Tag: president Obama

Thieves Breach Twitter Security to Commandeer Famous Accounts

The Twitter accounts of major companies and individuals were briefly taken over as part of a bitcoin scam. Former and current heads of states, global corporations, and presidential candidates had their twitter accounts compromised. The tweet from many of the twitter account said similar things, for example Kanye West’s feed stated that he is “giving back to my fans”; the message from Bezos’, Barack Obama, and Joe Biden’s account said that they had “decided to give back to my community”; while Elon Musk’s account said “feeling greatful” and provided a link to a Bitcoin wallet to send money to. The tweets would indicate that they would send double the money back to a limited number of contributors.

Twitter, through its Twitter Support account notified users that an internal investigation was conducted into the matter. The investigation revealed that several employees who had access to internal systems had their accounts compromised in a “coordinated social engineering attack.” Twitter’s internal system was then exploited to tweet from high-profile accounts. The attack was at least moderately successful considering the Bitcoin wallets promoted in the tweets received over 300 transactions and Bitcoin worth over $100,000.

These tweets began at about 4 P.M. (Eastern Standard Time) on Wednesday, July 16. The first wave of attacks hit the Twitter accounts of prominent cryptocurrency leaders and companies, but expanded quickly after that. Along with Vice President Biden, President Obama, Kanye West, Bill Gates, Michael Bloomberg, and Elon Musk, large company accounts were also targeted including Uber and Apple. Twitter’s initial response was to take down the offending tweets, but those were quickly replaced by new ones – – an indication that the hackers maintained access to the individual accounts.

The persistence of the attacks led to Twitter disabling some the platform services including the ability of blue-checked (verified) twitter users to tweet. The services were restored around four and a half hours after the suspicious tweets began. However, that shutdown period was not insignificant. Several National Weather Service Twitter accounts were shut down as a line of severe weather and possible tornadoes moved across the Midwest. The National Weather Service felt severely hampered in its ability to communicate with people about the impending storm.

In a tweet, Twitter’s CEO Jack Dorsey said that the company feels  “terrible this happened” and that they are “diagnosing and will share everything we can when we have a more complete understanding of exactly what happened.” The nature of this attack is yet to be determined. The legal implications will hinge on the findings of the investigation, including whether there were sensitive direct messages accessed by the attackers. Considering the compromised accounts includes current and former heads of state (Prime Minister Benjamin Netanyahu, President Obama, and Vice President Biden), there are also questions of national security involved.

The United States does not have a comprehensive federal data breach notification scheme. These obligations are provided by the fifty states and sector-specific laws. More than 40 of the state breach notification laws contain a harm threshold pursuant to which notification is not required unless harm to affected individuals has occurred or is reasonably likely to occur. The EU’s GDPR also includes a similar assessment. As more information is disclosed, we will get a better understanding of Twitter and the attacked users’ incident response processes.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.

National Monuments, by Land and by Sea

In 2016, President Obama established an offshore national monument (the Northeast Canyons and Seamounts Marine National Monument) on submerged lands and associated waters in the Exclusive Economic Zone (EEZ) of the United States, i.e., between 12 and 200 miles from the coastline. This preserve covers nearly 5,000 square miles, about 130 miles off Cape Cod. The designation protects deep marine ecosystems, corals, whales, and sea turtles, and prohibits crab and lobster fishing until 2023.

A fishing group challenged the monument designation made under the Antiquities Act, 54 U.S.C. § 320301, which was enacted in 1906 and authorizes the president to declare national monuments by public proclamation. To date, 158 national monuments have been created. In a case of first impression, a panel of the DC Circuit upheld the designation and recognized that the Antiquities Act does not render redundant or nullify the National Marine Sanctuaries Act, which has more procedural hurdles and differing standards in protecting marine sanctuaries than does the Antiquities Act. The court also reiterated that the Antiquities Act protects both surface and submerged lands and that the United States has significant control under domestic and international law over the EEZ to make the designation. Massachusetts Lobstermen’s Association v. Ross, No. 18-5353 (DC Cir. Dec. 27, 2019).

