Categories
Legal news Uncategorized

A Court-Side Seat: A Poultry Defense, a Houston Highway and a CERCLA Consent Decree that Won’t Budge

February saw the typical array of important environmental decisions and federal regulatory offenses.
THE FEDERAL COURTS
U.S. Court of Appeals for the District of Columbia
Luminant Generation v. EPA
The court will soon likely be grappling with a difficult place case governed by the Clean Air Act (42 USC Section 7607(b)). In 2013the U.S. Court of Appeals for the Fifth Circuit decided the case of Luminant Generation v. EPA (714 F. 3d 841), in which the court declared the affirmative defenses which were made part of the Texas State Implementation Plan (SIP) and then applied to particular unpermitted emissions from controlled sources during periods of startup, shutdown or malfunction. These defenses have been challenged from the Fifth Circuit and have been rejected. On the national stage, EPA has been involved in litigation over those affirmative defenses and recently excluded from a”SIP Call” that the Texas application, which was pushed out. This EPA decision is being challenged in the DC Circuit (see Case amount 20-1115),with the State of Texas arguing as a intervenor that any issues involving Texas belong into the Fifth Circuit, and not from the DC Circuit since the Act allows regional issues to be decided at the regional federal courts.
Enbridge plans to replace an present pipeline using a brand new”line 3,” transport oil from Canada to Wisconsin. The plaintiffs sought a preliminary injunction of the foundation that the Corps had not sufficiently considered the effects of potential oil spills. After reviewing the record, the court stated that the plaintiffs had not met their significant burden to show that a preliminary injunction of a job near completion was justified.

On February 17, 2021, the court decided that this complicated and expensive CERCLA (or Superfund) case. The appellants here (such as Union Oil of California) find themselves embroiled in a longstanding CERCLA cost recovery and job dispute, and sought to undo the lower court’s approval of a Consent Decree which will largely bring this dispute to a conclusion. A drum recycling centre was situated in the CERCLA site, situated near North Providence, Rhode Island. Other industrial activities included chemical manufacturingand concentrations of dioxin have been found in a nearby river, so generating a fish advisory. The court affirmed the lower court’s ruling, finding that the judge had clearly mastered the intricate details in this scenario, and some arguments to the result that the court had abused its discretionary powers had been rejected. The court’s conclusion, reviewing the evidence and EPA’s processes, is exceptional.
U.S. District Court for the Middle District of Pennsylvania
Lower Susquehanna Riverkeeper, et al, v. Keystone Protein Company
On February 18, 2021, the court ruled with this Clean Water Act Citizens Suit in which the plaintiffs contended that the suspect, a poultry waste processing centre, had broken its state NPDES permit many occasions by surpassing the plant’s license limits for nitrogen. The defendant claimed that the case ought to be ignored because it’s entered into Consent Orders with Pennsylvania DEP from 2012 and 2017 that require the defendant to substitute its wastewater treatment facility by June 1, 2021. The court rejected this defensebased on the conditions of the federal Clean Water Act (CWA)–since the state equivalent to the CWA, the Pennsylvania Clean Steams Act, wasn’t”roughly comparable” to the Clean Water Act. The court declared that this issue hasn’t been decided by the Third Circuit Court of Appeals.
FEDERAL REGULATORY NOTICES
U.S. Department of Transportation
On February 9, 2021, the DOT advised the people that the licenses required to begin work over the North Houston Highway Improvement Project have been at hand, and any petitions for judicial review must be filed within 150 days of the date of the publication of the note. This is going to be a significant project, involving the replacement of a significant street cutting through the City of Houston and likely displacing many homes and businesses. (View 86 FR 8828.)
Department of the Interior
Also on February 9, 2021, the Department of the Interior issued a note delaying the effective day of rules which will greatly update the present agency enforcement policy regarding the”taking” of migratory birds. (View 86 FR 8715.) The final rule was released on January 7, 2021, and the effective date has been extended until March 8, 2021. The public is invited to submit comments regarding whether the effective date ought to be extended beyond this date. The rule is controversial, so its destiny could be uncertain.
(View 86 FR 8845.) A Presidential task force, to be headed by the Director of Science and Technology Strategy, can set the parameters of the policy for federal agencies. The thrust of the directive seems to incorporate a few of the concepts of a current EPA regulation on scientific evidence, such as the requirement for peer evaluation.
EPA
On February 12, 2021, EPA notified the public that EPA Region 6 has granted the request of the State of Texas that its delegated Clean Water Act NPDES regulatory authority has been augmented to include regulating discharges from oil and gas installations (mainly produced water discharges) in the State of Texas. EPA will maintain authority over offshore oil and gas discharges. (View 86 FR 9332.)
OSHA
On February 16, 2021, the Occupational Safety and Health Administration (OSHA) released a notice of proposed rulemaking, inviting comments on a proposal to modify the existing Hazardous Communication Standard to grapple with the UN’s”harmonized system of classification and labelling of chemicals.” This is a really long note, over 250 pages of Federal Register text. Comments are due by April 18, 2021. (View 86 FR 9576.)
RELATED ARTICLES
A Court-Side Seat: Coal-Fired Limitations, the Hunt for a Venue Climate Change and New Agency Rules that May or May Not Stick About …

