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This suit, filed by the NAM, CMA, American Automobile Manufacturers Association, American Petroleum Institute, Electronics Industry Association, and the Chamber of Commerce of the United States, challenges an EPA policy that allows municipalities to avoid some liability for Superfund cleanup costs. It affects all companies at "co-disposal" Superfund sites (with both industrial and municipal wastes), by allowing municipalities to escape liability by paying a fixed price for cleanup costs. The suit was dismissed by U.S. District Court for the District of Columbia for lack of jurisdiction (EPA's policy was not "final agency action") on 11/16/98. A similar suit filed in the D.C. Circuit was stipulated for dismissal on 7/2/98 by the EPA.

The NAM challenged the conflict minerals rule issued by the Securities and Exchange Commission (SEC) in August 2012. The challenge was transferred from the U.S. Court of Appeals for the D.C. Circuit to the U.S. District Court for D.C. The rule harmed manufacturers because it required misleading and stigmatizing public statements unfairly linking products to human rights violations. The NAM argued that the SEC incorrectly interpreted the statute, which required reporting of certain minerals that “did originate” in and around the Democratic Republic of the Congo (DRC), to cover minerals that “may have originated” there. In April 2017, the D.C. District Court entered final judgment declaring the SEC regulations on conflict minerals unconstitutional to the extent that the statute and the rule require regulated entities to report to the SEC and to state on their websites that any of their products “have not been found to be ‘DRC conflict free.’”

The NAM and coalition associations filed an amicus brief supporting three construction employees from Baker LLC which joined a federal lawsuit challenging the National Labor Relations Board’s (NLRB) Ambush Rule. Baker requested a Temporary Restraining Order (TRO) against implementation of the Rule due to suffering irreparable harm on a variety of grounds including a strong objection to the Rule’s requirement mandating employer’s turn over employees personal information over to organizing officials. However, the court found no showing of irreparable harm on the notice posting requirement, a failure to show that the disclosure requirements caused certain and irreparable harm, and a failure to demonstrate that Baker’s due process rights will be irreparably injured. The judge distinguished the prior notice posting rule and states that the NAM case does not signal a substantial likelihood of success on the merits in this case. The Baker case has been consolidated with NAM’s challenge to the Rule in D.C. District court with a hearing scheduled for May 15.

On January 5, 2015 the NAM sued the NLRB in D.C. District Court to stop the agency’s overreach on its “ambush elections” rule issued on December 12, 2014. The coalition brief argues that the Final Rule violates the statutory requirement for an “appropriate hearing” prior to the election, by giving Regional Directors authority to defer litigation of voter eligibility and inclusion issues until after the election. The brief also argues that the Rule is arbitrary and irrational. Specifically, it promotes speed over all other statutory goals, including employer free speech rights and the opportunity for a full and informed debate before the election; requires employers to give out employees’ private phone numbers and personal email addresses. The Board acknowledges that “the privacy, identity theft, and other risks may be greater than the Board has estimated” but nonetheless concludes that these “risks are worth taking.” Finally, the brief argues that the Rule will result in more election-related litigation, not less, even though the stated purpose of the Final Rule is to reduce such litigation.

On February 4, 2015, the NAM filed a motion for summary judgment.

On July 28, 2015, the Court ruled against the NAM's motion.

The NAM's suit challenging the conflict minerals rule issued by the Securities and Exchange Commission (SEC) in August 2012 was transferred from the D.C. Circuit to the district court on May 2, 2013. Judge Wilkins agreed to our request for expedited consideration of the case, to treat the petition for review as a complaint, and to decide the case on the briefing already submitted to the Court of Appeals.