Other pending litigation concerns the authority of the president to remove a monument designation. In 2017, President Trump withdrew monument designations over millions of acres of sacred tribal lands, which opened the areas to mineral leasing and resulted in a lawsuit to challenge the removal of the designation. President Trump’s 85% reduction of the monument designation at the National Monument of Bears Ears in Utah was challenged in US district court. See Wilderness Society v. Trump, No. 1:17-cv-02587. Wilderness Society was consolidated with several similar cases. See Hopi Tribe v. Trump, another DC District Court case, No. 17-cv-02590. These cases are still pending. It is anticipated that the court will address whether the president or the Congress has the authority to withdraw monument designations under the Antiquities Act.

© 2020 Jones Walker LLP

AI and Evidence: Let’s Start to Worry

When researchers at University of Washington pulled together a clip of a faked speech by President Obama using video segments of the President’s earlier speeches run through artificial intelligence, we watched with a queasy feeling. The combination wasn’t perfect – we could still see some seams and stitches showing – but it was good enough to paint a vision of the future. Soon we would not be able to trust our own eyes and ears.

Now the researchers at University of Washington (who clearly seem intent on ruining our society) have developed the next level of AI visual wizardry – fake people good enough to fool real people. As reported recently in Wired Magazine, the professors embarked on a Turing beauty contest, generating thousands of virtual faces that look like they are alive today, but aren’t.

Using some of the same tech that makes deepfake videos, the Husky professors ran a game for their research subjects called Which Face is Real? In it, subjects were shown a real face and a faked face and asked to choose which was real. “On average, players could identify the reals nearly 60 percent of the time on their first try. The bad news: Even with practice, their performance peaked at around 75 percent accuracy.” Wired observes that the tech will only get better at fooling people “and so will chatbot software that can put false words into fake mouths.”

We should be concerned. As with all digital technologies (and maybe most tech of all types if you look at it a certain way) the first industrial applications we have seen occur in the sex industry. The sex industry has lax rules (if they exist at all) and the basest instincts of humanity find enough participants to make a new tech financially viable. Reported by the BBC, “96% of these videos are of female celebrities having their likenesses swapped into sexually explicit videos – without their knowledge or consent.”

Of course, given the level of mendacity that populism drags in its fetid wake, we should expect to see examples of deepfakes offered on television news soon as additional support of the “alternate facts” ginned up by politicians, or generated to smear an otherwise blameless accuser of (faked) horrible behavior.  It is hard to believe that certain corners of the press would be able to resist showing the AI created video.

But, as lawyers, we have an equally valid concern about how this phenomenon plays in court. Clearly, we have rules to authenticate evidence.  New Evidence Rule 902(13) allows authentication of records “generated by an electronic process or system that produces an accurate result” if “shown by the certification of a qualified person” in a particular way. But with the testimony of someone who was wrong, fooled or simply lying about the provenance of an AI generated video, the false digital file can be easily introduced as evidence.

Some Courts under the silent witness theory have allowed a video to speak for itself. Either way, courts will need to tighten up authentication rules in the coming days of cheap and easy deepfakes being present everywhere. As every litigator knows, no matter what a judge tells a jury, once a video is seen and heard, its effects can dominate a juror’s mind.

I imagine that a new field of video veracity expertise will arise, as one side tries to prove its opponent’s evidence was a deepfake, and the opponent works to establish its evidence as “straight video.” One of the problems in this space is not just that deepfakes will slip their way into court, damning the innocent and exonerating the guilty, but that the simple existence of deepfakes allows unscrupulous (or zealously protective) lawyers to cast doubt on real, honest, naturally created video. A significant part of that new field of video veracity experts will be employed to cast shade on real evidence – “We know that deepfakes are easy to make and this is clearly one of them.” While real direct video that goes to the heart of a matter is often conclusive in establishing a crime, it can be successfully challenged, even when its message is true.  Ask John DeLorean.

