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The MCLA filed an amicus brief in support of Fluor Corporation's petition to the Fourth Circuit Court of Appeals seeking review of a trial court order requiring Fluor to produce privileged communications related to an internal investigation because they had been disclosed to the government pursuant to a regulatory requirement. Under the Federal Acquisition Regulation Mandatory Disclosure Rule (MDR), federal contractors must timely disclose instances in which the contractor has credible evidence that an employee has violated certain criminal laws or the civil False Claims Act. While investigating an employee's actions, Fluor found “credible evidence” of misconduct, and reported the conclusions of its investigation to the Defense Department pursuant to the MDR. That employee then sued Fluor, asserting defamation and other claims, and sought Fluor’s internal investigative files in discovery. Fluor objected on the basis that the files were protected by the attorney-client privilege and attorney work product doctrine. The district court held that Fluor’s governmental disclosure had waived privilege because it made a set of statements as part of its MDR disclosures that were “legal conclusions, . . . which only a lawyer is qualified to make,” and because Fluor had inadvertently characterized these disclosures as “voluntary” in filings before the court. Fluor sought emergency relief in the form of a writ of mandamus, and on March 6, 2020, the MCLA filed a coalition amicus brief arguing that the trial court's order poses significant adverse consequences for manufacturers in numerous regulated industries, and may ultimately chill participation in voluntary and mandatory disclosure and compliance programs. On March 13, 2020, while denying our motion to participate as amicus, the Court granted mandamus review indicating that the district court’s decision was “clearly and indisputably incorrect.”

On December 10, 2025, the NAM filed an amicus brief in the 4th Circuit arguing that retirement plan beneficiaries are barred from suing their employers for “mismanagement” of their plans when they have not suffered any losses or delayed payments. This case is one of eight parallel suits filed by the same plaintiffs’ firm making the same speculative claims about pension plan management. In Konya v. Lockheed Martin, former Lockheed employees sued the company for allegedly violating ERISA by mishandling their retirement plans through a pension risk transfer with an annuity provider. While they claimed the transaction was “risky,” none of the participants suffered any reductions or suspensions in the payments they were due under the plan—i.e. they suffered no injury. In our brief, we argue that individuals should not be allowed to sue based on conjectures about the “riskiness” of a transaction or the financial health of a company when those individuals have not been harmed by the transaction. Allegations that future injuries may occur cannot serve as the basis for costly and burdensome lawsuits against undeserving companies.

On October 30, 2023, the NAM filed an amicus brief urging the U.S. Supreme Court to review the 4th Circuit’s refusal to reverse a National Labor Relations Board decision that eviscerates the long-standing prohibition on secondary boycotts (where a union coerces a neutral employer to cease doing business with an employer with whom a union has a labor dispute). In this case, the South Carolina State Ports Authority operates the Port of Charleston by employing state workers to run lift-equipment and having International Longshoremen’s Association members perform the other longshoreman work there. After SCSPA opened another terminal at the port in 2022 and attempted to use the same division of labor, ILA sued the United States Maritime Alliance (USMX), a multi-employer association of carriers that deliver and pick up containers at the ports, and two of its carrier-members, alleging that they were violating the parties’ collective bargaining agreement by using state employees to perform port work. USMX, the State of South Carolina and SCSPA countered by filing unfair labor charges, maintaining that the lawsuit sought to obtain an illegal secondary objective in violation of the NLRA’s secondary boycott provision. The NLRB disagreed and the 4th Circuit refused to reverse the NLRB’s decision on appeal.

We argue in our amicus brief that the union’s actions in this case constitute a quintessential secondary boycott: the union is coercing neutral parties (the carriers) to stop doing business at a port unless a different party—the South Carolina State Ports Authority—accedes to the union’s demands. All manufacturers have an interest in limiting this type of coercive and intimidating conduct by unions. Unfortunately, on February 20, 2024, the U.S. Supreme Court declined to hear the case.

On April 7, 2023, the NAM filed an amicus brief urging the Fourth Circuit to reverse an NLRB decision that eviscerates the long-standing prohibition on secondary boycotts. Although the NLRA protects the right to strike or picket a primary employer (an employer with whom a union has a labor dispute), it seeks to keep neutral employers from being dragged into the fray by making it unlawful for a union to coerce a neutral employer to force it to cease doing business with a primary employer.

