On July 21, 2021, a group of bipartisan Senators formally introduced the Cyber Incident Notification Act of 2021. This legislation, if passed, would require nearly all federal contractors and subcontractors (at all tiers) to report actual and potential cybersecurity intrusions to the Department of Homeland Security within 24 hours. Unlike previous cybersecurity requirements that have applied only to contractors in certain industries, such as defense or information technology, this legislation is intended to cover contractors throughout the Federal supply chain. Therefore, real estate and construction companies that hold contracts or subcontracts in support of the Federal government would be subject to these new, more onerous reporting requirements. Colleagues Brian E. Finch, Michael R. Rizzo and Meghan D. Doherty discuss the bipartisan legislation in a recent alert.
In a closely watched 5-4 decision, the U.S. Supreme Court sided against the challengers to the eviction moratorium issued by the Centers for Disease Control and Prevention (CDC), keeping a stay in place that leaves the eviction ban in effect through July 31. The CDC has indicated it will not renew the eviction moratorium when it expires at the end of the month.
The shift towards a “greener” environment has resulted in cities and states implementing electrification mandates, which will have a major impact on both current and future building design. Currently, most commercial and residential end users are already all-electric. However, there are some exceptions, such as space and water heating, that use a significant amount of energy. Several states, including California and New York, have cities that have introduced legislation requiring new construction to be all-electric. This means, for example, using electricity for heating rather than fossil fuels such as natural gas. Mandate or not, building owners and developers should consider the risks and rewards of an all-electric design.
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.
Drew DeWalt is COO of Rhumbix, a construction computer software company he co-founded with CEO Zach Scheel in 2014. A native of Waco, Texas, Drew attended the University of Notre Dame, and upon graduation, was commissioned into the U.S. Navy as a Nuclear Submarine Officer. He spent over six years with the Navy, stationed primarily in Pearl Harbor, Hawaii, and deployed to locations across Southeast Asia.After completing his service, Drew enrolled in Stanford’s Graduate School of Business to pursue a joint MBA/MPP degree program, focusing on energy systems and infrastructure. Shortly after graduating, he started the renewable energy company, Valhalla Energia, in Chile with two classmates. In 2014, Drew stepped back from Valhalla Energia to found Rhumbix with Zach Scheel. Their experiences working on mega infrastructure projects and feeling the pain of having to make important decisions with low-quality, latent and incomplete data led them to identify a need to gather and structure data at the source—from the men and women actually executing in the field on a project. Drew currently lives in Orinda, Calif., with his wife, Whitney, and their four children.
What follows is a brief account of some of the notable U.S. environmental and administrative law cases recently decided.
THE U.S. SUPREME COURT
Nestle USA, Inc. et al. v. Doe, et al.
The Supreme Court has decided another important case interpreting the Alien Tort Statute. Released on June 17, 2021, this decision reverses the Ninth Circuit which had ruled that the respondents—six individuals who alleged they were child slaves employed on Ivory Coast cocoa farms, could sue the American-based companies for aiding and abetting child slave labor. Without dissent, the Court rejected this reading of the ATS and affirmed its own recent rulings on the scope of the ATS.
In a previous post, we described how the New York City Climate Mobilization Act, 2019 (the CMA, or Local Laws 92, 94, 95, 96, 97, and 147 enacted in 2019) was passed with the goal of reducing New York City’s carbon emissions by 40 percent by 2030 and by 80 percent by 2050 (as against a 2005 baseline as provided for in item 3 of Local Law 97). It is the most ambitious building emissions law to be enacted by any city in the world. The CMA impacts “Covered Buildings” (described below) and, besides contemplating the retrofitting of Covered Buildings to achieve energy efficiency and establishing a monitoring program for Covered Buildings, the CMA contemplates compliance by means of the purchase of carbon offset credits or renewable energy. (Note the new NYC Accelerator program, launched in 2012 by the Mayor’s Office of Sustainability, provides guidance regarding energy-efficient upgrades to properties and emission reductions.)
As innovative applications with integrated smart contract functionality emerge from blockchain technology platforms, there is an expanding list of digital currencies, tokens and peer-to-peer financial products and services. Abbreviations abound. There are non-fungible tokens (NFTs), which, unlike fungible cryptocurrencies, are “one-of-a-kind’ digital assets stored on a blockchain platform, and can include images, videos, recordings, collectibles and tangible items in the physical world. There is decentralized finance (DeFi), the peer-to-peer transaction infrastructure for tokens and other software applications and contracts designed to replace traditional banking products and services and streamline transactions. Decentralized applications (dApps) are a relatively new technology similar to traditional web applications from a user perspective, but which run on distributed blockchain platforms, such as Ethereum, rather than on a single computer—dApps are typically open source, allowing software developers to improve features and functions quickly, and free from control by any single authority. Smart contract protocols permit dApps to access the blockchain platform and integrate with cryptocurrencies, NFTs and DeFi projects.
By using online cryptocurrency technologies like tokens and blockchains, people could participate in real estate transactions that are too unwieldy in the analog world. Soon, these technologies may let anyone with a few thousand dollars play tycoon and buy a part of a condo or iconic building.
NFTs, or non-fungible tokens—digital certificates that convey exclusive rights to something—is a new concept being applied to real estate, supporters say they will become standard in the industry.
In our previous post we discussed the importance of conducting a thorough due diligence and procurement process with smart technology providers. Next up? The contract.
The price of a procured product is always important, but equally important are other contractual terms that reflect the commercial agreement. Ultimately, the contract should answer the fundamental question of “What are you buying?” The product itself is not the only feature being purchased. A customer is also buying certainty, service performance, risk mitigation, flexibility, security, compliance, and other similar “intangible” items of value.
Late last week a federal district court judge for the District of Columbia held that the nationwide eviction moratorium issued by the Centers for Disease Control and Prevention (CDC) went beyond the agency’s statutory authority and vacated it nationwide. This decision effectively expanded a similar decision by a Texas federal court last month that found the CDC’s moratorium was an improper use of federal power but limited its decision to the litigants to that case and declined to vacate the CDC order.