So I now place a call to the legal technology community.  As the software to make deepfakes continues to improve, please help us develop parallel technology to be able to identify them. Lawyers and litigants need to be able to clearly authenticate genuine video evidence to clearly strike deepfaked video as such.  I am certain that somewhere in Langley, Fort Meade, Tel Aviv, Moscow and/or Shanghai both of these technologies are already mastered and being used, but we in the non-intelligence world may not know about them for a decade. We need some civilian/commercial help in wrangling the truth out of this increasingly complex and frightening technology.

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.

For more artificial intelligence, see the National Law Review Communications, Media & Internet law page.

President Obama Authorizes Additional Sanctions on Russian Individuals and Entities: Executive Order 13964

russian sanctions, President ObamaPresident Obama authorized additional sanctions in response to the Russian Government’s harassment of U.S. officials and alleged cyber operations during the 2016 U.S. election. On December 29, 2016 the President amended Executive Order (EO) 13964, which, in April 2015, created a targeted authority for the Government to respond effectively to significant cyber threats. The President also authorized actions intended to respond to harassment of U.S. diplomatic personnel in Russia and the release of a Joint Analysis Report (JAR) prepared by the Department of Homeland Security (DHS) and the Federal Bureau of Investigation (FBI) that contains declassified information on Russian malicious cyber activity.

Originally, EO 13964 focused on cyber-enabled malicious activities that harmed or significantly compromised the provision of services by entities in a critical infrastructure sector. This included significant disruptions to the availability of a computer or network of computers, or causing a significant misappropriation of funds or economic resources, trade secrets, personal identifiers, or financial information for commercial or competitive advantage or private financial gain.

In light of Russia’s recent use of cyber means to undermine democratic processes, the president has amended the EO to cover additional activities, authorizing sanctions on individuals/entities who tamper with, alter, or cause misappropriation of information with the purpose or effect of interfering with or undermining election processes or institutions. Under this authority, the president has sanctioned nine entities and individuals, including two Russian intelligence services (the GRU and the FSB), four individual officers of the GRU and three companies that provided material support to GRU’s cyber operations.

These new sanctions highlight the importance of regular and diligent screening of transactions, as well as the need to periodically review existing screening practices to ensure that they are up to date. It is critical to remember that an individual who may have been an acceptable business partner one day may be on a sanctions list the next.

ARTICLE BY Joan Koenig & Mollie D. Sitkowski of Drinker Biddle & Reath LLP

©2016 Drinker Biddle & Reath LLP. All Rights Reserved

“Brexit” Dominates, as Financial Markets Roil

brexit financial marketsSecretary Kerry Heads to Brussels and London; President Obama Heads to Canada for the North American Leaders’ Summit; While the House is in Recess, Senate Committees Will Focus on the State-Foreign Operations Appropriations Measure and the Full Chamber May Consider the Zika Compromise Measure

President Barack Obama acknowledged from San Francisco early Friday morning that the British had exercised their sovereign rights and chosen to exit the European Union.  Washington awoke to the news and the corresponding negative reaction of the international financial markets soon after. Secretary of State John Kerry changed his travel schedule, adding a stop in Brussels and London to a trip that had him in Italy over the weekend. Meanwhile, President Obama travels to Canada this week to attend the annual North American Leaders’ Summit.

Democratic Members of the House staged a 24-hour sit-in on the floor of the chamber last week, protesting what they believed was the Republican leaders’ unwillingness to address gun control through legislation.  On Thursday, Speaker Paul Ryan (R-Wisconsin) abruptly adjourned the House until after the July Fourth holiday.

Senate Majority Leader Mitch McConnell (R-Kentucky) cut off an effort to keep suspected terrorists from buying guns last Thursday after Republicans and Democrats failed to reach an agreement on the issue, effectively ending debate of gun control in that chamber ahead of the November elections.  The Senate will be in session this week.

