Energy: D.C. Circuit Decision in Washington Gas Light Co. v. FERC

On April 27, in Washington Gas Light Company v. FERC, No. 09-1100, the U.S. Court of Appeals for the D.C. Circuit denied a petition by Washington Gas Light Company for review of a Federal Energy Regulatory Commission (FERC) decision approving a construction project (known as “the Expansion”) that would allow two companies that receive and transmit natural gas, respectively, to import greater quantities of liquefied natural gas and distribute it in gaseous form. Although FERC had originally approved the project in 2006, the D.C. Circuit decided, in Washington Gas Light Co. v. FERC, 532 F.3d 928 (D.C. Cir. 2008), that FERC had failed to carry out its obligation, under scetions 3 and 7 of the Natural Gas Act, "of ensuring the Expansion can go forward consistent with the public interest." In that prior decision, the court issued a remand order Our remand order directed FERC to “more fully address whether the Expansion can go forward without causing unsafe leakage.”

On remand, the court explained, "FERC explained that the Expansion could not be said to cause any unsafe leakage if the amount of regasified liquefied natural gas that could be delivered post-Expansion was identical to the amount that could be delivered pre-Expansion." The court found that FERC's imposition of a post-Expansion limit that matches the pre-Expansion limit "has satisfactorily ensured that the Expansion will not result in an increased risk of unsafe natural gas leakage."

Food and Drug: New FDA Initiative on Infusion Pumps

Today, the Food and Drug Administration announced a new initiative "to address safety problems associated with external infusion pumps, which are devices that deliver fluids, including nutrients and medications, into a patient’s body in a controlled manner." The initiative will include (1) "additional premarket requirements for infusion pumps, in part through issuance today of a new draft guidance and letter to infusion pump manufacturers"; (2) a May 2010 public workshop on infusion pump design; and (3) the launch of a new Web page devoted to infusion pump safety. The Wall Street Journal reported that one of the biggest changes affecting infusion-pump manufacturers would be the FDA's conducting of plant inspections before approving new pumps.

Privacy/Information Technology: Oral Argument in City of Ontario v. Quon

Last Monday, April 19, the U.S. Supreme Court heard oral argument in City of Ontario v. Quon, No. 08-1332, a case with potentially significant effects in workplaces across the country. The critical issue is whether the Ontario Police Department violated the Fourth Amendment by searching the department-issued pager of one of its officers who was using the pager to send and receive messages for both his wife and his mistress. The New York Times has an interesting summary of the oral argument.

As the summary indicates, one of the critical elements in the analysis may prove to be whether the Department's policy on use of its pagers was sufficiently well-defined to preclude the officer's use of the pager for sexually explicit messages. While the formal policy told users they should have no expectation of privacy, it also allowed "light personal communications." In addition, as the Times noted, a police lieutenant had established an informal policy that "those who paid for messages over a monthly maximum would not have their records inspected." These divergent elements may complicate the Court's task of rendering a decision in a manner consistent with other Fourth Amendment decisions.

Intellectual Property: Draft Anti-Counterfeiting Trade Agreement

On Wednesday, April 21, the European Commission posted for the first time a draft of the Anti-Counterfeiting Trade Agreement (ACTA) for public review and comment. The draft, which the EC termed a "PUBLIC Predecisional/Deliberative Draft," is the product of a multinational process going back to 2006. Currently, Australia, Canada, the European Union and its 27 member states, Japan, Mexico, Morocco, New Zealand, Republic of Korea, Singapore, Switzerland and the United States all have participated in the negotiations and drafting of ACTA.

The Office of the U.S. Trade Representative has published a summary a summaryof ACTA's principal provisions. In brief, ACTA includes provisions for civil and criminal enforcement, as well as border measures by customs authorities, in respect of intellectual property rights, international cooperation (including information-sharing, capacity-building, and technical assistance), enforcement practices, and oversight of implementation by an ACTA Oversight Council (or Committee - the text leaves open both possibilities).

Although parties to the negotiations have been posting scheduled agendas and post-meeting summaries of discussions, civil liberties organizations such as the Electronic Frontier Foundation had criticized the overall process for a lack of transparency, particularly (in the EFF's view) in excluding "civil society and developing nations," as well as extension of the potential scope of ACTA to "Internet distribution and information technology”. In addition, a major Internet service provider (ISP) association, the European Internet Service Providers Association, has already criticized the published draft for its reported requirement that ISPs will be required to monitor Internet users' traffic to spot unlawful file-sharing of copyrighted material.

International Coverage of SEC Suit Against Goldman Sachs

While many people may have been focusing just on U.S. media coverage of the SEC's suit against Goldman Sachs, a sampling of the international coverage may be worth noting. In China, the Xinhua News Agency commented that the suit "has again sounded an alarm bell for financial regulation, which may stimulate U.S. authorities to speed up reforms of financial supervision mechanisms." Xinhua also repeated the assertion that "the SEC launched the lawsuit without any advance warning," notwithstanding the Washington Post's reporting that the SEC and Goldman had been in "secret talks" for months about the allegations of fraud and that "SEC lawyers had told Goldman in writing they were prepared to file a federal suit."

