It was reported on February 20, 2013, that President Obama appears to have selected federal air regulator, Gina McCarthy, to take over for Lisa Jackson as head of the EPA.  The news indicates that the executive branch intends to build upon the agency’s recently-validated efforts to regulate greenhouse gas (GHG) emissions, in the face of persistently anemic congressional action on the issue.

The likelihood of increased regulatory, as opposed to legislative, involvement is further evidenced by the reactions of various legislators who oppose GHG controls.  For example, Sen. David Vitter (R-La.) was quoted as saying, “[t]he administration should be looking for someone who will end the standard of ignoring congressional requests, undermining transparency and relying on flawed science…Instead, it looks like they may double down on that practice.”  “Obama Expected to Tap McCarthy for EPA, Moniz for DOE,” http://www.law360.com/articles/417045.

In other words, if President Obama is going to make climate change a legacy issue for his second term—which seems to be the case based upon statements made in his inaugural  and State of the Union addresses—he is going to have to revisit his previously-stated aversion to doing so primarily through top-down regulation.  But how is he going to go about doing that?  The issue of climate change was conspicuously absent from the topics discussed during the 2012 presidential campaign, and any increased attention it has received in recent months might deservedly be credited in significant part to Hurricane Sandy.  Nor does it help that the administration has offered up few, if any, real details about its future climate-change-related regulatory agenda (see, e.g., http://www.whitehouse.gov/energy/climate-change).

Until that plan is made public, outside observers must rely on a review of EPA’s past successes and ongoing initiatives in order to predict what the future has in store.  However, it seems clear that an emboldened EPA will likely pursue all or some of the following initiatives with increased vigor and political support in the coming months and years.

·         New Power Plants:  EPA is expected to finalize a rule, originally proposed in 2012, requiring new fossil-fuel-fired power plants to be constructed with carbon capture and sequestration technology.

·         Existing Power Plants:  Finalization of the rule governing CO₂ emissions from new power plants will force EPA to address the same issue with respect to existing facilities.  EPA is expected to address this by requiring each state to adopt its own emission standards pursuant to guidelines issued by the federal agency.

·         Refineries:  The terms of a 2010 settlement agreement required EPA to issue a GHG rule for refineries by November 2012.  The agency did not comply with that deadline and expected to act on the issue this year.

·         Oil & Gas Operations:  EPA finalized emission standards for oil and gas operations in 2012.  Several states subsequently filed a notice of intent to sue the agency for its failure to include provisions that directly regulate methane.  EPA has indicated that it will revise the final rule in 2013.

·         Mobil Sources:  EPA has proposed a rule designed to ensure that transportation fuel sold in the United States contains a minimum volume of renewable fuel.

·         Climate Adaptation Plan:  EPA released its draft Climate Adaptation Plan this month, which discusses the impact of climate change on the agency’s ability to fulfill its mission and describes how EPA will factor climate change adaptation into new regulations.  The public comment period runs through April 9^th.

DRI’s Climate Change Task Force will continue to monitor developments in this evolving area of the law, and will submit regular blog postings and articles discussing relevant events.

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia held that the National Labor Relations Board (“NLRB”) lacked a sufficient quorum of members when it issued a finding that Noel Canning had violated the National Labor Relations Act.  See Noel Canning v. NLRB, 2013 U.S. App. LEXIS 1659 (D.C. Cir. Jan. 25, 2013).  On the date that the NLRB issued its findings against Noel Canning, three of its five members were sitting after appointment by President Obama, without Senate confirmation, under the Recess Appointment Clause of the U.S. Constitution.  The problem, according to the court, was that the “recess appointees” had been appointed while the Senate was in pro forma session, not recess, thereby making the appointments invalid.  With only two validly appointed members sitting on the NLRB, the Court of Appeals held that the NLRB lacked the necessary quorum to take any action against Noel Canning.

The court’s ruling potentially invalidates all NLRB rulings since January 4, 2012, the date of the recess appointments.  And because two of the unconfirmed appointees continue to sit on the NLRB, all NLRB decisions going forward may be called into question.  The NLRB does not appear phased by the court’s ruling, however, and continues to issue decisions.  It is expected that the NLRB will continue with business as usual until the Supreme Court weighs in on the issue.

