Harris

In August, Tesoro acquired BP’s Carson refinery. Harris’ office and the Federal Trade Commission subsequently looked into the acquisition. Harris’ office provided the details of the agreement with Tesoro in a letter to the chair of the California Energy Commission.

“These commitments will protect jobs for potentially thousands of Californians, ensure that California’s oil and gas markets remain competitive for years to come, and lead to a reduction in greenhouse gases and emissions,” Harris said.

Under the terms of the agreement, Tesoro will guarantee to preserve more than 1,000 jobs at the Wilmington refinery for the next two years, allow for joint monitoring by Harris’ office and the California Energy Commission of gas pricing, refinery capacity and volume, preserve Arco stations acquired by Tesoro as a low-cost fuel provider, environmentally retrofit its Carson and Wilmington refineries to reduce greenhouse gas emissions and implement safeguards against price spiking from refinery outages through increased production capacity from other refineries in the region.

“Over the next several years we will be vigilant in monitoring Tesoro’s compliance with its commitments, and we hope to continue working closely with the CEC in this respect,” Harris’ office said. “Through our combined expertise and enforcement authority we can ensure that Tesoro follows through with its commitments and the synergies resulting from this acquisition will benefit all Californians.”

Chiesa

Following the publication, there will be a 60-day public comment period with final adoption following a review and response to all public comments. The division posted a draft of the proposed regulation on internet gaming on its website for New Jersey residents to get an early view.

Division Director David Rebuck said the state proved to be at the forefront of casino gaming by developing internet wagering regulations for all casino games. Rebuck will announce the date on which New Jersey casinos can start accepting internet wagers at least 45 days before commencement.

The proposed regulations include technical standards for safeguarding against underage and problem gamblers and for establishing player integrity, key operational controls and security measures to ensure patron access to the internet is within the boundaries of New Jersey, substantial civil penalties for companies that are not internet gaming permit holders who advertise and use their premises for internet gaming and the required filing of a gaming-related casino service industry enterprise license application for any entity that plans to provide software to casinos or to offer internet gaming on behalf of a licensed casino.

Since 2010, Gov. Chris Christie implemented multiple broad-based, comprehensive reforms to the gaming and tourism industries to reinvigorate the industries and create opportunities for economic growth in the state.

DeWine

A Cuyahoga County judge ordered Gray Container LLC, L Gray Barrel & Drum Co., Lomack Drum Co., Lomack Drum & Container Co. Inc., Lomack Gray and Kenneth Gray to pay $1.05 million to resolve allegations of pollution violations caused by chemical drum reconditioning work. Gray Container LLC is located within half a block of a park, a church and multiple residences.

“This judgment shows that violating Ohio’s environmental laws is serious and won’t go unpunished,” DeWine said. “We will continue to work with the Ohio EPA to pursue violators and help protect the health and safety of Ohio families.”

In 2009, DeWine’s office filed a lawsuit against Gray Container, its affiliates and its principals for allegedly allowing improperly controlled emissions from an incinerator to be discharged into open air, unlawfully storing and disposing of hazardous waste and operating a hazardous waste facility without a permit. Kenneth Gray and two of his companies were found guilty in 2009 of criminal violations of the state’s hazardous waste laws.

The judgment requires the defendants to conduct an evaluation of all wastes at the drum reconditioning facility, remove all hazardous wastes and implement an Ohio EPA closure plan for all facility areas where hazardous wastes were treated, disposed or stored. The defendants must also pay an $863,200 civil penalty for hazardous waste violations and a $187,100 civil penalty for air pollution violations.

Jackley

Jackley’s Consumer Protection Division recently received many examples of fraudulent email messages from throughout South Dakota. The emails claim that a recent Walmart.com purchase was being processed and shipped to a different address.

“Consumers using online shopping should be on the lookout for scam artists trying to obtain their personal information for identity theft,” Jackley said. “Avoid unsolicited emails and the links that are attached and take the extra step to contact the retailer directly with any questions.”

The actual Walmart website is www.Walmart.com, but the look-alike websites use several different keystrokes, such as “Wallmart.” Scam artists have set up the websites to redirect consumers to a bogus website. After customers are redirected to the fake website, they will be asked to disclose personal information like their bank account numbers or social security numbers.

Abbott

The enforcement action against BP America, Anadarko, Halliburton, Transocean and other related entities seeks economic damages, natural resources damages and civil penalties. The lawsuit follows years of work with other Gulf states, the federal government and BP to resolve damages connected with harm caused to the region by the oil spill.

The parties involved have not been able to completely resolve claims related to the disaster, which resulted in the state of Texas filing an enforcement action to preserve its claims against BP and other defendants. Abbott’s office anticipates that the case will be consolidated with a case already in progress in New Orleans.

