On August 25, the U.S. Court of Appeals for the Tenth Circuit, in an unpublished opinion, affirmed the lower court’s ruling that the cost to remediate environmental contamination at a ski resort was subject to a contractual exclusion in the facility’s commercial general liability insurance policy. The case is Taos Ski Valley, Inc., v. Nova Casualty Company.
On October 13, the U.S. Court of Appeals for the Fourth Circuit decided the case of Siena Corporation v. Mayor and City Council of Rockville, Maryland, et al. The Court of Appeals affirmed the lower court’s decision to dismiss the plaintiff’s complaint that an amendment to Rockville’s “Light Industrial” municipal zoning ordinance was unconstitutional as being violative of the due process and equal protection guarantees of the Fourteenth Amendment to the Constitution. The ordinance made it impossible for Siena Corporation to build on its property a large self-storage facility within 250 feet of a public school.
California has taken a significant step in aligning its procurement expenditures with its vanguard climate change policy. On October 15, 2017, Governor Jerry Brown signed A.B. 262, the Buy Clean California Act (Chapter 816, Statutes of 2017). Beginning in 2019, the state’s Department of General Services (DGS) is to establish maximum carbon emission levels for “eligible building materials,” consisting of carbon steel rebar, flat glass, mineral wool board insulation and structural steel. At that time, state agencies may only award contracts to bidders certifying that their sources of these materials meet the standard.
This legislation was supported by manufacturers that have invested heavily in emission reduction processes, along with labor unions and environmental organizations. The Brazilian firm Gerdau Steel, having made expensive upgrades to the only California steel mill and its other facilities, greeted the signing by saying the act will “level the playing field” against sources that have greater emissions from manufacturing and transportation.
Last week, the U.S. Supreme Court heard oral argument in two significant cases: Nat’l Assoc. of Mfr. v. Dep’t of Defense and Jesner v. Arab Bank, PLC.
In National Association of Manufacturers, the Court is being asked to determine which court is authorized to review the recent redefinition of “Waters of the United States” promulgated by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps of Engineers). The relevant statute is 33 U.S.C. § 1369(b)(1) and (2), and it is notorious for its complex provisions. If jurisdiction lies in the federal district courts, then many lawsuits are likely to be filed in courts throughout the country, creating uncertainty and stretching out the effective date of the new rule. If jurisdiction is limited to the courts of appeal, this should reduce the cost of litigation, but may be contrary to other provisions of the Clean Water Act (CWA).
On October 3, in the case of Boerschig v. Trans-Pecos Pipeline, LLC, the U.S. Court of Appeals for the Fifth Circuit affirmed the lower court’s denial of request for a preliminary injunction to enjoin Texas state condemnation proceedings initiated by the pipeline defendant because, it was argued, these proceedings violated the Due Process Clause of the U.S. Constitution. The plaintiff landowner argued that the Texas law illegally delegated condemnation authority to a private party (the pipeline company), and that the process failed to provide an opportunity for the plaintiff to participate in a “predeprivation hearing” where the condemnation can be challenged. The Fifth Circuit concluded that the plaintiff was unable to establish a likelihood of success on the merit, a sine qua non for obtaining a preliminary injunction.
On March 22, during the U.S. Supreme Court’s 2015 Term, the Court issued a unanimous ruling that the Ninth Circuit’s interpretation of the scope of the National Park Service’s authority to ban the use of a hovercraft on Alaska’s Nation River within the Yukon-Charley Rivers National Preserve was erroneous in that it failed to recognize that the Alaska National Interests Lands Conservation Act (ANILCA) had the effect of carving out an exception for the use of hovercraft in these waters that was permitted by Alaska. The petitioner, John Sturgeon, was warned by Park Service Rangers that his use of the hovercraft within the boundaries of the Yukon-Charley preserve was prohibited, and that he was committing a crime by doing so. After reviewing ANILCA and the different laws and accommodations that were enacted to facilitate Alaska’s entry into the Union, the Court concluded that the law “repeatedly recognizes that Alaska is different,” and the judgment of the Ninth Circuit was vacated, and remanded for further proceedings. This was the only issue decided by the Court, whose decision is reported as Sturgeon v. Frost.
Title III of the Americans With Disabilities Act imposes a proactive duty on businesses subject to the ADA to remove architectural barriers and other obstacles that impede disabled persons’ access to an existing public accommodation. For years, lawmakers have grappled with how to protect disabled persons and, at the same time, not overburden those subject to the ADA. The House of Representatives’ so-called ADA Education and Reform Act of 2017 (H.R. 620) introduced earlier this year appears to be gaining some momentum after the House Judiciary Committee voted to advance it on September 7. Disabled persons interest groups are opposed to this bill, contending that it would chill businesses from being proactive about ensuring that disabled persons have access to their facilities.
In contrast, for years, businesses subject to the ADA have struggled to comply with the ADA and to contend with what they perceive as meritless complaints filed by drive-by plaintiffs alleging ADA violations without ever encountering a barrier to access. For new construction subject to the ADA, an occupancy permit issued by a local jurisdiction (or a building inspection), although not required to ensure ADA compliance, will often require review of the project for compliance with the accessibility requirements. Ensuring compliance with the access requirements for existing developments and redevelopments in many cases poses greater challenges because, as originally constructed, the structure may not have design features that are conducive to ADA compliance, requiring extraordinary expenditures to bring them into compliance.
On September 27, the U.S. Court of Appeals for the Fifth Circuit issued its long-awaited opinion in the case of U.S. v. Moss, et al. The Fifth Circuit affirmed the District Court’s ruling that the Outer Continental Shelf Lands Act (OCSLA) regulations do not apply to the appellees.
On September 14, 2017, the Council on Environmental Quality (CEQ), which oversees compliance with the National Environmental Policy Act (NEPA) by federal agencies, announced a list of planned actions to implement President Trump’s Executive Order (EO) on streamlining federal environmental reviews and approvals.
On September 15, the U.S. Court of Appeals for the First Circuit released a significant Oil Pollution Act (OPA) ruling. The case is Ironshore Specialty Insurance Company v. U.S., et al. The Court of Appeals affirmed the District Court’s decision that neither the U.S. nor American Overseas Marine Company, LLC (AMSEA) , a contractor that provided specified services to the U.S. Navy in connection with the operation of “the FISHER,” a government-owned transport vessel and vehicle cargo ship, were liable under the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701-2761 (OPA), for a fuel oil discharge. However, Ironshore Specialty Insurance Company (Ironshore), BSR’s insurer, negligence claims against the U.S. (but not AMSEA) were remanded to the District Court for further proceedings.