Our main brief on the merits asked the court to modify or set aside the rule, arguing that the SEC adopted one of the costliest rules in its history while rejecting alternative regulatory options that would have substantially reduced the costs. The SEC also misread the statute and imposed new burdens not required by Congress on far more companies than expected. The business community understands the seriousness of the conflict occurring in the Democratic Republic of Congo and the need to implement solutions to bring an end to the violence. However, while well intentioned, the SEC’s final rule goes too far, and business groups have suggested constructive ways to make the rule more workable. The final rule imposes an unworkable, overly broad and burdensome system that will undermine jobs and growth and may not achieve Congress’s overall objectives.

On July 23, the judge upheld all aspects of the rule, deferring to the SEC for considering the rule's burden on efficiency and competition and the costs of compliance. It deferred to the agency's conclusion rejecting a de minimis exception, imposing a "reasonable country of origin inquiry" for minerals that "may" have originated in the region of the Congo, and setting different phase-in periods for large and small companies. It found the word "manufacture" to be ambiguous and accepted the application of the rule to those who contract to manufacture.

Finally, applying an intermediate level of scrutiny to our First Amendment challenge to the requirement that conflict mineral disclosures be on public web sites, the judge cited the government's foreign relations interest as justification for again deferring to the SEC. The ruling found a "reasonable fit" between the rule and Congress's objectives in promoting peace and security in and around the Congo.

We appealed this decision. Click here for this subsequent history.

Click here for the briefs and other details on the case originally filed in the D.C. Circuit.

See Center for Biological Diversity v. Salazar for a summary of this case. All the challenges to the polar bear regulations were consolidated in one case.

Mingo Logan Coal Co. challenged an EPA decision that it argued retroactively changed a Clean Water Act permit issued by the U.S. Army Corps of Engineers four years earlier. This change withdrew certain creeks as disposal sites for dredged material, affecting the validity of a permit that EPA had previously reviewed and assented to, and even though the permit holder was in full compliance with it.

The NAM and 11 other business groups filed an amicus brief urging the trial court judge to rule that EPA does not have the authority to modify previously issued permits under Section 404 of the Clean Water Act. The section 404 permitting program authorizes roughly 60,000 permits representing about $220 billion in economic investment every year, and EPA's assertion of authority to revise existing permits creates tremendous investment uncertainty for all permit holders and potential project proponents. Inevitably, that uncertainty will translate into higher risks in borrowing, less investment, lost jobs and slower growth throughout the U.S. economy.

Our brief highlighted the dramatic change that EPA's action represents. Section 404 permits are required for the discharge of fill material into waters of the United States (including wetlands), and affects construction of utility infrastructure, housing and commercial development, renewable energy projects like wind farms or solar arrays, and transportation infrastructure projects such as highways and rail lines. While EPA has occasionally exercised its authority and often uses the threat of such action to obtain concessions during the permitting process, it has never before used Section 404(c) authority to review a previously permitted project.

We also highlighted a study by Dr. David Sunding, a professor at UC Berkeley, showing that the threat that EPA may modify existing permits distorts the cost-benefit ratio of new investment projects. Existing permits are already subject to the Army Corps of Engineers' regulations governing suspension, revocation and modification, and now EPA's interference will delay or deter investment in new projects. For example, a 2% chance that EPA would act adversely decreases a project's cost-benefit ratio by an astounding 30%. Also detailed are effects on bank financing and interest rates, bond ratings, rationed credit, land prices, and other harms throughout the economy.

On Sept. 23, the government moved to strike the Sunding report from consideration, as it was not part of the record considered by EPA. We opposed this motion, arguing that EPA was repackaging their efforts to exclude us from the case, efforts that were rejected by the court in August. We also argued that the report did not add to the administrative record, but provided context for the court to interpret Section 404(c) and to understand the broad consequences that flow from the government's theory of liability.

On March 23, 2012, Judge Amy Berman Jackson ruled that EPA does not have the authority to render a permit invalid once it has been issued by the Army Corps of Engineers. The ruling found that Section 404(c) does not expressly give EPA that power, and even if it did have some power to interpret that section, its interpretation was unreasonable. The Corps is the only permitting agency identified in the statute, and the judge said, "This is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute." It has the power to block the initial issuance of permits by refusing to allow the Corps to specify certain areas as disposal sites. But even if it had the power to subsequently remove the designation of certain sites, that does not affect the validity of the existing permit, which only the Corps can issue. Mingo Logan need only comply with the terms of the original permit.

