New DC Circuit Standing Decision

Posted
By

On August 26, 2014, the D.C. Circuit Court of Appeals decided the case of Sierra Club, et. al. v. Jewel, a case involving the National Register of Historic Places (Register), which is administered by the Department of the Interior. The Court of Appeals held, over the dissent of Senior Circuit Judge Sentelle, that the plaintiffs, a coalition of environmental groups and historic preservation organizations, have standing to challenge the decision of the Keeper of the Register that the "Blair Mountain Battlefield", the scene of a historic and violent encounter between coal miners and coal companies in the 1920's, and located in Logan County West Virginia, should not be included in the Register because the initial listing process was defective.

CONTINUE READING

Mexico's Energy Reform Provides Significant Opportunities in Oil and Gas Exploration and Production

Posted
By Pillsbury Winthrop Shaw Pittman

Yesterday, Pillsbury attorneys John McNeece, Eric Save and Michael Hindus published their advisory titled Mexico's Energy Reform Provides Significant Opportunities in Oil and Gas Exploration and Production. The Advisory discusses Mexico's new energy legislation, which went into effect on August 12, 2014 and which will completely restructure the Mexican energy sector, including both hydrocarbons and electricity. This legislation opens up oil and gas exploration and production ("E&P") to the private sector, through authorization of new contract arrangements with the Mexican State or with PEMEX, while reaffirming Mexico's ownership of hydrocarbons in the ground. Mexico's opening to the private sector will generate numerous opportunities for E&P operators, the E&P arms of international oil and gas companies, suppliers, and investors.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or John McNeece, Eric Save or Michael Hindus, the authors of this blog.

Ohio's Revised Construction Industry Licensing Law ~ Effective Sept. 17, 2014

Posted
By

On June 17, 2014, Ohio Governor John Kasich signed into law Senate Bill 78, a bill making changes to Ohio's construction industry licensing law and, in particular, modifying the law regulating special construction contractors. The new law is effective September 17, 2014.

CONTINUE READING

PermitsUSA ~ Innovative Solution

Posted
By

The Nevada State Contractors Board (NSCB) recently received the National Association of State Contractors Licensing Agencies' 2014 Innovation in Regulation Award, an award that recognizes innovation, creativity, and excellence in regulation of contracting/construction industries. NSCB was recognized for its efforts in 2012 to partner with The Home Depot and local building departments to create and launch PermitsUSA, a kiosk system placed in The Home Depot stores allowing contractors and consumers to purchase building permits from multiple jurisdictions at one time.

CONTINUE READING

TX Supreme Court Reverses "Stigma Ruling" Contaminated Property Decision and Postpones Definitive Ruling on Availability of Stigma Damages

Posted
By

On August 22, 2014, the Texas Supreme Court issued its long-awaited decision in the case of Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch. While reversing the appellate court that affirmed the jury verdict awarding the plaintiff almost $350,000 in lost market value based on the "stigma" clinging to the land after the contamination subsided, the Court based its decision on its review and rejection of the evidence offered by the plaintiff's expert witness. Consequently, the Court postponed for another day deciding whether there is a right under Texas law to recover stigma damages.

CONTINUE READING

Contractor Advertising in California

Posted
By and

All too often the California Contractors State License Board issues a press release confirming that it has cited numerous individuals for, among other things, unlawfully advertising as contractors when they are not, in fact, licensed contractors. However, California's Contractors' State License Law, Cal. Bus. & Prof. Code §§ 7000, et seq. (the "Law"), governs advertising by both unlicensed contractors and licensed contractors. It regulates advertising across various marketing channels, including websites, emails, directories, and other forms of communication. "Advertising" is defined broadly to include "any card, contract proposal, sign, billboard, lettering on vehicles registered in this or any other state, brochure, pamphlet, circular, newspaper, magazine, airwave or any electronic transmission, and any form of directory under any listing denoting 'Contractor' or any word or words of a similar import or meaning requesting any work for which a license is required by the Contractors License Law." 16 C.F.R. § 861; see also Bus. & Prof. Code §§ 7027.1(b), 7027.4(c). Where and how do you "advertise" your construction business and services?

CONTINUE READING

Nevada Contractor's Checklist; License Classifications

Posted
By

The Nevada State Contractors Board (NSCB) in its Horizons (Aug. 2014) sets forth tips designed to help Nevada contractors to contract for work and to work within Nevada's contractors' law. This handy checklist may be helpful to contractors in other states as well. For additional information about Nevada's contractor's law and for the text of the statutes and administrative code cited below, refer to the NSCB Handbook, which contains Chapter 624 of the Nevada Revised Statutes (NRS) and Chapter 624 of the Nevada Administrative Code (NAC).

CONTINUE READING

5th Cir. Applies RFRA to Indian Religious Ceremonies Subject to the MBTA and Eagle Protection Act

Posted
By

On August 20, 2014, the U.S. Court of Appeals for the Fifth Circuit reviewed the lower court's decision to grant summary judgment to the Department of the Interior in a case involving the Department's enforcement of the Migratory Bird Treaty Act (MBTA) and the Golden Eagle Protection Act (GEPA). These laws, and the Department's implementing rules, affect the religious practices of American Indian tribes, including "non-federally-recognized" tribes such as the plaintiffs here. The Court of Appeals concluded that the record simply did not support the lower court's decision, and the case was remanded to the lower court for further proceedings. The case is McAllen Grace Brethren Church, et. al. v. Salazar.

