SCOTUS Hears Argument That Could Change Administrative Law As We Know It

Recent oral argument before the Supreme Court of the United States has raised significant questions concerning the Chevron doctrine, a 40-year-old ruling that requires federal courts to defer to an agency’s reasonable interpretation of certain statutory provisions that Congress charged the agency with implementing. Because a majority of the Supreme Court appears inclined to overturn or at least modify that doctrine, many in the regulated community are bracing for potentially significant changes in the administration of regulatory law. Still others are warning that there may be a “flood of litigation” seeking to overturn prior decisions that relied on the doctrine. The Supreme Court’s decision on the issue is expected before July 2024.

Read the full Alert on the Duane Morris LLP website.

New Jersey – Developing, Investing and Leasing Healthcare Facilities

Fresh off a panel of distinguished contributors at the MidAtlantic Real Estate Healthcare Conference in Edison, NJ earlier today featuring Andrew Antognoli, Blake Goodman, Randy Horning, Cory Atkins, Pasquale Avallone and Jonathan Marks, where they discussed and debated a wide range of topics focusing on healthcare related real estate issues.

As you may be aware, New Jersey ranks 8th in the US in terms of healthcare satisfaction, with over 113 hospitals and 72 acute care facilities in the State.  Over 150,000 employees are employed in these facilities making them the largest private sector employee base in the State with over 15 Million patients being served a year.

Key Take Aways:

Development – limited new development due to interest rates and constructions costs despite there not being many if any new facilities for rent at the moment.  Adaptive reuse of existing buildings continues to be the main game noting that some of the older B and C product in the marketplace will not be able to meet current design specifications of the users.

Construction Costs for Medical Office – continue to be at or near an all time high in NJ.

Key Design Issues – access, parking, visibility, redundant sources of power, sewage capacity and growing desire to have more sustainable spaces.

Acquisitions – muted at the moment due to interest rates and slow moving product historically.

Cap Rates – generally around 6-6.5% on single tenant, good credit buildings and 7-7.5% for multi tenant buildings.

Average Lease Size – approximately 3,000 SF but as more and more systems continue to consolidate, the larger systems want larger spaces for back office operations of around 10,000 SF.

Rents – depending on product type but mid to high $20s depending on what part of the state and how old the building is with approximately $3.00 in electric.

Leasing Velocity – our team of top shelf brokers felt that leasing velocity is picking up and relatively strong due to the lack of new space availability.

Tenant Improvement Dollars – owners prefer tenants to be investing in sophisticated equipment to create more “stickiness” but willing, with the right tenant, to provide T/I dollars of approximately $50 psf for a 7 year term.

Urgent Care – continued activity in this space with multiple engagements for 10 sites or more around the state.

Sustainability – more important to some owners than in the past.  Electric Car chargers are being considered and requested by more and more tenants and owners but surprisingly solar was less of interest to the panelists, despite the ability to use state incentives and reduce power costs.

Section 179-D – with changes under the Inflation Reduction Act to allow non-profits to monetize and transfer the tax deduction or reduce the cost of their building out, many of the owners and brokers in the room thought this was worth exploring to see how the potential $5.25 PSF in tax deduction could be utilized by their clients.

A super turn out, packed house and folks engaging in networking and learning.  Kudos to MARE for yet another excellent, well attended event.  Duane Morris, LLP looks forward to our continued involvement with the group.

Duane Morris has a robust real estate group and healthcare group focused  on regulatory, permitting, executive compensation and real estate related and incentive issues and programs. f you have any questions or follow ups, please do not hesitate to contact Brad A. Molotsky, Erin Duffy or the lawyer in the firm whom you normally deal with on other maters.


Survey Indicates Future of International Energy Arbitration

Queen Mary University of London has undertaken a major International Arbitration Survey, focusing on the energy sector entitled “Future of International Energy Arbitration, Survey Report 2022”. This was led by Professor Loukas Mistelis FCArb[1] and his team. The Survey was based on feedback from over 900 respondents from a diverse range of jurisdictions, end users, leading practitioners, arbitrators and experts, as well as arbitral and academic institutions.

To read the full text of this post by Duane Morris partner Vijay Bange, please visit the Duane Morris International Arbitration Blog.

In-situ PFAS Groundwater Remediation: A Good Test Case

Much is being discussed today about the prevalence of PFAS (per- and polyfluoroalkyl substances) in groundwater, the potential health effects of exposure to PFAS in groundwater, and the development of groundwater cleanup standards by USEPA and state environmental protection departments.  Less discussed (at least in the news media) is the subject of remediation.  Notwithstanding the inference of the “forever” label, can these chemicals be effectively remediated, in-situ, in groundwater?

