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iStock-182408547-mall-real-estate-retail-300x200Search “Death of Retail” on Google.com and, as of July 26, you will get approximately 855,000 hits, many of which stress the negative impact that online sales and Amazon, in particular, have had on traditional retailers. However, predicting the future of the retail industry cannot be reduced to an easy slogan. Amazon itself is a retailer, and it is facilitating sales on its site by other retailers, including many that previously had difficulty bringing goods and services to market. Moreover, retail sales overall rose almost 4% in the past year, and the National Retail Federation expects growth to continue due to low unemployment and a strong stock market. Clearly, the retail industry is not in a meltdown, but it is experiencing great change, and the industry must adapt.

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Balancing the interests of the Federal Government as owner of thousands of acres surrounding Crooked Lake and private owners’ rights, on July 26, CrookedLake-2-300x169in a 2 to 1 ruling, the U.S. Court of Appeals for the Sixth Circuit ruled that the U.S. Forest Service exceeded its authority when issuing rules restricting recreational use of Crooked Lake. The federal legislation acquiring the property for the Federal Government contained a provision protecting “valid existing rights.” According to the Court of Appeals, relevant Michigan law established such an existing right, granting owners of property surrounding the lake the right to reasonable use of the lake, and this law must be respected. The case is Herr v. U.S.  Forest Service, et al.

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On July 17, the U.S. Court of Appeals for the Second Circuit decided the case of Olin Corporation v. OneBeacon America Insurance Company, an environmental insurance recovery lawsuit. Olin Corporation has filed such lawsuits against several of its insurance carriers with respect to the contamination indemnification claims generated by Olin Corporation’s ongoing cleanups at its manufacturing facilities around the country. The Court of Appeals affirmed Olin Corporation’s right to recover and also agreed with OneBeacon America Insurance Company (OneBeacon) that the U.S. District Court for the Southern District of New York should have factored in the “prior insurance provision” of OneBeacon’s policies “thereby reducing the limits of its policies by those of any prior policies covering the same loss.”

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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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The 2016 Term of the U.S. Supreme Court was fairly quiet, perhaps reflecting the fact that with only eight members, the environment-300x81Court needed a working consensus to handle its docket. The Court handed down seventy rulings, but only a few can be described as bearing on environmental or administrative law. A few rulings importantly concerned the operation of federal agencies and their enforcement authorities.

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On July 11, the Texas Court of Appeals, Third District, at Austin, TX, decided the case of Freestone Power Generation, LLC, v. Texas Commission on Environmental Quality, et al., reversing the trial court’s ruling that eight Texas power companies were not entitled to certain property tax exemptions administered by the Texas Commission on Environmental Quality (TCEQ). Continue Reading ›

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On July 19, the U.S. Court of Appeals for the Third Circuit decided an important case involving oil and gas producers, intermediaries, and the ultimate purchasers of the oil and gas. The case, a bankruptcy matter, is In re: SemCrude, LP, et al.

The appellants, many oil and gas producers located in Texas, Oklahoma and Kansas, sold their product to SemCrude, L.P. (SemCrude), a “midstream” oil and gas service provider, who then sold oil to and traded oil futures with downstream oil purchasers. SemCrude’s unsuccessful futures trading activities cause the company to become insolvent and enter into bankruptcy. However, the producers had taken no steps to protect themselves in case SemCrude went bankrupt in contrast to the downstream purchasers. As a result, when SemCrude filed for bankruptcy, the downstream purchasers were paid in full, and more than a thousand producers were unpaid.

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The California Supreme Court’s recent Ardmore decision expanding the applicability of California’s Documentary Transfer Tax Act will no doubt be the source of future litigation. In their recent client alert, colleagues Craig A. Becker, Richard E. Nielsen, Breann E. Robowski and Dianne L. Sweeney examine the issue.

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wind turbinesIn a breakthrough for offshore wind energy in the United States, construction of the Block Island Wind Farm, the first U.S. offshore wind farm, was completed in August 2016 about 30 miles off the coast of Rhode Island. The project began delivering power to the New England grid on May 5 of this year. While Block Island is a big step forward for the industry, broad public support for offshore wind farms in the U.S. has been lacking due in large part to concerns about aesthetics when the turbines are visible from land. As demonstrated by the collapse of the Cape Wind project in 2014 off the coast of Martha’s Vineyard, failure to get public buy-in can be fatal to a project.

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In 1971, the citizens of Pennsylvania overwhelmingly approved a proposed amendment to the Commonwealth of Pennsylvania’s Constitution’s Declaration of Rights, now known as the “Environmental Rights Amendment” (ERA). The amendment provides:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

On June 20, 2017, the Supreme Court of Pennsylvania, in Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania and Governor Tom Wolf, held , in a 4 to 32 ruling, that two 2009 fiscal laws passed by the legislature were facially unconstitutional under the ERA because they did not provide that all funds generated by royalties from the leasing of state lands for the exploration and production of oil and gas were wholly directed to the protection and preservation of the Commonwealth’s public natural resources.
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