Last week, the D.C. Circuit issued two administrative law opinions, one involving energy law and the other labor law.

In Sierra Club v. FERC, the D.C. Circuit held that FERC was not arbitrary and capricious when it extended the deadlines for construction of two pipelines, one in New York and the other in Texas. FERC almost always grants deadlines for “good cause” when a project sponsor has made good faith efforts to complete the project and circumstances beyond the sponsor’s control interfered with the project. The D.C. Circuit concluded that this practice is within FERC’s broad discretion and rejected the argument that FERC’s practice is arbitrary “rubber-stamping” of extension requests.

The Sierra Club argued that FERC was arbitrary in extending the New York deadline because the pipeline company had not made good faith efforts to secure the permits necessary to complete the project on time. The D.C. Circuit rejected that argument, concluding that FERC acted consistent with its precedent in concluding that the company’s active litigation efforts related to the project were enough to show good faith. The Sierra Club also argued that FERC arbitrarily failed to give sufficient consideration to a New York state law that would reduce market demand. The law required New York to reduce natural-gas usage. The D.C. Circuit rejected that argument too because there was evidence that the New York law would not significantly impact market demand for the natural gas that would be transported in the pipeline. As for the Texas project, the Sierra Club argued that FERC arbitrarily extended the deadline based upon the company’s claim that COVID-19 had slowed the project. According to this argument, the company did not provide specific facts about COVID-19’s impacts. The D.C. Circuit concluded that FERC did not need to demand more specific facts because it has broad discretion over what evidence is necessary to show good cause for a deadline extension.

In Stern Produce Co. v. NLRB, the D.C. Circuit held that an NLRB order finding unfair labor practices was not supported by substantial evidence. The order found two unfair labor practices: one involved alleged surveillance of an employee and the other involved alleged retaliation against an employee. The court of appeals concluded that the NLRB had pressed beyond its statutory mandate in finding that isolated incidents were unfair labor practices.

As Judge Randolph put it, “the Board’s majority and its General Counsel, at least at the time of these proceedings, should have brushed up on the ancient and wise legal doctrine de minimis non curat lex—that is, the law does not concern itself with trifles.” The Board’s conclusion that the alleged surveillance was unlawful was “nonsense” because the employer’s action was consistent with its policies, which informed employees that they could be monitored at any time through cameras in the company trucks. In this case, a manager texted the employee to say that they should not cover the camera in the truck. In those circumstances, a reasonable employee would not have experienced the text message to be coercive. The text message did not rise to the level of coercive surveillance established by Board precedents.

The Board’s finding of retaliation was also “nonsense,” the D.C. Circuit concluded. The employer gave the employee a written reprimand after the employee made discriminatory statements to another employee. This reprimand, the Board found, was retaliatory. The problem with the Board’s finding, according to the court of appeals, was that there was not substantial evidence to show that the employee’s protected conduct was a motivating factor in the reprimand. To be sure, the employer had engaged in past violations of the NLRA, but the Board’s precedent does not give “the General Counsel the green light to cite every labor-law violation a company has ever committed as evidence of its anti-union animus.”

Finally, in last week’s United States v. Green-Remache, the D.C. Circuit rejected an ineffective-assistance-of-counsel challenge to a conviction for an interstate violation of a protective order.