Articles Posted in Construction Generally

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On October 19, 2017, the U.S. Department of Transportation (DOT) released a draft Strategic Plan (the Plan) for public comment. The Plan establishes goals and long-term objectives for increasing investment and streamlining federal environmental review and approval of transportation infrastructure projects over the next five years (Fiscal Years 2018-2020). Comments on the draft Plan are due by November 13, 2017.  Continue reading

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On August 25, the U.S. Court of Appeals for the Tenth Circuit, in an unpublished opinion, affirmed the lower court’s ruling that the cost to remediate environmental contamination at a ski resort was subject to a contractual exclusion in the facility’s commercial general liability insurance policy. The case is Taos Ski Valley, Inc., v. Nova Casualty Company.

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On October 13, the U.S. Court of Appeals for the Fourth Circuit decided the case of Siena Corporation v. Mayor and City Council of Rockville, Maryland, et al. The Court of Appeals affirmed the lower court’s decision to dismiss the plaintiff’s complaint that an amendment to Rockville’s “Light Industrial” municipal zoning ordinance was unconstitutional as being violative of the due process and equal protection guarantees of the Fourteenth Amendment to the Constitution. The ordinance made it impossible for Siena Corporation to build on its property a large self-storage facility within 250 feet of a public school.

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Title III of the Americans With Disabilities Act imposes a proactive duty on businesses subject to the ADA to remove architectural barriers and other obstacles that impede disabled persons’ access to an existing public accommodation. For years, lawmakers have grappled with how to protect disabled persons and, at the same time, not overburden those subject to the ADA. The House of Representatives’ so-called ADA Education and Reform Act of 2017 (H.R. 620) introduced earlier this year appears to be gaining some momentum after the House Judiciary Committee voted to advance it on September 7. Disabled persons interest groups are opposed to this bill, contending that it would chill businesses from being proactive about ensuring that disabled persons have access to their facilities.

In contrast, for years, businesses subject to the ADA have struggled to comply with the ADA and to contend with what they perceive as meritless complaints filed by drive-by plaintiffs alleging ADA violations without ever encountering a barrier to access. For new construction subject to the ADA, an occupancy permit issued by a local jurisdiction (or a building inspection), although not required to ensure ADA compliance, will often require review of the project for compliance with the accessibility requirements. Ensuring compliance with the access requirements for existing developments and redevelopments in many cases poses greater challenges because, as originally constructed, the structure may not have design features that are conducive to ADA compliance, requiring extraordinary expenditures to bring them into compliance.

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On September 27, the U.S. Court of Appeals for the Fifth Circuit issued its long-awaited opinion in the case of U.S. v. Moss, et al. The Fifth Circuit affirmed the District Court’s ruling that the Outer Continental Shelf Lands Act (OCSLA) regulations do not apply to the appellees.

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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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