Articles Posted in Construction Generally

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On March 5, the U.S. Court of Appeals for the Tenth Circuit issued a ruling that the general federal five-year statute of limitations which is applicable to the enforcement of any civil fines, penalties or forfeitures (28 U.S.C. § 2462) does not apply to a series of discrete misappropriations that occurred over many years. The case is SEC v. Kokesh. In reaching this conclusion, the Tenth Circuit referenced its own recent decision in Sierra Club v. Oklahoma Gas and Electric Co., a Clean Air Citizen Suit, involving Section 2462

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Recently, the Trump Administration released a 53-page Legislative Outline for Rebuilding Infrastructure in America of legislative proposals to rebuild American infrastructure, which it defines as surface transportation, airports, passenger rail, ports and waterways, flood control, water supply, hydropower, water resources drinking water and waste water facilities, storm water facilities, and surprisingly, Brownfield and Superfund sites. Infrastructure projects can be located in both urban and rural areas.

The proposal lists specific laws that will require amendments, and would make available billions of dollars in federal funds to trigger the process. This is a brief review of its many provisions.

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Section 1122 of the Water Resources Development Act of 2016 directs the Secretary of the Army, no later than 90 days after the enactment of this law (which took place on December 16, 2016), to establish a pilot program to recommend ten projects for the beneficial use of the tons of dredged material generated by the operations of the U.S. Army Corps of Engineers (Corps).

On February 9, the Corps published a Federal Register notice which solicits the submission of ten projects that will address the beneficial use of dredged materials. Proposals must be submitted to Headquarters U.S. Army Corps of Engineers on or before March 12, 2018. The Corps generates many tons of dredged material, so it makes sense to see if there are truly beneficial uses for this material.

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On February 1, the Congressional Research Service published a report entitled Evolving Assessments of Human and Natural Contributions to Climate Change. The report traces evolution of scientific understanding and confidence regarding drivers of recent global climate change. Some very useful historical references are provided.

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On February 5, the U.S. Court of Appeals for the Ninth Circuit decided an interesting Outer Continental Shelf Lands Act (OCSLA) case, Newton v. Parker Drilling Management Services, Ltd. The Ninth Circuit reversed the Central District Court’s dismissal of a California wage and hour complaint brought by a worker employed on an offshore oil and gas drilling platform fixed and located in federal waters and otherwise subject to the OCSLA and federal law.

The Ninth Circuit held:

[T]he absence of federal law is not, as the district court concluded, a prerequisite to adopting state law as surrogate federal law under the [OCSLA].

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Today, our colleagues Richard Oliver and Travis Mullaney published their Alert titled SBA Proposed Rule Standardizes SDVO SBC Ownership & Control Standards. The Small Business Administration’s (SBA) proposed new rule would reconcile and clarify the ownership and control standards required for qualify as either a Veteran-Owned (VO) or Service-Disabled Veteran-Owned (SDVO) Small Business Concern (SBC) under the programs offered by the SBA and the Department of Veterans Affairs (VA).

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On October 11, 2016, a panel of the U.S. Court of Appeals for the District of Columbia consisting of Judges Henderson and Kavanaugh and Senior Circuit Judge Randolph decided the case of PHH Corp. v. Consumer Financial Protection Bureau. The panel majority held that the structure of Consumer Financial Protection Bureau (CFPB), a creation of the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111–203, H.R. 4173, commonly referred to as Dodd–Frank), was unconstitutional, in that it vested enormous power in an agency headed by a Director who cannot be adequately supervised by the President because of the five year term the Director’s serves, the lack of Congressional control over the CFPB’s funding, and the fact that the President can only remove the Director “for cause” even though in theory the President should have more authority over such officials. The panel concluded that this structure thus violates the U.S. Constitution’s separation of powers.

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The Federal Emergency Management Agency (FEMA) and New York City have announced that they will be working together to update the City’s flood flood-300x200maps. The need for updating FEMA’s flood maps has become more than apparent since at least 2005. Cities like New York, Houston, and Baton Rouge, which have been devastated by floods in recent years, are all too familiar with the shortcomings of FEMA’s flood maps. New York City, in particular, suffered in the wake of Hurricane Sandy, when approximately 80% of those who experienced flood damage did not have flood insurance.

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With so many extracontractual parties often involved in work that necessarily implicates others in construction, the economic loss doctrine can present serious hurdles to a harmed party’s recovery of damages actually incurred. The doctrine, which has long stood for the proposition that one cannot recover purely economic damages in tort, can often come into play with design professionals, who commonly contract directly with only the owner of a project, but issue reports, plans and specifications that are for the purpose of, and must be relied upon by, other parties for the performance of their work on the project.

In a recent article in Under Construction, the ABA Forum’s newsletter on construction law, colleagues Clark Thiel, Matthew Stockwell, and Jessica Bogo explore the different approaches taken by New York and California in applying the economic loss doctrine with regard to damages resulting from services provided by design professionals on a construction project.

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Pursuant to the provisions of Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended, the Office of the Secretary, Department of Homeland Security, in her “sole discretion” has waived in their entirety the following laws (including all federal state, or other laws, regulations and legal requirements deriving therefrom) to expedite the construction of barriers and roads in the “project area” described as being located in the vicinity of the international land border of the U.S. near the Santa Teresa Land Port of Entry in the State of New Mexico: Continue Reading ›