Brexit: British Vote to Exit the EU

Washington awoke to news Friday morning that the British had decided to exit the EU, a development that promptly caused international markets to slump.  Many expect market uncertainty will eventually impact the anemic economic growth in the United States.  After traveling to London in April and speaking in favor of Britain remaining in the EU, President Obama released a statement on Friday saying:

“The people of the United Kingdom have spoken, and we respect their decision.  The special relationship between the United States and the United Kingdom is enduring, and the United Kingdom’s membership in NATO remains a vital cornerstone of U.S. foreign, security, and economic policy.  So too is our relationship with the European Union, which has done so much to promote stability, stimulate economic growth, and foster the spread of democratic values and ideals across the continent and beyond.  The United Kingdom and the European Union will remain indispensable partners of the United States even as they begin negotiating their ongoing relationship to ensure continued stability, security, and prosperity for Europe, Great Britain and Northern Ireland, and the world.”

Senate Foreign Relations Committee Chairman Bob Corker (R-Tennessee) also issued a statement on Friday recognizing the British decision, while emphasizing the “special relationship” and importance of trade between the two countries:

“[The] referendum will not change our special relationship with the United Kingdom.  That close partnership will endure, and we will continue to work together to strengthen a robust trade relationship and to address our common security interests.”

Secretary of State Kerry said on Friday of the U.K. Referendum:

“I want to emphasize that although the U.K. will be leaving the European Union, the British are in no way departing from the principles and values that undergird the Transatlantic Partnership or from the important role the U.K. plays in promoting peace and stability in the world. The special relationship that has long existed between the United States and the U.K. endures. Our two countries remain strong and vigilant NATO Allies, permanent members of the UN Security Council, commercial partners, and close friends.”

He added:

“I also want to reaffirm the U.S. commitment to the European Union and the common agenda we share with Europe on such issues as Ukraine, nuclear nonproliferation, climate change, trade, and human rights.”

Secretary Kerry will be in Brussels and London today, meeting this morning with EU High Representative for Foreign Affairs and Security Policy Federica Mogherini, and later today with U.K. Foreign Secretary Philip Hammond.  In speaking with reporters in Italy over the weekend, Secretary Kerry said,

“The most important thing is that all of us as leaders work together to provide as much continuity, as much stability, as much certainty as possible in order for the marketplace to understand that there are ways to minimize disruption, there are ways to smartly move ahead in order to protect the values and interests that we share in common.”

North American Leaders’ Summit This Week

President Barack Obama, Mexican President Enrique Pena Nieto, and Canadian Prime Minister Justin Trudeau will meet on Tuesday in Ottawa for the annual North American Leaders’ Summit.  President Obama will also address a joint session of the Canadian Parliament.

Upcoming Presidential Trip – NATO, Poland and Spain

From 7-11 July, President Obama will travel to Poland and Spain. He will participate in the NATO Summit in Warsaw from 7-9 July.  The summit is expected to underscore the Alliance’s solidarity and to advance efforts to bolster security along NATO’s eastern and southern fronts. While in Warsaw, President Obama will hold a bilateral meeting with Polish President Andrzej Duda. He will also meet with the Presidents of the European Council and the European Commission to discuss U.S.-EU cooperation across a range of shared priorities, including countering terrorism, fostering economic growth and prosperity, and addressing the global refugee crisis. The U.K. referendum will also likely be a topic of discussion, as well as ongoing free trade agreement negotiations between the United States and EU.

From 9-11 July, President Obama will visit Spain, where he will meet with King Felipe VI and Acting President Mariano Rajoy.  This visit to another NATO member country will highlight security cooperation between the United States and Spain as well.

SelectUSA Investment Summit & GES

President Obama started last week out at the SelectUSA Investment Summit in Washington, which focused on attracting investments to the United States.  In addressing the forum, President Obama spotlighted, “Over the last four years, no other country has been named by CEOs around the world more frequently as the best place to invest with confidence.”

President Obama ended the week in San Francisco, attending the annual Global Entrepreneurship Summit (GES), which focuses on innovation.  The President signed an Executive Order on Friday to institutionalize key entrepreneurship programs of his Administration highlighting entrepreneurship is a hallmark of American leadership in the world.  The White House released a fact sheet on the GES, available here.

