The Center News: March 2017

Supreme Court considers abeyance in WOTUS case: On February 28, 2017, President Trump issued an Executive Order directing agencies to review and rescind or revise the “Waters of the United States” (WOTUS) rule, and the EPA and the U.S. Army Corps of Engineers announced they would do so. Government lawyers then asked the Supreme Court to hold briefing in abeyance in the NAM’s case in the Supreme Court. Replacement of the underlying WOTUS rule could prevent this case—which seeks to resolve which court has jurisdiction to hear a WOTUS challenge—from being decided on the merits. 

NAM supports changes to Risk Management Program rule; EPA grants stay: The NAM joined with other associations in a petition to review the validity of Obama administration amendments to the Risk Management Programs rule. We also asked the EPA to reconsider and stay the rule. It agreed to do so, allowing an additional 90 days before the enforcement date. We are working with coalition partners and the EPA to address security concerns from the disclosure of hazardous material vulnerabilities, as well as audit and other costly requirements.

NAM joins new challenge to EPA's Clean Power Plan: On February 16, 2017, the NAM and other associations moved to intervene in a case brought by North Dakota challenging the EPA's latest action on its Clean Power Plan (CPP). Near the end of the Obama administration, the agency rejected a petition to reconsider the rule, and that decision is now being challenged in court. This is largely a protective petition for review because the case is likely to be affected by the court's soon-to-be-issued ruling in our main challenge to the CPP rule.

Second brief filed in BNSF Supreme Court case: After the Supreme Court agreed to hear the case, the NAM filed a second brief on the merits of BNSF’s jurisdictional case in Montana. The Court should clarify that the “at home” provision for jurisdiction applies to all litigation and not just to litigation involving companies located outside the United States. If the Court does not address this issue, it could result in state courts around the country expanding their jurisdiction and subjecting manufacturers to additional lawsuits in states without a significant connection to the case. This is particularly important as manufacturers continue to expand their distribution chains and change the ways they operate in the modern economy.

Court hears Browning-Ferris appeal: In June 2016, the NAM filed an amicus brief in the D.C. Circuit Court of Appeals to support Browning-Ferris. The NAM argued that the longstanding “direct control” standard should remain the means for determining joint employment. This standard protects the rights of temporary employees to engage in collective bargaining efforts, whereas the loosened standard merely subjects companies to unmerited liability. On March 9, 2017, the court finally heard the oral arguments, and the court’s tough questions alluded to how ridiculous this loosened standard has become.

NAM files final briefs in OSHA silica case: The NAM has filed its final two briefs in the ongoing challenge to OSHA’s silica rule. The briefs provide additional arguments that the rule is not necessary or appropriate, lacks sufficient evidence, fails to support its findings and that OSHA has failed to prove the rule is feasible. OSHA’s conduct of the rulemaking was a textbook exercise in confirmation bias, with OSHA ignoring all evidence that was contrary to its narrow goal. This case is now awaiting a decision by the court, which also gives OSHA the time to possibly work on ways to address the rule once political appointees get in place.

Manufacturers secure big win in New York asbestos litigation: The NAM filed an amicus brief urging the court to uphold the lower court’s rejection of the plaintiff’s cumulative exposure theory, otherwise known as the “any exposure” theory, which has been often rejected. Plaintiff argued that mechanics who worked with brakes, clutches and gaskets, as well as their family members, suffered harm because these contain small amounts of asbestos. The court ruled in our favor and held that proof of exposure must be established. This is a significant ruling because it is often difficult for manufacturers and other businesses to prevail in this New York court. In any other type of litigation, the idea that you have to show causation would be obvious, but, for asbestos lawsuits, this is significant.