A panel of 12 lawyers from around the world recently proposed a legal definition for a new crime: ecocide. For years, the panel, along with various international groups, has sought to amend the Rome Statute of the International Criminal Court to include ecocide as one of the crimes within the court’s jurisdiction.

Currently, the ICC prosecutes only four crimes: genocide, crimes against humanity, crimes of aggression, and war crimes. The addition of ecocide would enable the court prosecute parties responsible for major ecological harms, which could include businesses, governments, and their respective leaders.

The proposed definition is 165 words, which is described as ‘unlawful or wanton acts committed with knowledge that there is substantial likelihood of severe and either widespread or long-term damage to the environment.’ Notably, the definition does not require harm to persons; however, the act(s) must cause widespread and severe harm.

The adoption of the fifth crime could greatly expand the role of the ICC. However, the proposal is far from done. The panel’s campaign would require comment from a host of nations. One of the Rome Statute signatories would then need to formally propose an Amendment to the Treaty, which would be formally debated at the Convention’s annual meeting. If this occurs, debate over a precise definition would likely last years or even decades.

The United States, India, Russia, and China, the world’s economic leaders, are not signatories to the Rome Statute, but could weigh in on the proposed amendment.

Overall, the proposed adoption of a fifth crime may foster debate throughout the world on matters relating to ecological harm that effects not only humans, but the planet as a whole.

Originally published in the Ark-La-Tex Association of Professional Landmen Register

Carbon capture and storage (“CCS”) is the process of capturing carbon dioxide emissions from large point sources, and then transporting it to a storage location for deposit in underground formations where it will not re-enter the atmosphere.  By returning CO2 emissions that resulted from the oxidation of carbon when fossil fuels are burned to the place where the fossil fuels were extracted, CCS can reduce the amount of pollutants released into the atmosphere, thus, potentially limiting climate change.  It is estimated that technologies for carbon capture, use, and storage may eventually be able to capture a vast majority of carbon dioxide emissions from power plants, refineries, petrochemical plants and other industrial facilities.  Optimistically, at least a portion of the carbon dioxide captured from this technology can be put to productive use in enhanced oil recovery or the manufacture of fuels, building materials, and more.  CCS is viewed as the primary practical way to achieve deep decarbonization in the industrial sector and could contribute 14 percent of the global greenhouse gas emissions reductions required under carbon neutral target goals and regulations by 2050.

Focusing on innovation, rather than elimination, this trend of development parallels the evolution of the oil and gas industry into an energy industry — one that invests in low-carbon and CCS technologies.

Notably, CCS technologies are being advanced out of the Natural Energy Technology Laboratory in West Virginia and other institutions. However, latent problems associated with global warming, including severe weather, that would be tackled by CCS aren’t always far from home.  While it can be debated whether climate change was a contributing cause, the State of Texas was ambushed by an unprecedented winter storm in February 2021, leaving almost the entire state with no power.  This prompted the new Energy Secretary Jennifer Granholm to advise the State of Texas to consider upgrading its connectivity to the national grid so that neighbors can help in times of crisis.

But the future need not be bleak. This April, Exxon called for expansive industry-government collaboration to develop large carbon capture and storage projects around Houston, Texas, namely, due to Houston’s footing as a home for major refining, petrochemical, manufacturing and power facilities. Exxon reported that it has already briefed government officials and industry groups, including Texas Governor Greg Abbott, Houston Mayor Sylvester Turner, U.S. Senator John Cornyn, House members in the Region, and the Greater Houston Partnership. Infrastructure estimates predict that facilities in Houston could capture and store 50 million metric tons of carbon dioxide annually by 2030 and 100 million by year 2040. The benefits of this project don’t end there, as Exxon’s proposal says the innovation in Houston could be deployed to other U.S. areas with heavy industry near storage sites, like the Midwest and the Gulf region.

British Petroleum also recently announced that it will spend $1.3 billion to build a network of pipelines and associated infrastructure to collect and capture natural gas produced as a byproduct from oil wells in the Permian Basin and in New Mexico.  Natural gas is a potent greenhouse gas, and this project sought to eliminate the routine flaring of natural gas by 2025.  This is viewed as a precedent setting carbon capture and reuse project.

