Several decisions of interest were issued in the 2020 term, which stretched from October 2020 until early July 2021. This review will concentrate on environmental and administrative law cases.
Supreme Court Declines to Address CDC Eviction Moratorium
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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 Risks and Rewards of Sustainable Building Design
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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.
A Court-Side Seat: As SCOTUS Decides Another Regulatory “Takings” Case, a Flurry of Action at EPA
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This is a brief account of some of the important environmental and administrative law cases recently decided.
THE U.S. SUPREME COURT
Pakdel v. City and County of San Francisco
On June 28, 2021, the Supreme Court decided this regulatory “takings” case, and, in a Per Curium opinion, reversed the Ninth Circuit’s ruling that that petitioners had to exhaust their state administrative remedies before they could file this lawsuit under 42 USC Section 1983. The City government had already come to a sufficient regulatory conclusion, and the Constitution does not require additional processing. In so ruling, the Ninth Circuit ignored last term’s decision in Knick v. Township of Scott.
Connection Corner: Drew DeWalt of Rhumbix
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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.
A Court-Side Seat: SCOTUS Clarifies Alien Tort Statute and WOTUS Is Revisited
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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.
Update Regarding New York City’s Climate Mobilization Act (CMA) and the Reduction of Carbon Emissions in New York City
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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.)
Blockchain Innovations and Real Estate: NFTs, DeFis and dApps
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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.
Bay Area Reopening Tracker (updated 6/14/21)
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As new cases of COVID-19 declines, each County in the San Francisco Bay Area is reopening gradually in accordance with the California’s colored tier system. The patchwork of local rules and orders is difficult to follow. Our Bay Area Reopening Tracker is here to help. We have included each of the nine Bay Area counties, and their respective current tier, Health Order (and additional relevant orders), and our short comments regarding their status. Please check back in with us—we plan to update the Bay Area Reopening Tracker weekly for the foreseeable future.
Tracking Hydrogen Projects Worldwide
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Pillsbury—the first global law firm to launch a practice team dedicated to all things hydrogen—has again demonstrated its position at the forefront of the ongoing energy transition by launching the only public resource tracking the development of hydrogen projects worldwide. This valuable resource is accessible at www.TheHydrogenMap.com.