While regulation and regulatory change frequently has profound impacts on infrastructure companies, litigation also can have significant consequences. This issue features two articles involving significant infrastructure company litigation that also has meaningful implications for corporate America more generally.
January 13, 2021 Editor's Column
Editor’s Column
By William R. Drexel
In our first article, Non-Federal Infrastructure Projects and the U.S. Army Corps of Engineers in the Federal Courts: The Dakota Access and Keystone XL Pipelines, Ann Navaro, Britt Steckman, Meg Beasley, and Brittney Justice discuss two epic litigation battles involving an army of lawyers that stymied the development of the Dakota Access and Keystone XL pipelines. In the Keystone litigation, the Endangered Species Act led a Montana federal court to invalidate a key nationwide permit used by the U.S. Army Corps of Engineers for many infrastructure projects. Although the court ruling has only directly halted the Keystone pipeline, uncertainty surrounding that permit and the Corps processes has ramifications for other pipeline and infrastructure projects while an appeal remains pending in the Ninth Circuit. In the Dakota Access litigation, environmental challenges to the pipeline’s easement to cross under Lake Oahe, a reservoir on the Missouri River, resulted in the vacatur of the easement and a requirement to conduct a full environmental impact statement. That process is expected to take more than a year for a completed pipeline that had already begun to transport oil. Although a shutdown order had been reversed, proceedings continue over whether the pipeline can continue to operate pending the completion of the environmental impact analysis.
In our second article, Don’t Call Me Anymore: Free Speech and Robocalls After Barr v. American Association of Political Consultants, Kyle Steinmetz describes the Telephone Consumer Protection Act (TCPA) litigation before the Supreme Court last term and the new case before it this term. In a very fractured opinion last term, the Court invalidated an exception from TCPA liability for calls involving debt of or guaranteed by the U.S. government. However, the Court severed that provision from the TCPA rather than invalidating the entire statute. This term, the Court is slated to resolve a split among the Circuits as to what constitutes an “automatic telephone dialing system” giving rise to liability under the statute.
We hope you enjoy this issue. As noted in our last issue, we have begun regular podcasts focusing on topics in Infrastructure. Our first podcast was on net neutrality, which was the subject of an article in the Winter 2020 Infrastructure issue. More recent topics have included the SAFETY Act, renewable energy, the COVID pandemic, and other legal developments affecting infrastructure industries. Follow us on twitter (@AmericanBarIRIS) or connect with me on LinkedIn to get timely notices of new podcasts, which are free to all ABA members.
If you have other suggested topics for future issues or would like to submit an article for consideration, please contact me at [email protected].