The Court-Side Seat: FERC Reviews, Panda Power Plaints and Sovereign Immunity
April 26, 2021 —
Anthony B. Cavender - Gravel2GavelThis is a brief report on new environmental law decisions, regulations and legislation.
THE U.S. SUPREME COURT
Massachusetts Lobsterman’s Association v. Raimondo, Secretary of Commerce
On March 22, 2021, the Supreme Court rejected a petition to review a Presidential decision to invoke the Antiquities Act of 1906 to designate as a monument “an area of submerged land about the size of Connecticut” in the Atlantic Ocean. This action forbids all sorts of economic activity, which compelled the filing of litigation in the First Circuit challenging this designation. Chief Justice Roberts supported the Court’s denial of certiorari, but remarked that a stronger legal case may persuade the Court to review such liberal uses of the Antiquities Act.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Failing to Adopt a Comprehensive Cyber Plan Can Lead to Disaster
January 13, 2020 —
Richard Volack - Construction ExecutiveDespite being aware of cyber risk, and even frightened by it, a shocking number of companies in the construction industry have neither a cyber insurance policy nor a basic cyber security plan to deal with a hack or breach into their computer systems. Once breached, companies with no plan in place become, essentially, a rudderless ship subject to the whims of criminal tides.
A proper cyber plan lays out at least the following:
- the criteria for when a plan would be triggered (i.e., in the event of a breach or a hack);
- which persons inside the company (in-house counsel, IT personnel, executive, project managers) and which persons outside the company (attorney with knowledge of cyber issues and ideally construction law as well; forensic computer experts, crisis management experts; and an insurance broker familiar with cyber policies) should be involved;
- the chain of command and communication in this type of situation and the distinct roles each of the above players will fulfill (Note: this is not the same as the normal corporate chain of command); and
- the various available options to address the breach situation, which will all depend upon the facts at issue—such as the type and extent of the breach and how much of what particular kind of information was lost, stolen or exfiltrated.
Reprinted courtesy of
Richard Volack, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Volack may be contacted at rvolack@pecklaw.com
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The Importance of Retrofitting Existing Construction to Meet Sustainability Standards
December 18, 2022 —
Chris Gray - Construction ExecutiveJust about every industry is looking for ways in which they can go “green,” with varying degrees of success. Historically, the real estate industry has underinvested in the infrastructure, even with government incentives and initiatives, buildings and construction continue to pollute our atmosphere and release excess amounts of carbon into the air.
As it stands, existing buildings are, and will continue to be, a main problem. Right now, the real estate sector is responsible for a whopping 40% of global carbon emissions, along with 70% of the world’s electricity, and while we must continue to prioritize new, sustainable buildings, that does not address the countless buildings that are already standing and producing mass amounts of carbon emissions detrimental to our earth’s environment.
It is predicted that 70% of the existing buildings across the world will still be standing by the year 2050, meaning these outdated, inefficient warehouses and office parks aren’t going anywhere. To address the real estate carbon footprint, the industry needs to use modern technological solutions to combat this massive issue and implement new technology that transforms dated buildings into high-value decarbonized assets.
Reprinted courtesy of
Chris Gray, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Environmental Justice Update: The Justice40 Initiative
April 29, 2024 —
Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law BlogSoon after taking office, President Biden issued Executive Order 14008, entitled, “Tackling the Climate Crisis at Home and Abroad.” This is an unusually long and complex executive order and includes many provisions relating to environmental justice and the plight of “disadvantaged communities” that are overwhelmed by many environmental threats. Section 223 of the Order describes the President’s “Justice40 Initiative,” which is designed to ensure that 40% of Federal benefits flow to disadvantaged communities through an “all of government approach.” There is a recognition that some disadvantaged communities lack the personnel and resources to take advantage of this Initiative, so technical training funds will be made available. The Order establishes new offices throughout the Federal bureaucracy to handle and expedite environmental justice matters.