The court described as "magical thinking" EPA's position that withdrawing a specification of a disposal site revokes the permit that affects that site. "It posit[ed] a scenario involving the automatic self-destuction of a written permit issued by an entirely separate federal agency after years of study and consideration. Poof!" Thus, even if the agency were accorded some deference under administrative law procedures, the agency's interpretation was unreasonable and could not stand. The judge also cited the NAM's amicus brief to show that eliminating finality from the permitting process would have a significant economic impact on industry, in turn making EPA's assertion of power less reasonable.

EPA appealed this ruling to the D.C. Circuit and won. Click here for details.

The NAM filed this suit challenging a regulation issued by the National Labor Relations Board that requires employers to post in their workplaces a notice of the right of employees to organize into unions, bargain collectively, discuss wages, benefits and working conditions, jointly complain, strike and picket, or choose not to do any of these activities. The required notice also lists all the things an employer or a union may not do under the law.

The regulation requires posting in "conspicuous places" as well as where other notices to employees are customarily posted, and on electronic sites if the employer customarily communicates with its employees about personnel rules or policies by such means. In addition, if 20% or more of an employer's workforce is not proficient in English and speaks a language other than English, the employer must post the notice in the language employees speak. Special requirements apply to different segments of the workforce that speak different languages. The NLRB listed this rule as "major," estimating a total compliance cost of $386.4 million for some 6 million employers nationwide.

The NAM raised 4 issues in our complaint. First, we alleged that the National Labor Relations Act (NLRA) does not expressly grant the Board the authority to promulgate a rule requiring employers to post a notification of employee rights under the NLRA. Second, the Board's authority under the NLRA is triggered when a representation petition or an unfair labor charge is filed, not before. Third, the rule purports to establish a new unfair labor practice -- i.e., failing to post the required notice -- without the statutory authority to do so. And fourth, the new regulation authorizes the Board to allow any employee to file unfair labor practice charges long after the 6-month statute of limitations has expired. We argued that the NLRA does not authorize the Board to waive the statute of limitations except for members of the armed forces whose service interferes with their ability to file charges on time.

The NAM asked the court to declare the notice posting requirement null and void. Failure to post the notice could result in the Board finding that an employer engaged in an unfair labor practice by interfering with, restraining or coercing employees in the exercise of their rights. It could also result in waiver of the statute of limitations for employee complaints about other unfair labor practices, or could be used as evidence against an employer in any case in which unlawful motive is an issue.

On Sept. 28, the NAM and co-plaintiff Coalition for a Democratic Workplace, filed a motion for a preliminary injunction and an expedited hearing. We hoped to have the court rule before the effective date of the regulation, or enjoin NLRB implementation and enforcement of the rule indefinitely. We hoped to avoid a situation where companies needed to implement the rule by November 14, its original effective date, only to find that the rule was issued unlawfully.

On Oct. 5, the NLRB announced that it would voluntarily delay implementation of the posting requirement until January 31, 2012., and after oral arguments on December 19 in which the judge sought a further extension, the Board postponed the effective date again, until April 30, 2012.

On March 2, Judge Amy Jackson ruled that the NLRB has broad authority to issue rules, and the notice posting provision was valid. However, the Board did not have the authority to impose the penalties for noncompliance, namely making failure to post an unfair labor practice and suspending the statute of limitations for employees that want to file suit for unfair labor practices years after they occur. However, the NLRB may find the failure to post the required notices to be an unfair labor practice, or to toll the statute of limitations, in case-by-case decisions. Failure to post the notices could in some cases result in findings that an employer intended to improperly influence employees from exercising their rights, or could make it easier for the Board to allow an employee to file charges after the statute of limitations has run out.