North Korea – Censured Again

After a failed attempt early last week, North Korea claimed on Thursday to have conducted a successful test-firing of a ballistic missile, swiftly drawing the censure of the United Nations Security Council.  In a press statement, the Security Council urged all countries “to redouble their efforts” to fully implement sanctions against North Korea, particularly those imposed in March, which were the toughest in two decades.  U.S. Ambassador Samantha Power sharply criticized North Korea’s “inherently destabilizing behavior” on Wednesday.

Venezuela Dialogue – U.S. Participates

Secretary General of the Organization of American States (OAS) Luis Almagro cited the current Government in Caracas as responsible for the near-collapse of Venezuela’s economy and called for the recall of President Nicolás Maduro.  Under Secretary of State for Political Affairs Tom Shannon joined the mediation efforts underway in Caracas last week, saying that a follow-on meeting date has yet to be determined.

Zika Funding Compromise Reached – Veto Threat Issued

Last week, House and Senate Republicans reached a compromise on funding a response to the Zika virus without Democrats’ input.  Before adjourning, House Republicans advanced (239-171) a spending measure that includes a $1.1 billion plan for the Zika virus.  The measure would provide $230 million for the National Institutes of Health to develop a vaccine and $476 million for the Centers for Disease Control and Prevention for mosquito control efforts.

Democratic Senator Bill Nelson (Florida) objected to the compromise, citing the $750 million in budget cuts to other health care programs.  The bill would cut $543 million in unused funds for implementing the Affordable Care Act, $107 million from funds used to fight Ebola, and $100 million in administrative funds from the Health and Human Services Department.  The $1.1 billion is also short of President Obama’s request for $1.9 billion to combat the virus.  The Senate is expected to take up the bill before it leaves Washington this week for its July 4 recess, but its prospects are unclear at best.

TPP – Implementing Bill Reportedly Being Drafted

Despite the public backlash to trade in an election year, U.S. Trade Representative Michael Froman said last Monday that the Obama Administration has begun drafting an implementing bill for a potential lame-duck vote on the Trans-Pacific Partnership (TPP) under Trade Promotion Authority (TPA). Ambassador Froman acknowledged that Majority Leader McConnell “has made clear publicly that he doesn’t want to see a vote [on TPP] before the [November] election,” which leaves the lame-duck session as the best window of opportunity for trying to advance a TPP implementing bill.

Privacy Shield – Agreement Reached

The European Commission and U.S. negotiators wrapped up their discussions over the transatlantic data-flow “privacy shield” agreement late on Thursday.  A Commission official reported the deal contains “additional clarifications regarding the Ombudsperson mechanism, onward transfers and data retention, as well as on an additional U.S. document on the bulk collection of data.”  The Article 31 Committee will next vote on the text of the agreement.

NDAA – Pre-Conferencing Stage

Senate Armed Services Committee Chairman John McCain (R-Arizona) reported last week that the leaders of the House and Senate Armed Services Committees met on Thursday to begin the process of reconciling the differences in their versions of the National Defense Authorization Act (NDAA).  A formal House-Senate conference does not begin until the two chambers appoint their conferees, which has yet to occur.

Congressional Hearings This Week

  • On Tuesday, 28 June, the Senate Armed Services Committee is scheduled to hold a hearing titled, “Improving Strategic Integration at the Department of Defense.”

  • On Tuesday, 28 June, the Senate Foreign Relations Committee is scheduled to hold a hearing titled, “Global Efforts to Defeat ISIS.”

  • On Tuesday, 28 June, the Senate Appropriations Subcommittee on State-Foreign Operations (SFOPs) is scheduled to hold a mark-up of the Fiscal Year (FY) 2017 SFOPs measure.

  • On Wednesday, 29 June, the Senate Commerce, Science, and Transportation Committee is scheduled to hold an executive session, where they will consider S. 3084, The American Innovation and Competitiveness Act, among other matters.

  • On Thursday, 30 June, the Senate Foreign Relations Committee is scheduled to hold a hearing titled, “Corruption: Violent Extremism, Kleptocracy, and the Dangers of Failing Governance.”

