A significant addition to the new rules is a method for calculating the “last day” of a time period.  The new Rule 6(a)(4) differentiates between electronic filing and other means of filing.  For electronic filing, the last day expires at midnight in the court’s time zone.  For all other means of filing, the last day expires when the clerk’s office is scheduled to close. Rule 6(a)(1)(C) still extends the time period for filing when the last day of the period is a weekend or legal holiday, and allows filing until the end of the next day that is not a weekend or a legal holiday.  Moreover, if the Clerk’s office is “inaccessible” on the last day for filing, the deadline is extended until the “first accessible day” that is not a Saturday, Sunday, or legal holiday under Rule 6(a)(3)(B).

The new Rule 6(a)(2) also provides a method of calculating time periods stated in hours.  The rule states that counting for a period stated in hours begins “immediately on the occurrence of the event that triggers the period.”  The rule further mandates that “every hour is counted, including hours during intermediate Saturdays, Sunday, or legal holidays.”  In the event that the last hour falls on a Saturday, Sunday, legal holiday, or on a day the Clerk’s office is inaccessible then the deadline is extended to the same time on the next day that is not a Saturday, Sunday, or legal holiday, or the court is accessible.

The amendments to the current Federal Rules attempt to simplify the attorney’s life with regard to timing and deadlines.  Will the new rules have such an outcome? Only time will tell. 

For a full text of the amended rules, visit www.uscourts.gov/rules.
To view the Power Point Presentation, The Days of Our Circuit Court Lives, click here www.uscourts.gov/rules/presentation.html
To view Time Changes Coming to the Federal Rules, click here http://www.uscourts.gov/ttb/2009-06/article02.cfm. 
See Fed. R. Civ. P. 6 (2009).

“In selecting attorneys for Super Lawyers, Law & Politics employs a rigorous, multiphase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.  Five percent of the total lawyers in the state are selected for inclusion in Super Lawyers.”

“The selection process for Rising Stars is the same as the Super Lawyers selection process except that: 1) to be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for ten years or less; 2) Candidates for Rising Stars do not go through step three above—peer evaluation by practice area. While up to five percent of the lawyers in the state are named to Super Lawyers, no more than 2.5 percent are named to the Rising Stars list.”

For more information on the Super Lawyers® selection process, click here (http://www.superlawyers.com/about/selection_process.html)

RWCS directors Matt Kane and Dan Webber will receive the 2008 Maurice Merrill Golden Quill Award for their article “Federal Sentencing:  The New Frontier of Modern Legal Advocacy,” which appears in the October 10, 2009 issue of the Oklahoma Bar Journal.  See http://www.okbar.org/news/front/2009/10/07-awards-winners.htm.  The award is named after former University of Oklahoma College of Law professor Dr. Maurice Merrill, and is given annually to the authors of the best written article published in the Oklahoma Bar Journal, as determined by the Oklahoma Bar Association Board of Editors.  Both Kane and Webber have represented numerous clients in federal criminal and civil investigations dealing with allegations ranging from securities fraud to political corruption to health care overbilling.

RWCS is a sponsor of the 2009 Governor's Water Law Conference, to be held Nov. 3-5 at the Sheraton-Reed Conference Center in Midwest City.  The Governor's Water Law Conference is hosted each year by the Oklahoma Water Resources Board, and covers the latest issues and developments water policy, water quality, water management, and water supply.  For more information about the conference, see http://www.owrb.ok.gov/news/waterconference.php (and once there, see the link to RWCS at the bottom of the "2009 Sponsors" block).   For more information about RWCS experience and involvement in local, regional, and national water cases and issues, see various links on this web site, or contact Keith Klein, Steve Jantzen, or Mark Coldiron.

The plaintiffs in Connecticut v. American Electric Power Company seek to force the defendants to cap and reduce their carbon dioxide emissions in view of the “clear scientific consensus” on global warming. Rather than sue pursuant to the Clean Air Act, however, the plaintiffs have alleged claims under the federal common law nuisance for injuries attributable to global warming such as reduction in mountain snowpack and its concomitant flooding, increased illness from heat waves and smog, prolonged droughts, flooding, and wildfires, and beach erosion and sea level rise.

The Second Circuit’s opinion did not assert that the plaintiffs will succeed in imposing caps on carbon dioxide emissions, but is very important due to the likelihood that it will prompt a rush of litigation by states and municipalities as well as private interest groups against a broad array of companies.

The ruling – especially when combined with a recent opinion by a federal court that ordered the Tennessee Valley Authority utilize specific pollution controls based on a state nuisance law claim, North Carolina v. TVA, 593 F.Supp.2d 812 (W.D.N.C. 2009) – leaves open a nuisance cause of action against any industrial facility that emits significant quantities of greenhouse gases, and that risk will survive unless and until Congress or the Environmental Protection Agency more pervasively regulate carbon dioxide emissions. For our updates on recent developments in carbon dioxide regulation, please see http://www.ryanwhaley.com/epa-will-begin-monitoring-greenhouse-gas-emissions-in-20101 and http://www.ryanwhaley.com/epa-to-regulate-greenhouse-gasses.