On February 13, 2013, President Obama asked the Senate to confirm his re-nomination of NLRB Members Sharon Block and Richard Griffin.  That same day, various Republican House of Representatives leaders sent a letter to President Obama and NLRB Chairman Mark Pearce, requesting that the President nominate “four qualified individuals” to the NLRB and that the NLRB cease all activity until confirmation of the requested appointments.  While each branch of the government weighs in on this issue, employers and their attorneys are left with the challenge of interpreting the current state of labor law.

We look forward to gaining insight on the recess appointee controversy, as well as the NLRB’s recent decisions and agendas, from Lafe Solomon, Acting General Counsel for the NLRB, during DRI’s 36^th Annual Employment and Labor Law Seminar, to be held May 1-3, 2013, at the Arizona Biltmore, in Phoenix, Arizona.  If you have not already registered for this exciting event, please access the registration information here to secure your spot today.

People often ask me why they should join DRI. After all, there are lots of organizations out there for lawyers.  Joining a legal association costs money and can take away from billable time. 

The "cloud." It’s a term all of us have become familiar with, but also one that many of us give little thought to within the context of our law practices. That, however, is likely to change, as an increasing number of firms are going to be faced with the choice of keeping their data and/or applications local, moving them offsite, moving them to a true data cloud, or employing a combination of on and offsite strategies. What are the cost benefits associated with these choices? What are the security issues that must be addressed? These are questions that IT managers are facing on an ever increasing basis. 

Welcome!  I have been a member of DRI since 2007.  A partner at a former law firm suggested that I join DRI to develop my practice.  At the first conference I attended (Insurance Coverage and Claims Institute), he introduced me to friends he had made over the years and encouraged me to get involved.  Little did I know six years later, I would be a DRI success story and that DRI would ask me and my new friend, Steve Crislip (a member since 1982), to help get the word out about the benefits of a DRI membership through a Membership Blog.  

As 2012 comes to a close, DRI would like to take the opportunity to thank all of our bloggers and readers from this past year. 

Last month the National Bureau of Economic Research released results of its recent research that indicates more women receive raises than their male counter parts, largely because women are more likely than men to haggle and negotiate salary when there is an opportunity to do so. This fact in and of itself is great news – women are taking charge of their careers and sitting down with employers to have “difficult” conversations.  TribeHR decided to delve deeper and create the TribeHR Pay Raise Index – TribeHR concurs with the NBER’s data and found that women receive more pay raises than men - 7.4 percent compared to 6.2 percent. 

“Is dicing the workforce into pre-set categories going to encourage working together,” ponders author Liz Ryan.  In a recent Harvard Business Review article, she describes a recent diversity conference with which she was involved where concurrent sessions were held focusing on women, Baby Boomers, the GLBTQ population, Asians, African-Americans, and the physically challenged.  Ryan suggests, "We are not going to get better at confronting the differences that hamper our ability to work together by separating our people into broad-brush groups... Instead, we're going to get better at celebrating the family backgrounds, religious traditions, and ethnic heritage that our people bring with them to work. We can do that by talking about it — all the time — and by teaching people to talk about the 'sticky human stuff' in general."  She advocates that barriers will be broken down when we actively engage in conversations about our differences.

DRI has demonstrated that it is on the path to becoming a thought leader on the issue of diversity within our profession.  A core centerpiece of DRI’s diversity efforts is the Diversity for Success Seminar and Corporate Expo which will be held on May 30, 2013 in Chicago.  Diversity not only involves how people perceive themselves, but how they perceive others. Those perceptions affect their interactions.  The Diversity for Success Seminar provides a forum for attendees to have courageous, thought-provoking discussions about our differences and the role it plays in our firms, businesses and in the legal profession. 

Join us in a city world renowned for its charm and hospitality for DRI's 2012 Annual Meeting-October 24-28, 2012 at the New Orleans Marriott in the beautiful Crescent City. French and Spanish influences make New Orleans uniquely unforgettable. Enjoy spicy Creole and Cajun cuisine, its famous jazz and blues, incredible architecture, and fascinating tales of French Quarter heroes and heroines. Don't miss this opportunity to experience a city full of life, attend stellar education programs and visit with friends and colleagues, new and old. Don't forget your favorite team football jersey for the Thursday night networking event at the Mercedes Superdome!

It is simply too easy for lawyers to quickly lose credibility within the bar and before the judiciary. It seems we've already lost this battle with much of the public, but within the profession I like to think we begin our careers with an undeserved presumption that most of us (at least those without the last name "Madoff") are straight shooters. This presumption should be nurtured and guarded for the gift it truly is.