Abbott’s office filed the lawsuit in the U.S. District Court for the Eastern District of Texas in Beaumont. The lawsuit seeks both monetary actions and funds that would be used for projects to offset and mitigate natural resource damages in Texas. The enforcement action seeks civil penalties for each day of oil discharge, civil penalties for every barrel of oil that was discharged, lost state hotel occupancy tax and mixed beverage tax revenue, lost sales tax, revenue lost from state park entrance, facility, activity and concession fees and damages to natural resources. The lawsuit also seeks court costs and attorney fees.

The lawsuit follows partial settlements of federal claims by Transocean and BP, including multiple criminal plea agreements.

Alexander

Alexander, R-Tenn., said Thursday Sharon Block and Richard Griffin — who Obama re-nominated to the five-member board in February — continue to decide cases, even after a federal appeals court ruled that the two were unconstitutionally appointed.

In January, the U.S. Court of Appeals for the District of Columbia Circuit granted the petition of Noel Canning against the NLRB on the basis that the board lacked a sufficient quorum of members when it reached a decision regarding Canning.

That was based on the fact that Obama appointed three of the NLRB’s five members — including Block and Griffin — without Senate confirmation on Jan. 4, 2012, with recess appointments.

But Canning argued that the Senate was in pro forma session, making Obama’s appointments invalid.

“This is a part of a disturbing pattern of end-runs around Congress, whether it is with more czars than the Romanovs had; or executive orders that stretch the limits of executive authority; or using waiver authority to create, in effect, a national school board; or the Secretary of Health raising money privately for private organizations to do what Congress has refused to do; or whether it is recess appointments when there is no recess, it is important for our country’s liberty to protect the separation of powers. Therefore, I cannot support the nominations of these two individuals,” Alexander said during a committee hearing Thursday on the board’s pending nominations.

“Recess appointments have to be made during recesses, or we have a situation where the president can just ignore Article One, the principal curb on the power of the executive.”

Alexander said it is important to have a fully confirmed board. The agency, he explained, is charged with creating stability for employees, employers and unions to allow the nation’s businesses to focus on succeeding and growing.

“But there is a troubling lack of respect for the constitutional separation of powers and for the Senate’s role of advice and consent that is standing in the way of this confirmation process,” he said.

“I also believe their decision to stay on creates enormous opportunity for confusion and waste.”

He continued, “I agree we want certainty and the best way to have certainty is to have five confirmed members of the Board. The President could nominate two equally qualified members who did not sit on the NLRB when the court had decided that they were unconstitutionally there.”

In February, Alexander called on Block and Griffin to leave the board, citing the D.C. Circuit’s ruling.

In March, he, along with 17 cosponsors, introduced a budget amendment to defund decisions and regulations made by the board’s quorum.

Then, last month, he introduced legislation that would prohibit the NLRB from taking any action that requires a quorum until the board members constituting the quorum have been confirmed by the Senate, the U.S. Supreme Court issues a decision on the constitutionality of the appointments to the board made in January 2012, or the first session of the 113th Congress is adjourned.

The Committee on Health, Education, Labor and Pensions is expected to vote this week on Obama’s nominees to fill all five seats on the board.

In April, Obama also nominated Philip Miscimarra, a partner in the labor and employment group of Morgan Lewis & Bockius LLP, to be a member of the board.

Obama also re-nominated current NLRB Chairman Mark Pearce, and nominated Harry I. Johnson III to be a member.

Pearce has been chairman of the board since August 2011. He has served as a member since March 2010.

Johnson is currently a partner with Arent Fox LLP, a position he has held since 2010. Previously, he worked at Jones Day as a partner from 2006 to 2010 and as an associate from 1994 to 2005.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

In McCutcheon v. Federal Election Commission, the RNC and the individual donor involved in the case, Alabaman Shaun McCutcheon, take issue with aggregate contribution limits.

Federal law imposes two types of limits on political contributions by individuals.

Base limits restrict the amount an individual may contribute to a particular candidate committee ($2,600 per election); national party committee ($32,400 per calendar year); state, district and local party committee (a combined limit of $10,000 per calendar year); and political action committee ($5,000 per calendar year).

Aggregate limits restrict the total contributions an individual may make in a biennial election cycle as follows: $48,600 to candidate committees and $74,600 to non-candidate committees, of which no more than $48,600 may go to non-national party committees (i.e., state, district and local party committees).

The RNC and McCutcheon argue that the aggregate limits are unconstitutional because contributors are limited to supporting a certain number of candidates.

