A Blow to the Arkansas Sustainasphere: Nordex USA to Cease Arkansas Production

The Arkansas Advanced Energy Association (“AAEA”), reported this morning that Nordex USA will soon be ceasing production at its’ manufacturing facility in Jonesboro, Arkansas:

AAEA learned this morning that Nordex USA will cease nacelle production at its Jonesboro, Arkansas facility after it completes the orders in its current pipeline. The decision was driven by the wind industry's global overcapacity and the continued uncertainty and instability of the US market. The decision will not impact the current year's business performance, as exceptional expenses were already accounted for in 2012 as previously reported. The training academy, the central parts storage and the repair facility in Jonesboro will remain in operation to support Service and Operations in the Americas. Around 40 employees will be affected with layoffs beginning in October 2013. Ralf Sigrist, President & CEO of Nordex USA, Inc. commented, "This is a sad day for all of us at Nordex USA. We will lose valued colleagues, who have done their very best for us, but the decision was inevitable considering the underutilization of our plant." In the future, nacelles for the North and Latin American markets will be supplied from Nordex' factory in Rostock, Germany, using the global supply chain and logistics support based there.

Special thanks to the AAEA folks for sharing this developing news.

The National Blueways Program and the White River

In January of this year, the White River became the second river designated a “National Blueway” under the National Blueways Program. Nearly six months later, that designation has become the source of controversy and contention, with opponents raising concerns that the designation will lead to increased regulatory activity and threaten private property rights.

So what is the National Blueways Program and what does it mean for a river to be designated a National Blueway?

According to the U.S. Secretary of the Interior, the Program advances a public policy of healthy and accessible rivers that are important to local communities and that contribute significantly to local, regional, and national economies.

The National Blueways Program was established by Order 3321 of the Secretary of the Interior. Order 3321 allows for the designation of entire rivers, including the watershed (a “source to sea” approach) as a National Blueway. All designated National Blueways will comprise the National Blueways System.

The Purpose of the National Blueways Program, as set forth in the Secretary’s establishing Order, is to establish a program

…to recognize river systems conserved through diverse stakeholder partnerships that use a comprehensive watershed approach to resource stewardship. River systems designated as a National blueway shall collectively constitute a National Blueways System. The National blueways System will provide a new national emphasis on the unique value and significance of a “headwaters to mouth” approach to river management and create a mechanism to encourage stakeholders to integrate their land and water stewardship efforts by adopting a watershed approach.

The Program is overseen by a “National Blueways Committee” charged with providing “leadership, direction, and coordination to the National Blueways System” including directing the bureaus of the Department of the Interior “to collaborate in supporting the National Blueways System”.

The establishing Order further states that, “National Blueways will be nationally and regionally significant rivers and their watersheds that are highly valued recreational, social, economic, cultural, and ecological assets for the communities that depend on them. National Blueways encourage a landscape-scale approach to river conservation that involves a river from its headwaters to its mouth and across its watershed, rather than individual segments of the channel and riparian area alone. Establishment of a National Blueways System will help promote best practices, share information and resources, and encourage active and collaborative stewardship of rivers across the country.”

Nothing in the establishing Order authorizes the public use of private property or otherwise affects the use of private property, and the Order explicitly states that it will not result in new federal regulations: “Nothing in this Order is intended to be the basis for the exercise of any new regulatory authority . . . .”

The establishment of the National Blueways Program would appear to recognize the importance of protecting river systems as a whole, rather than in segments. Indeed, the primary distinction between National Blueways designation and existing federal designations is that existing designations generally only cover a segment of a river and a narrow band of riparian corridor.

The Arkansas Social Media Statute (Act 1480): More Questions than Answers?

THE ARKANSAS SOCIAL MEDIA STATUTE (ACT 1480): QUESTIONS AND CHALLENGES


The use of social media, especially in commercial and advocacy settings, is a key part of the sustainasphere. Employers who use and regulate employee use of social media can anticipate a number of compliance challenges and questions in connection the new Arkansas Social Media Statute (Act 1480). For example:

• How can employers use social media in investigations? The stature allows employer to request access in connection with a “formal investigation or related proceeding,” but does not define the phrase, leaving ambiguous and open to interpretation which investigations and proceedings qualify.