Next door in Louisiana, U.S. Senator Bill Cassidy has joined a bipartisan group of lawmakers in introducing the nation’s first comprehensive carbon dioxide infrastructure package, namely, the Storing CO2 and Lowering Emissions (SCALE) Act, which could make Louisiana a national hub for carbon capture and sequestration. The bill would support the buildout of infrastructure to transport CO2 from the sites of capture to locations where it can be either used in manufacturing or sequestered safely and securely in underground formations. The legislation could also provide critical regional economic opportunities and create thousands of jobs. An analysis released by the Decarb America Project projects the possible effects as creating 13,000 direct and indirect jobs per year through the 5-year authorization. However, the Project acknowledged this estimate is conservative, as it does not include the thousands of jobs likely to be created by retrofitting energy-intensive facilities, such as cement and steel plants, or by building direct air capture plants.

The cost-benefit analysis of CCS technology is also improving daily. As part of a marathon research effort to lower the cost of carbon capture, chemists have demonstrated a way to seize carbon dioxide by using a different solvent (EEMPA) in the capture system that reduces costs by 19 percent compared to current technology. Notably, the U.S. Department of Energy’s Pacific Northwest National Laboratory (“PNNL”) plans to produce 4,000 gallons of EEMPA in 2022 at a 0.5-megawatt scale inside testing facilities at the National Carbon Capture Center in Shelby County, Alabama.  This project is led by the Electric Power Research Institute in partnership with Research Triangle Institute International and PNNL. The eventual goal is to reach the U.S. Department of Energy’s goal of deploying commercially available technology that can capture CO2 at a cost of $30 per metric ton or less by 2035.

CCS is a promising phoenix set to arise from the ashes of the world’s aging industrial practices, and America has a unique opportunity to emerge smarter and stronger than before as a leader in CCS technology. No matter the source, no matter the strategy, CCS is on the rise and evolving into an integral part of the energy industry.

This article was written and submitted by Hattie Guidry, Arielle Anderson, Jourdan Curet, and Kristi Obafunwa with Kean Miller LLP.  Kean Miller LLP is a full-service law firm located in Texas and Louisiana that counsels clients on a wide variety of substantive legal areas and state and federal laws, including a specialized practice in the energy and environmental industry.  Our attorneys are some of the leading practitioners in their field, including many who have helped shape the legal landscape.

Currently, 29 states permit some form of remote online notarization (RON) and Louisiana is (almost) one of them.[1] House bill 274 of the 2020 regular session of the Louisiana State Legislature was signed into law on June 11, 2020. HB 274, among other things, permits the use of remote online notarization in Louisiana. However, the effective date of the bill is not until February 1, 2022.  So, although it is codified, it is not in effect until next year.

It is worth noting that a similar bill has been introduced on the federal level for the second year in a row. Senators Cramer (R-ND) and Warner (D-VA) have introduced S. 1625, the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2021 or the SECURE Notarization Act of 2021. This bill would allow every notary public in the United States to perform RONs.[2] If the SECURE act is signed into law on the federal level, it would supersede any pending state legislation and RONs may be permitted prior to February 1, 2022.

Electronic Notarization vs. Remote Online Notarization

Currently, Louisiana notary publics may notarize a document electronically which simply means instead of an ink signature, the document may use an electronic signature. However, the notary, the signer, and any witnesses must still be face-to-face in person.

RON allows for notaries to notarize documents for signers who are not physically present with them, but are present through audio-visual technology.

House Bill 274

Under HB 274, any Louisiana notary with an existing commission may perform RONs as long as they 1) contract with a RON technology provider, 2) complete a RON training course, and 3) submit an application to the Louisiana Secretary of State.[3]

The procedure for performing a RON is fairly simple. The first step is for both parties (the notary and the party for whom the notarized document is for) to log on to the dedicated RON platform where their identities will be confirmed. Next, the notary and the signer will meet through audio-visual technology. At this time, the notary shall verify the identity of the party appearing remotely by confirming the signer’s identity either by asking to see some form of identification or they may confirm the signer’s identity through their own personal knowledge. The signer then uses an electronic signature to sign the document. The notary will then review the document, fill out the notarial certificate, and attach a digital certificate containing their electronic signature. The final step requires the notary to create an electronic journal entry through the RON platform. The notarization is also recorded, and the notary shall save the recording. The notary is required maintain the audio-visual recording for at least ten years after the date of the RON.[4]

When a notary is performing a RON for a party who is physically not in their presence, if the type of notarial act requires a witness, the witness must be physically present with the signer. The notarial act is deemed to be executed in the parish where the notary public is physically located at the time of the RON.

