January has been a busy month for the Fifth Circuit, which has issued a number of significant rulings.
- Building the Border Wall. On January 8, 2020, in El Paso County, Texas, et al. v. Donald J. Trump, et al., 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 plaintiffs 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.
- More Deepwater Horizon Oil Spill Damage Cases. 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 suffered economic damages from the spill.) In this case, BP Exploration and Production, Inc. v. Claimant ID 100354107, 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 difficult to determine the scope of the damages suffered 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 sufficient evidence under the terms of the Settlement Agreement to uphold these awards.
- The Endangered Species Act Status of the Golden-Cheeked Warbler. On January 15, 2020, the court decided the case of the General Land Office of Texas v. The US Department of the Interior, et al. The 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 Office (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 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.
- The Unauthorized Use of Copyrighted Material and Copyright Infringement Concerns. On January 15, 2020, the court issued a ruling in the case of Energy Intelligence Group, Inc., et al. v. Kayne Anderson Capital Advisors, et al. The plaintiffs published an energy industry newsletter, the Oil Daily, whose content is largely developed by the plaintiff'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 office. 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 plaintiffs filed a copyright infringement lawsuit seeking substantial "statutory damages" under the Copyright Act and the Digital Millennium Copyright Act (DMCA). The defendants argued that the plaintiffs, 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 plaintiffs were entitled to an additional award of over $1 million in addition to substantial legal fees which are permitted under the law.
Taking the Statute as One Finds It: On January 15, 2020, in Giovani, et al. v. Department of the Navy, the U.S. District Court for the Eastern District of Pennsylvania dismissed the plaintiffs' 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.
Applying Emission Standards Only to the Actual Emitters. Finally, 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." In Association of Washington Businesses, et al. v. Washington State Department of Ecology, 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.
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