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As the end of summer approaches, the courts have provided a potpourri of relevant environmental decisions.

FEDERAL COURTS OF APPEAL

Town of Weymouth, et al. v. Massachusetts Department of Environmental Protection (MDEP)
On August 31, 2020, the U.S. Court of Appeals for the First Circuit issued an opinion revising the mandate of its earlier June 3, 2020, ruling in the case. In the earlier ruling, the court vacated the grant by the MDEP of an air permit to Algonquin Gas Transmission to build and operate an air compressor station, ordering the agency to “redo” its Best Available Control Technology analysis within 75 days. Algonquin asked the court to reverse without vacatur because the agency could not comply within the time limits established by the court. The First Circuit agreed, and established a new deadline for the agency of January 19, 2021.

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The past few months saw, and continue to see, significant disruptions to the real estate market and the real estate finance market in particular. According to Trepp LLC, June saw the delinquency rate for commercial mortgage-backed security (CMBS) loans hit 10.32 percent, which is just shy of the peak delinquency rate for CMBS loans in 2012 (or a full four years following the 2007 – 2008 recession). That we could have nearly reached the 2012 peak so quickly—given the last time lag between a recession and peak delinquencies—has caused some investors to worry that much worse is yet to come. These numbers also cause certain investors to question whether CMBS disclosures may have been overly optimistic or failed to properly disclose risks. At the same time, regulated mortgage lenders, which must project losses, are assuming losses at approximately two percent on average.

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The last few weeks have yielded a number of interesting developments in the Federal courts.

FEDERAL COURTS OF APPEAL

In re Flint Water Cases
Several local and State of Michigan officials, including the former governor, requested dismissal from the civil litigation seeking damages for the massive failure of Flint, Michigan’s public drinking water system. On August 5, 2020, the U.S. Court of Appeals for the Sixth Circuit agreed that the plaintiffs, residents of Flint, have successfully pled a case that the conduct of the defendants so “shocked the conscience” that a claim for a violation of their substantive due process rights was appropriately alleged. The defendants, including the former governor, argued that they were entitled to a qualified immunity defense. The court rejected this argument on the basis of the earlier decisions made by the court in this matter. Judge Sutton concurred because he was bound by this precedent, but remarked that the evidence for the governor’s culpability was very thin; he was not intimately connected to the extraordinary error in judgment. The majority was very upset with this concurrence as indicted by their own opinion.

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A recent court decision in New York found that current market conditions in the real estate market justify delaying noticing mezzanine real estate foreclosures until October 15, 2020. In “Distressed Real Estate During COVID-19: Court Finds UCC Foreclosure “Commercially Unreasonable” Because of Coronavirus-Related Market Turmoil“, colleagues Caroline A. Harcourt, Patrick E. Fitzmaurice and Russell DaSilva discuss a recent New York Supreme Court Order.

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Some very interesting and fairly complex environmental law rulings have been released in the past few days.

U.S. Supreme Court—Trump, et al. v. Sierra Club, et al.

On July 31, 2020, in a 5-to-4 decision, the Supreme Court denied a motion to lift the stay entered by the Court a few days earlier. The earlier action stayed a preliminary injunction issued by the U.S. District Court for the Northern District of California, which had enjoined the construction of a wall along the Southern Border of the United States which was to be constructed with redirected Department of Defense funds. The merits will be addressed by the lower court and perhaps the U.S. Court of Appeals for the Ninth Circuit.

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GettyImages-200275481-001-dining-liability-298x300As the COVID-19 pandemic continues to ravage the U.S. economy, restaurateurs and bar owners are feeling the brunt of business closures and adaptations necessary to combat the disease. Where cozy and intimate dining was once de rigueur for the restaurant industry, these businesses must now shift to outdoor dining with adequate space and airflow between parties. In response to these concerns, many cities across the country who once fought against the loss of any parking have turned to a post-automobile tactic: outdoor dining in thoroughfares and parking lots. While at first glance it might seem a simple enough prospect—throw some chairs and a table out front, and voilà—property owners and restaurateurs must remain cognizant of various liability and regulatory hurdles for operating outside.

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District of Columbia enacts legislation to provide up to $100 million in grants to eligible businesses for up to 15% of revenue lost due to COVID-19 during the quarter ending June 2020. Landlords can receive grants to partially support their help to eligible tenant businesses. In “District of Columbia Enacts $100 Million Grant Program for Businesses Hurt by COVID-19,” colleague David L. Miller  discusses the new legislation.

 

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As one would expect, the 110-page document released by the Biden campaign of policy recommendations reached by its joint task forces with supporters of Sen. Bernie Sanders includes  a number of energy and environmental policy statements.

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Virginia adopted an emergency temporary standard, the first in the nation, that requires business owners to comply with minimum workplace safety standards to prevent and mitigate the spread of COVID-19. The regulations are expected to take effect the week of July 27 and will stay in effect for six months, colleagues  Julia E. Judish, Mario F. Dottori, Sarah Konnerth and Kristina Sgambati discuss in Virginia Adopts COVID-19 Workplace Safety Mandates.

 

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Pillsbury continues to track the impact on construction projects of COVID-19-related orders and guidance in all 50 states and the District of Columbia as well as guidance from CISA and OSHA. We are updating our chart weekly. Click here for the latest COVID-19 Construction Chart.

July 27 update – Now updated bi-weekly.

July 14 update – More updates.

July 7 update – This week’s chart includes updates to state orders. Although a few states have reversed course or paused their reopening plans in the face of a resurgence of the virus, so far none of those states’ orders have impacted construction.

June 29 update – More updates.

June 22 update – More updates on various reopening orders and guidance.

June 16 update – The chart is updated to include various reopening orders and guidance.

June 9 update – In addition to tracking orders and guidance in the 50 states and the District of Columbia, this week’s update also includes the OSHA’s new COVID-19-related guidance for Construction Work.

May 27 update – As we pivot toward less shelter in place orders and more reopening orders, more and more states are also issuing guidance for implementing safety measures on construction projects. Pillsbury modified its chart to include a column describing any state-issued guidance and some guidance from large cities. As described in our client alert Safety Measures for Construction Projects During the COVID-19 Pandemic, construction sites will be very different under the “new normal.”

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