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Selected federal regulatory actions taken or proposed by several federal agencies, including the Environmental Protection Agency:

EPA Actions.

On September 15, 2021, EPA’s Water Office issued a memo rescinding a January 2021 guidance document that purported to provide the regulatory community with EPA’s understanding of the Supreme Court’s Clean Water Act ruling in the case of County of Maui v. Hawaii Wildlife Fund. That case involved a discharge of pollutants to groundwater which eventually made their way to the Pacific Ocean. Was an NPDES permit required to authorize this discharge, which was not initially made to a navigable body of water? The text of the Clean Water Act provided little guidance, and the matter has become very controversial. The Court held that if the discharge was the “functional equivalent” of a direct discharge, a permit may be required, and the Court described some factors that could influence a determination that there was the functional equivalent of a direct discharge. However, EPA has rescinded the January 2021 guidance, opining that EPA’s earlier analysis was inconsistent the Court’s opinion, and that the guidance was issued without proper deliberation within EPA or with its federal partners. Until new guidance is prepared, EPA will continue to apply “site-specific, science-based evaluations” to resolve these questions. On October 1, 2021, EPA released its “Climate Adaption Action Plan.” Briefly, EPA will take steps to ensure that its programs and policies consider current and future impacts of climate change and how the impacts disproportionately affect certain underserved or environmental justice communities. The agency’s air and water quality programs, contaminated sites activities and chemical safety and pollution prevention programs will be analyzed to determine their impact. Also on October 1, 2021, EPA released its draft FY 2022-2026 Strategic Plan to protect health and the environment. The plan, essentially an internal directive to all offices and regions, reflects a new “foundational principle”—to advance justice and equity by taking on the climate crisis and taking decisive action to advance civil rights and environmental justice.

Other Regulatory Actions.

  • On August 4, 2021, the Department of Homeland Security made a number of technical and organizational and conforming amendments to its Chemical Facility Anti-Terrorism Standards, located at 6 CFR Part 27. The rule was made effective on August 4, 2021. See 86 FR 41889.
  • On August 5, 2021, the Department of Veterans Affairs revised its VA adjudicatory rules to establish a “presumptive service connection” for certain chronic respiratory health conditions affecting many veterans who served in Afghanistan, Iraq and related theaters and were exposed to smoke and particulate matter from huge open-air burn pits operated in those regions. This is certainly a development that many veterans wanted to see. The notice is published at 86 FR 42724, and this interim final rule was made effective on August 5, 2021.
  • On September 1, 2021, the Fish and Wildlife Service of the Department of the Interior published a proposed rule to remove the celebrated snail darter from the ESA list of endangered and threatened wildlife. Comments are due by November 1, 2021, and the notice can be found at 86 FR 48953.
  • On September 3, 2021, the National Highway Traffic Safety Administration of the Department of Transportation published a notice of proposed rulemaking to revise upward the fuel economy standards for Model Years 2021-2026 Passenger Cars and Light Trucks. A more modest proposal was published in 2020, and it was reviewed by DOT pursuant to a January 21, 2021 Executive Order by President Biden. Comments are due on October 21, 2021. The notice was published at 86 FR 49602.
  • On September 30, 2021, the Office of Natural Resources Revenue (ONRR) of the Department of the Interior published a final rule withdrawing an earlier 2020 ONRR Valuation Reform and Civil Penalty Rule. See 86 FR 54045. The 2020 rule had not become effective and was withdrawn because of an “inadequate comment period, absence of discussion of alternatives, and a lack of reasoned explanation for many of its changes.” The agency also notes that the 2020 rule constituted an “unwarranted and overbroad attempt to incentivize production.”
  • On October 4, 2021, the Fish and Wildlife Service promulgated a final rule revoking a January 7, 2021 rule that narrowed the scope of the provisions of the Migratory Bird Treaty Act which applied to conduct resulting in the incidental death of birds protected by the Act. The last Presidential Administration “decriminalized” many aspects of the former enforcement policy following complaints by the energy industry that its routine operations often resulted in incidental deaths of protected birds. In addition, an influential 2015 ruling of the U.S. Court of Appeals for the Fifth Circuit held that Congress did not intend to criminalize incidental takings. The Service disputes this ruling, and it devotes several pages of this notice to rebutting the Court’s reading of the law. However, the Service published a concurrent notice asking the public for suggestions of potential alternatives for authorizing the incidental take of migratory birds.
  • Finally, on October 7, 2021, the Council on Environmental Quality published a notice of proposed rulemaking that would revise and modify the CEQ’s 2020 revisions to the agency’s 1978 NEPA procedural rules that govern the federal agencies environmental review of projects requiring a federal permit. CEQ states that it is its view that “the 2020 NEPA regulations may have the effect of limiting the scope of NEPA analysis with negative repercussions for environmental protection and environmental quality, including in critical areas such as climate change and environmental justice.” CEQ requests that the public submit comments on this proposed rule by November 22, 2021.

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Partner Rachel Horsch recently moderated Bisnow’s panel, “Recovery of the Bay Area’s Office Market“. Topics covered how office spaces are evolving to accommodate for changing workforceRachel-Updated-e1634230711188 needs, such as changing layouts, offices in residential buildings and hybrid work. Panelists discussed these topics, showcasing their most innovative projects and shed light on the future of the market in the Bay Area.  Click here to view the recording.

