Manufacturers In The Courts: May 2010

A Publication of the National Association of Manufacturers
E-mail briefing from the
National Association of Manufacturers
May 2010

Litigation over the regulation of drilling and greenhouse gases dominates this months report. The NAM is leading a coalition of organizations that is trying to insure that EPA acts within the scope of its delegated authority, and that political questions are addressed by Congress, not through regulation or litigation.

Decided Cases


Environmental

Validity of permit for exploratory oil and gas drilling in Alaska. President Obama's announced suspension of exploratory drilling permits off the coast of Alaska on May 27 has disrupted plans for exploration that were approved by the Ninth Circuit on May 13. That court agreed that the Minerals Management Service had met its obligations for issuing a permit for exploratory drilling for oil and gas in the Beaufort Sea, and turned aside a legal challenge from environmental groups. The NAM had supported this result, as the litigation was delaying exploration that Congress meant to be expedited. The Department of the Interior, after extensive evaluation, concluded that exploration would cause no significant impact on the environment. Our amicus brief in the case argued that exploratory drilling is an important step in the process of utilizing the Outer Continental Shelf to move toward greater energy self-sufficiency, to improve national security, to maintain a favorable balance of payments in world trade and to create jobs. Alaska Eskimo Whaling Comm'n v. Salazar (9th Cir.).

Pending Cases

Environmental

Validity of EPA's guidance on ozone fees. Earlier this year, EPA published guidance allowing states either to use the Section 185 fee program of the Clean Air Act or an equivalent alternative program that is consistent with the principles of section 172(e) when regulating ozone in severe or extreme nonattainment areas. A lawsuit filed by the Natural Resources Defense Council in March argued that EPA's action was arbitrary and capricious and that allowing fee waivers based on an 8-hour standard instead of a 1-hour standard is improper. The NAM and 4 other business groups moved to intervene in support of EPA. Natural Resources Defense Council v. EPA (D.C. Cir.).

Whether global warming lawsuit is a political question. On May 7, the NAM filed an amicus brief with other organizations in a case in which we argue that litigation over the legal liability for climate change is a political question that should be addressed only through the policymaking branches of government. The NAM asked the U.S. Court of Appeals for the Fifth Circuit to reverse a three-judge panel decision that allowed this major public nuisance case, filed by Mississippi residents and property owners, to go forward. The plaintiffs alleged that the emissions from more than 150 energy, utility and manufacturing companies increased global warming and contributed to the severity of damages resulting from Hurricane Katrina. The NAM's brief, our second in the case, argued that the goal of this lawsuit is less to obtain compensation than to achieve the regulation of greenhouse gas emissions through litigation. The case was thrown into limbo earlier this month when a judge's recusal left the court without a quorum to proceed. Comer v. Murphy Oil U.S.A. (5th Cir.).

Product Liability

Medical Monitoring . The NAM and eight other organizations filed an amicus brief arguing that a one-in-a-million risk is too speculative to justify imposing medical monitoring requirements. We urged the Sixth Circuit to uphold a trial court ruling that a company should not be liable to pay for medical monitoring for individuals who lived near a train derailment site and who failed to establish that they were exposed to a hazardous substance in an amount warranting a reasonable physician to order medical monitoring. Hirsch v. CSX Transportation, Inc. (6th Cir.)..).

Please visit our rejuvenated Manufacturing Law Center to see further details on these and other cases affecting manufacturers. If you know of cases where NAM involvement could help provide the courts with the important perspective of manufacturers, please let us know. We may be able to help .


Quentin Riegel
Vice President, Litigation & Deputy General Counsel
(202) 637-3058 "¢ qriegel@nam.org

National Association of Manufacturers
1331 Pennsylvania Avenue, NW Suite 600
Washington, DC 20004-1790


Check out the NAM's Manufacturing Law Center at www.nam.org/law

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