The court rejected the NAM's First Amendment arguments, and found that the enforcement provisions were severable from the posting requirement, thus allowing the posting requirement to continue to stand even though a portion of the regulation was found to be invalid.

On March 5, the NAM and others filed a notice of appeal. All are challenging the adverse decisions on the posting requirement, and all but the NAM are challenging the validity of the recess appointment of some of the current Board members who were appointed by President Obama while the Senate was still meeting regularly in pro forma sessions.

The NAM and other business organizations moved to intervene in a case brought in California by three environmental organizations which challenged the Department of the Interior's rule relating to naming the polar bear a threatened species under the Endangered Species Act (ESA). Our involvement did not challenge or support that designation, but supported the Department's conclusion not to require special permits for companies that conduct greenhouse gas-emitting activities. Any activity that harms a threatened species may constitute an "incidental taking" and may require a special Fish & Wildlife Service (FWS) permit. Under the new rule, the government provided an exception for greenhouse gas emissions, since their effect on global warming cannot be traced to any particular activities in particular locations.

In a separate case, we challenged a particular provision that did not exempt the state of Alaska from the greenhouse gas exception. See American Petroleum Institute v. Salazar. After we filed that case, EPA amended the rule to eliminate the "Alaska gap" carve-out provision, but left in greenhouse gas requirements for operations within the current range of the polar bear. We continued to challenge that limited ruling (see Amended Complaint below).

On 12/3/08, our motions to transfer and consolidate this case with others filed in federal court in the District of Columbia were granted. This case was consolidated with Defenders of Wildlife v. Dep't of the Interior, which challenged the Department's Section 4(d) rule as having been promulgated without conducting an environmental impact analysis and as not providing for the conservation of the polar bear. Since these cases have been consolidated, our summary is consolidated here as well.

In 2010, we filed a memorandum and reply brief supporting the decision not to extend liability for affecting polar bears to activity occurring outside the current range of the bear. This will allow energy and industrial activity permitted under the Clean Air Act, the application of pesticides allowed under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and other economic activities. The Endangered Species Act is not the proper mechanism for controlling carbon emissions. The U.S. Fish and Wildlife Service's decision is reasonable and supported by the statute.

On Nov. 4, 2010, the district court judge rejected the Service's view that only species that are in imminent danger of extinction are "endangered" under the law, and ordered the Service to reconsider its rule in light of the ambiguity of that term. The statute mandates consideration of 5 factors and the best available science to determine whether a species is endangered, and the agency should consider them and issue a new interpretation for court review. The existing rule will remain in effect while this new interpretation is under review.

After a hearing on April 13, 2011, the judge ordered the parties to submit briefs asking whether it needs to decide all the issues in the case if it remands the case to the FWS to comply with NEPA or ESA. The NAM's brief, filed June 3, 2011, supported the Fish & Wildlife Service's view that the rule complies with all relevant statutes, but if not, the appropriate remedy is to send the case back to the agency for further action without throwing out the current version. Otherwise, thousands of otherwise lawful activities outside the polar bear's current range would be called into question and possibly generate lawsuits, unnecessary administrative actions and delays, and potential liability. There are many actions that FWS could take that would address judicial concerns about its actions, such as providing further reasons or further NEPA analysis.

On June 30, District Judge Sullivan affirmed the legality of FWS's listing of the polar bear as a "threatened species" under the ESA.

On Oct. 17 and Nov. 18, the judge upheld the final rule under the Endangered Species Act, vacated the final rule and reinstated the Interim Final 4(d) Rule. He remanded the rule to FWS to conduct its NEPA review and to publish a final Environmental Assessment by December 6, 2012. The court ruled that the ESA does not require FWS to regulate greenhouse gases, and that the Service had a rational basis for its decision, despite the fact that it may limit the ability of environmental groups to sue greenhouse gas emitters under the ESA.