This case involves the South Carolina State Ports Authority (SCSPA), which has operated the Port of Charleston for the last 50 years by employing state workers to run lift-equipment and members of the International Longshoremen’s Association (ILA) to perform the other longshoreman work there. The SCSPA opened another terminal at the Port in 2022, requiring the same division of labor. ILA subsequently sued the United States Maritime Alliance (USMX)—a multi-employer association of carriers that deliver and pick up containers at the ports—and two of its carrier-members who used the new terminal for $300 million. ILA alleged that the USMX and the two carrier members were violating the parties’ collective bargaining agreement by using state employees to perform port work. USMX, the State of South Carolina and the SCSPA filed unfair labor charges against the union, maintaining that the lawsuit sought to obtain an illegal secondary objective in violation of the NLRA’s secondary boycott provision. The NLRB disagreed and ruled against the plaintiffs in a 2-1 decision, concluding that ILA’s lawsuit had a lawful work-preservation objective. Board member John Ring dissented, reasoning that this is a “classic case of unlawful secondary pressure.

We argue in our amicus brief that the ILA’s lawsuit is a quintessential secondary boycott: ILA is coercing the carriers to stop doing business at the new terminal unless a different party—the SCSPA—accedes to the union’s demands to hire more union workers to perform jobs that union members had never performed at the Port. The NLRB’s decision guts the distinction between work preservation and work acquisition and incorrectly concludes that carriers have control over the work assignments of another entity (the SCSPA). Allowing this decision to stand would turn the NLRA upside down, converting the clear statutory ban on secondary boycott activity into a presumptive authorization. All manufacturers have an interest in limiting this type of coercive and intimidating conduct by unions.

Unfortunately, on July 28, 2023, the Fourth Circuit denied the petition for review.

The NAM filed an amicus brief in the Fourth Circuit arguing that public nuisance litigation seeking to drive national energy policy on climate change should not be heard in state court. This case is part of a broader campaign involving more than two dozen cases that have been filed by cities, counties and states. The issue presented was whether putative state-law tort claims alleging harm from global climate change are removable because they arise under federal law.  The NAM's brief argues that the subject matter and remedies sought through this litigation are inherently national, as well as legislative and regulatory in nature, and that such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws.

Unfortunately, on April 7, 2022, the Fourth Circuit affirmed the district court's remand order, holding that none of the asserted basis for removal permit the Court to exercise jurisdiction.

The NAM filed an amicus brief in the U.S. Court of Appeals for the 4th Circuit to overturn a district court ruling that imposed punitive damages on a pork production facility in North Carolina under a "private nuisance" theory of liability. The case began with a lawsuit by property owners who reside near the facility in North Carolina, alleging that aspects of the facility’s operations are a private nuisance under tort common law. A federal district court ruled for the plaintiffs and awarded compensatory damages and millions of dollars in additional punitive damages. On appeal to the 4th Circuit, the NAM filed an amicus brief that explained why nuisance liability and punitive damages are inappropriate when companies comply with applicable environmental regulations, and further explained North Carolina’s extensive statutory and regulatory control over pork production facilities in North Carolina. This case has important implications for food producers and all manufacturers because the legal standard for what constitutes a “nuisance” under tort law will vary from jury-to-jury, risking the imposition of significant liability—including punitive damages—for manufacturers engaged in legal and thoroughly-regulated conduct. On November 19, 2020, the court vacated the punitive damages award and remanded the case for a rehearing on that issue.

The NAM filed an amicus brief in support of en banc review by the U.S. Court of Appeals for the Fourth Circuit to reverse a panel holding that invalidated a federal permit for a major natural gas transmission pipeline that crosses U.S. Forest Service lands. An environmental group sued the U.S. Forest Service to invalidate its permit allowing the Atlantic Coast Pipeline to cross beneath the Appalachian Trail hiking route. A panel of the Fourth Circuit held that the Mineral Leasing Act does not allow agencies to grant rights-of-way for pipelines to cross any stretch of the Appalachian Trail; rather, such approvals must come from a majority vote of the U.S. congress. This holding effectively converts the Appalachian Trail into a 2,200-mile barrier to pipeline construction from Maine to Georgia. The court’s reasoning could also be applied to any one of the dozens of pipelines that currently cross beneath the trail because such pipelines require periodic permit renewals. In support of the intervenor Atlantic Coast Pipeline’s petition for en banc review by the Fourth Circuit, the NAM filed an amicus brief that explained the legal flaws in the panel’s reasoning and highlighted the important benefits that pipelines provide for manufacturers and the national economy. On February 25, 2019, the Fourth Circuit denied en banc review.