  • On Thursday, 30 June, the Senate Armed Services Committee is scheduled to hold a closed hearing titled, “National Security Cyber and Encryption Challenges.”

  • On Thursday, 30 June, the Senate Appropriations Committee is scheduled to markup the FY 2017 SFOPs measure.

Looking Ahead

Washington is expected to focus on the following upcoming events:

  • 29 June: North American Leaders Summit in Ottawa, Canada.

  • 7-11 July: President Obama travels to Poland and Spain

  • 8-9 July: NATO Summit in Warsaw, Poland

  • 18-21 July: Republican National Convention in Cleveland, Ohio

  • 25-28 July: Democratic National Convention in Philadelphia, Pennsylvania

  • 4-5 September: G-20 Leaders’ Summit in Hangzhou, China

  • 13 September: 71st Session of the U.N. General Assembly (UNGA) Begins

  • 20 September: UNGA General Debate Commences

  • 19-20 November: Asia-Pacific Economic Cooperation (APEC) Leaders’ Summit in Peru

ARTICLE BY Stacy A. Swanson of Squire Patton Boggs (US) LLP

© Copyright 2016 Squire Patton Boggs (US) LLP

President Seeks $19 Billion and Creates Commission to Address Cybersecurity

President Barack Obama requested $19 billion in his budget for 2017 to address cybersecurity in the United States, $5 billion more than was budgeted for the current year. Today, he issued an Executive Order that will create a commission within the Department of Commerce to be known as the “Commission on Enhancing National Cybersecurity.”

So, what will $19 billion buy? The President’s proposal calls for a number of measures designed to improve and strengthen cybersecurity. Some examples include:

  • $3.1 billion to update and replace old IT systems, along with a new position in the White House to lead the effort.

  • About $62 million is allotted for more cybersecurity professionals, including funding scholarship programs to strengthen the pipeline for this much needed human capital.

  • Amounts for the classified cyber budget for intelligence agencies such as the National Security Agency and the CIA.

The Commission on Enhancing National Cybersecurity under the President’s Executive Order would have as its mission:

To make detailed recommendations to strengthen cybersecurity in both the public and private sectors while protecting privacy, ensuring public safety and economic and national security, fostering discovery and development of new technical solutions, and bolstering partnerships between Federal, State, and local government and the private sector in the development, promotion, and use of cybersecurity technologies, policies, and best practices. The Commission’s recommendations should address actions that can be taken over the next decade to accomplish these goals.

The Commission will need to consider recommendations for at least the following:

  1. how best to bolster the protection of systems and data, including how to advance identity management, authentication, and cybersecurity of online identities, in light of technological developments and other trends;

  2. ensuring that cybersecurity is a core element of the technologies associated with the Internet of Things and cloud computing, and that the policy and legal foundation for cybersecurity in the context of the Internet of Things is stable and adaptable;

  3. further investments in research and development initiatives that can enhance cybersecurity;

  4. increasing the quality, quantity, and level of expertise of the cybersecurity workforce in the Federal Government and private sector, including through education and training;

  5. improving broad-based education of commonsense cybersecurity practices for the general public; and

  6. any other issues that the President, through the Secretary of Commerce (Secretary), requests the Commission to consider.

These actions are designed to affect both the public and private sectors. Accordingly, businesses need to monitor these activities to ensure compliance and that their efforts are consistent with recognized best practices.

Article By Joseph J. Lazzarotti of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016

Executive Action: Obama’s Legacy and 2016 Predictions (Part 1 of 2)

Federal legislation in 2015 was plagued by the same congressional gridlock that President Obama has faced throughout most of his presidency. The President has therefore turned to executive action to achieve many of his goals over the past seven years and we expect this trend to continue with gusto in 2016.  Below is a summary of our predictions for 2016’s executive orders and agency action.

