Developers subject to the Federal Power Act (FPA) should carefully consider the implications of the U.S. Court of Appeals for the District of Columbia Circuit’s recent opinion on the scope of the “municipal preference” under Section 7(a) of the FPA. The Court, in Western Minnesota Municipal Power Agency, et al., v. FERC, recently considered the breadth of the “municipal preference” in Section 7(a) of the FPA, including the meaning of “municipality,” and declined to support the Federal Energy Regulatory Commission’s “geographic proximity test” for municipalities to qualify for the preference. Under the Court’s ruling, a municipality qualifies for the municipal preference regardless of their proximity to the location of the development. Developers may now be exposed to greater competition for developments with municipalities having a trump card because they qualify for the municipal preference. As one would hope, the Court of Appeals restated the importance of the Court’s review FERC’s interpretation under the two-step framework of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842–43 (1984). The opinion, of course, also reflects the Supreme Court’s use of Chevron in deciding a number of important cases the past two terms. This opinion may also result in FERC being more careful in the future.
The “Conflicts Minerals” rule was enacted, with very little debate, as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. This rule places new regulatory requirements on the nation’s financial system in the wake of the 2008 economic emergency. To many observers, the most troublesome aspect of the rule involves the federal government’s authority to compel the regulated community—in this instance, companies that may have some connection to the civil wars in the Congo—to label what they do in censorious terms as part of public SEC filings. In particular, the SEC’s conflict minerals rule purports to compel certain disclosures affecting the acquisition of certain minerals produced in the Democratic Republic of the Congo. How far can the government go, consistent with the First Amendment, to require companies and corporations to say what the government rules that that must say?
Early this year, Governor Andrew M. Cuomo signed a bill requiring assessors and contractors in the mold remediation industry to be licensed and their workers properly trained, effective January 1, 2016. The bill was amended later in the year, but the date it goes into effect remains the same. The new law requires the licensing of assessors, contractors and workers, and a written mold remediation plan, prepared by a licensed mold assessment contractor, to ensure the proper remediation of mold. Additional information about the Mold Program is available on the New York State Department of Labor’s website.
Additional Source: January 2016, New Hampshire Will Require Mold Assessment Certification
Just in time for the holidays, the Nevada State Contractors Board has issued an Industry Bulletin confirming that, beginning this week, it will begin issuing a one-time refund check to eligible licensed contractors as of June 30, 2015. It will disburse approximately $2.6 million in excess funds to nearly 15,000 current active and inactive licensees on a pro-rata basis of their license fees paid over the past 5 years. It confirmed that contractors who have maintained an active or inactive license over the past 5 years with no lapse are expected to receive an estimated refund between $39 and $198.
A California contractor’s bond is a requirement for the issuance of an active license, reactivation of a license, and for the maintenance of an actively renewed license. Effective January 1, 2016, the required amount of a contractor’s bond will increase from $12,500 to $15,000, as a result of California Senate Bill 467 (Hill). As a condition precedent to the issuance, reinstatement, reactivation, renewal, or continued maintenance of a license, SB 467 requires the Contractors State License Board to require the applicant and/or licensee to file or have on file a contractor’s bond in the sum of $15,000. Contractors should contact their bond agent or broker, or existing bond company for guidance on increasing their bond amount to comply with this new requirement. In addition, we expect the CSLB to provide further instructions on contractor’s compliance obligations in the coming months.
Additional Source: CSLB, Bond Requirements
Contractors employing workers that perform work outside have long known the importance of addressing outdoor heat hazards in their Injury and Illness Prevention Programs (IIPP). A recent ruling by the California Occupational Safety and Health (DOSH or Cal/OSHA) Appeals Board should serve as a reminder that, at least in California, an employer’s responsibility isn’t limited to the Great Outdoors—the less-great indoors have heat hazards that must be addressed, as well. The Appeal’s Board recently ruled in favor of the Cal/OSHA 2012 citations against two employers premised on their IIPP and related training program failing to effectively address the hazards of indoor heat. The Appeals Board’s ruling affirms that the IIPP standard is not limited to outdoor heat hazards and all employers have a responsibility for ensuring compliance with all Cal/OSHA standards, not just the employer in charge of the worksite. According to the Appeals Board, contractors’ IIPPs and related employee training programs must cover both outdoor and indoor heat hazards.