The NAM filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit addressing the issue of vicarious liability for alleged telemarketing calls made by third party dealers that sold equipment. The court below held that UTC and Honeywell could not be held vicariously liable under the Telephone Consumer Protection Act (TCPA) for the complained-of telemarketing calls placed by “authorized dealers” as UTC and Honeywell, were only the manufacturers of the equipment, and had no control over the calls whatsoever. Holding otherwise would have serious economic consequences and could punish manufacturers for a wide range of unlawful conduct by third parties that they do not control. The NAM’s brief argued that for vicarious liability to be established, a principal-agent relationship must have existed, and that it is clear from both contractual language and the general nature of the manufacturer’s relationship with the third-party dealers that no such relationship existed. The Fourth Circuit agreed with the NAM by affirming the lower court’s decision.

The NAM filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit to support Kinder Morgan’s request for a rehearing of a lawsuit by environmental plaintiff groups that sought to expand the scope of liability under the Clean Water Act. The case involved a pipeline release of gasoline to dry land, which then allegedly migrated through groundwater to a nearby stream. The plaintiffs alleged that the gasoline seepage to the stream violated the Clean Water Act. This case is significant for manufacturers because the plaintiffs’ theory would impose massive liability for any pollution to dry land (no matter how insignificant) that migrates through groundwater to nearby surface waters. The plaintiffs lost in federal district court but prevailed on appeal to the Fourth Circuit. The NAM’s brief explained how the Fourth Circuit’s decision conflicts with Supreme Court and appellate court precedent. The Fourth Circuit denied the petitions for rehearing and rehearing en banc.

The NAM filed an amicus brief seeking to persuade the U.S. Court of Appeals for the Fourth Circuit to invalidate a judicial gag order that limited manufacturers’ free speech rights. A federal judge issued the gag order, without prompting by either party, to restrain corporate speech in several major cases against pork producers in North Carolina. Manufacturers are frequently subject to litigation that attracts media attention, and they must be able to convey information accurately to the public about a case and their products to defend their company and products in the court of public opinion. The NAM’s amicus brief explained the harms to manufacturers if the gag order stood. The Fourth Circuit vacated the order and cited the NAM’s amicus brief in support of its holding.

The NAM filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit arguing that courts should not apply new conditions to an existing National Pollution Discharge Elimination System (NPDES) water discharge permit when the regulatory agency has already considered those conditions and did not require them in the permit. Although West Virginia’s permit included boilerplate language that prohibited discharges that cause violations of state water quality standards, the district court used the boilerplate language to convert those water quality standards into enforceable effluent limits in the permit. That decision is important as NAM members who hold these permits with similar boilerplate language may now be subjected to civil and criminal penalties and injunctive action. The NAM’s brief argued that Fola was entitled to protection from the permit and that the district court’s interpretation usurps the state’s authority to establish water quality standards. Unfortunately, the Fourth Circuit did not agree with NAM’s arguments, leaving current permit holders liable for discharges that are otherwise permitted at the time of issuance.

The NAM filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit supporting Nestle Dreyer's Ice Cream Co. (Dreyer) in a collective bargaining dispute after the lower court held that Dreyer’s technical refusal to bargain violated the National Labor Relations Act (the Act). The litigation followed Dreyer’s refusal to bargain after the National Labor Relations Board’s (NLRB) certification of the petitioned-for unit, which consisted solely of maintenance employees. This case is important because to simply allow the instant certification of a maintenance-only unit would be a disservice to employers, employees and orderly collective bargaining. The NAM’s brief argued that the court should reverse the NLRB’s decision because the NLRB1) erroneously failed to give proper consideration to the bargaining history that included a broader unit of maintenance and production employees; 2) relied on the “overwhelming community of interest” test announced in Specialty Healthcare, which was inconsistent with prior doctrine; and 3) Incorrectly made the extent of organization a controlling factor in unit determination. The court denied Nestle Dryer’s petition for review.