Answering this question may be aided by a remediation pilot study being undertaken at a PFAS site in East and West Rockhill Townships, Bucks County, Pennsylvania – the Ridge Run PFAS Site.  Ridge Run became a state superfund site (under Pennsylvania’s Hazardous Sites Cleanup Act (“HSCA”), 35 P.S. §§ 6020.102-6020.1303) in 2016 when a combined concentration of PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonate) exceeding the United States Environmental Protection Agency’s (EPA) then-applicable Health Advisory Level (HAL) (70 parts per trillion) was discovered in a public water supply well. Continue reading “In-situ PFAS Groundwater Remediation: A Good Test Case”

Enforcement of New Solar Panel Tariffs Delayed in Move to Boost Industry

On June 6, 2022, President Joe Biden signed an order that will exempt Southeast Asian nations from any new tariffs on solar panels for two years in order to alleviate concerns about the crippling effects of an ongoing Commerce Department investigation into whether manufacturers of solar panel components in Southeast Asia are being used to circumvent U.S. tariffs on Chinese solar companies. Biden will also invoke the Defense Protection Act to drive U.S. manufacturing of solar panels and other clean energy technologies in the future, with the support of loans and grants. If production ramps up as expected, the administration expects domestic solar manufacturing to triple by 2024.

To read the full text of this Alert by Duane Morris attorneys Brad Thompson and Patrick Dinnin, please click here.

The Invisible Enemy is Cybercrime (UK Construction)

Cyber fraud is a real and present danger across almost all industry sectors, and the construction sector is not immune as our recent article demonstrated. According to the FCA there has been a jump of 52% in incident reports and recent global conflict may possibly increase this threat.

One of the primary types of fraud affecting the construction industry is the prevalence of payment diversion fraud. It is estimated that contractors pay out around £100m per year in fake invoices. In some cases, a single instance of payment diversion fraud can amount to millions of pounds. In such cases it is easy to see how the fraud would place intolerable pressure on the cash flow of a business and in extreme instances even lead to insolvency. In an industry already under pressure through factors such as super-inflation and rising energy costs, fraud is yet another unwelcome factor which can be detrimental to cash flow on a project.

To read the full text of this post by Matthew FriedlanderChris Recker and Sam Laycock, please visit the Duane Morris London Blog.

North Carolina Seeks to Face Climate Change with Head in the Sand

As Florida’s “Don’t say gay” bill  (SB 1834) occupies the front pages of many media outlets today, one is reminded of an earlier (2012) state legislative exercise in prohibiting engagement with reality: North Carolina’s “Don’t say climate change” bill (H819).Unhappy with the perceived prospect of dampened economic development resulting from the state’s Coastal Resources Commission estimating that the sea level would rise by 39 inches in the next century, the state legislature chose to bury the state’s head in the sand. It passed a bill prohibiting the state’s coastal management and environmental agencies from defining the rate of sea level rise for regulatory purposes for the next four years. (“The Coastal Resources Commission and the Division of Coastal Management of the Department of Environment and Natural Resources shall not define rates of sea-level change for regulatory purposes prior to July 1, 2016.”)

Well, the climate didn’t care. Based on a 5-year report newly released by NOAA (full NOAA report), the estimate generated by NC’s Coastal Resources Commission has proven to be very much on target.

To read the full text of this post by Seth v.d.H. Cooley, visit the Environmental, Social and Governance Blog.

UK: Construction and Engineering Sector Face Limitations on Use of Red Diesel

Glasgow and COP26 resulted in various commitments from global economies to work towards targets in the reduction of greenhouse gas emissions. The UK is to target the reduction of greenhouse emissions to net zero by 2050.

However, even prior to COP26 there were already legislative changes afoot to have cleaner air. The Finance Bill 2021, and the associated secondary legislation, as part of the government’s plans to reduce carbon emissions, has the effect of restricting the usage of red diesel after April 2022.

To read the full text of this post by Duane Morris partner Vijay Bange, please visit the Duane Morris London Blog.

Achmea Decision Fallout in the UK

In the Achmea case the Court of Justice of the European Union (ECJ) held that Article 8 of the Netherlands – Slovakia bilateral investment treaty, which allowed for the resolution of disputes by way of arbitration, was incompatible with EU law. The rationale for the decision was that a tribunal may have to interpret or apply EU law and where a question of law arose, unlike a Member State court, that question of law could not be referred to the ECJ. In other words, intra-EU bilateral investment treaty arbitration provisions, as reasoned by the ECJ, deprived the EU courts of jurisdiction in respect of the interpretation of EU law.

We raised the prospect that the ramifications from the decision were potentially far reaching and were not, it seemed, confined to the BIT between Netherlands and Slovakia.

To read the full text of this post by Duane Morris attorneys Vijay Bange and Matthew Friedlander, please visit the Duane Morris London Blog.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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