Articles Posted in Construction Generally

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In FAA Updates Guidance on Obstruction Lighting the Federal Aviation Administration recently released guidance on obstructions that may impact the National Airspace System, such as tall buildings, energy and electricity infrastructure, and communications towers. The FCC provides updated guidance for builders and developers on the requirements for markingairplane and lighting any structure. Jennifer and Ken encourage developers to familiarize themselves with the new guidance, which will apply to new construction.

Photo:  xlibber, Another Airplane! Taken on June 05, 2010 – Creative Commons.

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In Five Things You Need to Know About the Extension of the ITC/PTC, Pillsbury greenfootprintpartner Tom Morton discusses the 2016 Consolidated Appropriations Act (H.R. 2822) and the extension of federal income tax credits for solar, wind and certain other renewable energy facilities.

Photo:  Chris Potter, 3D Green Footprint, Taken December 7, 2012 – Creative Commons

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In U.S. Repeals Longstanding Ban on Export of Crude Oil, my Pillsbury colleagues Dan LeFort, Paul Marston, Tom Campbell and I discuss the President’s recent signing of the Consolidated Appropriations Act, 2016, an Act that funds the Federal government through fiscal year 2016, and its repeal of the 40-year ban on the export of crude oil.

Addition Source:  Lifting of 40-Year Statutory Crude Oil Export Ban Signed into Law; Environmental and Regulatory Provisions in the Omnibus Appropriations Act of 2016

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In IRS Provides Additional Guidance on Treatment of Same-Sex Marriages under Benefit Plans, Pillsbury partner Peter Hunt and senior law clerk Benjamin Asch discuss the IRS’s guidance in IRS 2015-86, in which  provides guidance to sponsors and Rainbowadministrators of employee benefit plans regarding the application of the U.S. Supreme Court’s decision in Obergefell v. Hodges to plan participants with same-sex spouses.

Photo:  Steve Snodgrass March 3, 2012 – Creative Commons

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In their alert “Reverse CEQA” Reversed, California Supreme Court Rejects CEQA Analysis of Impacts of the Environment on the Project, Pillsbury attorney David Farabee discusses the California Supreme Court’s recent rejection of a requirement of so-called “reverse CEQA” analysis, concluding that “CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents.” The case is California Building Industry Association v. Bay Area Air Quality Management District, Case No. S213478 (December 17, 2015).

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Public and private contractors take note of new law in Nevada that limits retainage for both public and private works contracts to five percent. Previously, for public works contracts, a public body undertaking a public work was permitted to withhold as a retainage at least five percent from progress payments made to a contractor during the first half of the project and, after completion of half of the project, the amount of the retainage became optional. Under amended Section 338.515(1) of the Nevada Revised Statutes (NRS), five percent must be withheld as retainage until 50 percent of the work required by the contract has been performed. In contrast to public works projects,

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In New Legislation Threatens to Further Erode Market Share of Non-Trade Union Contractors in California, Pillsbury attorneys Chris Rodriguez, Rob James, John Heisse, Andrew Bluth, and Marissa O’Connor discuss two new laws that go into effect in January 2016 that are expected to change the face of various public and private construction projects in California.  According to them, these new laws are part of an ongoing effort by the State Building and Construction Trades Council of California (SBCTC) to force public and private owners to use SBCTC-affiliated contractors for various construction work and to impose  obligations traditionally tied to public works—e.g., prevailing wage  requirements—even on private construction projects.

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Developers subject to the Federal Power Act (FPA) should carefully consider the implications of the U.S. Court of Appeals for the District of Columbia Circuit’s recent opinion on the scope of the “municipal preference” under Section 7(a) of the FPA. The Court, in HydroelectricWestern Minnesota Municipal Power Agency, et al., v. FERC, recently considered the breadth of the “municipal preference” in Section 7(a) of the FPA, including the meaning of “municipality,” and declined to support the Federal Energy Regulatory Commission’s “geographic proximity test” for municipalities to qualify for the preference. Under the Court’s ruling, a municipality qualifies for the municipal preference regardless of their proximity to the location of the development. Developers may now be exposed to greater competition for developments with municipalities having a trump card because they qualify for the municipal preference.  As one would hope, the Court of Appeals restated the importance of the Court’s review FERC’s interpretation under the two-step framework of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842–43 (1984).  The opinion, of course, also reflects the Supreme Court’s use of Chevron in deciding a number of important cases the past two terms. This opinion may also result in FERC being more careful in the future.

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The “Conflicts Minerals” rule  was enacted, with very little debate, as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act.  This rule places new regulatory requirements on the nation’s financial system in the wake of the 2008 economic emergency.  To many observers, the most troublesome aspect of the rule involves the federal government’s authority to compel the regulated community—in this instance, companies that may have some connection to the civil wars in the Congo—to label what they do in censorious terms as part of public SEC filings.  In particular, the SEC’s conflict minerals  rule purports to compel certain disclosures affecting the acquisition of certain minerals produced in the Democratic Republic of the Congo. How far can the government go, consistent with the First Amendment, to require companies and corporations to say what the government rules that that must say?

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Early this year, Governor Andrew M. Cuomo signed a bill requiring assessors and contractors in the mold remediation industry to be licensed and their workers properly trained, effective January 1, 2016.  The bill was amended later in the year, but the date it goes into effect remains the same.  The new law requires the licensing of assessors, contractors and workers, and a written mold remediation plan, prepared by a licensed mold assessment contractor, to ensure the proper remediation of mold. Additional information about the Mold Program is available on the New York State Department of Labor’s website.

Additional Source:  January 2016, New Hampshire Will Require Mold Assessment Certification