Articles Posted in Construction Generally

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On September 7, the U.S. Court of Appeals for the Fifth Circuit granted a stay of a Federal Deposit Insurance Corporation (FDIC) order, following a hearing conducted by an agency administrative law judge (ALJ), assessing a civil penalty against a former banking officer and also requiring his withdrawal from the banking industry. The case is Burgess v. FDIC.

In so ruling, the Fifth Circuit joined the U.S. Court of Appeals for the Tenth Circuit, which concluded, in Bandimere v. SEC, that the Securities and Exchange Commission (SEC) ALJs were “inferior Officers” who are subject to the provisions of the U.S. Constitution’s Appointments Clause, U.S. CONST. art. II, § 2, cl. 2..

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On Tuesday, the U.S. Court of Appeals for the DC Circuit, in the case of Sierra Club, at al., v. FERC, rejected most of the arguments made against the Federal Energy Regulatory Commission’s (FERC) decision to approve the construction and operation of three interstate natural gas pipelines that would serve customers in the southeast.

The Court of Appeals was notably unconvinced by the environmental justice arguments made by the petitioners. However, the Court of Appeals decided, on a 2 to 1 vote, that FERC’s environmental impact statement (EIS) was deficient in that it failed to come to grips with the argument that the downstream greenhouse gas emissions generated by the burning of this gas by the customers of the pipelines would have adverse impacts.

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The U.S. Court of Appeals for the Second Circuit, in the case of Constitution Pipeline Company, LLC v. New York Department of Environmental Conservation, et al. (released August 18, 2017), rejected the Constitution Pipeline Company, LLC ’s (Constitution) petition for review after the New York Department of Environmental Conservation (NYDEC) denied its application for a Clean Water Act (CWA) 401 certification. NYDEC denied the application on the ground that Constitution had not complied with requests for relevant information.

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On August 2, 2017, the California Governor’s Office of Planning and Research (“OPR”) released its first update to the General Plan Guidelines (the “Guidelines”) since 2003. The Guidelines provide guidance to cities and counties throughout California on the preparation and content of their General Plans, which govern land uses and zoning within their jurisdictions. The updated Guidelines contain new recommended policies, information resources, and  reflect recent legislation regarding General Plans.

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In the case of Plains All American Pipeline L.P. v. Cook, et al., decided on August 9, the U.S. Court of Appeals for the Third Circuit largely affirmed the dismissal of Plains All American Pipeline L.P.’s (Plains) complaint that the State of Delaware’s proposed escheat audit of the pipeline is unconstitutional. The Third Circuit held that, at present, Plains’s claims are unripe and not suitable to be decided by the courts. Except that it reversed the District Court’s dismissal of Plains’s procedural due process claim, and remanded it to the District Court for further consideration.

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On Wednesday, July 26, the California Office of the Attorney General (Attorney General) issued an Opinion answering the question:

Does Health and Safety Code section 13146 prohibit fire protection district chiefs from enforcing the State Fire Marshal’s building standards and regulations as they relate to R-3 dwellings?

The Attorney General confirmed that California Health and Safety Code § 13146 does not prohibit fire protection district chiefs from enforcing the State Fire Marshal’s building standards and regulations as they relate to R-3 dwellings, which “encompasses residential occupancies including single-family homes, as well as a variety of licensed facilities such as adult care centers, day-care centers, foster family homes, and drug recovery homes.”

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UPDATED JULY 2017: What a difference a few years make. This blog was originally published in 2014. We have updated the links to the various resources made available by the state licensing agencies regarding whether reciprocity is available or not and, in some cases, the application for reciprocity.

reciprocating.pngIs a licensed contractor in good standing in State A permitted to offer to contract for or to perform work requiring a contractor’s license in State B? A number of states have reciprocity agreements with each other pursuant to which a contractor license applicant holding a contractor’s license in good standing in a comparable classification in State A (recognized by the licensing agency as a reciprocity state) may have the trade portion of the written licensing exam waived in State B. Even with reciprocity, the license applicant generally must comply with all of State B’s other licensing requirements, including submitting a license application and passing the law portion of the written licensing exam. What this could mean is that even though the contractor is properly licensed in State A, the contractor is not properly licensed in State B.

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Data centers trigger visions of windowless, concrete boxes located at the periphery of suburban office parks. That perception may fade in the coming years. With new technologies, such as cloud computing, blockchain platforms, the Internet of Things, artificial intelligence, big data and mobile apps demanding instant access to data, the industry is seeing global growth and innovation, including “micro” centers closer to end users, underwater and floating data centers, “mega” centers and green data centers.

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In the case of Kokesh v. SEC, decided on June 5, a unanimous U.S. Supreme Court held that the 28 U.S.C. § 2462, which apples to “any action, suit or proceeding for the enforcement of any civil fine, penalty or forfeiture, pecuniary or otherwise,” also applies to Security Exchange Commission (SEC) actions alleging claims for disgorgement imposed as a sanction for violating a federal securities law. At issue is Sections 2462’s five-year statute of limitations. A few years ago, in Gabelli v. SEC, the U.S. Supreme Court held that Section 2462 applies when the SEC seeks statutory monetary penalties. Both decisions may have application to other federal agency enforcement actions where the governing statute does not contain a specific statute of limitations period.

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Many large and complicated construction projects require the issuance of several differed permits having different requirements. Courts strive to interpret their requirements in a rational and reasonable manner.

On May 23, the U.S. Court of Appeals for the DC Circuit decided the case of Delaware Riverkeeper Network, et al. v. FERC. This case involves three federal statutes: the Natural Gas Act, 15 U.S.C. §§ 717 et seq. (NGA), the Clean Water Act,  formally titled the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251 et seq. (CWA); and the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (NEPA). Although the Federal Energy Regulatory Commission (FERC) administers only the NGA, all three statutes applied to FERC’s issuance of a Certificate of Public Convenience and Necessity (Certificate Order) conditionally approving the construction and operation of the proposed Leidy Project. This project is an expansion of the capacity of Transcontinental Gas Pipe Line Company, LLC’s (Transco) existing natural gas pipeline and addition of new facilities in Pennsylvania and New Jersey (the Leidy Project). FERC issued the Certificate Order prior to Transco obtaining a Section 401 of the CWA water quality certification from Pennsylvania (the state in which the discharge would originate).

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