CONTINUE READING

D.C. Federal Court Again Rejects Complaint About Enbridge Pipeline Project

Posted
By

Last year, the U.S. District Court for the District of Columbia denied a request for a preliminary injunction to stop the construction of a domestic oil pipeline known as the Flanagan South Pipeline that is to be constructed under the supervision of Enbridge Pipelines, LLC. In that decision, reported at 990 F. Supp. 2d 9 (D.D.C. 2013), the court determined that the environmental plaintiffs were unlikely to succeed on the merits of their argument that the federal defendants had violated their obligations under National Environmental Protection Act (NEPA), the Clean Water Act (CWA) or the Administrative Procedure Act (APA). On August 18, 2014, the court reviewed various pending motions for summary judgment, and again concluded that the plaintiffs' case was without merit. The latest decision is Sierra Club, et. al. v. U.S. Army Corps of Engineers, et. al.

CONTINUE READING

Corrective Action Catch 22: Court of Federal Claims Holds Agency Action Must Be Rational Even If GAO Protest Decision Was Not

Posted
By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Joël Van Over and Alex Ginsberg published their advisory titled Corrective Action Catch 22: Court of Federal Claims Holds Agency Action Must Be Rational Even If GAO Protest Decision Was Not. The Advisory discusses the U.S. Court of Federal Claims' July 15, 2014 decision in RUSH Construction, Inc. v. United States.

This decision reflects the unusual circumstance in which the court effectively sat in appellate review of an earlier bid protest decision by the Government Accountability Office (GAO) after the U.S. Army Corps of Engineers followed GAO's recommendation in that decision. The court ultimately overruled GAO when it found that it was arbitrary and capricious for the agency to follow GAO's recommendation. In so doing, the court cited numerous shortcomings in GAO's reasoning and its reliance on inapposite case law. The RUSH decision, authored by the Court of Federal Claims' new chief judge, may foretell greater judicial scrutiny of agency corrective action and a shift at the court away from deference to GAO's bid protest recommendations.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Joël Van Over or Alex Ginsberg, the authors of this blog.

9th Cir. Vacates PSD Permit Granted to Avenal Power After Revised and More Stringent Emissions Standards Were Promulgated

Posted
By

In the case of Sierra Club, et. al., v. EPA, the U.S. Court of Appeals for the Ninth Circuit held that EPA cannot rely on Chevron deference to authorize its grant of a Prevention of Significant Deterioration (PSD) permit to Avenal Power Center based on superseded National Ambient Air Quality Standards (NAAQS) and Best Available Control Technology (BACT) requirements. Avenal was an Intervenor in this case which was argued in October and decided August 12.

CONTINUE READING

Spotlight On Federal Contractors' Labor Practices

Posted
By

Recently President Obama issued an Executive Order purportedly seeking to increase efficiency and cost savings in the work performed by parties who contract with the Federal Government by ensuring that they understand and comply with labor laws. In sum, the Executive Order requires contractors seeking federal contracts to disclose labor law violations, and to require their subcontractors to do the same, and creates new compliance advisers at agencies to oversee decisions about which contractors are awarded federal work.

CONTINUE READING

8th Cir. Holds that Union Pacific's CERCLA Settlement with EPA Trumps Tolling Agreement

Posted
By

On August 8, 2014, the U.S. Court of Appeals for the Eighth Circuit issued a ruling affirming the lower court's holding that Union Pacific (UP) did not breach the tolling agreement it entered into with ASARCO, LLC while a Freedom of Information Act (FOIA) dispute was being resolved with EPA. At the conclusion of the FOIA matter, UP settled its CERCLA liability for $25 million with EPA at the Omaha, Nebraska Lead CERCLA Site by means of a court-approved consent decree.

CONTINUE READING

Determining the Number of Occurrences Arising From Multiple Construction Defects ... It Depends on Who Is Sued

Posted
By

The United States District Court for the District of Oregon held that property damage incurred to a condominium project resulting from a myriad of construction defects constituted just one occurrence under the relevant excess general liability policy.

In Chartis Specialty Ins. Co. v. American Contractors Ins. Co. Risk Retention Group et al., Case No. 3:13-CV-1669 (D. Ore. Aug. 12, 2014), the owners association of a condominium complex sued its developers for property damage incurred to the condominium as a result of numerous and distinct construction defects. The owners association alleged that the developers failed in their duties as developers to build the condominium complex free from defects. The alleged defects included errors in the construction of the roof, fire sprinklers, insulation, and windows and doors, resulting in total damages of $3.6 million.

CONTINUE READING

7th Cir. Holds Wisconsin Town's Refusal to Process Building Permits for a Wind Farm Not Subject to Constitutional Due Process Challenge

Posted
By

In the case of CEnergy-Glenmore Wind Farm #1, LLC, v. Town of Glenmore, decided on
August 7, 2014, the U.S. Court of Appeals for the Seventh Circuit affirmed the lower court's ruling that the Town of Glenmore, Wisconsin's delay and final rejection of wind farm building permits did not violate CEnery's constitutional substantive due process rights. The proposal became very controversial, prompting the Town's Board to rescind its earlier approval of the building permits, and the applicant alleged that it consequently lost a potentially lucrative business opportunity if the wind farms were unable to deliver power to a local utility.

The Court of Appeals held that the Board's actions "were not arbitrary in the constitutional sense", and that "popular opposition to a proposed land development plan is a rational and legitimate reason to delay making a decision". Moreover, the plaintiff had other state law remedies available which it chose not to use, which further weakened its case. Finally, the Court of Appeals noted that if the plaintiff was successful, its success would cost each resident of Glenmore roughly $6000.