• How can employers use information publically available on social media? Act 1480 allows employers to view information publically available on the internet. But the statute is silent on whether employers can use the information they view as the basis for an employment-related decision, or as the basis for instituting a “formal investigation or related proceeding.” A related open question is whether, without asking for a password or username, an employer can ask an employee to verify “ownership” of a social media account on which the employer views publically available information, or to verify the information publically viewed.

• Who can sue for a violation of the Arkansas Social Media Statute? The Arkansas Legislature presumably intended to give employees and prospective employees the right to sue for violations of the statute. However, Act 1480 does not explicitly give an employee, prospective employee, or other person injured or damaged by the alleged violation the right to sue – i.e., the new statute does not provide for a private right of action.

• Is there a right to a jury trial or punitive damages? Assuming that employees and prospective employees do have the right to sue, do they have a right to a jury trial? To injunctive or other equitable relief? To punitive damages?

• How about attorneys’ to the prevailing party? Similarly, would an employee or prospective employee who prevails in a lawsuit under the new statute have a right to recover their attorneys’ fees incurred in prosecuting the action? The answer to this question is likely no, since Arkansas law is clear that absent a rule or statute explicitly providing for the recovery of attorneys’ fees, the parties to a suit bear their own fees.

• Is a violation of the Arkansas Social Media Statute also a violation of the Arkansas Deceptive Trade Practices Act (“ADTPA”)? The ADTPA contains a “catch-all” provision generally prohibiting unconscionable, false, or deceptive practices in business, commerce, or trade. See Ark. Code Ann. § 4-88-107(a)(10). The Arkansas Supreme Court has defined “unconscionable” to include conduct that violates a statute. See Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800 (2006). Thus, an employer’s conduct in violation of the new statute might form the basis for a suit against the employer for violating the ADTPA. (Significantly, the ADTPA explicitly provides that any person who is damaged or injured by a violation of the ADTPA “has a cause of action to recover . . . reasonable attorney’s fees.” Ark. Code Ann. § 4-88-113(f)).

• Are employees and prospective employees required to exhaust administrative or internal complaint processes and remedies as a pre-requisite to filing a suit?

• What is a “self-regulatory organization”? The statute provides that it is not intended to prevent an employer from complying with the rules or regulations of “self-regulatory organizations.” This provision appears intended to address concerns raised in other states about conflicts with compliance with the rules and regulations of agencies such as the federal Securities Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA). But the phrase “self-regulatory organization” is undefined. For example, would the American Bar Association, American Medical Association, or National Association of Realtors qualify as self-regulatory organizations for purposes of the statute?

These concerns will most likely be addressed and resolved through practice and litigation over time. What is clear is that, as indicated in the previous post, employers with a policy or practice of routinely asking employees to disclose or for access to their social media need to assess that policy or practice against the Arkansas Social Media Statute, probably with the assistance of counsel.

Delta Green Community Forum - This Friday, June 28, 2013

This Friday, June 28, 2013, citizens of the Arkansas sustainasphere will have a chance to gather and share notes at the inaugural Delta Green Community Forum in Forrest City, Arkansas.  The theme of the forum is "Visions of Green Jobs and Renewable Energy - Preparing Arkansas' Economy for the 21st Century."  The Delta Green Community Forum will be held at the East Arkansas Community College, 1700 Newcastle Road, Forrest City, Arkansas 72335.  Registration starts at 8:00 am, and the Forum starts at 8:30 am.

The Delta Green Community Forum will allow participants to gain a comprehensive insight into how renewable energy resources are generating a new field of green jobs in Arkansas, and how Arkansas ranks from a regional, national and international perspective in regards to legislative policies and current projects and products. The Forum will emphasize the importance of renewable energy sources and products to Arkansas’ Delta region. Participants will have the opportunity to network with many of the foremost authorities, experts and advocates in the field. “Tool-kits” will be given to participants that contain information on best practices and models that can be implemented in their own community.