The Office of Management and Budget (OMB) and the Council on Environmental Quality (CEQ) play a large role in implementing the Initiative by issuing appropriate guidance and assisting the Federal agencies to locate, among the thousands of programs they supervise, suitable programs that will assist disadvantaged communities. At last count, 518 Federal programs administered by 19 distinct Federal agencies could be a good source for the resources needed by disadvantaged communities to cope with air and water pollution and solid waste issues. Direct grants will be made in many cases, and other programs require the community to apply for the funds promised by the Executive Order. In addition, the Order requires participating Federal agencies to assess the value and effectiveness of the benefits bestowed. OMB and the CEQ have issued guidance documents and conducted many meetings with key personnel and members of the disadvantaged communities.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
ASCE Statement on Passing of Senator Dianne Feinstein
October 02, 2023 —
Maria Lehman, President – American Society of Civil EngineersRESTON, Va. – ASCE joins Capitol Hill and the infrastructure community in mourning the loss of Senator Dianne Feinstein (D-CA). At 90 years old, Sen. Feinstein was the longest-tenured female senator in U.S. politics and an immensely influential voice in the U.S. Senate and her home state of California. A true pioneer in U.S. politics, Sen. Feinstein was the first female mayor of San Francisco and one of the first women elected to the U.S. Senate from California.
During her three decades in the Senate, Sen. Feinstein was a staunch advocate for issues impacting the engineering profession and strongly supported the recent passage of the bipartisan Infrastructure Investment and Jobs Act (IIJA). Sen. Feinstein was a champion for legislation to mitigate the impacts of climate change, a strong supporter of bills to improve drinking water for disadvantaged communities, and, in recent years, served as ASCE's key champion for both the reauthorization of the National Dam Safety Program and the 21st Century Dams Act.
Sen. Feinstein consistently sought middle ground on issues that were pertinent to all Americans, a rare and admirable trait in our increasingly divisive political climate. ASCE will remember Sen. Feinstein for all that she accomplished on behalf of our nation's infrastructure, and we look forward to continuing her fight to ensure our infrastructure systems can withstand the impacts of increasingly severe weather events. Our deepest sympathies go out to her family.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Relief Bill's Highway Funds Could Help Construction Projects
January 04, 2021 —
Tom Ichniowski - Engineering News-RecordAmong the many provisions in the coronavirus relief bill, one key item is $10 billion to help state highway agencies make up for losses in state fuel taxes and other revenue due to the pandemic-caused falloff in traffic this year. Construction is one of a list of several eligible uses for the money—one of only a few construction funding provisions in the relief measure.
Reprinted courtesy of
Tom Ichniowski, Engineering News-Record
Mr. Ichniowski may be contacted at ichniowskit@enr.com
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Supreme Court Addresses Newly Amended Statute of Repose for Construction Claims
June 26, 2023 —
David R. Cook Jr. - Autry, Hall & Cook, LLPWe have been following the protracted legal battle concerning
Southern States Chemical, Inc. v. Tampa Tank & Welding, Inc. This case had been litigated at the Supreme Court and resulted in legislation. In the latest round, the Supreme Court answered whether Georgia’s statute of repose for construction claims applies to claims arising or brought before the statute was amendment in 2020.
What is a Georgia’s statute of repose? Under the statute, “[n]o action to recover damages: (1) For any deficiency in the survey or plat, planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property; (2) For injury to property, real or personal, arising out of any such deficiency; or (3) For injury to the person or for wrongful death arising out of any such deficiency shall be brought against any person performing or furnishing the survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.”
The case began ten years ago when Southern States suited Tampa Tank and Corrosion Control for alleged defects in renovating a 24-foot tall, 130-foot wide storage tank. The tank renovation was completed in 2002, and in 2011, the tank was found to leak sulfuric acid.
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David R. Cook Jr., Autry, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
Insurance Policy Language Really Does Matter
August 19, 2015 —
Craig Martin – Construction Contractor AdvisorThe debate continues on whether a subcontractor’s faulty work constitutes property damage and an occurrence such that the insurer must cover the claim. The most recent court to weigh in on this issue is the New Jersey appellate court (one step down from the New Jersey Supreme Court) in Cypress Point Condominium Association, Inc. v. Adria Towers, LLC.
In this case, the condominium association sued the general contractor, who also acted as the developer, and subcontractors for faulty workmanship. The condominium association also sued the insurer for the general contractor, demanding payment of consequential damages caused by a subcontractor’s faulty work. The trial court granted summary judgment to the insurer, holding that the subcontractor’s faulty work was not property damage and thus not an occurrence under the Commercial General Liability (CGL) insurance policy, so no coverage.
The appellate court reversed the trial court’s decision, finding that the claims for consequential damages caused by faulty workmanship constituted property damage and an occurrence as defined in the policy. This was a shift from earlier opinions in New Jersey.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
