States Come Up Short on Petition for Stay

  • The state plaintiffs in Michigan v. EPA were dealt a blow on Wednesday when the U.S. Supreme Court denied their petition for a stay of enforcement of the Mercury and Air Toxics Standards ("MATS") rule during the period in which the Environmental Protection Agency ("EPA") conducts a court-ordered cost analysis.
  • As we reported last week, a group of mostly Republican State AGs had asked the Supreme Court to stay the implementation of the rule, arguing that without the required cost analysis, the EPA never acquired the authority under the Clean Air Act to regulate mercury and other toxins emitted from power plants. Although the Supreme Court agreed with the states in June of last year when it found that the MATS rule had been improperly promulgated, on this occasion the Court denied the requested stay.

False Claims Act

Lockheed Agrees to FCA Fine

  • The Department of Justice ("DOJ") intervened and settled with Lockheed Martin Corporation and related subsidiaries, resolving a whistleblower case in which the plaintiffs alleged that Lockheed violated the U.S. False Claims Act by misrepresenting that it had complied with the Resource Conservation and Recovery Act ("RCRA") in connection to a contract with the Department of Energy ("DOE").
  • According to the complaint, Lockheed was responsible for providing uranium enrichment and related hazardous waste management services and failed to identify depleted uranium stored on site in accordance with the RCRA. According to the DOJ, the alleged failure to abide by the requirements of the RCRA in connection to the submission for payment under the DOE contract, amounted to a false claim.
  • As a result of the settlement agreement, Lockheed will pay $4 million to the government to resolve the False Claims Act allegations, and another $1 million in civil penalties for violating the RCRA. The case was originally brought by former employees at the site and the Natural Resources Defense Council, Inc.


Texas Argues Hazy EPA Authority at Fifth Circuit

  • Texas AG Ken Paxton has filed a lawsuit challenging the EPA's recently promulgated regional haze implementation plan for Texas in the U.S. Court of Appeals for the Fifth Circuit.
  • The Regional Haze Rule is designed to reduce the amount of "regional haze," for visibility purposes, at 156 federal wilderness areas and national parks. It requires states to submit implementation plans to the EPA, allowing state and federal regulators to collaboratively reduce air pollution that impairs visibility on the indicated federal lands. Texas had submitted its implementation plan in 2009. The EPA's plan for Texas, which came into effect on February 4 and aims to reduce sulfur dioxide pollution in Big Bend and Guadalupe Mountains National Parks by approximately 60 percent, partially disapproved the plan that Texas had already submitted.
  • In the petition for review, AG Paxton makes the argument that the EPA's Haze Rule is not a nationally applicable law, but instead a collection of requirements that seek to regulate strictly in-state emission sources. In addition, AG Paxton indicated that the EPA plan would require costly upgrades to electricity producers, and would cause the state's power grid to become less reliable.


Climate Change Investigation Heats Up for Oil Company

  • The DOJ has referred a request from U.S. Representatives Ted Lieu and Mark DeSaulnier to the Federal Bureau of Investigation's ("FBI") criminal division, asking the FBI to investigate ExxonMobil Corporation's disclosures on the risks posed by climate change in light of research conducted by the oil supermajor in the 1970s and 80s.
  • Reps. Lieu and DeSaulnier have been actively calling for both federal and state regulators to investigate Exxon since last fall. As we previously reported, New York AG Eric Schneiderman issued a subpoena last November, and California AG Kamala Harris, in connection to a letter from Lieu and DeSaulnier, opened her own state investigation. In addition, major investors including New York state pension funds and the Church of England have been requesting that Exxon disclose how its business would be affected by climate change.
  • In a statement, Exxon indicated that it "has included information about the business risk of climate change for many years in ... 10-K, corporate citizenship report and in other reports to shareholders," and argued that environmental activists are cherry-picking from "publicly available materials from the company's archives to deliberately distort ExxonMobil's nearly 40-year history of climate research."

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