For contractors, keeping track of the various provisions and requirements of federal statutes such as the federal Clean Air Act (CAA) while also jumping through the many hoops of local permitting can be quite an achievement in and of itself. But as a recent case shows us, the “litigative shield” of full CAA compliance can mean little in the face of state common law. In a noteworthy decision issued on November 2, 2015, the U.S. Court of Appeals for the Sixth Circuit ruled, in a federal class action complaint seeking compensatory and punitive damages from a local distillery for negligence, nuisance and trespass, that the “Federally Enforceable District Origin Operating Permit issued and overseen by the Louisville Metro Air Pollution Control District” under which the defendant is operating was not preempted by the CAA. Let Merrick, et al., v. Diageo Americas Supply, Inc. serves as a cautionary note to contractors, even full compliance with the federal CAA may not eliminate their exposure to claims under the states’ common laws.
Recently, the California Court of Appeal for the Fourth Appellate District, in Womack v. Lovell, et al., Case No. G409587 (June 5, 2015), reversed a judgment in favor of the homeowner, noting that “[t]he devil isn’t the only resident in the details; sometimes truth and fairness lodge there as well.” The Court of Appeal, holding the homeowner to his judicial admission that the general contractor was licensed, concluded that the homeowner’s judicial admission coupled with his failure to comply with the local rule requiring identification of all controverted issues warranted a ruling in the contractor’s favor. This ruling serves as a reminder to contractors to diligently seek a verified certificate of licensure from the California Contractors State License Board (CSLB) if their licensure may be a controverted issue in a dispute because it may take the CSLB several months to issue the certificate.
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers’ (Corps) have finalized their much-discussed joint “waters of the United States” definition and rule. This regulatory definition controls the scope and scale of these agencies’ regulatory authority under the federal Clean Water Act (CWA). It was slated to go into effect August 28, 2015. However, on August 27, 2015, the U.S. District Court for the District of North Dakota, in State of Ohio, et al., v. U.S. Army Corps of Engineers, issued a preliminary injunction staying implementation of the new rule in the States of North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico pending further proceedings. The Court also decided that the stay is limited to these states. Then, on October 9, 2015 the U.S. Court of Appeal for the Sixth Circuit, in a separate proceeding, entered a nationwide stay of the rule to give the court additional time to determine if it, rather than the district courts, has jurisdiction to hear these appeals. Challenges to the rule are pending in other district courts as well. The litigation already engendered by this new rule indicates that the rule will be before the federal courts and there will be significant uncertainty for some time to come.
UPDATE: We invite in-house counsel to join Amy and Robert at the upcoming conference. In-house counsel that are new registrants may use the code PILLSBURYVIP, subject to approval by the ALM Events Team.
Please join Amy Pierce and Robert Wallan at the West Coast General Counsel Conference on November 17 at Hotel Nikko in San Francisco for the panel discussion Social Consciousness – Not Just for the Millennials.
Under the California Transparency in Supply Chains Act of 2010, since January 1, 2012, every retailer, seller and manufacturer doing business in California and having annual worldwide gross receipts that exceed $100 million has been required to disclose on its website its efforts to eradicate slavery and human trafficking from its direct supply chain.
Even if you have disclosed your efforts and self-certified your compliance with the Act, you may still be required to defend your efforts and, for that matter, your supply chain in 2015 and beyond.
We will be discussing the Act and litigation exposure created by this “shaming” statute.
Photo: Debs (ò‿ó)♪, Shiny! (Creative Commons)