Consumer Product Safety Commission
Texas Association of Manufacturers, Texas Chemical Council, Texas Association of Business, National Association of Manufacturers, and American Chemical Council v. United States Consumer Product Safety Commission (U.S. COA 5th Circuit)
TAB has joined with other petitioners (NAM, TAM, ACC, TCC) to challenge the CPSC’s rule concerning phthalates due to the rulemaking being arbitrary and capricious and/or not in accordance with law.
Status: Baker Botts filed petition to review on 12-13-17. On hold pending agency leadership change/transition.
Environment Texas v. ExxonMobil Corp. (U.S. COA 5th Circuit)
TAB joined with other trade associations to submit an amicus brief in favor of Exxon Mobil. On April 26, 2017, the U.S. District Court for the Southern District of Texas issued its revised judgment in a Clean Air Act citizen suit brought by Environment Texas Citizen Lobby and Sierra Club against Exxon Mobil Corporation’s Baytown complex. The district court’s revised judgment orders ExxonMobil to pay $19.9 million in penalties, along with Plaintiffs’ attorneys’ fees and costs. The district court had previously found that no penalties were appropriate, but this judgment was reversed and remanded on appeal before the Fifth Circuit. On August 25, 2017, ExxonMobil filed a notice of appeal in the United States Court of Appeals for the Fifth Circuit.
The main objective of the amicus brief is to provide the Fifth Circuit with the broader industry perspective as to how an adverse decision could overturn the balance of regulatory authority established through decades of difficult administrative and judicial decisions. TAB is represented by Matt Kuryla with Baker Botts.
Status: Baker Botts drafted amicus. Amicus filed when appeal filed (December, 2017)
EPA’s Clean Power Plan
State of West Virginia, et al., v. Environmental Protection Agency, et al. (US Court of Appeals for the DC Circuit)
TAB has joined the Pennsylvania Chamber of Business and Industry and the Ohio Chamber of Commerce (through the U.S. Chamber) in filing a joint amicus brief in support of a lawsuit by states and industry to overturn EPA’s Clean Power Plan. One hundred sixty six Chambers of Commerce and business groups from 40 states joined in the brief. TAB is represented by the U.S. Chamber’s Litigation Center (contact: Sheldon Gilbert).
Status: Oral Arguments were heard in the D.C. Court of Appeals on 9/27/16. En banc D.C. Circuit held Clean Power Plan in abeyance for an additional 60 days on 8/8/17. Pending. Learn more about ESPS Rule, here.
TABC’s Single Share of Stock Rule
Cadena Commercial USA Corp v. TABC (TX Supreme Court)
Filed joint amicus brief with McLane Company, Inc. opposing regulatory actions by the TABC for its single share of stock rule (regarding wholesale distribution of alcohol) that will harm the Texas economy and job creation. TAB is represented by Gibson, Dunn & Crutcher.
TAB later filed a federal lawsuit (co-plaintiff with McLane) against TABC for arbitrary licensing practices. TAB is represented by Gibson, Dunn & Crutcher.
Texas Association of Business v. Texas Alcoholic Beverage Commission (U.S. District Court)
Status: Court issued opinion in favor TABC on 4/28/17. Federal judge denied TABC’s motion to dismiss. We are in settlement negotiations. Dropped (May, 2018)
EPA’s Regional Haze
State of Texas, et al. v. EPA (U.S. COA 5th Circuit)
TAB is an intervener in the lawsuit by Luminant, which challenges the EPA’s new “regional haze” regulation. This regulation imposes stringent new air quality requirements on businesses operating in the EPA’s Region 6. TAB and the USC’s Regional Office recruited local chambers as well as other state association’s to sign-on to the challenge. TAB is represented by the U.S. Chamber’s Litigation Center (contact: Sheldon Gilbert).
Status: Fifth Circuit stayed the implementation of the regulations on 7/15/16. The Fifth Circuit denied the Obama administration's request to vacate the stay on 3/22/17. The case is placed in abeyance until the EPA, under the Trump administration, has a chance to reconsider the Texas Regional Haze Rule.
Learn more about the Haze Rule here.
DOL Fiduciary Duty Rule
Chamber of Commerce of the United States of America, et al. v. Thomas E. Perez, Secretary of Labor, and United State Department of Labor (U.S. District Court for the Northern District of Texas)
This new regulation changes the definition of a “fiduciary,” such that financial advisors of retirement accounts owe investors a fiduciary duty. USC (a primary plaintiff) is particularly targeting the northern district of Texas. TAB is a co-plaintiff along with the Irving-Las Colinas Chamber, Lake Houston Chamber, and the Lubbock Chamber. The parties are represented by the U.S. Chamber’s Litigation Center (contact: Sheldon Gilbert).
Status: Decided in the DOL’s favor 2/9/17. Notice of Appeal filed 2/24/17. Motion for stay filed 3/21/17. 5th COA granted motion for expedited appeal. Oral arguments were held on July 31. Summary judgment granted in our favor on 8/31/17. Appeal expected. On 11/6/17, the DOJ filed its unopposed motion to put the overtime rule case on hold, and the Fifth Circuit granted that motion. The case is on hold pending the outcome of DOL’s rulemaking. The DOL is to provide status reports to the Fifth Circuit every six months.
March 15, 2018 - 5th U.S. Circuit Court of Appeals struck down the Department of Labor’s (DOL) “fiduciary rule.”
Learn more about the Fiduciary rule here.
Learn more about the Fiduciary rule appeal here.
High Speed Rail – Eminent Domain
Texas Central Railroad & Infrastructure, Inc. v. Calvin v. House (Harris County 333rd District Court)
TAB has joined Texas Rail Advocates and Transportation Advocacy Group to file an amicus brief in support of Texas Central Railroad & Infrastructure, Inc.’s (TCRI) motion for summary judgment in their case versus Calvin House. TCRI needs to access the Defendant’s property in order to survey it. Defendant is arguing that TCRI is not a railroad company since it does not yet have tracks on the ground.
TAB is represented by Derek McDonald with Baker Botts.
Status: Judge denied Plaintiff’s motion for summary judgment in 12/16/17. Awaiting trial.
OSHA Silica Rule
Brick Industry Association v. Department of Labor and Occupational Safety and Health Admiration (U.S. COA D.C. Circuit)
Filed an amicus brief regarding the new OSHA Silica Rule – sets new, stringent standards for the amount of silica (sand) that can be emitted by companies engaged in fracking and other efforts. TAB requested support from TXOGA and TACA.
TAB is represented by the U.S. Chamber’s Litigation Center (contact: Sheldon Gilbert).
Status: Petition for review filed 5/7/2016. Awaiting decision.
Learn more about the Silica Rule here.