Last week, nearly a dozen amicus briefs were filed in the case, which the nation’s high court is set to hear during its next term in October

Among those: a brief by the nonpartisan nonprofit Committee for Justice.

In its May 13 brief, CFJ sided with the RNC and McCutcheon.

“It is hard enough to square McCain-Feingold’s base limits with the First Amendment, but it’s even harder to justify the aggregate limits, which serve no significant interest — constitutionally valid or otherwise — when added on top of the base limits,” CFJ President Curt Levey said.

“Striking down the aggregate limits would be both important in its own right and a critical first step towards ending the second-class treatment of political contributions under the First Amendment.”

The committee’s 33-page brief points out that base limits are purported to serve the only two interests — countering the occurrence or perception of quid pro quo political corruption — identified by the Supreme Court as constitutionally sufficient to justify contribution limits.

Therefore, the aggregate limits can add nothing more than ensuring that no one engages in too much political speech, an interest the court has rejected, CFJ contends.

CFJ’s brief also focuses on the “perverse effect” of the aggregate limits, which serve to direct the flow of money away from candidates and political parties and towards entities, such as Super PACs and 501(c)(4) organizations, that engage in unregulated independent expenditures.

“The resulting flow of money away from candidates and political parties and towards independent expenditure groups is completely counter to the one interest expressed almost unanimously by the public — the desire for more political compromise and less hyper-politicization of campaigns,” said Levey, who authored the committee’s amicus brief.

“As a 501(c)(4) organization, the Committee for Justice is well aware that (c)(4)’s and Super PACs cannot serve the unique and important role that political parties play in the political process, a role that is being weakened by McCain-Feingold’s aggregate limits.”

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

Obama

On Thursday, Obama nominated Judge Carolyn McHugh to the U.S. Court of Appeals for the Tenth Circuit.

If confirmed, McHugh, who is currently the presiding judge of the Utah Court of Appeals, would be the first woman from Utah to serve on that court. Currently, the Tenth Circuit only has one woman judge serving among its nine active members.

“Judge Carolyn B. McHugh has displayed exceptional dedication to the legal profession through her work and I am honored to nominate her to serve the American people as a judge on the United States Court of Appeals,” Obama said in a statement.

“She will be a diligent, judicious and esteemed addition to the Tenth Circuit bench.”

Also Thursday, the President nominated three women to three different federal district courts.

If confirmed, Pamela Reeves, a Knoxville, Tenn., lawyer, would be the first woman to serve as a district court judge in the Eastern District of Tennessee.

Elizabeth Wolford, a Rochester, N.Y., lawyer, would be the first to serve on the Western District of New York.

Jackson, Miss., lawyer Debra Brown also was nominated Thursday.

She would be the first African-American district court judge to serve in the Northern District of Mississippi and the first African-American woman to serve as an Article III judge in the entire state of Mississippi, if confirmed.

“These individuals have demonstrated the talent, expertise and fair-mindedness Americans expect and deserve from their judicial system,” Obama said. “I am grateful for their willingness to serve and confident that they will apply the law with the utmost impartiality and integrity.”

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

U.S. Supreme Court Chief Justice John Roberts

The nation’s high court denied the village of Kivalina’s petition for a writ of certiorari Monday. According to the case docket, Justice Samuel Alito took no part in the case’s consideration.

The village, a federally-recognized tribe, filed its petition with the court in February after a federal appeals court denied its petition for a rehearing in November.

In October, Kivalina — which claims in its lawsuit that several power companies are to blame — filed a motion for a rehearing of a September decision by the U.S. Court of Appeals for the Ninth Circuit.

A three-judge panel of the court decided the village’s case is preempted by the Environmental Protection Agency’s Clean Air Act.

In its petition, the village requested the full roster of Ninth Circuit judges hear its appeal.

Circuit judges Sidney R. Thomas and Richard R. Clifton, along with Judge Philip M. Pro of the U.S. District Court for the District of Nevada, sitting by designation, denied the village’s petition in a Nov. 27 order.

“The panel has voted to deny the petition for rehearing en banc,” the one-page order stated.

“The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on the petition for rehearing en banc.”

Residents of Kivalina sued two dozen power companies in 2008, alleging public nuisance on the parts of the defendants. They contend climate change has resulted in the erosion of their island.

“(T)he right to assert a federal common law public nuisance claim has limits,” Thomas wrote in September. “Claims can be brought under federal common law for public nuisance only when the courts are compelled to consider federal questions which cannot be answered from federal statutes alone…

“If Congress has addressed a federal issue by statute, then there is no gap for federal common law to fill.”

The judge wrote that there was no need to engage in complex analysis in the case because of existing U.S. Supreme Court guidance.

