The courts have been busy issuing significant Endangered Species Act rulings. In the latest decision, the U.S. Court of Appeals for the District of Columbia Circuit, in Defenders of Wildlife and Center for Biological Diversity v. Jewell, issued a unanimous ruling which affirmed the lower court’s decision that the U.S. Fish and Wildlife Service’s withdrawal of the proposed listing of the Dunes Sagebrush Lizard as an endangered species was consistent with the Endangered Species Act and the policies that the U.S. Fish and Wildlife Service has employed to administer the Act. This species is located in New Mexico and West Texas, where increasing oil and gas activity has threatened the habitat of the Lizard. The Court of Appeals held that a “voluntary state conservation agreement” can be considered by the U.S. Fish and Wildlife Service in deciding whether or not to list a species as endangered under the Act.
In REIT Citizenship and the Impact of Americold Realty Trust on Jurisdictional Challenges, we discuss the Supreme Court’s unanimously ruling in Americold Realty Trust v. ConAgra Foods, Inc. that unincorporated entities organized as “real estate investment trusts” (REITs) under Maryland law are citizens of every state in which at least one of their shareholders is a citizen. We predict that Justice Sonia Sotomayor’s holding, which appears broad enough to apply to any manner of statutory trusts or similar entities organized under various states’ laws, likely will steer more litigation where REITs and other unincorporated entities are parties into state courts—not federal courts.
EPA has spent almost 40 years wrestling with the definition of “solid waste” for purposes of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (RCRA). The statutory definition of the term contemplates that it includes “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities…” 42 U.S.C. § 6903(27). Whether something is discarded and thrown away is pretty clear. However, this statutory definition appears to give EPA the flexibility—and subject to EPA’s regulatory authority—to define solid waste to include materials that are sometimes discarded. Adding to the interpretive issues, a solid waste can be liquid or gaseous, depending on the statutory definition. EPA has also been wary of countenancing a recycling exception, which has created a morass of regulatory interpretation. With more frequency, courts are being called upon to consider this definition. Below we discuss two such recent court decisions of interest.
In Fabozzi v. Lexington Insurance Company, the United States Court of Appeals for the Second Circuit has reaffirmed that ambiguities in an insurance policy must be construed against the insurer.
The Fabozzis were renovating their home when they learned that its interior walls were so rotted that the entire house was actually in the process of collapsing. Faced with the complete loss of their home, the Fabozzis understandably turned to their homeowners’ insurer, Lexington Insurance. The homeowners’ policy provided coverage for collapse caused by certain named perils, including hidden decay. But the policy also required that the collapse be “caused only by one or more of” the named perils. That simple, 7-word phrase led to Lexington’s denial of coverage and a decade of litigation.
In our post Contractor Advertising in the Age of Social Media, we promised you a by-no-means exhaustive resource for the various laws, regulations and guidance on social media “advertising” for contractors throughout the United States. The following list is a state-by-state resource to help one get started navigating the never-uniform and always changing contractor licensing-related laws, regulations, rules and licensing agency guidance for contractor advertising. This list does not include opinions issued by any courts and, obviously, these would relevant to your analysis as well and, like laws, regulations and regulatory agency guidance, new court decisions are issued changing the legal landscape over time. This blog also will not be regularly updated.
Most states and, in some cases, cities that require a person to obtain a license, or register, to perform work as a contractor or specialty contractor (e.g., electrical, HVAC, plumbing, other specialized trade work) regulate what disclosures are required when the contractor advertises its services. Most commonly these laws or rules require the contractor to include its name and license number. What may surprise many is that “advertising” is often broadly defined or understood to include a business card, contract proposal and final contract, sign, billboard, lettering or decal on a vehicle, brochure, newspaper, magazine, airwave (e.g., TV, radio, etc.) or any electronic transmission (e.g., a company website, social media, including but not limited to. Instagram, Twitter, LinkedIn, Facebook, etc.). This includes any form of directory under any listing denoting “contractor” or any word having a similar meaning (though certain trade directories with limited circulation are sometimes exempt). This certainly may even include t-shirts, sweatshirts, softball team uniforms, etc. that employees wear bearing the contractor’s logo and company information. Given how social media has radically expanded and otherwise transformed the traditional mediums and outlets for offering and promoting services, it is more important than ever that contractors carefully consider whether they are “advertising” their services in compliance with any applicable state’s or, in some cases, city’s laws or rules when using these communication channels.
Planning and constructing new power plants that will employ new technologies, especially those substantially funded by the federal government, can be a challenging business. Whenever a new law, regulation or agency process goes into effect, industry and legal observers await the often inevitable legal challenges that will arise. For obvious reasons, the exact parameters of any new regulatory program can be of material interest to anyone who makes a living in or near an affected industry. A case in point is the effort to build plants that will rely on carbon sequestration technology to reduce carbon dioxide emissions generated by these facilities. Both the U.S. Department of Energy and EPA have developed plans and procedures to assist this development, which relies on environmental permits that often generate local opposition. And, thus, when the first Safe Drinking Water Act permits were issued in 2014, the legal challenge that followed was noteworthy. Unfortunately, observers will have to wait a while longer on that count, as this particular permit challenge has vanished in a puff of moot.
Good news for those who respond to and engage in oil spill clean up efforts. In a ruling released on February 16, 2016, the U.S. District Court for the Eastern District of Louisiana, in In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, dismissed, with prejudice, the “B3 Claims Against the Clean-Up Responder Defendants” engaged by the federal government to respond to and clean up the Deepwater Horizon oil spill. Thousands of claims were filed on behalf of boat captains and crew, workers involved in decontaminating vessels, clean-up workers and beach personnel involved in on-shore clean-ups, and residents who live and work in close proximity to coastal waters or who otherwise allege they were exposed to oil and/or dispersants. The defendants, and the manufacturer of the dispersants used, moved to dismiss the claims asserted, arguing, among other things, that they are entitled to derivative immunity under the Clean Water Act, 33 U.S.C. § 1321(j)(8) (CWA), entitled to discretionary function immunity under the Federal Tort Claims Act, 28 U.S.C. § 2680(a) (FTCA), and that plaintiffs’ claims are preempted as a matter of law. The District Court ruled in the defendants’ favor under each theory.
The U.S. Court of Appeals for the Sixth Circuit, in In re: United States Department of Defense and United States Environmental Protection Agency Final Rule: Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,050 (June 29, 2015), in a split opinion, confirmed that it has jurisdiction under the Clean Water Act to hear challenges to the new rule promulgated by the EPA and the U.S. Army Corps of Engineers re-defining the regulatory definition of “Waters of the United States.” Recall that the Sixth Circuit earlier issued a nationwide stay of the implementation of the new rule, pending its determination that it has jurisdiction to hear challenges to this new rule. The regulatory definition of “Waters of the United States” is fundamental to the regulatory operation of the CWA and those required to obtain a CWA permit will be watching the Sixth Circuit carefully.
Subcontractor default insurance (SDI) was created more than twenty years ago. Despite its relatively recent vintage, SDI is now offered by multiple insurers and is quickly replacing traditional subcontractor payment and performance bonds as a go-to option on large-scale construction projects. SDI has many benefits that surety bonds don’t. We’ll be going into this in substantial detail at our Fourth Annual Subcontractor Default Insurance Forum that Pillsbury co-presents, along with our friends at Willis Towers Watson, in Scottsdale in May.