Conclusion

For those who have lived through the COVID-19 pandemic, remote notarization is a much-welcomed change. While many states enacted temporary measures during the pandemic to address ongoing notarial needs during stay-at-home orders, the passage of HB 274 will ensure notaries will be able to perform their duties safely regardless of the imposition of any stay-at-home orders, and, at the same time, provide the convenience to individuals needing the services of a notary to obtain those services from the comfort of their home.

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[1] Margo H. Tank, et al., “[UPDATED] Coronavirus: Federal and state governments work quickly to enable remote online notarization to meet global crisis”, DLA Piper (27 April 2021) (https://www.dlapiper.com/en/us/insights/publications/2020/03/coronavirus-federal-and-state-governments-work-quickly-to-enable-remote-online-notarization/)

[2] “Notarize Congratulates Senators Warner and Cramer on the Introduction of the SECURE Notarization Act of 2021”, Businesswire (17 May 2021) (https://www.businesswire.com/news/home/20210517005873/en/Notarize-Congratulates-Senators-Warner-and-Cramer-on-the-Introduction-of-the-SECURE-Notarization-Act-of-2021)

[3] “How to Become a Remote Online Notary in Louisiana”, National Notary Association, (https://www.nationalnotary.org/knowledge-center/remote-online-notary/how-to-become-a-remote-online-notary/louisiana#:~:text=Does%20Louisiana%20allow%20remote%20online,for%20signers%20in%20any%20location.)

[4] House bill 274, Louisiana State Legislature, 2020 Reg. Sess. (Louisiana 2020). https://legis.la.gov/legis/ViewDocument.aspx?d=1182325

The Louisiana Supreme Court recently interpreted the fax-filing statute to require “delivery” of an original pleading to the clerk within seven days after the fax filing. If the pleading is to be given the fax-filing date, you must now “deliver” the original and the fee to the clerk before the seven-day deadline. And you’re expected to prove when the “delivery” occurred.

In Petit-Blanc v. Charles, 2021-00094 (La. 4/20/21); — So.3d —-, the plaintiff fax-filed a petition for damages on November 13, 2019 concerning a November 18, 2018, automobile accident. The clerk received the original petition and fee on November 25. The trial court overruled the defendants’ exception of prescription, and the First Circuit denied writs. On writ to the Supreme Court, the lower decisions were reversed in a per curiam opinion.

The Court noted that the 2016 amendment to La. R.S. 13:850(C) requires a fax-filing party to “deliver” the original document to the clerk within seven days of the fax transmission. The earlier version of the statute only required the party to “forward” the original, which was satisfied when the original was simply placed in the mail. But “delivery” requires “actual or constructive possession” by the clerk. The Court concluded that merely transmitting an original document within the deadline is insufficient. Instead, the filing party must establish that the document was delivered to the clerk within the seven-day deadline. Because the plaintiff had no evidence to establish when the clerk received the original pleading, he couldn’t meet his burden of proving “delivery” to take advantage of the fax-filing date, and therefore avoid prescription.

This interpretation of La. R.S. 13:850(C) should only impact parties filing original pleadings where timeliness is essential. For these time-sensitive filings, the best option may be to send it by certified mail if you can’t hand-deliver the original. The Supreme Court cited favorably Clark v. Wal-Mart Stores, Inc., 18-0052 (La. App. 5 Cir. 10/31/18), 259 So. 3d 516, which held a petition was “delivered” to the clerk of court when a clerk’s office employee signed a green card for the plaintiff’s certified mail. Some record of the pleading’s delivery is going to be necessary.

The opinion is Petit-Blanc v. Charles, 2021-00094 (La. 4/20/21); — So.3d —-, 2021 WL 1540984.

The Louisiana Legislature has directed the Department of Environmental Quality (“LDEQ”) to promulgate regulations allowing for “voluntary environmental self-audits.” [1]  The self-audit regulations are to include provisions protecting confidential information and providing incentives to facilities for conducting a self-audit.

Environmental self-audit programs are designed to allow a facility to identify compliance issues and address them before enforcement action by the agency. This type of program offers incentives for self-discovery such as reduced penalties, recommendation of non-criminal liability, and certain confidential information protections.

