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On October 30, 2024, the NAM filed an amicus brief asking the 5th Circuit to invalidate EPA’s risk management rule for methylene chloride. Methylene chloride is a substance central to manufacturing processes across a huge variety of industries including coatings, refining, petrochemicals, petroleum, forestry, wood products, batteries, electronics, energy, electricity and defense. The risk management rule characterized methylene chloride as presenting an unreasonable risk “as a whole chemical substance,” regardless of the application, and assumed that no person facing potential methylene chloride exposure is using personal protective equipment. As a result, EPA prohibited all but 13 of the 53 conditions of use for methylene chloride. Petitioners challenged the rule in the 5th Circuit, arguing that the rule is inconsistent with the text and structure of TSCA—which requires a risk determination of each condition of use—and unsupported by substantial evidence.

The NAM’s brief underscores that the EPA’s whole chemical approach to risk evaluation is inconsistent with TSCA’s text and the Constitution’s separation of powers. EPA’s approach gives it unbridled authority to regulate any chemical to any extent based on its sole judgment that the chemical presents any risk to health or the environment. TSCA provides no basis for that authority in the statute. And the exercise of such unbridled unilateral legislative power to rule over a significant portion of the economy cannot be delegated to the executive branch.

On September 12, 2023, the NAM joined a coalition brief in the 5th Circuit concerning removal under federal officer jurisdiction. This case is one of over 40 cases filed by a group of Louisiana parishes seeking relief for alleged damage to Louisiana’s coastal environment. The plaintiffs allege that the defendants--energy producing companies--violated the Louisiana State and Local Coastal Resources Management Act by violating or failing to obtain a use permit for oil production activities on the Louisiana coast. Defendants are authorized to remove cases against them from state to federal court for actions taken while “acting under” an officer of the United States. The defendants removed this case, in part, based upon acts taken to assist the Allies in World War II, pursuant to Shell Oil Company’s contracts with the government to refine oil. The district court found that Shell Oil Company’s contracts were insufficient to establish "acts under" a federal officer because the defendants failed to show that Shell Oil Company was "acting under" a federal officer in carrying out a specific directive to engage in the activity that provides the basis for the plaintiff’s suit.

In our amicus brief, we argue that Shell Oil Company "acted under" a federal officer because oil production was how the companies fulfilled their contractual obligation to produce refined oil to the government. Ensuring that courts properly apply federal-officer removal jurisdiction is important to all manufacturers who provide goods or services to the United States government pursuant to a contract and face potential liability claims in state courts. Unfortunately, on May 29, 2024, the 5th Circuit affirmed the trial court's decision.

On July 10, 2024, the NAM filed an amicus brief requesting that the full 5th Circuit rehear the case. We argued that full 5th Circuit review is necessary to correct the panel’s interpretation of the federal officer removal statute which is inconsistent with circuit precedent and narrower than the interpretation employed by other circuits. Further, if left uncorrected, the panel’s decision will create forum uncertainty and will discourage private companies from aiding the federal government.

The case concerns a group of Louisiana parishes, supported by the Louisiana Department of Natural Resources and the Louisiana Attorney General as intervenors, seeking relief for alleged damage to Louisiana’s coastal environment based on acts committed during World War II that were controlled, directed, and regulated by the federal government. After learning of the WWII connection to plaintiffs’ claims via the plaintiffs’ 2018 expert report, the defendant oil companies sought to remove 42 related cases to federal court. In the defendants' first appeal, the Fifth Circuit held that removal was untimely because the defendants should have ascertained the federal question earlier based on vague references buried in an exhibit to the plaintiffs’ complaint. On September 15, 2020, the NAM filed an amicus brief in support of the defendants’ petition for rehearing en banc, arguing that the court's decision created uncertainty in all forms of removal, forcing defendants to file protective removal notices for fear that even equivocal and uncertain statements by plaintiffs may start the 30-day removal clock. The NAM maintained that the decision undermined the purpose of the removal statute to the detriment of both litigants and courts. On August 5, 2021, the court agreed with the defendants that their removal based on federal-officer jurisdiction was timely, but remanded the case for consideration of whether federal question jurisdiction exists.

On remand, the district courts found federal questions jurisdiction wanting, which the Fifth Circuit affirmed. The panel held that the defendants failed to present evidence that they acted pursuant to a federal officer's directive in the absence a contract that made them accountable to the federal government. On November 16, 2022, the NAM filed an amicus brief in support of the defendants' petition for a panel rehearing or, in the alternative, rehearing in banc, arguing that the panel decision conflicts with Congress's expressive directive, Supreme Court precedent, and other Circuits' case law, which do not require evidence of an express contract to establish "guidance or control" by the federal government for removal purposes.

Unfortunately, on November 29, 2022, the Fifth Circuit the petition.

On February 10, 2025, the NAM filed an amicus brief urging the 5th Circuit to affirm the Northern District of Texas’ decision to vacate the FTC final rule banning noncompete agreements. As previously reported, in April 2024, the FTC finalized the noncompete rule to prohibit employers from entering noncompete agreements with their employees. Under the rule, it is an unfair method of competition—and therefore a violation of Section 5 of the FTC Act—for an employer to enter a noncompete agreement with an employee, including a “senior executive.” The district court, however, found that the FTC lacked authority to issue the rule because the Federal Trade Commission Act “does not expressly grant the Commission authority to promulgate substantive rules regarding unfair methods of competition.” In addition, the rule is arbitrary and capricious because of the FTC’s failure to provide a rationale for the rule’s broad scope and to adequately examine less restrictive alternative solutions to the problem the rule aims to solve. The FTC appealed that decision to the 5th Circuit during the Biden Administration.

We argue that the district court’s decision is correct. Further, the rule is arbitrary and capricious because the FTC failed to adequately address comments by the NAM and others during the rulemaking process regarding the significant intellectual property interests at stake—contrary to the FTC’s assertions, trade secret misappropriation litigation and non-disclosure agreements are imperfect substitutes for noncompete agreements which are vital for protecting manufacturers’ intellectual property and trade secrets.

This case was brought in the 5th Circuit by activist group NCPPR challenging an SEC no-action letter--stating that it would not recommend enforcement action against Kroger if Kroger excluded NCPPR's proposal from its proxy ballot--and accusing the SEC of applying its Rule 14a-8 in an inconsistent and politically motivated manner. Under SEC Rule 14a-8, public companies are required to include certain shareholder proposals on their proxy ballot. Activist groups from across the ideological spectrum are increasingly using shareholder proposals to inject contentious ideological policy fights into corporate governance. We intervened in this case to raise two arguments not addressed by the parties: (1) Rule 14a-8 violates the First Amendment by compelling a company to include shareholder-selected proposals unrelated to the company’s core business or the creation of shareholder value on the company’s own proxy statement at the company’s own expense; and (2) the SEC lacks authority to compel company speech on its own proxy statement.