The NAM filed an amicus brief on July 10, 2012, arguing that the ruling in Specialty Healthcare, which allows very small numbers of employees to form a union, should be overruled because it violates provisions of the National Labor Relations Act (NLRA). That decision creates policy implications that will upset and reduce American investments and competitiveness. We argued that Specialty Healthcare prevents all of the employees from fully controlling the creation of the union. This violation allows micro-unions of as little as 2 employees to circumvent employees who do not wish to unionize. Further, by its ruling in Specialty Healthcare, the NLRB does not determine bargaining units “in each case,” and gives nearly all the control of determining who will be in the union to a very small group. The labor uncertainty from this precedent endangers investment in manufacturing, as employers would be required to deal with multiple and often conflicting unions.

In 2014, the court vacated and remanded the case to the NLRB. The original decision had been made by a Board that was ruled unconstitutional by the Supreme Court in the Noel Canning case. In 2016, the 4th Circuit denied Nestle Dryer’s petition for review, stating the NLRB was correct in allowing a maintenance-only bargaining unit, holding that the maintenance workers shared a community of interest distinct enough from the production workers for them to have their own bargaining unit.

This case involves an attempt by the Consumer Product Safety Commission (CSPC) to post a materially inaccurate report submitted to its new online database of allegedly unsafe products, saferproducts.gov. Before a criticism of a company's product is posted on the website, the CPSC must give the affected company an opportunity to respond. Here, the affected company sued to prevent publication of a materially inadequate report, and the trial court agreed, on 3 separate appeals. The CPSC’s own experts found a lack of association between the risk of harm alleged in the report and the product at issue, which its epidemiological investigation confirmed. After repeated attempts to prevent the CPSC from posing the inaccurate information, the company sued.

The trial court agreed, enjoining the Commission from posting the report, and redacting the company name from public display in the court proceedings. Three consumer groups intervened and appealed, arguing that the company name should be disclosed as public court documents, even though the challenged reports were inaccurate. Media organizations, the AARP, and the ACLU raised similar arguments.

The NAM led a group of associations in filing an amicus brief supporting the court's decisions that the report was inaccurate and should not be posted, and that the company name must continue to be confidential. Disclosure of the name would sacrifice the right the company sought to safeguard by filing suit. The NAM, joined by the American Coatings Association, Association of Home Appliance Manufacturers, Manufacturers Alliance for Productivity and Innovation, Recreational Off-Highway Vehicle Association, and Specialty Vehicle Institute of America explained how certain aspects of the database, as implemented by the CPSC, provide a high risk of submission of erroneous information and allow the potential for misuse. It is important that businesses have a means of addressing false reports before publication without being disclosed, or else their remedy would be useless. If saferproducts.gov includes materially inaccurate reports, it may lose any potential value as a reliable source of product safety information for the public.

We have long fought to prevent the CPSC from providing inaccurate information on its website. Having to disclose the name of a company falsely accused of product safety issues unfairly punishes the company and does nothing to further consumer safety.

On 4/16/14, the Fourth Circuit overturned the trial judge's ruling, holding that it violated the public's "right of access" under the First Amendment. Ordering the case unsealed in its entirety, the appeals court found that the consumer groups had standing to pursue the appeal even though the CPSC did not itself appeal, on the grounds that consumer groups have a public right of access to court proceedings and they advocate on issues relating to the CPSC. That right of access outweighs the desire of a corporation to protect its corporate image, "notwithstanding the negative publicity those documents may shower upon a company." It found no credible evidence supporting the company's fear of reputational or economic injury, particularly since the trial court vindicated the company and its product. One of the judges wrote separately that publication of false and misleading reports could be catastrophic to the company, and the result might be different if it could prove that publication would cause substantial and irreparable economic harm.