The overall goal of the Forum is to provide Arkansas Delta farmers, community-based organizations, community leaders, and residents’ insight into the development and utilization of green strategies, products, practices, policies, and renewable energy sources that support the achievement of long-term economic goals of creating more green jobs and increasing workforce productivity without compromising environmental security for the region and for Arkansas.

PANEL TOPICS

Define Sustainable Energy and Green Jobs?

• This panel will connect different forms of sustainable and renewable energy with job creation. Panelists will also discuss how the terms Green, Sustainable, and Renewable were coined.

Sustainable Agriculture for Arkansas’ Future

• Will address the use of sustainable practices in agriculture to increase crop yields.

Path between Policy and Renewable Energy Adaptation

• The panel will discuss federal and state policy on renewable energy implementation, specially focusing on how polices have influenced financial opportunities for wind turbines and solar panel initiatives. Panelists will also discuss policies that encourage green initiatives and overcome challenges.

Model Community Projects - Solar Panel Application

• This panel will consist on various individuals who are currently implementing green projects (e.g. solar panels, wind turbines, high tunnels, aquaponics systems, and hydroelectric systems). The panel will also discuss Existing Building/New Construction and weatherization in relation to retrofitting, new procedures and change that will take effect, as well as general information on how facilities and organization can obtain resources to complete weatherization projects.

Renewable Technology Panel

• Panelists will discuss new technologies related to fuel production and how the demand for alternative fuels such as biodiesel can be facilitated by cities converting public transportation and state vehicles to cleaner and more efficient fuels.

Events like the Delta Green Community Forum are essential to a vital, growing sustainasphere because they provide a place for stakeholders (here, Delta farmers, non-profits, community leaders and residents) to learn about and define their green economy, bridging knowledge, expertise, and opportunity. These opportunities are also the place where the law of sustainability is born, because as citizens come to recognize themselves as stakeholders in the sustainasphere, they will also come to recognize the public policies necessary for the sustainsphere to grow and thrive economically and socially. This, of course, is also where the law of sustainability is born.

Arkansas Passes Law Restricting Employer Access to Employee Social Media (Act 1480)

On April 22, 2013, Arkansas passed Act 1480 and joined California, Illinois, Maryland, Michigan, New Mexico, and Utah as a state limiting or prohibiting employer access to the social media accounts of employees and prospective employees.


The new law prohibits employers from requiring, requesting, suggesting, or causing a current or prospective employee to:

(1) Disclose his or her username and password to the current or prospective employee’s social media account;

(2) Add any employee, supervisor, or administrator to the list or contacts associated with his or her social media account; or

(3) Change the privacy settings associated with his or her social media account.

Ark. Code Ann. § 11-2-124(b). Employers may not retaliate against an employee or prospective employee, or fail or refuse to hire a prospective employee for exercising these rights. Id. at § 11-2-124(c).

Act 1480 also contains potential safe-harbors for employers. It does not prohibit an employer from viewing information publically available on the internet, or prevent an employer from complying with “the requirements of federal, state, or local laws, rules, or regulations or the rules or regulations of self-regulatory organizations.” Id. at § 11-2-124(e)(1).

Employers can also request access to an employee’s social media account in connection with certain “formal” investigations and proceedings. Nothing in the proposed statute:

Affects an employer’s existing rights or obligations to request an employee to disclose his or her username and password for the purpose of accessing a social media account if the employee’s social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee’s violation of federal, state, or local laws or regulations or of the employer’s written policies.

Ark. Code Ann. § 11-2-124(e)(2)(A).

Act 1480 also presents a number of challenges and compliance pitfalls for employers. Those will be discussed in the next post. However, under the Arkansas Social Media Statute, one thing is clear: employers can no longer ask current or prospective employees for blanket access to their social media accounts.