Articles Posted in Construction Generally

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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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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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Fundamental fairness requires that before a company doing business in several states is sued in a particular state that it has substantial contacts with that state. Merely being present in that state will not satisfy the jurisdictional requirement’s of a federal law such as the Federal Employers’ Liability Act, 45 U. S. C. §51 et seq. (FELA), as the U.S. Supreme Court just ruled in a closely watched case.

On May 30, the U.S. Supreme Court decided the case of BNSF Railway Company v. Terrell, et al., reversing the Montana Supreme Court.  The Montana Supreme Court held that Montana state courts had jurisdiction over two FELA lawsuits filed by on behalf of former employees against BNSF Railway Company even though, “while doing business in Montana, [it] was not incorporated in Montana nor did it maintain its principal place of business there.”

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The recent Lightning Oil Company v. Anadarko E&P Onshore, LLC F/K/A Andarko E&P Company, LP, decision of the Texas Supreme Court, which clarified the rights and obligations of owners of the surface property and the mineral interests below, is very important to oil and gas law practitioners in Texas. The Court’s reasoning, and its measured opinion, may nevertheless be of interest to many lawyers in practicing in other areas. The Texas Supreme Court affirmed the ruling of the Fourth Court of Appeals sitting in San Antonio. The question before the Court was: “[W]hose permission is necessary for an oil and gas operator to drill through a mineral estate it does not own to reach minerals under an adjacent tract of land.” Is the mineral estate, through which the company wished to drill, the dominant estate whose permission is required before such directional drilling can begin?

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cannabis legalizationFollowing cannabis legalization in California, municipalities are beginning to face difficult decisions related to land use and planning. The challenge in siting industrial and residential uses, often in conflict, is not new for cities and their planners. But the new twist of cannabis growing and processing, treated as an industrial use in most cities, adds an added layer of complexity to land use decisions where lack of housing is also an issue.

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Federal government records, including business records submitted to the government, are subject to disclosure under the federal Freedom of Information Act (FOIA). However, FOIA exempts nine categories of government records from this disclosure obligation. A May 9 ruling by the U.S. Court of Appeals for the District of Columbia in AquAlliance v. U.S. Bureau of Reclamation discusses the scope of Exemption 9. Exemption 9 provides that there is no duty to disclose “geological and geophysical information, data, including maps, concerning wells.”

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Company records and communications are typically subject to disclosure in government investigations. They may be protected from disclosure if they are protected by the attorney client privilege or attorney-work product doctrine. However, invocation of these privileges is not automatic, as confirmed in a May 4 ruling by the U.S. States Court of Appeals for the Fifth Circuit. In EEOC v. BDO USA, LLP, the Court of Appeals issued a ruling clarifying the use of a privilege log to invoke the protections of the attorney-client privilege when responding to an agency’s request for documents as part of an investigation of employment discrimination claims.

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