This is another case in which the NLRB has applied its decision in the Specialty Healthcare case to allow employees to create a bargaining unit that is small and underinclusive. The Board’s decision was appealed to a federal appeals court, and the NAM and other filed an amicus brief arguing that the Specialty Healthcare decision was wrong and violated at least two provisions of the National Labor Relations Act. An employer should not have to bear the burden of demonstrating that a proposed bargaining unit should include additional employees who share “an overwhelming community of interest with the included employees.”

In this case, the company argued that a unit of technical employees working in one department at its shipyard should include all the technical employees at that location. We argued that the Board’s rule eliminates important considerations in determining the breadth of the bargaining unit, and will disrupt the smooth operation of the company processes at a time when American employers face unprecedented economic and competitive pressures. The rule also places too much weight on the grouping selected by the organizing employees, thus effectively violating a statutory provision that the “extent to which the employees have organized shall not be controlling.” In addition, the statute requires the bargaining unit decisions assure employees the fullest freedom in exercising their legal rights, but the Board’s rule failed to consider the rights of employees to refrain from collective activities. By allowing small bargaining units, the Board effectively denies the rights of a majority of the remaining workers to refrain from having union representation in an appropriately defined unit.

This is another example of how the Board’s new ruling fosters disruptions that smaller or multiple bargaining units can have on business operations, stable labor relations, and realistic collective bargaining. A unit determination should reflect an employer’s functional integration and the resulting “community of interests” shared by its employees. Smaller units reduce employer flexibility and employee advancement opportunities as separate units isolate employees in different seniority systems and job classifications.

On 7/17/2013, the Fourth Circuit ruled that the NLRB did not have a quorum to issue the decision in this case, because three recess appointments to the Board were unconstitutional. But it also upheld the selected bargaining unit under the standard that was in place prior to the Specialty Healthcare decision, thus avoiding any decision on the propriety of the standard adopted in that case. Although the employees in this case possessed a sufficiently distinct community of interest to qualify for their own bargaining unit, the court refused to enforce the Board's order because it was not properly constituted. Subsequently, the Board issued another decision in October 2014 that required Huntington Ingalls to bargain with the micro-bargaining units. Huntington Ingalls then filed a petition of review of the Board’s order, claiming that the Board did not have jurisdiction, but the 4th circuit enforced the Board’s order.

This case involves a German company that manufactured semiconductor memory devices, but that filed for bankruptcy. Over the years, it has signed numerous cross-license agreements for thousands of patents relating to DRAM technology, flash memory and semiconductor process technology. The validity of those licenses, and the expectations of many high-tech companies that have relied on them, are in jeopardy in this litigation. The foreign representative of the company sought a court order allowing it to reject the licenses for its U.S. patents and compel its licensees to negotiate new licensing agreements at more favorable rates. The court rejected this request, but that issue was appealed to the U.S. Court of Appeals for the Fourth Circuit.

The NAM and other business groups filed an amicus brief on Nov. 20, 2012 urging the appeals court to affirm this decision. On Dec. 3, 2013, it did so. It ruled that the bankruptcy judge properly balanced the interests of all parties, and that U.S. bankruptcy law allows licensees the right to retain their rights under the licenses. Our brief argued that allowing the rejection of cross-license agreements in bankruptcy could have a devastating impact on the American semiconductor industry and the American economy as a whole. Companies depend on cross-licensing to protect their massive investments in research, development and manufacturing, and eliminating that certainty would constrain investment and innovation in the United States.

Allowing unilateral rejection of patent cross-licenses makes a licensee pay twice to use the same patent. After companies sink huge investments into product development, production, marketing and distribution, it would be much more difficult and expensive to switch to alternative designs and products, and they would be in a much weaker negotiating position. Patent owners in bankruptcy would be able to use the threat of an injunction to extract an extortionate royalty, rather than the actual market value of a patent when it was implemented by the licensee. This in turn would have a negative impact on consumers, research and development, innovation and exports. Moreover, U.S. producers would have an incentive to move their manufacturing operations to another country to avoid infringement liability under U.S. law. It would also provide perverse incentives for companies with patents to transfer them to entities with marginal financing, with the possibility that bankrupcty would allow them to recover far more than they originally negotiated for their licenses.

The outcome is a substantial relief to manufacturers and others who rely on patent licensing to stay in business.

