The Inflation Reduction Act (IRA) (Pub. L. 117-169) was signed into law on August 16, 2022. The IRA includes significant tax provisions, as well as nearly US$370 billion in federal funding for clean energy and environmental projects in the form of competitive grants, cooperative agreements, and loan programs. Notably, the IRA provides for a new Hydrogen Production Tax Credit and incentives for hydrogen vehicle production and adoption. The credit builds upon previous investments in clean hydrogen in the Infrastructure Investment and Jobs Act (IIJA), including funding for Hydrogen Hubs.
CFIUS Expands Reach of its Covered Real Estate Authority with the Addition of Eight New “Military Installations”
As our colleagues recently published on our Trade Practitioner blog, on May 5, 2023, the U.S. Department of Treasury, the agency tasked with administering the Committee on Foreign Investment in the United States (CFIUS), published a Proposed Rule (88 Fed. Reg. 29003) expanding the list of “military installations” that could trigger CFIUS authority over certain real estate transactions in 31 C.F.R. Part 802 (“Part 802”). The expansion would give CFIUS authority over certain transactions by foreign persons involving real restate located with 99 miles of eight facilities located in Arizona, California, Iowa, North Dakota, South Dakota, and Texas.
Building on the Implementation of the Bipartisan Infrastructure Law, aka Infrastructure Investment and Jobs Act
The Bipartisan Infrastructure Law (BIL) was enacted on November 15, 2021, yet the funding process is dynamic and evolving weekly. In fact, some programs have yet to be established. Unlike the COVID-relief packages in recent years, through which funding was allocated in one or two tranches and primarily through existing programs, the BIL – originally titled the Infrastructure Investment and Jobs Act (IIJA) – authorized $1.2 trillion for transportation and infrastructure spending over five years, with $550 billion of that amount going towards new programs and over $100 billion in competitive grant funding. These investments span far beyond traditional surface transportation funding, such as $65 billion in broadband expansion, $15 billion for lead service line replacement, $5 billion to clean up federal superfund sites, and $1 billion to address cybersecurity threats.
Evolution of State of the Art Airports and the Role of Public Private Partnerships
Walking through LaGuardia Airport in 2023, you might forget that just a few years ago the terminals were woefully out of date. Featuring leaky roofs and cramped waiting areas, the Wall Street Journal commented that the old terminal B at LaGuardia was “possibly the worst major airport in the world.” To combat its woeful reputation, in 2015, the Port Authority of New York and New Jersey (the “Port Authority”) unveiled a Vision Plan for its redevelopment that included two new state-of-the-art terminals and significant public and private cooperation. Eight years and $8 billion later, LaGuardia now gleams as a beacon of modernity. In 2023, LaGuardia Airport’s Terminal B was named the world’s best new terminal and achieved the highest global 5-Star Airport Terminal Rating from Skytrax, the international transport rating organization.
CBP Issues Another Offshore Wind Scour Protection Ruling
US Customs and Border Protection (CBP) expanded its body of offshore wind energy rulings and held that the Jones Act did not prohibit a foreign flagged vessel from transporting and installing scour protection (i.e. rocks) on the bottom of the Outer Continental Shelf (OCS) during construction of wind turbine generator foundations (WTG). See HQ H327710. Read full insight here.
NLRB Issues Flurry of Blockbuster End-of-Year Decisions (With More to Come?) (US)
Over the course of one week in mid-December, the Democrat-appointed majority members of the National Labor Relations Board (NLRB or the Board) significantly altered the labor law landscape for employers by issuing a flurry of high visibility, much anticipated decisions. Among other things, these decisions will make it easier for unions to organize employees and expose employers to categories of damages previously not available for labor law violations. We address each of the Board’s recent decisions below, as well as highlight other cases that may be decided soon by the NLRB, along with other notable developments at the agency.
Expanded Remedies Now Available for Employer Unfair Labor Practice Violations
Federal Rule Modifies Environmental Due Diligence Standard for Real Estate Transactions
A key federal rule was recently amended that will impact environmental due diligence in real estate transactions. Real estate developers, lenders, and others are working to adjust their approaches to conform to the new American Society for Testing and Materials (“ASTM”) standard E1527-21. The US Environmental Protection Agency finalized a rule providing that this new standard may be used to satisfy the All Appropriate Inquiries rule, a key step in pursuing a shield against certain environmental liabilities. In this article, published in the Columbus Bar Lawyers Quarterly, Squire Patton Boggs attorney Rees Alexander evaluates the new standard and discusses the differences between the new standard and its predecessor. He discusses advantages, obligations, and practical considerations when transitioning to the new approach.
Public-Private Partnerships in 2023’s Economic Environment
As we end the first quarter of 2023, it’s safe to say no one could have anticipated the myriad of challenges that now face public-private partnership (“P3”) deals. Inflation continues unabated, while interest rates continue to rise. Supply chains are complicated and tangled, and the high-profile closure of Silicon Valley Bank and the two-stage rescue of First Republic Bank has rattled regulated and unregulated lenders creating a very cautious lending environment.
President Biden’s First Veto of the Congress’s Bipartisan Joint Resolution
President Biden recently used his first veto to preserve the Department of Labor rule permitting ERISA retirement plan fiduciaries to consider ESG factors in their clients’ retirement investment portfolios so long as such considerations are relevant to a risk and return analysis. 29 C.F.R. § 2550.404a-1(b)(4) (2022). The Department of Labor’s (DOL) rule, titled “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights,” went into effect on January 30, 2023. The rule replaced a 2020 rule issued by the Trump administration, which was seen as limiting the authority of ERISA fiduciaries to consider ESG factors in selecting retirement investment plans by focusing on “pecuniary factors.” 29 C.F.R. § 2550.404a-1(c)(1) (2020).
CBP Issues Ruling on Offshore Wind Electrical Cable Installation
US Customs and Border Protection (CBP) recently held that a foreign flagged vessel could install electric transmission cables without violating the coastwise laws. This decision reflects a growing body of CBP rulings that address whether a Jones Act compliant vessel is required for specific aspects of an offshore wind project.