“The Supreme Court has already determined that Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law,” Thomas wrote.

That decision came in multistate lawsuit American Electric Power Company v. Connecticut. It was decided by a unanimous vote on June 20, 2011 that the EPA is responsible for enforcing the Clean Air Act.

“Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea,” Thomas wrote.

“But the solution to Kivalina’s dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law.”

The defendants in the case were American Electric Power Company, American Electric Power Services Corporation, BP America, BP Products North America, Chevron Corporation, Chevron U.S.A., ConocoPhillips Company, DTE Energy Company, Duke Energy Corporation, Dynegy Holdings Inc., Edison International, ExxonMobil Corporation, GenOn Energy, MidAmerican Energy Holdings Company, Peabody Energy Corporation, Pinnacle West Capital Corporation, Shell Oil Company, The AES Corporation, The Southern Company and Xcel Energy.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

The emergency funding would replace only a small portion of the $350 million in funding reductions imposed upon the courts by sequestration.

The sequester is a set of automatic spending cuts put into law by the Budget Control Act, signed by President Barack Obama in August 2011. The legislation raised the debt ceiling and was intended to put pressure on Congress to come up with a longer term plan for deficit reduction.

The $1.2 trillion in budget cuts will be spread over nine years and are equally divided between domestic and defense-related spending. The cuts are set to end in 2021.

For the remaining fiscal year 2013, the spending reductions are about $85 billion alone.

Gibbons

“The Judiciary is confronting an unprecedented fiscal crisis that could seriously compromise the Constitutional mission of the United States courts,” Julia S. Gibbons, chair of the U.S. Judicial Conference Committee on the Budget, wrote in a May 14 letter to White House Office of Management and Budget Director Sylvia Mathews Burwell.

Gibbons, who serves as a judge on the U.S. Court of Appeals for the Sixth Circuit, said the courts need an emergency appropriation of $72.9 million — $31.5 million for the Courts Salaries and Expenses account and $41.4 million for the Defender Services account.

The money would save the jobs of hundreds of court employees and avoid more than 10,000 planned furlough days for more than 3,000 court employees.

The funds also would cover millions in projected representation costs for high-threat trials, including cases in New York and Boston, according to the letter.

“The impacts of sequestration are compounded by the fact that 100 percent of the cuts must be absorbed with only six months remaining in the fiscal year,” Gibbons wrote, along with Thomas F. Hogan, secretary of the Judicial Conference.

“Unlike some Executive Branch entities, the Judiciary has little flexibility to move funds between appropriation accounts to lessen the effects of sequestration. There are no lower-priority programs to reduce in order to transfer funds to other Judiciary accounts.”

Read the Judicial Conference’s full letter here.

The Judicial Conference, formerly known as the Conference of Senior Circuit Judges, was created by Congress in 1922 with the principal objective of framing policy guidelines for administration of judicial courts in the United States.

The conference is headed by the chief justice of the U.S. Supreme Court and consists of the chief judge of each court of appeals, a district court judge from each regional judicial circuit and the chief judge of the U.S. Court of International Trade.

DRI — The Voice of the Defense Bar, a group of more than 20,000 defense lawyers, came out in support of the Judicial Conference’s request last week.

On Friday, DRI’s Center for Law and Public Policy urged Congressional leaders to ease the crisis in the federal courts by supporting the request.

DRI President Mary Massaron Ross wrote in the letter that “budget cuts have forced diminished court staffing, court closures, compromised security and lengthy trial delays.”

“This, of course, means that justice is delayed. Since criminal trials must take priority, already lengthy delays in civil trials become even longer,” Ross wrote.

Ross

“Perhaps thousands of businesses will not survive the abeyance of lengthy uncertainty over the outcome of litigation. We talk of the effect on justice, we talk of the effect on businesses but, at bottom, it is people’s lives that are adversely changed.”

In recent months, U.S. Supreme Court Chief Justice John Roberts and fellow Justices Anthony Kennedy and Stephen Breyer have spoken out regarding the negative impact of the cuts on the administration of justice.

In his 2012 year-end report, Roberts wrote that “virtually all of the Judiciary’s core functions are constitutionally and statutorily mandated. Unlike executive branch agencies, the courts do not have discretionary programs they can eliminate or projects they can postpone. The courts must resolve all criminal and civil cases that fall within their jurisdiction, often under tight time constraints.

“A significant and prolonged shortfall in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.”

Marc Williams, chairman of DRI’s Center for Law and Public Policy, said it’s more than a budgetary issue at this point.

“The courts are charged with very certain responsibilities under the Constitution. At some point, you have to say that those responsibilities are being abrogated for lack of funding,” he said in a statement.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.