Categories
Legal news Uncategorized

COVID and Commercial Lease Bankruptcies

Real Estate partner Christian Buerger and Insolvency & Restructuring partner Hugh McDonald discuss COVID’s impact on commercial rentals and an overview of the bankruptcy process the latest softball Lessons Series presentation.…

Categories
Legal news Uncategorized

Smart Technology in Commercial Real Estate

“Hey Siri…””Alexa…””Alright Google…” These are simply a few of the buzzwords and phrases that have entered day-to-day vocabulary as a result of the explosion of smart technology. Internet of Things (IoT) apparatus are present in our cars, in our workplaces and on our own bodies. But nowhere is smart technology more widespread than in our houses. The collection of services that can be found coupled with the rising number of organizations and service providers eager to innovate, ought to just increase this technology’s market share in the next several years.
In the United States, at least a third of families reside in rented units, and also one of those below 30 years older, this amount is almost 50 percent. Smart home technology is important to this younger set of renters, as a single research company decided that millennials will be prepared to cover 20 percent more per month for components that contain such technology.
Home developers, managers and owners will need to take notice. There are not just significant added advantages to deploying this technology in structures, but also significant concerns to work through. Crafting a thorough smart technology program at the outset will help businesses reap the benefits while evading possible pitfalls.
Advantages of IoT around the Homefront
Sharpening those Selling Points: whenever the big-ticket items such as square footage, price and place are relatively equal, it is the smaller perks that help customers make a choice. Tech that makes utilizing the space simpler is a strong selling point. Automated locks, smart safety programs, smart speakers, programmable thermostats and other gadgets make the day-to-day existence in the area that considerably more seamless. Thoughtful deployment of those technologies indicates to a customer who the landlord is considering the needs of renters and is dedicated to continuing innovation.
Reducing Prices of Property Management: The advantages of smart technology do not just flow into the end users. Tired of renters leaving lights on in common areas? Smart lighting may make up to your forgetfulness and cut down on unnecessary electricity usage. Consider an update to some smart HVAC system for long-term savings. And you’ll find far more savings to be needed formerly data analytics are leveraged. Smart technology’s set of use information at a home can help recognize trends and adjust resource deployment accordingly.
Supplying Pandemic-Proofing Assist: While the investments made in smart technology will be useful in a post-COVID-19 planet, they might also bring reassurance as the pandemic rages. Automating high-touch surfaces (thermostat dials, ingress and egress points) and lessening the demand for close proximity interactions between staff and tenants will improve health and safety measures. The wellbeing of building occupants may be aided by using those smart technologies.
Considerations for Strategic Deployment of IoT
Understanding the Needs: The test period is critical. Outfitting an entire building is a significant investment, and also different technology options will need to be thought about. Big brands have crafted rival offerings–how can a house evaluate these solutions? Can a specific solution be requested as a trial? Property developers and managers should not dismiss the worth of this RFP process and creating the vendors compete for company. As part of this evaluation, think about the budget for your job and the technical specifications that are most significant to this smart technology plan (e.g., the number of users can be linked to a single account, what safety protections are in place, what is the device’s scope, etc.). The latticework of standards may be different building to building or perhaps for different usage cases round floors of the identical building. It’s not sufficient to state the property employs smart technology; it has to be the sort of smart the area needs. Otherwise, it is just a habit that customers may see through.
Smarter Contracting through LeverageAs a business level customer, a commercial real estate company may be in a position to leverage its purchasing power into more favorable contractual terms. This may include the seller committing to greater service levels (keeping it accountable for its technology’s functionality ), lower prices given the bulk purchase, and more powerful indemnification provisions and guarantees (protecting the company in the event of seller mistake ). This isn’t an exhaustive listing, and the larger the cost, the greater leverage there’s.
Maintaining Privacy Concerns in the Forefront: You will find a plethora of privacy concerns which include deploying smart technology, both from a regulatory and customer relationship standpoint. The threshold issue is, how much data will the development or property management company be accessing?
On the other hand, exactly how is the technology explained to tenants? Naturally, the technology’s benefits are a selling point, however, is access to this data addressed? Perhaps consumers will not care their preferred temperature range is known. However, what about a safety camera footage? Consider consumer comfort and craft data retention policies and policies for how employees access this data. Crucially, an individual has to craft a safety policy that offers robust protections for any data that is saved.
On the side, what regulations and laws can influence the deployment of the smart technology? Are there laws about data retention or collection of biometric info? Analysis has to be done for each building and every technology for each jurisdiction. What’s fine in New York for industrial tenants might not be okay in a California apartment building. Don’t anticipate the compliance framework to remain static–in the past year alone there was increased legislative action, and that trend will continue. Companies will need to know about constraints at the outset (and track changes in the regulatory arena ) so that they could design an effective and lawful smart tech strategy.
Regardless of the perceived advantages or worries, property owners may be certain of one thing: the typical”IoT IQ” of home and business properties will probably continue to grow, as will the research expectations of customers living and working in those areas. Even as compliance frameworks older and privacy issues are recognized and defused, technology, inevitably, will remain at least a few decades ahead. In future posts, we’ll delve more deeply into what this implies for property owners hoping to completely gain from smarter houses while keeping an eye out for your upcoming technological wrinkle likely to arrive at the doorstep.…

