Gravel2Gavel Construction & Real Estate Law Blog
On April 9, 2018, the heads of twelve Federal agencies and departments entered into a Memorandum of Understanding (“MOU”) committing their respective agencies to implement certain concepts and directives from Executive Order (“EO”) 13807,[1] the Trump administration’s effort to streamline environmental review and approval of major infrastructure projects. The signatory agencies are the Departments of the Interior, Agriculture, Commerce, Housing and Urban Development, Transportation, Energy, and Homeland Security, the Environmental Protection Agency, Army Corps of Engineers, Federal Energy Regulatory Commission (“FERC”), Advisory Council on Historic Preservation, as well as the Federal Permitting Improvement Steering Council. These agencies frequently are involved in large-scale, complex infrastructure projects, such as traditional and renewable energy facilities and interstate pipelines; highway and bridge improvements, and transportation projects. While much of the MOU recites requirements previously set forth in the EO, it adds details and deadlines regarding interagency coordination, communication and dispute resolution in order to carry out the EO’s “One Federal Decision” concept and the goal of completing environmental review under the National Environmental Policy Act (“NEPA”) within two years.
Articles Posted in Development
California District Court Rules Against EPA On Claims that It Failed to Timely Act
On March 30, the U.S. District Court for the Northern District of California decided the case of Californians for Renewable Energy, et al., v. EPA. The plaintiffs, public interest organizations located in several states, filed a lawsuit against the Environmental Protection Agency (EPA) complaining that EPA failed to act on anything like a timely basis on their administrative complaints. EPA argued that the case should be dismissed because of (a) improper venue; (b) lack of standing; and (c) mootness. The District Court rejected these arguments, and denied EPA’s motion to dismiss and granted the plaintiffs’ and EPA’s motion for summary judgment, each in part. However, the District Court reserved judgment until the parties had an opportunity to meet and confer on the outstanding issues and then advise the court where things stand.
Employers Get Ready for 401(k) Plan Changes
Our colleagues Christine Richardson, Colleen Lamarre and Danielle Bradley recently posted their Alert titled Recent and Upcoming Changes to 401(k) Plans. In the Alert they discuss the Tax Cuts and Jobs Act (the Act) and the Bipartisan Budget Act of 2018 (the Budget), and the number of modifications they make to the 401(k) plan rules. The modifications are expected to make the administration of 401(k) plans simpler by removing operational burdens, while also giving plan sponsors the ability to offer more options to employees.
U.S. DOT Releases Draft Strategic Plan Beginning Implementation of Trump Administration’s Executive Order on Project Streamlining
On October 19, 2017, the U.S. Department of Transportation (DOT) released a draft Strategic Plan (the Plan) for public comment. The Plan establishes goals and long-term objectives for increasing investment and streamlining federal environmental review and approval of transportation infrastructure projects over the next five years (Fiscal Years 2018-2022). Comments on the draft Plan are due by November 13, 2017. Continue Reading ›
Time Will Tell Whether Trump Executive Order Succeeds in Reducing Time for Federal Environmental Review and Permits for Major Infrastructure Projects
On August 15, 2017, President Trump issued Executive Order 13807 (EO 13807), which seeks to streamline federal environmental review and approvals of major infrastructure projects by imposing new timelines and procedures. The EO aims to hold federal agencies accountable to a two-year deadline for all federal authorizations for infrastructure projects, including highways and transit, airports and ports, fossil, nuclear and renewable energy, pipeline and water projects.
EO 13807 defines “major infrastructure projects” as those which require both a full Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) and multiple permits, approvals and/or other forms of authorization from federal agencies, and for which sufficient and reasonably available funding has been identified. The EO requires the Office of Management and Budget (OMB) to establish a federal goal of completing NEPA review and permitting in “not more than an average of approximately two years” from the notice of intent to prepare an EIS. The goal must be incorporated in each federal agency’s strategic and annual performance plans and progress must be reviewed by agency leadership.
Office of Planning and Research Releases Updated General Plan Guidelines
On August 2, 2017, the California Governor’s Office of Planning and Research (“OPR”) released its first update to the General Plan Guidelines (the “Guidelines”) since 2003. The Guidelines provide guidance to cities and counties throughout California on the preparation and content of their General Plans, which govern land uses and zoning within their jurisdictions. The updated Guidelines contain new recommended policies, information resources, and reflect recent legislation regarding General Plans.
FTA Proposes Rule Waiving Regulatory Burdens on Public-Private Partnerships (P3s) for Public Transportation Projects
On July 31, 2017, the Federal Transit Administration (FTA) published a notice of proposed rulemaking in the Federal Register, for a proposed regulation that would establish new, experimental procedures to encourage use of public-private partnerships (P3s), joint developments and other private investment mechanisms in surface transportation capital projects. The rulemaking is linked to a statutory provision in the Moving Ahead for Progress in the 21st Century Act, which requires FTA to identify provisions at 49 U.S.C. chapter 53 and any regulations or practices thereunder that impede greater use of P3s and private investment. Potential private investors in public transportation infrastructure projects, as well as local and state transportation agencies that may be considering mechanisms of private funding, should be aware of the proposed new procedures. Public comments on the proposal are due September 29, 2017.
Data Center Trends in Construction and Real Estate
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.
Lynch v. California Coastal Commission: The California Supreme Court Retreats from Deciding on “Managed Retreat” from Coastal Development
On July 6, the California Supreme Court issued its highly anticipated decision in Lynch v. California Coastal Commission (case no. S221980). In this case, coastal homeowners alleged that, in issuing a permit to construct a protective seawall, the California Coastal Commission imposed unconstitutional conditions. In particular, the plaintiffs objected to the permit being limited to a 20-year term, after which they could be required to remove the seawall. However, to the disappointment of many who closely watched the case (as well as the plaintiffs), the Court declined to reach constitutional issues. Instead, the Court ruled that the homeowners waived their objection to permit conditions by constructing the seawall prior to the resolution of litigation.
Not for the Taking: In Murr v. Wisconsin, the Supreme Court Rules that Two Lots Be Considered as a Whole
Today, the U.S. Supreme Court held that there was no compensable taking of Petitioners’ property in Murr v. Wisconsin. Petitioners who own two adjacent lots along a waterfront in Wisconsin were not deprived of all economically beneficial use of their property. A formalistic approach to the issue was rejected. Instead of relying solely on lot lines, the Court considered fairness and factual analysis, noting its regulatory takings jurisprudence is based on flexibility.