New opinions — a successful challenge to PA’s emissions plan, plus an arbitration-issue waiver

National Parks Conservation Ass’n v. U.S. E.P.A. — agency — vacate in part — Vanaskie

Three national environmental groups petitioned the Third Circuit to review the EPA’s approval under the Clean Air Act of Pennsylvania’s decision not to do more to limit emissions that cause atmospheric haze in national parks and wilderness areas. Today, the environmental groups won a partial victory when the court vacated the part of the EPA’s ruling that approved Pennsylvania’s analysis of “best available retrofit technology.” The court ruled that Pennsylvania’s analysis suffered from multiple flaws and that the EPA failed to give a sufficient explanation for overlooking those flaws.

Joining Vanaskie were Ambro and Shwartz. Arguing counsel were Charles McPhedran of Earthjustice for the environmental groups, Kate Bowers for the EPA, Robert Reiley for an intervenor state agency, and Chet Thompson for an intervenor power company.  Coverage of the oral argument here.

Goldman Sachs v. Athena Venture Partners — arbitration — reversal — Fuentes

Goldman Sachs pitched an investment to Athena using terms like terrific, low risk, and very safe. Athena invested $5 million and lost about $1.4 million. Athena initiated arbitration against Goldman, and, after a nine-day hearing, an arbitration panel ruled for Goldman.

During the arbitration, it was disclosed to the parties that one of the arbitration panel members had been charged with unauthorized practice of law. At the time, the panelist said it was a one-time oversight. Neither side investigated or objected at the time, but after the panel’s ruling Athena investigated and concluded that the panel member’s alleged misconduct was far more serious than disclosed. Athena moved to vacate the award, and the district court granted the motion. Today, the Third Circuit reversed, holding that Athena waived its objection because it should have known the full story before it lost the arbitration. The opinion criticized FINRA, the arbitration organization, for failing to catch the issues with the panel member.

Joining Fuentes were Ambro and Nygaard. Arguing counsel were Edward Posner of Drinker Biddle for Goldman and David Moffitt (his name is misspelled in the slip op.) of Saul Ewing for Athena.