In the United Kingdom, the Independent focused on the fact that Goldman, even as it resists the SEC's charges, "earned a record $3.46bn (£2.25bn) in the first three months of the year, and was bringing in revenues at the rate of $1m every 10 minutes." The Financial Times repeated Goldman's statement that "[q]uarterly net income and revenue surged, . . . driven by a 'diversified business model' that showed few weak spots during the period." Meanwhile, several U.K. newspapers such as the Telegraph reported that the Financial Services Authority, the U.K. financial regulator, has started a formal investigation into Goldman Sachs in relation to the SEC's fraud charges.

In Australia, the Sydney Morning Herald ran the AFP article that, like the Independent, juxtaposed Goldman's record earnings with the fraud allegations. The Australian reported that Australian executives of Goldman Sachs met voluntarily with Australian Securities & Investments Commission officials to brief them about the suit and told "staff and clients that the Australian operations were not involved in the alleged investment fraud."

Transportation: EU Announcement on Passenger Rights and Icelandic Volcanic Cloud

Today, in response to the expanding Icelandic volcanic cloud that has extensively disrupted air travel, EU Vice President Siim Kallas announced that "EU passenger rights continue to apply and air travellers should speak up to claim their rights." Those rights, which were established by the EU Directive on air passenger rights (Regulation 261/2004), include (1) "the right to receive information from airlines (e.g. on your rights, on the situation as it evolves, cancellations and length of delays)"; (2) "the right to care (refreshments, meals, accommodation as appropriate)"; and (3) "the right to cho[o]se between reimbursement of fares or be re-routed to final destination." The EU release added that "[i]n an exceptional circumstance such as this, passengers are not however entitled to additional financial compensation that would be the case where delays or cancellations are the fault of the airline."

Education: Department of Education Assessment Grant Final Regs

There's an interesting blog posting by Eliza Krigman of NationalJournal.com, and responses to her posting, about the final regulations that the Department of Education promulgated last week for its $350 million assessment grant competition. Krigman notes that "[a]ccording to Education Week, the rules make clear the administration's desire to shift away from multiple-choice testing in favor of more sophisticated methods of evaluating students."

Chart: Timeline of Health Care Reform

For anyone who still has difficulty in sorting out which provisions of the new health care legislation take effect at which times, the website Visual Economics has a chart that concisely lays out the timeline for the major provisions.

D.C. Circuit Decision on "Unit of Prosecution" Doctrine in Civil Enforcement

Today, the U.S. Court of Appeals issued an interesting decision in a case involving the "unit of prosecution," a doctrine well-known in criminal enforcement but less frequently raised in civil regulatory enforcement. In National Association of Home Builders v. OSHA, No. 09-1053, three trade associations had challenged the Secretary of Labor's amendment of regulations under the Occupational Safety and Health Act "to clarify that an employer’s failure to provide respirators or workplace training constitutes not one violation of the applicable health and safety standards, but separate violations for each employee who did not receive the respirator or training." (Slip op. at 1)

The Secretary did so after a 2005 decision by the Occupational Safety and Health Review Commission (OSHRC), an independent tribunal, involving an employer's failure to provide asbestos training or respirators to 11 employees. Although the Secretary cited Ho for 11 violations of the asbestos training standard and 11 violations of the respirator standard, the OSHRC rejected the Secretary's employee-by-employee approach. In essence, it held that the unit of prosecution under the Act was the failure to meet each standard with respect to the group as a whole, which would have inviolved only two violations. The OSHRC went further, however, and openly invited the Secretary to draft standards that prescribe individual units of prosecution.

Senior Circuit Judge A. Raymond Randolph, writing for the panel, rejected the petitioners' claim that the Secretary had no statutory authority to issue the amendments. Just as in criminal law, where a legislature defines the unit of prosecution by defining the violation, the court determined that in civil enforcement under the Act, "the Secretary stands in the shoes of the legislature. . . . In giving the Secretary the authority to define what constitutes a violation, see 29 U.S.C. §§ 654(a)(2), 655(b), the Act necessarily gave the Secretary the authority to define the unit of prosecution." (Slip op. at 5-6) Although the petitioners asserted that the OSHRC alone had the responsibility to determine units of prosecution, on the theory that the assessment of penalties is the
OSHRC’s exclusive domain, the court tartly responded: "This is like saying that in a criminal case the court – not the legislature – defines the unit of prosecution because the court has exclusive authority to determine the punishment. That of course is not the law." (Slip op. at 6)

Introduction

This blog is intended to deliver content that is timely, interesting, and useful (or at least some combination thereof) on all fields of regulatory practice and administrative law and procedure. Although the primary focus will be U.S. law at all levels of government, Arbitrary and Capricious will also present items involving foreign substantive and procedural developments in regulatory law and practice whenever possible. Visitors are invited and encouraged to suggest new postings or to comment on posts. All comments will be reviewed by a moderator before posting.