House Passes $78 Billion Tax Bill that Includes Affordable Housing Help

Houses in various stages of construction.

How long is something called a “crisis” before it just becomes the “new normal?”  It is apparent there has been an affordable housing crisis in the United States for decades.  One way that the federal government has addressed this is by motivating developers with the 9% Low Income Housing Tax Credit (the “9% LIHTC”) and the 4% Low Income Housing Tax Credit (the “4% LIHTC”) that a developer can receive for building a “qualified low-income building” described under Section 42 of the Internal Revenue Code of 1986, as amended (the “Code”). 

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The End of “Chevron” or Its Rebirth?

Fishermen in the small town of Cape May, New Jersey, are at the epicenter of a legal challenge that could reshape the landscape of agency authority. The fishermen are challenging the entrenched “Chevron” doctrine, which for years has afforded deference to government agencies with respect to reasonable interpretation of ambiguous statutes. Once again, the US Supreme Court (SCOTUS) is in the spotlight as it hears pivotal cases – Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo, which may presage the dismantling of “Chevron”.

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Fast Forward to 2024: Latest Developments in Broadband Projects and BEAD Funding

A city depicted with digital 5G connections.

With the start of a new year came renewed activity in the broadband space at the state and federal levels.

As expected, there were developments related to the Broadband Equity, Access, and Deployment (“BEAD”) program, the federal broadband funding program administered by the National Telecommunications and Information Administration (“NTIA”). In our previous blog post in November 2023, we reported that only 12 states had submitted their Volume I Initial Proposals to NTIA for approval and that NTIA had only approved those of Virginia and Louisiana. Only Virginia, Louisiana, and Nevada had submitted their Volume II Initial Proposals to NTIA for approval. Much has changed since then.

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Direct Air Capture: Challenges in an Evolving Industry

This is a mountain of coal about to be burned by the coal power plant in the background. It's a "clean coal" plant in midwestern America, shot on a cold morning to accentuate the steam plumes.

The United Nations has recognized that carbon capture and sequestration is a “key technology” in the quest to keep global temperatures from rising above the scientifically-accepted threshold of two degrees Celsius.  One carbon capture method that is increasingly garnering attention is direct air capture (“DAC”).  While DAC technology allows companies to permanently remove carbon dioxide (“CO2”) from the atmosphere, companies seeking to bring the technology to scale must navigate significant legal challenges.

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Biden Administration Finalizes Greenhouse Gas Target Rule that is Likely to Draw Challenges

The Federal Highway Administration (FHWA) recently released a prepublication version of its final rule establishing a greenhouse gas (GHG) emissions measure.  The final rule establishes a method for measurement of GHG emissions associated with transportation and requires state departments of transportation (State DOTs) and metropolitan planning organizations (MPOs) that have National Highway System (NHS) routes within their jurisdiction to establish targets for reducing GHG emissions from on-road sources and to report on their efforts to meet those targets. The rule will take effect thirty days after the date of its publication in the Federal Register. State DOTs are required to establish targets and report those targets by February 1, 2024. Subsequent targets would be established and reported by no later than October 1, 2026.  

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In our last post, we previewed that states would be spending the months leading to December 2023 preparing “Initial Proposals” to award the funds that the National Telecommunications and Information Administration (NTIA) allocated to them under the Broadband Equity, Access, and Deployment program (the “BEAD program”). The Initial Proposals are the documents that must (1) identify the specific locations in the state that qualify for funding as unserved, underserved, or community anchor institutions and (2) outline the competitive bidding process each state proposes to employ to select projects and award funds. Much has happened since.

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Levelling the Playing Field: Prohibiting Unfair Contract Terms in Australia

This is a reminder that a significant change is on the horizon for companies using standard form contracts in Australia. These matters were raised in the November 2022 edition of Construction Matters.

New unfair contract terms (UCT) reform is set to take effect from 9 November 2023, ushering in a pivotal shift in the contracting landscape. The reform aims to bolster consumer and small business protection by curbing UTC, ensuring a fairer playing field for all parties. Companies should carefully review and potentially amend their standard contracts to ensure compliance with the upcoming changes and avoid the risk of hefty penalties under the Australian Consumer Law (ACL).

Read more here.

New Technical Assistance Resources:  If You Are Not Shovel Ready, Here’s How to Start the Process

In September, the White House released a “Fact Sheet” addressing technical resources to assist communities to unlock resources needed to take advantage of the Infrastructure Investment and Jobs Act (IIJA) and the Inflation Reduction Act (IRA) and other infrastructure funding opportunities.  

It is a well-known fact that accessing funds under the IIJA, and the IRA can be a complex and time-consuming process. It’s also well-known that a public owner must pull together project documentation that meets the requirements for funding. Those requirements vary significantly depending on the type of project, the amount of funding needed and whether the private sector is being considered as a partner. Evaluating not only the technical aspects but the legal and financing structures can be challenging and often these processes need to occur at the same time. Technical assistance is just that, expertise, and funding to assist with the creation of an infrastructure project.

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Best P3 Practices for the US Webinar Series

We are pleased to announce a four-part webinar series based on developing best practices for US public-private partnerships (P3s). P3s are coming into their own across the US with high expectations as to how federal and state infrastructure funds can be leveraged when partnered with the private sector. Partnerships are complex on a good day and parties often must readjust expectations based on market risk, interest rates, contractor and supply shortages and recognition that risk has to be allocated on a reasonable basis, acceptable to both the private and public sector.

Our series is designed to help smooth the rough edges for parties working on P3 projects in the US by taking into consideration what the UK, UAE and Australia do well and the issues unique to implementation of any P3 project in the US. We hope you will join us for each webinar and that you will feel free to submit questions ahead of time or ask during the webinar.

We are thrilled to announce that Sandra McQuain, CEO of the McQuain Group will moderate each webinar. Her infrastructure experience and quick wit will make for good conversation with our panelists.

Register here.

Best P3 Practices in the UK, UAE, and AU – Takeaways for the US
Wednesday, September 27, 2023
Noon – 1:30 pm ET

Karol Denniston, our global projects partner, is excited to welcome Sandra McQuain, James Duckworth and Brent Henderson to our first webinar panel. The panel will cover how public-private partnerships (P3s) are governed and implemented in the UK, UAE, and Australia. The panelists will discuss why the P3 process may be easier than the US experience and highlight some of the differences, including the government’s role, standardized documents, the business case for a P3 and risk allocation vs. risk sharing.

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Federal and State Restrictions on Foreign Investment in US Real Estate

Unlike many countries, the United States has generally remained open for investment in US real estate by foreign owned entities, albeit with some government oversight. The primary regulatory hurdle has long been the Committee on Foreign Investments in the United States (CFIUS), a federal interagency committee with a relatively narrow scope of review related to national security interests.

Additionally, the Agricultural Foreign Investment Disclosure Act of 1978 (AFIDA)[i] requires increased transparency for transactions related to agricultural land in particular. As discussed below, growing anti-China sentiment is largely driving the policy discussion around foreign investment in US real estate, particularly Chinese-ownership, transactions involving farmland, and overall national security interests.

To read more on this topic, please access our article from AFIRE’s Summit Journal here.

[i] Agricultural Foreign Investment Disclosure Act of 1978 [Public Law 95-460] [as amended through P.L. 110–246, effective May 22, 2008] [7 U.S.C. §§ 3501-3508]