A federal judge imposed strict emissions controls on TVA power plants in Tennessee and Alabama based on a finding that the plants created a "public nuisance" in North Carolina under state law. The controls went far beyond state and federal emissions controls.

On August 18, 2009, the NAM and other business groups supported TVA's appeal of this ruling to the Fourth Circuit, arguing that the state claims are preempted by the comprehensive interstate air pollution control scheme of the Clean Air Act, and that virtually any source of emissions in the country could be subjected to arbitrary case-by-case claims that they contribute to a public nuisance. The EPA established several major programs that already address interstate pollution, including the Clean Air Interstate Rule, the Nitrogen Oxide Budget Trading Program, the acid rain rules, the regional haze rules and the rules requiring permits for emissions. The lawsuit also amounts to a collateral attack on the national ambient air quality standards for particulate matter and ozone.

This litigation is similar to that brought by various states against 5 major electric utilities and recently decided by the Second Circuit. See Connecticut v. American Electric Power. Such litigation is a dangerous threat because it not only interferes with the uniform regulation of emissions but it also expands the law of public nuisance in a way that could be used against many other industries.

On July 26, 2010, the Fourth Circuit overturned the district court, ruling that Congress is the policymaking branch of government responsible for setting national standards, and that public nuisance law does not encompass an activity expressly permitted and extensively regulated by both federal and state government. It also ruled that one state is not able to apply its home state law to activities occurring in another state.

The court's opinion highlights the chief problem created by this kind of litigation: "To replace duly promulgated ambient air quality standards with standards whose content must await the uncertain twists and turns of litigation will leave whole states and industries at sea and potentially expose them to a welter of conflicting court orders across the country." In addition, it ruled that, "An activity that is explicitly licensed and allowed by Tennessee law cannot be a public nuisance." This decision is an important milestone in our fight against the use of expansive and unwarranted legal theories by trial lawyers against manufacturers.

The NAM and other business and legal reform groups filed an amicus brief supporting the efforts by CSX Transportation, Inc. to counter the litigation industry for generating fraudulent asbestos lawsuits. The brief backed the railroad’s appeal of a judge's dismissal of its fraud and conspiracy complaint filed against a law firm and a radiologist who screened test results for evidence of asbestos-related diseases. The suit alleged that the defendants conspired to fake asbestos screenings in order to win cash settlements from the company.

Our amicus brief provided a history of rampant, coordinated asbestos fraud in arguing that CSX’s suit should be allowed to proceed. We argued that the entrepreneurial model developed by plaintiff's lawyers to pursue asbestos claims provides powerful incentives for fraud, and when suits are filed in so-called "magic jurisdictions" that favor plaintiffs, companies have very little option but to settle. Individuals with legitimate claims may be harmed most, as resources are depleted by a disproportionate amount of settlement dollars going to claimants with no discernible asbestos-related physical impairment whatsoever. It is important that courts step in to police the potential for fraud in these kinds of cases.

Fortunately, on 12/30/2010, the Fourth Circuit overturned the lower court's ruling and reinstated the CSX law suit. It found that the statute of limitations on the lawsuit did not begin running until the lawsuit alleged to be fraudulent was actually found to be meritless. It also ruled that there was sufficient evidence that a jury can find that the law firm fraudulently manufactured the claims.

The NAM filed a motion 8/3/05 to join in an industry amicus brief in this case involving an employee’s voluntary release of rights under the Family and Medical Leave Act (FMLA). The plaintiff was paid more than $12,000 as part of an enhanced severance benefits package during a reduction in force, in return for a release of all legal claims relating to her employment. She then sued, claiming the release was ineffective for FMLA claims. A 3-judge panel of the U.S. Court of Appeals for the Fourth Circuit interpreted a Department of Labor (DOL) regulation as requiring DOL or court approval for all waivers, and the employer sought rehearing on this issue by the full court.

The industry brief, filed by the Equal Employment Advisory Council, the U.S. Chamber of Commerce, and the Society for Human Resource Management, argued that employees should be able to voluntarily release claims they may have against their employer under the FMLA without having that release approved by the Department of Labor or a court. The DOL regulation should be declared invalid if it requires supervision of releases. Another court, the 5th Circuit, has ruled that the regulation only applies to releases of future FMLA claims, but the 4th Circuit has created a difficult conflict that threatens to make it virtually impossible for employers to obtain an enforceable general release without litigation, since DOL lacks any vehicle for supervising the hundreds of thousands of releases signed every year.