Expected Action: Executive Orders in 2016

On January 5, President Obama announced several executive orders seeking to expand background checks and place new licensing requirements on gun show and online gun dealers. During the State of the Union address on January 12, the President expressed his frustrations with stalled immigration reform and corporate influence in politics.  Throughout the remainder of his term, the President might take action on a variety of issues affecting employers nationwide, including:

  • Implementing 2014 Immigration Orders extending work permits to certain undocumented workers. The Fifth Circuit held [pdf] in November 2015 that a federal district court properly blocked the Department of Homeland Security from implementing Obama’s immigration plan, opening the door for Supreme Court review. If the High Court grants the Obama Administration’s certiorari petition and reverses the injunction order, the President will be able to substantively implement a sizable chunk of his long-stalled immigration reform.

  • Improving job portability for beneficiaries of employment-based visa petitions. President Obama’s Department of Homeland Security announced proposed changes to its regulations on this immigration issue, among others, on December 31, 2015. The comment period for the Proposed Rule extends through February 29.

  • Restricting Citizens United and its progeny by requiring contractors to disclose certain political contributions. President Obama has a longstanding and vocal opposition to this case and its effect on corporate political expenditures. The President stated on January 12 during the State of the Union address that he has had a difficult time working with republicans “making sure the system’s not rigged in favor of the wealthiest and biggest corporations.”

It is likely the President’s policies will extend beyond his own executive orders to the federal agencies under his administration, our predictions to be summarized tomorrow in Part 2.

Article By Kristine M. Woliver of Squire Patton Boggs (US) LLP
© Copyright 2015 Squire Patton Boggs (US) LLP

EPA Releases Additional Elements of President Obama’s Climate Action Plan

On August 18, 2015, EPA released additional components of President Obama’s Climate Action Plan.  The four separate actions are intended to reduce greenhouse gases and other emissions from the oil and natural gas sector.  The newly-released components include:clean environment, pollution, climate action plan, EPA, environmental protection agency

1) Additional New Source Performance Standards;

2) New Control Techniques Guidelines;

3) Proposed revisions to the regulatory definition of covered oil and gas equipment; and

4) A proposed Federal Implementation Plan for Indian Country New Source Review.

Each is discussed in turn.

New Source Performance Standards

First, EPA has proposed additional New Source Performance Standards that will:

  • Reduce 95% of the methane and VOC from compressor stations, specifically requiring modifications to wet seal centrifugal compressors and replacement of rod packing at reciprocating compressors based on a set number of hours of operation or route emissions into a closed vent system.

  • Establish a standard bleed rate limit across all natural gas-driven pneumatic controllers.

  • Establish a lower standard (zero) bleed rate limit at natural gas processing plants.

  • Reduce emissions from all pneumatic pumps at different rates and with different technologies.

  • Require “green completions” at hydraulically fractured well sites, using capture and combustion devices to reduce emissions.

  • EPA reconsidered various issues from the 2012 proposals, and is proposing actions concerning such issues as storage vessel monitoring, Leak Detection and Repair requirements, monitoring methods, and fugitive emission issues.

Although EPA has proposed the above New Source Performance Standards, EPA is also soliciting comment on “alternative approaches” that would meet the above guidelines.  EPA appears willing to consider alternative approaches because it has encouraged companies to reduce emissions in numerous ways voluntarily over the last several years, including as recently as June 2015 with its modified Energy Star program, and EPA indicates it does not want to impede equivalent reduction strategies.

VOC emission Guidelines from certain oil and gas facilities

Second, EPA is proposing Control Techniques Guidelines (CTGs) for reducing VOC emissions from certain oil and gas facilities in the northeast Ozone Transport Region.  These guidelines, proposed under Clean Air Act (CAA) Section 172(c)(1), will be used by states to set “reasonably available control technology” for existing sources of emissions.  CTGs are recommendations for technologies and practices to reduce emissions from existing sources in certain ozone non-attainment areas.  States may be required to modify their State Implementation Plans for certain sources within two years after the final CTGs are issued.