The LDEQ does not currently have an official Self-Audit Policy.[2]  In directing the LDEQ to create a regulatory program for environmental self-audits, the Louisiana legislature is aligning with other states (e.g., Texas, Arkansas, and Mississippi) and the U.S. Environmental Protection Agency, which have already implemented this type of program.[3]

The primary restriction in the new legislation is that violations eligible for reduced or no penalty under the program cannot be:

  1. Violations that result in serious actual harm to the environment.
  2. Violations that may present an imminent or substantial endangerment to public health or the environment.
  3. Violations discovered by the department prior to the written disclosure of the violation to the department.
  4. Violations detected through monitoring, sampling, or auditing procedures that are required by statute, regulation, permit, judicial or administrative order, or consent agreement.

The legislation must be signed by the Governor before it becomes effective, and there is always the possibility of a veto.  If the legislation becomes law, there is much work left to be done by LDEQ to formulate and adopt rules before facilities can start taking advantage of the confidentiality and other incentives of an environmental self-audit program in Louisiana. The regulatory team at Kean Miller will follow the progress closely.

The enrolled act can be found here: https://www.legis.la.gov/legis/ViewDocument.aspx?d=1233326.

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[1] On June 8, 2008 the legislature adopted HB72, which amends La. R.S. 30:2018(C) and 2030(A)(2) and enacts new R.S. 30:2030(A)(3) and 30:2044.

[2] The Louisiana Environmental Quality Act (La. R.S. 30:2001, et seq.) (“LEQA”) provides support for a type of incentive program for self-audits currently. LDEQ has the ability to enter into Administrative Orders on Consent (“AOC”) with facilities to conduct environmental self-audits. However, this process has been nearly exclusively offered to “new owners” of facilities. As a Settlement Agreement component, third-party environmental audits have been approved by the LDEQ as Beneficial Environmental Projects. The current legislative direct is not so limited.

[3] https://www.epa.gov/compliance/epas-audit-policy; https://www.epa.gov/compliance/state-audit-privilege-and-immunity-laws-self-disclosure-laws-and-policies

The practice of engineering is regulated through licensure in all states.  Whether and under what conditions a state will allow engineers to practice through limited liability entities (“LLEs”) (e.g., corporations, limited liability companies, and limited liability partnerships) varies from state to state:

  • Some states do not regulate engineering LLEs at all.
  • Some states do not allow engineering LLEs unless all of the owners are licensed in that state.
  • Some states require only that the person in charge of the local office be licensed in that state.
  • Some states require an engineer to be designated as a responsible person for the engineering LLEs.[1]

The following states, and potentially others, require an engineer to be designated as a responsible person for an LLE:

  • Alabama
  • Alaska
  • Arizona
  • Connecticut
  • Delaware
  • Idaho
  • Kansas
  • Kentucky
  • Louisiana
  • Maryland
  • Mississippi
  • Nevada
  • New Hampshire
  • New Jersey
  • North Carolina
  • Ohio
  • Oklahoma
  • Rhode Island
  • South Carolina
  • South Dakota
  • Tennessee
  • Virginia
  • Washington

The designated responsible engineer goes by different names depending on the state:

  • Most states refer this person as the designated Engineer/Professional/Individual “in responsible charge”
  • Arizona refers this person as the “responsible registrant”
  • Louisiana refers this person as the “supervising professional”
  • Oklahoma, Illinois, and Maryland refer this person as the “managing agent”
  • Hawaii refers to this person as a “responsible managing employee”

Typical consequences of being the designee are as follows:

  • The designee could be held accountable for the work performed by the firm, particularly if the designee is also the Responsible Charge under whom work was done.
  • The designee will likely be responsible for ensuring that all professional services provided by the firm are performed by or under the responsible charge of licensed professionals.
  • The designee may be subject to disciplinary action by the state licensing board for “aiding and abetting” the LLE in a violation of statutes or rules committed by firm.
  • The designee is may be required to sign the LLE’s application for renewal of the firm’s license and to notify the board of any change in the firm’s supervising professionals, and may be held accountable for any errors or omissions in the renewal application, or for the failure to timely make a required notification to the licensing board.

In most states where LLE’s are licensed, violation of applicable licensing law or aiding and abetting a violation can lead to civil, administrative and even criminal liability.

Insurance:

Engineering firms typically carry professional liability insurance, which generally provides coverage against claims of negligent acts, errors, or omissions in the rendering of or failure to render professional services (including engineering), but is often subject to the following notable exceptions:

  • To be covered, there must be a “Claim” which must be both made and reported during the policy period.
  • A “Claim” is often defined as a written demand for damages or for correction of the professional services.
    • Thus, it is imperative that you immediately report any circumstances which could even potentially give rise to liability to your insurer.
  • The policy typically only covers negligent acts, errors, or omissions.
    • Intentional acts, errors or omissions are not covered.
    • Gross negligence is arguably covered.
  • The policy typically does not cover any fraudulent, criminal, dishonest, intentionally or knowingly wrongful, or malicious act, error, or omission, or those of an inherently harmful nature.
  • The policy typically does not cover taxes, criminal fines, criminal penalties, or liability for liquidated damages.