Perhaps most important, the opinion will help future nuisance cases survive dismissal by imposing a low bar for proving the link between CO2 emissions and the claimed injuries: “[Causation] is an issue best left to the rigors of evidentiary proof at a future stage of the proceedings, rather than dispensed with as a threshold question of constitutional standing.”

The Connecticut opinion reveals that until there is a national carbon dioxide emissions policy public and private parties will be able to use the federal courts to seek incremental relief by imposing carbon dioxide caps on individual facilities. The Second Circuit stated:

Nowhere in their complaints do Plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change . . . . A decision by a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies for domestic conduct, does not establish a national or international emissions policy (assuming that emissions caps are even put into place).

The Connecticut opinion should be studied closely by plant managers, environmental managers, and counsel for any facility that produces significant quantities of greenhouse gases, so that going forward members of industry can (1) plan for potential litigation and (2) devise an approach for addressing whether comprehensive federal regulation of greenhouse gases will be preferred over piecemeal litigation.

The Second Circuit’s opinion in Connecticut v. American Electric Power Co., No. 05-5104 (2d Cir. Sept. 21, 2009) can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/f7872f7d-579c-48ea-8483-e14964926376/28/doc/05-5104-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f7872f7d-579c-48ea-8483-e14964926376/28/hilite/.

Rationale:  In analyzing § 101(5)(B) of the Bankruptcy Code, the court stated that in situations where the equitable remedy is unobtainable, such an equitable claim can be reduced to a money judgment if the claim “gives rise to a right to payment.”  Thereafter, the claim can be discharged in bankruptcy.  Distinguishing between a mortgage, which gives rise to a right of payment in the event of default, and an injunction under RCRA, the court reasoned that because RCRA “does not authorize any form of monetary relief,” an injunction under RCRA does not give rise to a right to payment, and merely entitles the government to order clean up at the defendant’s expense.  Defendant argued that the court should distinguish between types of injunctions, such as those that can be complied with internally versus those that require an independent contractor for compliance, in determining whether or not the claim is dischargeable.  The court rejected this argument, holding that such distinctions are arbitrary and would encourage polluters to hire third parties to clean up, even if fully capable of doing so internally.

Case:  United States v. Apex Oil Co., Inc., 579 F.3d 734 (7th Cir. 2009).

Congratulations to RWCS client Goodyear (Lawton, Oklahoma tire plant) for winning the Frank Condon Award for Environmental Excellence.  The award was presented to Bryce Smith on Oct. 1 during the Environmental Federation of Oklahoma Annual Meeting for the Lawton plant's program "Solvent and Landfill Elimination." 

• ODEQ Director Steve Thompson first discussed this year's budget shortfall and the potential for increased fees in 2011, then addressed increased federal regulation, including reductions in the ozone standard, increased Clean Water Act enforcement, and other programs.
• Lt. Gov. Jari Askins reviewed stimulus programs with a green focus, especially the Oklahoma Water Resources Board's use of $62 million in funds to leverage almost $250 million for water and wastewater projects.
• Michael Mondshine, SAIC, provided estimates of the economic impacts of pending "cap and trade" greenhouse gas reduction legislation.  One observation: a gradual increase in the cost of natural gas until 2020, then a rapid increase in cost afterward.
• Derek Smithee, OWRB, explained the development of the Oklahoma Comprehensive Water Plan (OCWP), including a water quality chapter, and invited participation in the working group and public review process currently underway.

Starting January 1, 2010, EPA will require suppliers of fossil fuels or industrial greenhouse gases (“GHG”), manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions to submit annual reports to EPA.

The gases covered by the proposed rule are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), sulfur hexafluoride (SF6), and other fluorinated gases including nitrogen trifluoride (NF3) and hydrofluorinated ethers (HFE).

EPA’s goal is to account for approximately 85 percent of the nation’s GHG emissions, and the new standard will apply to roughly 10,000 facilities. As a result, the new rule specifically covers many industries, including:

·    Portland cement manufacturing plants

·    Carbon black manufacturing facilities

·    Natural gas distribution facilities

·    Lime and nitric acid production facilities

·    Fossil-fuel fired electric generating units

·    Electroplating, plating, anodizing, and coloring facilities

·    Feedlots, hog and pig farms, and chicken and turkey production

·    Pulp and paper mills and manufacturers of lumber and wood products

·    Chemical manufacturers

·    Petroleum refineries and manufacturers of coal products

·    Manufacturers of motor vehicle parts

·    Lead smelting and refining facilities

·    Municipal solid waste landfills

The first annual reports for the largest emitting facilities, covering calendar year 2010, will be submitted to EPA in 2011.

According to EPA, the rule is intended to provide a better understanding of the sources of GHG emissions, so as to help EPA develop policies and programs to reduce emissions.  EPA provides more information and the text of the rule at its website: http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.