In Hurricane Florence: Is Your Company Prepared for a Disaster?, Pillsbury’s Joe Jean, Tamara Bruno, and Janine Stanisz discuss how important it is for companies to understand how their insurance policies cover the company’s risk in the event of an unexpected or catastrophic loss. Having the correct insurance policies in place is only the first step.
Consumer Protections for California Residential Solar Energy Systems
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It was already the case that in order to offer to install California residential solar energy systems, a contractor must be licensed by the California Contractors State License Board (CSLB) and must hold an appropriate specialty classification. Under AB 1070 enacted late last year (Chapter 662, Statutes of 2017), special consumer protections are being deployed for the benefit of homeowners. Those protections are steadily rolling out.
Cooperation and Collaboration With Government May Be on the Horizon
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In Is the Pendulum Swinging on Agency and Government Contractor Cooperation?, Pillsbury attorneys Mike Rizzo, Glenn Sweatt and Kevin Massoudi discuss comments from the Department of Defense as well as recent good faith and fair dealing court decisions that point to and encourage improved contractor/government relationships. Their key takeaways include
- Government officials are actively encouraging collaboration with, and less antagonism of, industry contractors.
- Recent Boards and Court of Federal Claims construction decisions suggest a growing trend of awarding damages to contractors when the government breaches the duty of good faith and fair dealing.
- Contractors seeking to take advantage of these trends should explore formal partnering with their government clients to reduce future claims and early alternative dispute resolution options to resolve existing disputes.
Contractors Should Be Optimistic that the Best Value Tradeoff Process Will Be Employed by Civilian Agencies
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In The Fiscal Year 2019 NDAA Imposes Government-Wide Limitations on the Use of Lowest-Price Technically Acceptable Procurements, Pillsbury attorneys Dick Oliver and Aaron Ralph are optimistic that contractors will soon have additional legal authority to demonstrate to civilian agencies that a best value tradeoff process should be employed.
- Congress’ trend of limiting the use of the much-derided lowest price, technically acceptable (LPTA) procurement process continues.
- Many of the Department of Defense’s (DoD) limitations on the use of LPTA process will be extended to civilian agencies.
- The recently enacted John S. McCain National Defense Authorization Act (NDAA) requires that the Federal Acquisition Regulation be updated by December 11, 2018, to incorporate these limitations.
Ninth Circuit Analyzes Implied False Certification Standard Under Escobar
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On August 24, the U.S. Court of Appeals for the Ninth Circuit, in U.S. ex rel. Scott Rose, et al., v. Stephens Inst., dba Acad. of Art Univ., affirmed the U.S. District Court for the Northern District of California’s order denying the defendant’s motion for summary judgment in a qui tam action brought under the False Claims Act. The Ninth Circuit address questions of law posed in the wake of the U.S. Supreme Court’s decision in Universal Health Serv., Inc. v. United States ex rel. Escobar, regarding the tests for establishing falsity and materiality.
World War II Government Procurement Contracts and CERCLA Liability
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The U.S. Court of Appeals for the Federal Circuit’s July 18 ruling, in Shell Oil Company, et al., v. U.S., may have brought to an end a long-running dispute over the impact on World War II government procurement contracts on the liability of major oil companies for the remediation costs at a major Southern California Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) site — the “McColl site.”
DC Circuit Rules on Challenges to EPA’s 2015 Final Rule Governing Disposal of Coal Residuals Produced by Electric Companies and Independent Power Plants
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On August 21, the U.S. Court of Appeals for the District of Columbia decided the “coal combustions residuals” case: Utility Solid Waste Activities Group, et al. , v. EPA. This new Resource Conservation and Recovery Act (RCRA) case could have important implications for the coal industry and powerplants that use coal.
EPA’s Multi-Year Delay of Chemical Disaster Rule of 2017 Not Authorized Under CAA
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On August 17, the U.S. Court of Appeals for the District of Columbia Circuit, in the case Air Alliance Houston, et al., v. EPA, vacated the Environmental Protection Agency’s (EPA) “Delay Rule.” The so-called “RMP” ( for risk management plan) rule was substantially amended after a number of plant explosions took place in the past few years. The amended rules were published a week before the new administration took office EPA had delayed the effective date of the Chemical Disaster Rule of 2017 on three separate occasions: January 26, 2017, March 16, 2017, and ultimately to June 14, 2017.
The Court of Appeals held that the actions taken by EPA were not authorized under the relevant provisions of the Clean Air Act (CAA) and were otherwise arbitrary and capricious. The Court of Appeals vacated the Delay Rule of June 14, 2017.
Federal Courts of Appeals Consider Interplay Between Environmental Laws and Federal Tax Code
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On August 14, two U.S. Court of Appeals released decisions regarding the interplay between environmental law and the federal tax code.
In the case of Green Gas Delaware Statutory Trust, et al. v. Commissioner of IRS. The Court of Appeals for the District of Columbia Circuit affirmed the ruling of the Tax Court that the appellants could not claim federal tax credits connected with the generation and sale of “landfill gas” that is produced from decomposing landfill waste. Chief Judge Garland’s opinion begins with
Rumpelstiltskin could spin straw into gold. Rumpelstiltskin, Inc. thought it could do the same for garbage, spinning it into tax credits. The Commissioner of the Internal Revenue Service disagreed. So did the Tax Court. So do we.
2018 Update to EPA’s “Superfund Task Force Report”
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The U.S. Environmental Protection Agency (EPA) recently released its Superfund Task Force Recommendations 2018 Update (the Update). The Superfund Task Force was established by former EPA Administrator Scott Pruitt to “provide recommendations on an expedited timeframe on how the agency can restructure the cleanup process, realign incentives of all involved parties to promote expeditious remediation, reduce the burden on cooperating parties, incentivize parties to remediate sites, encourage private investment in cleanups of sites and promote the revitalization of properties across the country.” Over the years, thousands of sites have been listed on EPA’s National Priority List (NPL) of Superfund sites, but the process by which listed sites are cleaned up and finally removed from the NPL has been agonizingly slow. The process is governed by the National Contingency Plan rules. The Update states that, as of July 3, 2018, there are 1,346 sites listed on the NPL, and overall, 399 sites have been removed from the NPL.