Thus, it may be that the professional liability insurance available to an engineering firm and its employees will not cover or even defend investigations by a state licensing entity for violations or alleged violations of applicable licensing law.

Kean Miller’s insurance group can analyze your insurance policy to determine whether it covers investigations by state licensing authorities and, if necessary, assist you or your broker in procuring insurance to cover those investigations.

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[1] For additional resources on these topics see:

Aspen Publishers, State-By-State Guide to Arch. Eng. And Cont. Licensing (available on Westlaw);

Paul M. Lurie, Hugh Anderson, The Practice of Architecture and Engineering by Limited Liability Entities Across State Lines, 24-WTR Construction Law. 24 (2004);

50-State Survey of Firm Licensure Requirements for Architectural and Engineering Firms – 1st ed. Jan. 2015 https://www.maslon.com/webfiles/MiscArticles/50-state_Survey_of_Design_Firm_Licensure_1st_ed_Jan_2015.pdf

In March 2021, Virginia’s Governor Ralph Northam signed the Consumer Data Protection Act (CDPA), making Virginia the second state to enact comprehensive data privacy protections for its residents. If you are feeling blindsided by this news, you are not alone.[1] Unlike California’s Consumer Privacy Act (CCPA) and Privacy Rights Act (CPRA) or the European Union’s General Data Protection Regulation (GDPR), which were heavily debated in both the legislature and public commentary for months on end, the Virginia legislature introduced this legislation in mid-January 2021, with Governor Northam signing the CDPA in less than two months’ time.

The CDPA will not go into effect until January 1, 2023 (ironically, the same day that most provisions of the CPRA also become effective). In the meantime, Virginia is assembling a working group to study the implementation of this act comprising “the Secretary of Commerce and Trade, the Secretary of Administration, the Attorney General, the Chairman of the Senate Committee on Transportation, representatives of businesses who control or process personal data of at least 100,000 persons, and consumer rights advocates … to review the provisions of this act and issues related to its implementation.” The findings of this work group are due on November 1, 2021, and that group’s notes will likely provide recommendations for compliance. While November may seem far away, businesses in Virginia or with significant Virginia consumer contacts may be wise to become familiar with the Act and the impending responsibilities.

Who must comply with the CDPA?

The first consideration before beginning compliance preparations is whether the CDPA will even apply to your business. The CDPA applies to persons that conduct business in Virginia or produce products or services that are targeted to Virginia residents and that either:

  • Control or process the personal data of at least 100,000 consumers during a calendar year; or
  • Control or process the personal data of at least 25,000 consumers and derive at least 50% of its gross revenue from the sale of personal data.[2]

For those familiar with California’s CCPA’s $25 million revenue threshold, the lack of a revenue threshold here is a notable omission. The result of that omission is that even large companies can be excused from compliance because they do not process the required amount of covered consumer data, while smaller companies (such as those offering low-cost direct-to-consumer products) will be required to comply regardless of revenue levels.

The definition of “sale of personal data” is also much more restrictive than the CCPA. The CCPA generally defines “sale” as exchange of information for monetary or other valuable consideration. Conversely, the Virginia definition of “sale of personal data” is only an exchange for monetary consideration, with some notable exceptions, such as exchange of personal data during a merger or acquisition.[3]

Do any exceptions exist for certain entity types?

Yes. The CDPA does not apply to the Virginia government, financial institutions subject to the Gramm-Leach-Bliley Act (GLBA), covered entities or business associates subject to the Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health Act (HITECH), nonprofits, or “institutions of higher learning.” However, the CDPA does appear to apply to third-party processors of government entities, nonprofits, and institutions of higher learning that meet the required data processing thresholds. Broadly speaking, there also exist certain carve outs for data subject to GLBA, the Fair Credit Reporting Act, and the Family Educational Rights and Privacy Act (FERPA).

Who does the CDPA protect?

