Environmental

By Seyfarth Shaw LLP on October 15, 2019

By Jennifer L. Mora, Adam R. Young, and Craig B. Simonsen Seyfarth Synopsis: The Western District of New York, in Horn v. Medical Marijuana, Inc., et al., issued an initial procedural order last week in a case where the plaintiff’s purchase and use of the defendant products resulted in a failed drug test that resulted in his employer terminating his employment. Horn v. Medical Marijuana, Inc., et al. No. 15-cv-701-FPG (W.D.N.Y.) We have…

Law & The Environment

Boston’s Climate Action Plan Update: The Time Has Come For Buildings!

By Seth Jaffe on October 15, 2019

Last week, Boston released its Climate Action Plan 2019 Update. The Update identifies “priority actions” for the next five years necessary to put Boston on a trajectory towards carbon neutrality by 2050. There’s a lot in the Update, but because it states that 71% of Boston carbon emissions come from buildings and it thus leads with its discussion of buildings, I’m going to focus there. Here are among the initiatives that Boston wants to…

Louisiana Law Blog

Comments on Social Media Could be Costly Under HIPAA

By Steven Boutwell on October 14, 2019

By: Jennifer J. Thomas The U.S. Department of Health and Human Services, Office of Civil Rights (“OCR”), announced on October 2, 2019, that it had entered into a settlement with a private dental practice that had violated the HIPAA Privacy Rule by posting patient protected health information (“PHI”) on Yelp. The OCR received a complaint in 2016 from a patient alleging that the dental practice had responded to the patient’s online Yelp review of the…

The Nickel Report

Federal District Court Poised to Consider Petition for Issuance of a New Rule Versus Petition for Amendment of an Existing Rule

By Andrew D. Knudsen on October 14, 2019

In December 2018, an article in this blog flagged a petition for EPA rulemaking under the Toxic Substances Control Act (TSCA) that, if denied, had the potential to set up precedent-setting litigation on citizens’ ability to use the courts to require EPA action under TSCA. Now, nearly a year later, the scenario that article described is coming true. In a challenge to EPA’s denial of that petition, a federal district court is poised to decide…

Law & The Environment

Particulate Matter Has Not Clouded My Crystal Ball

By Seth Jaffe on October 14, 2019

Last month, I noted that EPA’s Office of Air Quality Planning and Standards had released a draft reassessment of the particulate matter NAAQS. In a bold moment of speculation, I indicated that it would be difficult for EPA to avoid lowering the PM2.5 NAAQS to between 8.0 and 10.0 micrograms/cubic meter. Following issuance of the draft, and in order to ensure that EPA does not ignore the emerging scientific consensus, the Union of Concerned Scientists …

frESH

US District Courts Start Applying Kisor v. Wilkie; Is Auer Deference Now a “Paper Tiger”?

By Brent Owen on October 14, 2019

As we’ve covered extensively on this blog, the administrative state responsible for implementing environmental, health, and safety policy in the United States is in flux. A few months ago in Kisor v. Wilkie the US Supreme Court upheld but significantly narrowed Auer deference. Auer instructs that courts must defer to an agency’s construction of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.” After Kisor though, lower courts reviewing an…

Environmental Law & Policy Monitor

EPA Proposes Significant Revisions to Lead and Copper Rule

By Brooks Smith, Fitz Veira, Patrick Fanning & Mandi Moroz on October 14, 2019

On October 10, 2019, the Environmental Protection Agency (EPA) announced long-awaited proposed revisions to its Lead and Copper Rule (LCR) under the Safe Drinking Water Act. The proposed LCR revisions come nearly 30 years after the federal government last updated its lead and copper testing procedures. Originally promulgated in 1991, the LCR has long been criticized for its imprecise language and has come under fire in recent years in the wake of the water crisis…

Endangered Species Law and Policy

Ninth Circuit Orders NMFS To Reassess Dam Decisions

By Crescent Cheng on October 11, 2019

In a recent opinion, the United States Court of Appeals for the Ninth Circuit reversed in part the United States District Court for the Eastern District of California’s grant of summary judgment to the National Marine Fisheries Service (“NMFS”) in Friends of the River v. NMFS, No. 18-15623 (9th Cir. Oct. 3, 2019). Plaintiff Friends of the River (“FOR”) challenged (1) NMFS’ decision to characterize the existence of federally-managed dams on the Yuba River…

Workplace Safety and Environmental Law Alert Blog

President Issues Executive Orders on Guidance Documents and Transparency

By Seyfarth Shaw LLP on October 11, 2019

By Andrew H. Perellis, Jeryl L. Olson, Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen Seyfarth Synopsis: The regulated community had a pleasant surprise from President Trump this week. The President issued two executive orders that have the stated intent to make closeted or last minute agency guidance and interpretations of federal rules a thing of the past. The orders require notice and publication of the guidance and interpretations…

Workplace Safety and Environmental Law Alert Blog

E-911: New Proposed Federal Regulations Would Require Workplace Telephone Systems be Direct Dialing

By Seyfarth Shaw LLP on October 10, 2019

By Brent I. Clark, Adam R. Young and Craig B. Simonsen Seyfarth Synopsis: The FCC has proposed new rules that would require employers to have compliant phones systems for 911 direct dialing. Most large employers maintain multi-line phone systems at their workplaces. Along with emergency action plans and evacuation procedures, employers must take affirmative steps to ensure that company hard wired phones provide adequate safety protections in the event of an emergency. Some state…