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On January 29, the U.S. Court of Appeals for the Fifth Circuit, in an interesting unpublished ruling, affirmed the District Court’s denial of a motion to vacate an arbitration order of the Civilian Board of Contract Appeals (Board). The Board rejected an appeal made by the Louisiana Department of Natural Resources (LDNR) objecting to a determination of the Federal Emergency Management Agency (FEMA) that millions of dollars in federal funds should be made available for the restoration of 16 barrier islands off the coast of Louisiana that suffered substantial damage from Hurricanes Rita and Katrina in 2005. The case is Louisiana Department of Natural Resources through the Coastal Protection Restoration Authority v. FEMA.

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Today, our colleagues Mark Elliott and Kevin Ashe published their Alert titled Getting the Lead Out of California Schools.  The Alert discusses California’s new water supply permit requirements and the State Water Board’s Drinking Water for Schools Grant Program, which allocates up to $9.5M in funding to improve access to and the quality of public school drinking water. Key takeaways include:

  • Water purveyors serving K-12 schools must now collect & analyze school’s samples from water fountains and faucets, if requested by school or district.
  • In November 2017, the State Water Board began accepting grant applications to fund projects that improve drinking water quality in public schools.
  • Grants. which may be used toward a number of eligible projects and/or interim supplies, will be awarded until the $9.5M in fund runs out or June 30, 2019, whichever occurs first.

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Today, our colleagues Kevin Ashe, and Eric Moorman posted their Alert titled Natural Resources Agency Launches CEQA Guidelines Rulemaking. The Alert  discusses the California Natural Resources Agency’s issuances of a notice of proposed rulemaking (NPRM) on January 26, 2018. The NPRM proposes a comprehensive update to the California Environmental Quality Act (CEQA) Guidelines, Title 14, Division 6, Chapter 3 of the California Code of Regulations, to reflect recent legislative changes to CEQA, clarify certain portions of the existing CEQA Guidelines, and update the CEQA Guidelines consistent with recent court decisions.” Key takeaways include:

  • The proposed CEQA Guidelines amendments are the most comprehensive update since 1998.
  • The proposal would also adopt the Vehicle-Miles-Traveled (VMT) methodology for transportation impact analysis.
  • Comments on the proposed CEQA Guidelines are due to the Natural Resources Agency by March 15, 2018.

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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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On January 24, the U.S. Court of Appeals for the First Circuit decided the case of Conservation Law Foundation, Inc., v. Pruitt. The Pruitt case involves a consolidated appeal from the decisions of the U.S. District Courts in Massachusetts and Rhode Island dismissing the Clean Water Act (CWA) Citizen Suits filed against the Environmental Protection Agency (EPA) and its administrator, Scott Pruitt. These cases involve EPA’s approval of total maximum daily loads (TMDLs) which establish the maximum amount of a particular pollutant that can be released by storm water discharges into a designated body of water located in Massachusetts and Rhode Island.

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On January 24, the U.S. Court of Appeals for the Eleventh Circuit dismissed an appeal of a decision by the U.S. District Court for the Southern District of Georgia that denied a preliminary injunction that would have enjoined the enforcement of the Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ redefinition of the regulatory term, “Waters of the United States” (the WOTUS rule). This action swiftly followed the Supreme Court’s unanimous ruling in National Association of Manufacturers v. Department of Defense, which held that the initial appeal of the WOTUS rule cannot proceed in the federal Courts of Appeals . The decision of the lower court was vacated and remanded for further proceedings in light of the National Association of Manufacturers decision. More such rulings are likely to follow soon. This case is State of Georgia, et al., v. Pruitt.

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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 ›

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Today, our colleagues Michael Rizzo, Glenn Sweat and John Jensen published their Alert titled The 2018 Government Shutdown – How Can Contractors Preserve Rights? Takeways from the Alert include:

  • Communicate with your Contracting Officers early and often regarding approvals and responses to inquiries.
  • Analyze current contracts. Assess contract funding levels, determine which contracts which must continue, and become familiar with Suspension of Work, Stop Work, and Government Delay of Work clauses.
  • Minimize financial damage and maintain continuity of operations and high employee morale.

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Today, my colleague Anthony Cavender and I published our Alert titled Congress Expands the Oil Pollution Act to Reach Spills Originating Outside of the U.S.  In it we discuss the Foreign Spill Protection Act of 2017 and key takeaways from this new law:

  • New law establishes oil spill liability in the U.S. for foreign-based offshore exploration and production facilities.
  • Owners and operators of existing or planned foreign offshore exploration and production facilities must consider potential liability for spills reaching U.S. waters.
  • “Responsible parties” liable for damages and penalties include owners and operators of foreign-based offshore and abandoned oil facilities.