Amendments to what facilities are “adjacent” for permitting purposes

Third, EPA is proposing to define the term “adjacent” for purposes of evaluating when oil and gas equipment and activities are considered part of the same source.  EPA proposes two alternatives: One defines “adjacent” by reference to proximity; the other in terms of function. EPA requests comment on both definitions.  Either approach represents a potential change to current definitions as many oil and gas development wells are located in close proximity but in such a manner as that avoids meeting EPA’s traditional test as a “common source.” “Common sources” can be classified as “major sources” with more stringent emission limits.

Proposed Federal Implementation Plan for Indian Country

Last, EPA is proposing a Federal Implementation Plan (FIP) for Indian Country Minor New Source Review.  EPA required tribes administering the CAA to establish minor New Source Review programs in 2011.  This FIP will be imposed in areas where acceptable programs have not been implemented.  Because many oil and gas well sites are “minor” new sources, the FIP will provide guidance on air permitting for drilling in tribal territories.

More information, including the proposed rules and fact sheets, can be found at EPA’s website:  http://www.epa.gov/airquality/oilandgas/actions.html.

ARTICLE BY Jane E. Montgomery of Schiff Hardin LLP

© 2015 Schiff Hardin LLP

President Obama Drafts Executive Order That Would Require All Federal Government Contractors and Their Subcontractors to Provide Paid Sick Leave

President Obama recently drafted an executive order that would require companies that contract with the federal government to provide paid sick leave to their employees.  Under the draft order, federal contractors and their subcontractors would be required to provide at least 56 hours (7 days) of paid sick leave per year to employees.  medical, doctor, healthcare, sickness, medicine, paid sick leaveEmployees would be able to use such leave for the following reasons:

1. For their own care;

2. To care for a family member, including a child, parent, spouse, domestic partner or other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship; and

3. To seek medical attention, obtain counseling, seek relocation assistance from a victim services organization or to take legal action if the need for such services or leave relates to domestic violence, sexual assault or stalking.

In addition, paid sick time accrued by a former employee would need to be reinstated to the employee if he/she is rehired within 12 months after separating employment.

Under the draft order, the Secretary of the Department of Labor would be required to publish detailed regulations implementing the order by September 30, 2016.  The order would generally apply to contracts solicited or entered into on or after January 2017.

A copy of the proposed order can be found here (New York Timessubscription may be required).

ARTICLE BY Rufino Gaytán & Deborah Rehorst of Godfrey & Kahn S.C.
Copyright © 2015 Godfrey & Kahn S.C.

President Obama Makes Announcement on Overtime Regulations

On Monday, June 29, President Obama announced a change in rules that would expand overtime eligibility to millions of Americans.

CHARLOTTE NC - SEP 21: Democratic nomonee Barack Obama makes a campaign stop in Charlotte NC on Sept 21 2008Beginning with the observation that “It’s been a few good days for America,” Obama announced the salary threshold where workers wouldautomatically qualify for time-and-a-half overtime wages would be raised from  $23,660 to $50,440.  This change in regulation can be made by the Administration, with no need for Congressional approval. The announcement came through a blog post written by the President for the Huffington Post, you can read it here.

President Obama argued that by failing to change the regulations, they had modified their original intentions–instead of highly-paid white collar workers being exempt from overtime, this was negatively impacting workers making as little as $23,660 a year, no matter how many hours they put in during the week. He asserted that “A hard day’s work deserves a fair day’s pay,” and that’s “how America should do business.”  This study, published in late 2013 by Jared Bernstein and Ross Eisenbrey of the Economic Policy Institute, increased the momentum for movement on this issue.

Conservative and Retail groups oppose this idea, claiming it will cost jobs and negatively impact the industry, including negative impacts on customer service.  The National Retail Foundation argues against the measure, saying their research indicates, “overtime expansion would drive up retailers’ payroll costs while limiting opportunities to move up into management. Most workers would be unlikely to see an increase in take-home pay, the use of part-time workers could increase, and retailers operating in rural states could see a disproportionate impact.”

Observers don’t expect this rule to be set into motion until 2016.

Read more at the New York Times here.

ARTICLE BY Eilene Spear of The National Law Review / The National Law Forum LLC
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