On May 15, 2008, the Department of the Interior issued an Interim Final Special Rule designating the polar bear as threatened under the Endangered Species Act, based on its determination that global climate change, resulting from increased concentrations of greenhouse gases in the atmosphere, threatened to injure the bears' habitat by reducing polar ice. As part of this rule, the Department provided an exemption for greenhouse gas emissions, since they are part of a worldwide phenomenon that cannot be traced to particular activities in particular locations affecting the bears.

This exemption applied to greenhouse gas emissions in all states except Alaska. On August 27, the NAM joined with the American Petroleum Institute, the U.S. Chamber of Commerce, the National Mining Association and the American Iron and Steel Institute in filing a complaint challenging the Department's omission of Alaska from the exemption. Manufacturing and other business operations in Alaska that may produce greenhouse gases should not be treated differently than those of companies in the other 49 states. This "Alaska Gap" exposed Alaskan operations to increased permitting burdens and/or the risk of enforcement by government authorities and citizen suits.

Our lawsuit challenged the Alaska Gap as arbitrary and capricious, since the best scientific data in the rulemaking record do not demonstrate enough of a connection between specific actions resulting in emissions and an effect on the polar bear.

The NAM supported the exemption for all states from permitting for greenhouse gas emissions that might affect polar bear habitat, not just every one but Alaska. The NAM was not challenging the decision to designate the polar bear as a threatened species.

On December 16, 2008, the Department of the Interior amended the rule to eliminate the "Alaska gap" carve-out provision, but implemented a more narrow carve-out. The business groups decided not to challenge the more narrow carve-out, and on April 6, 2009, stipulated that our complaint could be dismissed. In the stipulation order, the court recognized that the business groups were Defendant-Intervenors in both the Center for Biological Diversity case and the Defenders of Wildlife case, which involve other issues affecting polar bears. See the Center for Biological Diversitysummary for details on these combined cases.

On 12/22/00, the NAM joined other business associations in filing a complaint challenging the Clinton Administration’s "blacklisting" regulations for federal contracting. These rules revise the Federal Acquisition Regulations ("FAR") to mandate that only those deemed by the contracting agency to be in "satisfactory compliance with the law" are eligible for a federal contract. This includes federal, state, and even foreign laws, with an emphasis on tax, labor and employment, environmental, antitrust, and consumer protection laws. Furthermore, every contractor must certify whether they have violated federal or state law in those fields within the three preceding years, with civil and criminal penalties for being incorrect. The NAM is concerned that these regulations will inject an unacceptable level of subjectivity and uncertainty into the federal contracting process, and is urging the District Court to find them contrary to law.

Effective 4/3/01, the Bush Administration suspended the rule for 270 days or until the regulation is repealed. Published at the same time was a proposed rule that would permanently repeal the blacklisting regulation. The rule was completely revoked on 12/27/01.

On April 27, the NAM and the other plaintiffs filed a notice of voluntary dismissal of the suit. Thanks go to the law firms of Wiley, Rein & Fielding and Ogletree, Deakins, Nash, Smoak & Stewart for their work in bringing this issue to a successful conclusion.

Vacating the decision of the Sixth Circuit, a unanimous Supreme Court specified when a parent corporation may be held liable, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as an operator of a polluting facility that is owned and operated by its subsidiary. The mere fact that the parent corporation actively participated in and exercised control over the operations of the subsidiary will not, in itself, make the parent corporation derivatively liable unless, under applicable law (which the Court declined to identify), the subsidiary has been controlled to such an extent that it should not be regarded as a separate entity (a doctrine known as "piercing the corporate veil"). However, if the parent corporation actively participated in and exercised control over the operations of the facility itself, then it may be held directly liable as an operator of the facility.

The NAM filed an amicus brief 2/20/98 arguing that state corporate law clearly limits the liability of shareholders of corporations (including shareholders that are themselves corporations), even when they actively participate in running the corporation. The brief argued that the courts should not create a new body of federal common law in place of the well-established body of state common law in this area.