The CDPA protects the personal information of “consumers”, which are defined as natural persons who are residents of Virginia “acting only in an individual or household context.” The definition explicitly excludes individuals “acting in a commercial or employment context”, which has the effect of excluding business to business communications and large amounts of human resources data. Thus, companies that only collect and hold Virginia consumer data in an employment or business to business context may be able to avoid compliance.

What personal data is protected by the CDPA?

The CDPA defines “personal data” as “any information that is linked or reasonably linkable to an identified or identifiable natural person.” “Identified or identifiable natural person” is defined as “a person who can be readily identified, directly or indirectly.” Special protections are also included for “sensitive data”, which includes data revealing racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status; genetic or biometric data for uniquely identifying a natural person, data collected from a person known to be a younger than 13 years old, and “precise” geolocation data (locating an individual within a radius of 1,750 feet). Collecting sensitive data will require the consumer’s consent (or the consent of a parent if the consumer is under 13 years old).

The CDPA also excludes “publicly available information” from compliance and defines “publicly available” more broadly than other existing regulations. Unlike California’s limitation on “publicly available” only data that is lawfully obtainable from a government entity, the CDPA constitutes “publicly available information” to include information that a business has “a reasonable basis to believe [that the information is] lawfully made publicly available to the general public through widely distributed media, by the consumer, or by a person to whom the consumer has disclosed the information, unless the consumer has restricted the information to a specific audience.” Information that could thus fall under “publicly available information” in Virginia would include personal information posted publicly on social media; for example, a picture of a COVID-19 vaccine card posted on a public Instagram page.

What rights are Virginia consumers granted in the CDPA?

The rights granted through the CDPA are like those in the CCPA and GDPR. Consumers will generally be granted rights to access, correct, delete or receive copies of the personal data held by applicable businesses. Consumers will be able to opt out of targeted advertising and sale of their personal data, and businesses will also be required to make additional disclosures surrounding their personal data processing activities, the rights, and how consumers may exercise their rights. The specific mechanisms through which customers are able to exercise these rights are detailed and extensive, so thorough review of the CDPA’s specific mechanisms for compliance are recommended for businesses beginning compliance preparations.

What are the penalties for non-compliance with the CDPA?

Virginia’s Attorney General will be the sole enforcement authority of the CDPA. If the Virginia AG provides notice of a violation and the non-compliant business does not cure the compliance issue within 30 days of notice, the Virginia AG can institute enforcement action which carries statutory damages of up to $7,500 per violation for intentional violations. Unlike the CCPA, there is no private right of action.

Conclusion

Much like the CCPA, businesses can expect that regulations will be generated by the Virginia AG that will provide more detail about the CDPA requirements. While the final texts of those regulations are far off, businesses that will need to comply should begin preparations now—especially if they are not currently compliant with the GDPR or CCPA. Consultation with experienced privacy counsel and consultants can provide significant assistance in compliance efforts.

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[1] Joseph Duball, “Challenge accepted: Initial Virginia CDPA Reactions, Considerations”, IAPP (Mar. 4, 2021) (https://iapp.org/news/a/challenge-accepted-initial-virginia-cdpa-reactions-considerations/?mkt_tok=MTM4LUVaTS0wNDIAAAF7nWl2kuMyzbn5dKcD8W3Y4fggbDxNg2PM84osNdKWpMvPYHWeJcjIqQy1i4dSpHpMQHLs0yruSK6OoqCCkkzJXqhhnHOByJMIE7AxjkbfRlLv).

[2] § 59.1-572(A).

[3] Other exceptions include disclosures: (1) to a processor; (2) to a third party for the purposes of providing a product or service requested by the consumer; (3) to a controller’s affiliate; or (4) of information generally made available by the data subject through a mass media channel that is not restricted to a particular audience. The CDPA’s definitions of “processor”, “controller”, and “third party” are virtually identical to the GDPR.

Throughout Joe Biden’s campaign, he made clear that climate change, the environment, and “Clean Energy” were going to be anchors of his Presidential platform. What was less clear was how his administration would treat oil and gas beyond the expected counterbalance to the Trump Administration’s regulatory rollbacks – especially with respect to GHG emissions. On the big ticket items – drilling, fracking, leasing on federal lands, etc. – the campaign messages were mixed. Between Biden’s election and his inauguration, the speculation only increased about how moderate or progressive his approach would be on the industry.