Categories
Legal news Uncategorized

The Real Estate Market – Warehouses, Ports and Addition by Subdivision

All of us know the real estate sector took a beating throughout the least year or so, however, it wasn’t all doom and gloom. In particular, you stay fairly busy in some specific segments of the real estate fund market, mainly for lenders but such as on a borrower-side trade in November that at the time was the biggest hotel sale in funding because the onset of COVID-19 in the first quarter of 2020. Can you tell us about your expertise in a few of those flourishing areas of the housing market?
Steve Hamilton: Sure. As we know, 2020 was a little bit of a dumpster fire for the real estate business, but there were several highlights also there were some places which did boom. We saw a great deal of action, at least at the construction loan sector of everything I do, between industrial buildings and warehouses such as distribution facilities. We saw numerous retail jobs which ordinarily people would believe were fighting during stay-at-home orders, even throughout COVID, but a few developers and retailers really found opportunities there. An instance –at many of shopping centers where you had the likes of Toys-R-Us along with other insolvent firms, there was space which was available and you saw Amazon, as an instance, come in fairly hard in the past half of the year rebranding those shopping facilities or those stores with areas like their four-star stores where they bring goods direct to customers. Instead of simply having them delivered to their front door they’d put some of the most popular things which are trending on their online portals into brick-and-mortar where folks want immediate gratification. They wish to pick this up. They can’t wait a day or 2 for Prime. They wish to go get it today. And they’ve gone beyond Whole Foods. There are currently Amazon-themed grocery stores. So that was kind of a new thing which we watched –not just construction loans but also a retooling of existing retail facilities around this marquis product since the one thing which lenders definitely like is consistency. What we saw during the pandemic was there are certain retail establishments that people need regardless of what is going on. Grocery stores and the Targets of earth are the types of shops that people still have to visit once or twice every week to pick up the essentials. Therefore any retail facilities which are offered by a grocery store–people are super-great credit for the lenders and they flock to people.
You mentioned the funding for the resort up in Orange County I was involved . This was an opportunity that one of our borrowers had to buy a marquis merchandise at a discount since the resort had been shuttered for some time or was at least under restricted use, also with the right direction and eyesight, they view that merchandise or home as being a boon, that they are going to redevelop it and it is going to be a marquis resort in the near future when they finish their improvements. So there are some bright spots out there in the event that you look hard enough; you just need to find the ideal patrons doing the right kind of development. These large industrial buildings which are being used for distribution facilities for the likes of Amazon ports and such–that is definitely something which the lenders are searching for, and we did quite a few loans in the second half last year and the start part of 2021 for those types of products.
Simon: Individuals are certainly significant contrasts to some other subsectors in real estate for example mom-and-pop retail, specific big box stores, and strip malls which have taken huge hits. I understand there has also been a sector and demographic change due to, or accelerated by, the pandemic–creating opportunities for new house construction in addition to for apartments and midsize and more compact cities in certain areas of the country. How do you tell us all about those opportunities?