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In July, several U.S. Senators introduced the Revitalizing Downtowns Act to Congress. In our previous post, we discuss how the bill is modeled after the federal historic rehabilitation tax credit, would provide a federal tax credit equal to 20 percent of “qualified conversion expenditures” with respect to a “qualified converted building.

As the pandemic continues, many office buildings may remain vacant and unused, leaving downtowns with fewer opportunities for investment and revenue generation. One potential impact of the bill would be the increased investment in affordable housing. With many cities large and small struggling to provide enough affordable housing, the act would create an opportunity to develop vacant buildings into much needed affordable housing developments.

In addition to creating jobs, the creation of affordable housing has the potential to slow down the gentrification affecting many large cities, said former U.S. Congressman Lacy Clay, now a  Senior Policy Advisor at Pillsbury.

Read more here.

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Anthony Cavender, a Houston-based Environmental & Natural Resources senior counsel was featured in an exclusive Q&A with AmLaw’s Texas Lawyer. Cavender is one of Pillsbury’s longstanding environmental lawyers, having joined the firm in 2003. Over the years, he quietly became one of the leading authorities on environmental decisions throughout the nation. Since the start of the COVID-19 pandemic, for instance, he penned 33 blog posts for Pillsbury’s Gravel2Gavel blog under the heading, “A Court-Side Seat.”  A round up of last year’s year-in-review, which features excerpts of Tony’s blog posts can be found here. Cavender shares his views on how the environmental practice has evolved over the decades, what the long-term trends for the practice are, how he became a blogger, how he determines which decisions warrant a review, and what direction he thinks the respective agencies and courts will take under the new administration.

Read his full feature here.

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On September 30, 2021, the United States Senate confirmed Rohit Chopra as Director of the Consumer Financial Protection Bureau (CFPB). Mr. Chopra helped establish the CFPB following its creation through the Dodd-Frank Act and served as an Assistant Director at the CFPB from 2010 to 2015. Director Chopra will likely continue the CFPB’s focus on institutions’ responses to the COVID-19 pandemic, with a particular focus on the housing, small business lending, and mortgages among other things. Pillsbury colleagues Brian H. MontgomeryCraig J. SapersteinDeborah S. Thoren-PedenJiJi ParkThe Honorable William Lacy Clay Jr.Yvette Puckett Cravins, and Daniel C. Wood explain additional insights in Senate Confirms Rohit Chopra as CFPB Director.

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Real estate tokenization and smart home technology continue to grow, negotiations surrounding the bipartisan infrastructure bill stall its passing, artificial intelligence is poised to transform the construction industry, and more.

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A first for commercial real estate occurs, proptech sees a significant increase in venture capital funding, the Victorian government shuts down all construction sites after protests turn violent, and more. Continue Reading ›

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Smart-construction-vr-166065766-300x189“Smart Construction” is a loose term but generally refers to the development and use of processes and applications that improve construction planning and the management of projects (thereby potentially streamlining costs of construction).

The increased deployment of collaboration tools (e.g., Zoom, Microsoft Teams, WebEx) and other cloud-based technology solutions during the COVID-19 pandemic will invariably result in more efficient project management in construction going forward. These type of efficiencies are sorely needed, especially as the industry is trying to recover from supply chain issues, lockdown challenges and social distancing requirements resulting from the pandemic.

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The Real Estate and Construction industry may be huge, but ultimately, as with all industries, it comes down to the people who help make it all come together. From time to time, we like to profile some of those people.

YaichBorn and raised in Paris, Kevin Yaich set his eyes on a career abroad while in business school. After internships in Russia and Singapore, Yaich worked as a financial analyst for AIG and JPMorgan Chase. His exposure to the world of renewables came soon after when he spent almost eight years working for NextEra Energy Resources before assuming his current role as president of Shikun & Binui USA Energy. S&B is a global infrastructure group with its global HQ in Israel. Shikun & Binui USA Energy (S&B USA Energy) was launched as a growth-oriented investment platform in March 2020. They are focused on owning and operating solar, wind, and battery storage projects under long-term contracts with creditworthy counterparties.

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AI_Report_Social1080p-2-300x169The common connotation of AI related to cybersecurity relates to technology infrastructure; however, such systems underpin a wide variety of applications to enhance cyber defenses more generally. Physical security, for example, is important as potential intruders can use in-person ways to gain access to corporate networks. This is particularly important to some sectors—such as real estate—in light of the rise of smart cities that rely on technologies such as facial recognition and various sensors.

Pillsbury has published a new research report that seeks to illuminate the important role artificial intelligence stands to play in defending against cyberattacks and data leaks. Titled “Artificial Intelligence & Cybersecurity: Balancing Innovation, Execution and Risk” and written by The Economist Intelligence Unit (EIU), the 22-page report uses extensive research and expert interviews to examine how AI can help strengthen cybersecurity, how the growing need for data to train AI systems is intensifying concerns around privacy, and how companies can anticipate risk.

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