On Inauguration day (Jan. 20), President Biden signed nine (9) Executive Orders addressing a wide range of policies. Most notably for the oil and gas industry was EO 13990, which among other things revoked the permit issued by President Trump for the Keystone XL Pipeline that had already been under construction for several years, and which was fully endorsed by Canada where it originated. That EO also imposed a moratorium on all activities related to the implementation of the Coastal Plain Oil and Gas Leasing Program in the Arctic National Wildlife Refuge and reinstated President Obama’s drilling moratorium in Arctic waters and the Bering Sea. As expected, the EO directed the EPA to propose new regulations to establish comprehensive standards of performance and emission guidelines for methane and VOC emissions from existing operations in the oil and gas sector, including exploration and production, transmission, processing, and storage segments by September 2021. Further, the EO revoked many of the Trump EO’s designed to create a more efficient and expedited federal permitting processes for infrastructure projects, including EO 13087 – One Federal Decision.

The following day, Acting Department of Interior Secretary Scott de la Vega issued Order No. 3395 that temporarily suspended delegated authority held by DOI regional staff for 60-days for specific actions. Most notably, Order 3395 “suspended” the issuance of all leases, permits, land sales, rights of way, and notices to proceed under previous surface use authorizations that will authorize ground-disturbing activities for fossil fuel development on federal lands both onshore and offshore without agency or bureau level approval.

On Wednesday, January 27, President Biden signed an EO entitled “Tackling the Climate Crisis at Home and Abroad”, which solidified the Administration’s commitment to the consideration of climate in all facets of governmental action. Section 208 of the EO ordered Secretary de la Vega to “pause all new oil and natural gas leases on public lands or in offshore waters pending a comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices…” Then in Section 209, President Biden ordered all heads of agencies to report to OMB and his National Climate Advisor if and how they are subsidizing fossil fuels and ordered OMB to seek to eliminate all fossil fuel subsidies for Fiscal Year 2022. The Biden Administration insists that this is not a full ban on new leases, but merely a “pause” that will allow them sufficient time to revaluate how they will issue new leases going forward. Yet, while such an indefinite “pause” in federal land leases and sales still poses economic burdens for oil and gas developers, it is the anticipated follow up legislation or regulations that are most concerning for the future of the industry and economic wellbeing of many States that rely heavily on the production of oil and gas.

The industry response has already been swift. On January 27, Western Energy Alliance filed a Petition for Review of President Biden’s EO in Federal Court in Wyoming. On January 28, Texas Governor Greg Abbott issued his own EO GA-33 entitled Protecting Energy Industry from Federal Overreach. While Texas has practically no federal lands, Texas is home to many of the country’s major fossil fuel companies and workforce. Governor Abbott’s EO directed all of his state agencies to use all lawful powers and tools to challenge any federal action that threatens the continued strength, vitality, and independence of the energy industry. Then on January 28, U.S. Senator Cynthia Lummis (R-WY) and 24 other Senate Republicans from key energy states introduced the POWER Act which seeks to require Congressional approval to ban fossil fuel development. A companion House bill was also submitted.

In a conference call with industry groups on January 29, the Gulf of Mexico Region offices of BOEM and BSEE advised that they were awaiting instruction from the Department and Agency levels as to what authority they would retain with respect to the review, approval, and renewal of offshore leases and permits. They confirmed on the call that Order 3395 and Biden’s January 27 EO had no effect on existing leases or permits, but recent reports have come out that DOI has revoked 70 previously-approved drilling permits in the past few days.

The fossil fuel industry was always going to be a battleground for the Biden Administration; it was the scope and severity of that conflict that hard to predict. To be sure, any restrictions imposed on the industry will have to survive challenges from within the federal government and from outside lawsuits. This story is only starting to unfold and it’s one we will continue to monitor and report on.

The Supreme Court of Louisiana’s recent decision in Rismiller v. Gemini Ins. Co., 2020-0313 (La. 12/11/20), will impact all stages of civil litigation. In Rismiller, the Court held that, like biological and adopted children, children who have been given in adoption fall within the enumerated class of beneficiaries who may bring a wrongful death and/or survival action arising from the death of their biological family members.

Rismiller was the result of a motor vehicle collision that caused the deaths of Richard Stewart and his two minor children, George and Vera Cheyanne Stewart. Wrongful death and survival actions were filed by Mr. Stewart’s wife, Lisa Watts Stewart (who was not the biological mother of George and Vera), and their two adult children, Daniel Goins and David Watts, both of whom had been given up for adoption as minors.

