massachusetts, sought
judicial review of a FERC order which denied it motion to
intervene in a natural gas pipeline certification proceeding
before FERC after the initial FERC certificate of public
convenience and necessity had issued. The Tribe was
concerned that the construction of the pipeline across
aected lands that have a “sacred significance” to the
Tribe. By the time this matter reached the DC Circuit,
the pipeline had been constructed, with the attendant
injuries the Tribe feared. On February 7, 2020, the court
ruled against the Tribe for lack of jurisdiction. The Tribe
also sought an Order from the court to compel the agency
to amend its rules so that the time for useful action on
behalf of petitioners would not be aected by the ongoing
procedural rules enforced by the agency, but this too
was unsuccessful because the Tribe had no standing to
pursue this action because the alleged violation was no
longer redressable.
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