Articles Posted in Government & Administrative Law

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The DC Circuit denied a petition for review challenging the EPA's February 2018 decision not to issue financial responsibility requirements for the hardrock mining industry. The court deferred to the EPA's interpretation that it should set financial responsibility regulations based on financial risks, not risks to health and the environment, because the use of "risk" in section 9608(b) in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), in the general mandate and amount clauses, was ambiguous and the EPA's interpretation was reasonable. Furthermore, nothing in section 9608(b) mandates the EPA to promulgate financial responsibility requirements for the hardrock mining industry, authorizing the EPA to decline to do so. The court also held that the EPA's financial risk analysis and economic analysis were neither arbitrary nor capricious. Finally, under Circuit and Supreme Court precedent, the court held that the EPA's Final Action not to adopt financial responsibility requirements for the hardrock mining industry constitutes a logical outgrowth of the Proposed Rule. View "Idaho Conservation League v. Wheeler" on Justia Law

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After GLH acquired radio spectrum licenses from Leap, who had originally purchased some licenses from the FCC, it assumed the obligation of the installment payments. When GLH failed to make the payments for some of the licenses, the Commission canceled them and reauctioned the underlying spectrum to new providers. GLH challenged both the Commission’s decision to cancel the licenses and its refusal to give GLH a credit against its debt for the proceeds of the reauction. The DC Circuit held that the Commission acted appropriately in cancelling GLH's licenses for failure to make the installment payments and in refusing to apply the reauction proceeds against GLH's debt. In this case, the Commission appropriately explained the legal standard, examined the particular facts of GLH's case, and reasonably applied that standard to those facts. Therefore, the Commission's denial of GLH's waiver request was not arbitrary and capricious. The court also held that GLH may initiate consideration of its equitable argument for debt forgiveness by filing a petition for debt compromise. Accordingly, the court affirmed the Commission's decision. View "GLH Communications, Inc. v. FCC" on Justia Law

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Petitioners sought review of the National Transportation Safety Board's decision revoking their air agency certificate. The DC Circuit upheld the Board's determination concerning petitioners' performance of maintenance without the appropriate technical data. However, the court set aside the Board's intentional-falsification charge, because the Board departed from its own precedents when considering whether petitioners had acted with the requisite knowledge. Accordingly, the court granted the petition for review in part and vacated the Board's revocation of petitioners' air agency certificate. The court vacated the sanction imposed by the Board and remanded for further consideration. View "Kornitzky Group, LLC v. Elwell" on Justia Law

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Relator filed suit under the False Claims Act (FCA), alleging that a handful of large chemical manufacturers violated the Toxic Substances Control Act (TSCA) by repeatedly failing to inform the EPA of information regarding the dangers of isocyanate chemicals. The DC Circuit affirmed the district court's dismissal of the action, declining relator's invitation to be the first court to recognize FCA liability based on defendants' failure to meet a TSCA reporting requirement and on their failure to pay an unassessed TSCA penalty. View "United States ex rel. Kasowitz Benson v. BASF Corp." on Justia Law

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Petitioners challenged EPA's promulgation of a final rule that treated material transferred from a waste generator to a third-party reclaimer as legitimately recycled, rather than "discarded" and subject to Subtitle C regulation, if several conditions were met (the Transfer-Based Exclusion). The DC Circuit denied the petition for review and held that the Transfer-Based Exclusion was not arbitrary or capricious. The court held that EPA did not act contrary to the Resource Conservation and Recovery Act of 1976 (RCRA) in adopting the Transfer-Based Exclusion because hazardous secondary materials are not necessarily "discarded" each time they are transferred from a generator to a reclaimer along with payment. The court also held that EPA has provided a reasoned explanation for applying different standards to materials that are not yet part of the waste disposal problem RCRA addresses where they meet conditions EPA concluded were adequate for safe transfer and legitimate recycling. View "California Communities Against Toxics v. EPA" on Justia Law

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EPIC filed suit seeking to enjoin the addition of a citizenship question to the 2020 Census. EPIC alleged that, before the Department's announcement of the citizenship question, its members were entitled to a Privacy Impact Assessment (PIA) by law. The DC Circuit remanded to the district court to dismiss the case, because EPIC lacked standing. The court held that EPIC's assertion of organizational standing was plainly foreclosed by precedent, and its assertion of associational standing also failed, because it has not identified a concrete injury suffered by one of its members. View "Electronic Privacy Information Center v. US Department of Commerce" on Justia Law

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Because the Energy Independence and Security Act of 2007 contains a citation to nowhere, the EPA issued a document setting forth its interpretation of the periodic-review provision of renewable fuel requirements and explaining why it believes it has complied. Valero petitioned for review of the EPA's document. The DC Circuit dismissed Valero's petition based on lack of jurisdiction, because the EPA document did not constitute final agency action. View "Valero Energy Corp. v. EPA" on Justia Law

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These consolidated appeals stemmed from the cyberattack of multiple OPM databases that resulted in the data breach of sensitive personal information from more than 21 million people. Plaintiffs alleged that OPM's cybersecurity practices were inadequate, enabling the hackers to gain access to the agency's database of employee information, in turn exposing plaintiffs to heightened risks of identity theft and other injuries. The district court dismissed the complaints based on lack of Article III standing and failure to state a claim. The DC Circuit held that both sets of plaintiffs have alleged facts sufficient to satisfy Article III standing requirements; the Arnold Plaintiffs have stated a claim for damages under the Privacy Act, and have unlocked OPM's waiver of sovereign immunity, by alleging OPM's knowing refusal to establish appropriate information security safeguards; KeyPoint was not entitled to derivative sovereign immunity because it has not shown that its alleged security faults were directed by the government, and it is alleged to have violated the Privacy Act standards incorporated into its contract with OPM; and, assuming a constitutional right to informational privacy, NTEU Plaintiffs have not alleged any violation of such a right. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "In re: U.S. Office of Personnel Management Data Security Breach Litigation" on Justia Law

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Petitioners sought review of the SEC's order approving Rule 2030, which regulates the political contributions of those members of FINRA, prohibiting a placement agent from accepting compensation for soliciting government business from certain candidates and elected officials within two years of having contributed to such an official's electoral campaign or to the transition or inaugural expenses of a successful candidate. The DC Circuit held that NYGOP has standing, but denied its petition on the merits, holding that the SEC acted within its authority in adopting Rule 2030; doing so was not arbitrary and capricious because the SEC had sufficient evidence it was needed; and the Rule does not violate the First Amendment in view of our holding in Blount v. SEC, 61 F.3d 938 (1995), in which the court upheld a functionally identical rule against the same challenge. View "New York Republican State Committee v. SEC" on Justia Law

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These consolidated cases concerned the kind of evidence that the Commission deems relevant to proceedings challenging the rate increase of oil pipelines. The DC Circuit vacated the challenged orders, holding that the Commission failed to provide sufficient reasons for changing its policy. Therefore, the court remanded for the Commission to explain or reconsider its decision to take into account post-rate-increase information. View "Southwest Airlines Co. v. FERC" on Justia Law