Hamilton: That is another thing which was a little surprising at the latter half 2020 and today into 2021–there’s a flourishing flat market out there. A great deal of developers and lenders alike are developing new turnkey, luxury apartments, many in that which we call secondary cities or outside the primary urban locations. We’ve closed on multiple apartment loans in the last six months where you have millennials who are visiting the huge cities. With COVID, they are not tied to the large urban centers they were when they had to commute into work daily, so you’ve noticed a motion where these apartment projects–particularly in the western states where I primarily do my deals–they’ve become quite appealing. Moreover, I’ve seen a variety of new subdivisions popping up along with subdivision loans. The housing market is quite hot. You’ve people, again, fleeing in the urban centers and searching for a house to themselves where they are not sharing an elevator or shared amenities with people and they need to space out. They want a house with a third bedroom or a fourth bedroom or even a fifth bedroom or whatever it can be to be used as a home office. So we’ve seen a variety of fresh subdivision loans come online in the last six weeks, and anyone who has tracked home prices throughout the pandemic, it definitely does not monitor the despair and gloom that people have called. In actuality, at least here in the West and I believe in other major metropolitan areas, the housing market is going crazy. Lenders see that there is this trip into the suburbs along with the values are there, along with the lenders will always loan at which the value is. I see that process continuing today that the genie is out of the jar –many people are utilized to operating from home and will continue to want to accomplish this. Having that house office and much more room to breathe is definitely a thing that people will be searching for.
Simon: I’d love to return to something you mentioned previously regarding large distribution centers, warehouses, and port cities or transportation hubs. I suppose companies can check at those as a means of lowering operating expenses when they can take advantage of the market in that way, and it seems like a possible win for sure areas which need to shore up their tax base in addition to provide jobs and attract new residents. What are your ideas on this subject of growth?
The interface of Jacksonville has been expanding over the last ten years, along with the surrounding areas in Jacksonville that’s the biggest metropolitan region within the USA, has risen exponentially during that time, therefore there are opportunities there. Since the e-commerce world grows, the distribution facilities are getting increasingly more important for those e-retailers. They are interested in being able to get their merchandise off the boat and at a distribution center and quickly to the end user so that they can meet their one-day shipping or two-day shipping or in some instances six-hour shipping, and thus having proximity to ports–whether it’s Jacksonville, New Haven, Long Beach–with proximity to those ports and also to major distribution hubs along with the highway system will be critical. Along with the Biden administration is pledging two billion bucks. That is going to be a enormous sum of money going toward ports and bridges and expanding what is already there and making it modern, and I believe the banks will follow that. If the programmers are constructing warehouse facilities, cold storage, then what are you, to serve people e-retailers, the lenders will follow along with love to see credit when if you have the Amazons or the Wal-Marts of the planet putting in distribution facilities –that is blue chip. That is gold star. The lenders follow that. The programmers seek those tenants out, and now I definitely see those port areas being farther siphoned and moving toward a future where there’ll be increasingly more distribution facilities in those areas to be able to meet the requirements of the customers who currently have a slightly insatiable desire to get things delivered at a minute’s notice. I definitely see that trend continuing post-COVID.
Simon: It seems like we’ve got a subject for a future episode–that the tie-in of real estate and infrastructure. Thanks so much for this look at a few of the bright spots in what was an otherwise gloomy season for new real estate projects and funding. …