Gravel2Gravel, a Pillsbury blog, brings you breaking news and analysis covering a wide range of business and legal issues affecting the construction industry. It is Published by Construction Law Attorneys Pillsbury Winthrop Shaw Pittman LLP.
Most companies have been involved in a situation where they want to end their relationship with another company, or with an employee, and to permanently terminate their mutual obligations (e.g., a settlement agreement resolving end-of-project litigation). In 1992, a California Court of Appeals, in Winet v. Price, confirmed that upholding general releases is “in harmony… with a beneficial principle of contract law: that general releases can be so constructed as to be completely enforceable.”
On February 11, the U.S. Court of Appeals for the Ninth Circuit affirmed the District Court’s decision to grant a motion for summary judgment disposing of a complaint that the decision of the Secretary of Homeland Security (DHS) to expedite construction of border barriers in the San Diego and Calexico, CA border crossing areas was inconsistent with the Secretary’s powers under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as well as the National Environmental Policy Act (NEPA) and other authorities. The case is In Re Border Infrastructure Environmental Litigation (Center for Biological Diversity, et al., v. U.S. Department of Homeland Security, et al.).
“As a threshold matter, we have jurisdiction to consider the ‘predicate legal question’ of whether IIRIRA authorizes the contested projects. Because the projects are statutorily authorized and DHS has waived the environmental laws California and the environmental groups seek to enforce, we affirm the district court’s grant of summary judgment to DHS.”
On February 8, the U.S. District Court for the District of Columbia issued its latest ruling in a case which challenges the President’s January 30, 2017 Executive Order constraining the ability of federal agencies to issue new regulations and the Office of Management and Budget’s (OMB) implementation of that Order. The case is Public Citizen, Inc., et al. v. Donald J. Trump, President of the United States, et al. The District Court has not yet been convinced that the petitioning plaintiffs have standing to make this challenge to this Order, and its mandate that two existing rules be eliminated for each new rule promulgated.
A Resolution has been propsed to the House for consideration that would recognize the Federal Government’s duty “to create a Green New Deal.” It sets forth a very ambitious 10-year program to mobilize and transform every aspect of American life to combat the threats of climate change by transitioning to an economy based upon 100% clean and renewable energy.
On February 4, the U.S. District Court for the District of Columbia held, in a Clean Air Act (CAA) Citizen Suit, that the U.S. Chemical and Safety Hazard Board (Board), an independent federal agency, has violated the Administrative Procedure Act (APA) by failing to promulgate the accidental release reporting rules required by Section 112(r )(6)( c )(iii) of the CAA. The Board was established by the 1990 Clean Air Act Amendments of 1990, but has failed in all these years to issue these rules. The case is Air Alliance Houston, et al., v. U.S. Chem. and Safety Hazard Investigation Bd.
As relief, the District Court directed the Board “to promulgate reporting regulations within 12 months of the date of the District Court’s order.”
President Trump signed an Executive Order yesterday January 31, calling on executive branch departments and agencies to encourage recipients of defined types of new federal awards to use cement, iron, steel, aluminum and certain manufactured products produced in the United States. The order builds on prior authority (Executive Order 13788 (April 18, 2017)) focused on procurements by the departments and agencies themselves. The new order extends the “Buy American” conversation to private parties that receive new support, to promote the use of domestic sources in their onward purchases. It addresses programs that receive Federal financial assistance, 2 C.F.R. § 200.40, for creation, maintenance or repair of infrastructure projects.
On January 31, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit issued a unanimous ruling in a commercial speech case, American Beverage Assoc., et al., v. City and County of San Francisco. The Panel held that the lower court’s denial of a preliminary injunction requested by the plaintiffs must be reversed, and the matter remanded to the lower court because the plaintiffs were likely to succeed on the merits of their claim that a 2015 San Francisco city ordinance requiring specified health warnings on a host of sugar-sweetened drinks (“WARNING: Drinking beverages with added sugars(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.”) violated their First Amendment rights.
On January 25, the Texas Supreme Court issued a unanimous ruling in the case of Anadarko Petroleum Corp. and Anadarko E&P Co. v. Houston Cas. Co., et al., characterized as an “interlocutory permissive appeal,” reversing the decision of the U.S. Court of Appeals for the Ninth Circuit, sitting in Beaumont, TX, regarding Anadarko’s insurers’ obligation to pay a significant amount of Anadarko’s legal defense costs that resulted from its liability in the Deepwater Horizon oil spill.
“[W]e hold that the Joint Venture Provision does not limit the Underwriters’ liability for Anadarko’s defense expenses insured under section III.”