The NAM needed to file a motion to join the brief because of an unusual Fourth Circuit rule that requires trade associations to disclose their membership lists to the court. To protect the confidentiality of our membership list, we moved to waive the rule and join the brief, but the motion was denied 8/9/05.

The court decided to rehear this case, but affirmed its first ruling on 7/3/07.

This case is about whether permits are required when power plant repairs are made to allow boilers to continue in service and operate for more hours than before the renovations. The EPA argued that these repairs were modifications that allowed the boilers to produce more emissions (albeit at the same rate per hour) than authorized by existing permits. Duke Energy argued that the definition of a modification that would necessitate a new permit includes only changes that increase the hourly emission rate, since that is the definition the EPA uses under its New Source Performance Standards (NSPS). The Fourth Circuit ruled 6/15/05 that the EPA cannot interpret the word “modification” two different ways when the statutes in which the word appears define it identically. Consequently, since the definition of modification under the NSPS only applies to changes that increase the hourly emission rate, no permit is required.

This is a significant victory for any business that generates emissions regulated by the Clean Air Act. American industry would grind to a halt if it were required to scrutinize for potential permits thousands of renovation activities each year. For instance, if the activity is a necessary repair or replacement project, the result could be an extended shutdown of the facility until it could be undertaken.

The NAM and other business organizations filed a brief 10/15/04 supporting this result. The joint brief argued that New Source Review permit requirements are only triggered when facilities are physically changed or modified to create an increase in emissions over the level approved in the original permit process.

This case on appeal to the Supreme Court is Environmental Defense v. Duke Energy Corp.

The NAM applauded the Fourth Circuit's 10/10/01 ruling in this case giving public and private permit holders under the Clean Water Act a margin of protection for discharges that would be reasonably contemplated in their permits. The Court held that there is a "protective shield" within which limited deviations in the properties of the permitted discharges are allowed, as long as the permit holder complies with the terms of the permit and the challenged discharges are within the "reasonable contemplation" of the permitting authority at the time the permit was granted.

The NAM had filed an industry amicus brief with the Fourth Circuit in April on behalf of the defendants in the case. Plaintiffs sued when it was learned that a county-run wastewater treatment facility was discharging warm water into a local stream, even though its environmental permit did not expressly allow for heated discharges.

NAM general counsel Jan Amundson said, "Although this ruling would suggest that future permit applicants need to be diligent and comprehensive with specific language during the application process, it should also send a signal to those contemplating nit-picking nuisance suits. The courts may be losing their patience for them."

In this case, the NAM supported Smithfield Foods seeking reversal of an EPA civil enforcement suit for violation of its National Pollutant Discharge Elimination System (NPDES) permit. Smithfield had an agreement with the Virginia State Water Control Board to meet new permit requirements, but the EPA sought to impose more than $12 million in fines despite an agreement Smithfield had reached with Virginia to connect to the local waste water treatment system.

The Fourth Circuit ruled 9/14/99 that because Virginia had not formally modified the permit to allow certain discharges, its written statements that the phosphorous standard would not be enforced were irrelevant. It ruled that imposing both daily and monthly fines were not double counting. It also refused to allow Smithfield to offset its liability with payments being made to tie in to a municipal waste treatment facility.

The bottom line: letters from state officials, without changes in the actual permits, will not eliminate federal EPA enforcement of NPDES requirements, and EPA can impose strict financial requirements.

This case involves an enforcement action for alleged violations of the federal regulations pertaining to equipment in facilities that produce or use benzene. The NAM filed a brief supporting arguments concerning the government's refusal to comply with Administrative Procedures Act and Clear Air Act provisions mandating that prior notice be given of agency regulatory requirements, thus, attempting to make a significant change in the meaning of a rule without first going through notice and comment. The Court deferred to EPA’s interpretation of "use," and found HCC had notice as of 1989. The case affects companies that recycle benzene at their facilities. Decided 10/27/97. This case was appealed to the Supreme Court, but the Court declined to review it.