The insurer of the driver who allegedly caused the accident, Gemini Insurance Company, filed an exception of no right of action as to the claims of Mr. Goins and Mr. Watts for the deaths of their biological father and half-siblings. Gemini argued that because Mr. Goins and Mr. Watts had been given in adoption and filiated to another, they did not fall within the enumerated class of beneficiaries who may bring a wrongful death or survival action under La. Civ. Code arts. 2315.1 and 2315.2. The 7th Judicial District Court overruled the exception, and the question eventually worked its way to the Supreme Court.

Supreme Court Justice Boddie, presiding ad hoc, authored the majority opinion. Applying the “clear and unambiguous wording” of La. Civ. Code arts. 2315.1 and 2315.2, the Court held that biological children given in adoption were “children of the deceased” and “brothers of the deceased” who were permitted to bring wrongful death and survival actions arising from deaths of their biological father and half-siblings.

Based on this decision, children previously given up in adoption would retain the right to bring wrongful death and survival actions for both their biological parent and their adoptive parent. This will affect the questions asked in depositions, written discovery requests, fact investigations, and signatures sought and required in settlements. Practitioners will need to inquire as to any and all children of the decedent, both biological and adopted, and should consider filing an exception of failure to join a necessary or indispensable party if any of the decedent’s children are not named plaintiffs to the suit.

One question left unanswered by the Court, but which was raised in Justice Crichton’s dissenting opinion, is how damages would be apportioned in the event that both the biological and adoptive parents of a child given in adoption are killed by the fault of others. Justice Crichton opined that the majority’s holding would “double the rights of the child,” who would collect twice the amount of damages as a child not given in adoption. According to Justice Crichton, this “absurd” outcome is contrary to the intent of the law “which is to equalize children given in adoption unless otherwise provided.” As this question was not before the Court in Rismiller, Louisiana practitioners will be left to debate it amongst themselves until such time as the Court elects to untangle that Gordian Knot.

The U.S. Supreme Court offered some good news to secured lenders last week, tempered with words of caution.  In Chicago v. Fulton, the Court held that a secured creditor does not violate Section 362(a)(3) of the Bankruptcy Code by merely continuing to hold property of its debtor after that debtor files a bankruptcy petition.  The 8-0 opinion written by Justice Alito, and particularly the separate concurring opinion written by Justice Sotomayor, cautioned that a creditor holding a bankrupt debtor’s property could easily run afoul of Section 362(a)(4) or (6) (prohibiting acts to enforce liens and to collect a claim, respectively), or of Section 542(a)’s obligation to deliver property to the debtor or trustee.  But at least there is nationwide clarity on one issue: merely continuing to hold a debtor’s property that was lawfully seized prepetition is not a violation of 11 U.S.C. § 362(a)(3).

This decision arises from several Chapter 13 bankruptcy cases where individuals filed bankruptcy and then demanded that the City of Chicago release their vehicles, which had been impounded for past-due parking fines.  The City refused.  The Bankruptcy Court found that the City’s refusal violated the automatic stay created by 11 U.S.C. § 362(a).  The Seventh Circuit Court of Appeals agreed that by retaining the debtors’ cars, the City had acted “to exercise control over” their property, in violation of the automatic stay.  Decisions from the Second, Eighth, Ninth, and Eleventh Circuits also imposed an affirmative duty on creditors to return seized property once a bankruptcy petition is filed; failure to do so was a violation of the automatic stay in those Circuits.  The Third, Tenth, and District of Columbia Circuits held that merely retaining property was not a violation of the automatic stay.   The Supreme Court resolved the circuit split by holding that simply holding property lawfully seized prepetition (i.e., before the debtor filed its petition for relief in bankruptcy court) and maintaining the status quo is not a violation of the automatic stay.

One interesting effect of this decision is that lenders now have even more incentive to move quickly to seize their collateral.  In commercial cases, the fact that a debtor cannot get its property back by simply filing bankruptcy will affect negotiations between borrowers and lenders, both in and out of a bankruptcy courtroom.  Justice Sotomayor’s concurring opinion notes that where the debtor is an individual, he or she may not be able to get to work to earn money to pay any creditors if his or her car is impounded for parking fines the debtor cannot afford to pay . . . effectively undermining the debtor’s bankruptcy case before it gets underway.  Her opinion suggests some ways that Congress could improve the Bankruptcy Code to give working debtors a better chance at a successful outcome for their case and unsecured creditors a better chance of getting paid something on their claims.  Perhaps the incoming Congress will accept her invitation to make some changes to the Bankruptcy Code.