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Department of State Releases 2017 TIP Report

The Department of State has released its 2017 Trafficking in Persons (“TIP”) Report.  As with prior versions of the annual report, the State Department reviewed efforts made by more than 180 countries to address the minimum Prosecutorial, Protective, and Preventative standards necessary for effective anti-trafficking measures, as these standards are outlined in the United States’ Trafficking Victims Protection Act (“TVPA”).

The release of the report is notable because it can directly impact contractors’ diligence obligations for supply chain review under the Federal Acquisition Regulation (“FAR”) Human Trafficking Rule (located at FAR § 52.222-50).  As we have highlighted in previous articles, for those contractors required to submit compliance plans to the government, such plans should be appropriately shaped to the “nature and scope of activities to be performed for the Government . . .  and the risk that the contract or subcontract will involve services or supplies susceptible to trafficking in persons.”  See FAR § 52.222-50(h)(2)(ii).  Additionally, as set forth in a recent proposed memorandum, which remains the clearest articulation of the government’s views on supply chain diligence obligations to date (covered in a prior post), contractors are expected to take steps to “identify high-risk portions of [their] supply chain[s].”

For these reasons, movement of a particular country up or down in risk classification in the TIP Report may greatly impact a contractor’s supply chain risk profile, especially if the contractor sources a significant amount of goods or materials from that country.  Even where countries are not designated under the Trade Agreements Act for direct importation and sale of goods to the U.S. government, to the extent that contractors rely on these countries for the supply of materials or components to be “substantially transformed” in the U.S. or a designated country, those contractors will bear heightened risk of non-compliance under the FAR requirement should a country fall in placement.

Although this year’s TIP Report was recently revised for increased clarity per the recommendation of a late 2016 GAO Report, it continues to classify countries by the same “Tiers,” that it has in years past.  Tier 1 countries “fully meet the TVPA’s minimum standards for the elimination of trafficking,” and consequentially are considered to be relatively low risk.  Tier 2 countries “do not fully meet TVPA’s minimum standards but are making significant efforts to bring themselves into compliance.”  Tier 2 Watch List countries are still considered to be “making significant efforts to bring themselves into compliance,” but may have only made commitments to take action over the next year, or have yet to stem the absolute number of trafficking cases.  Finally, Tier 3 countries fail to meet TVPA standards and are not considered to be taking significant steps to come into compliance, either through commitments or otherwise.

For 2017, Iceland and China each fell in placement, while Malaysia and Afghanistan moved up in placement.  Per the classification standards mentioned above, Iceland is now on par with Afghanistan in terms of basic classification — both are now Tier 2 designated countries.  Malaysia is now also a Tier 2 designated country, moving up in placement from the Tier 2 Watch List.  The People’s Republic of China, in contrast, fell to a Tier 3 classification this year, greatly increasing its risk profile.  (Hong Kong, however, remains on the Tier 2 Watch List.)

In light of these changes, and recent indications that the Trump Administration remains committed to “devoting more” to anti-trafficking programs, contractors would be advised to make sure that their supply chain compliance and diligence programs are updated to reflect the latest information on country risk profiles available from the government.

For more legal analysis go to the National Law Review.

This post was written by Jennifer L. Plitsch   Ryan Burnette and Alexander B. Hastings  of Covington & Burling LLP.
Labor Law Hiring

Take a Screen Shot of This: Supervisor Unlawfully Interrogated Employee Through Text, NLRB Says

Texting has become one of the most common ways  people communicate. Despite its prevalence, however, texting can raise serious concerns for employers, particularly when such communication takes place between a supervisor and employee in the context of a union election.  A recent National Labor Relations Board (NLRB) case makes that point clear. In RHCG Safety Corp and Construction & General Building Laborers, Local 79, the Board held that a coercive text message from a supervisor to an employee could serve as evidence that an employer unlawfully interrogated employees concerning their union support.

This decision echoes other NLRB decisions holding that an unlawful interrogation does not need to be face-to-face to be in violation of the National Labor Relations Act (NLRA). The Board has held that such unlawful interrogation can occur over a phone call, a written job application form, and now, it seems, via a short text message containing 40 characters.

The case arose in the context of a union election. During the union’s campaign, an employee texted his supervisor asking if he could return to work after a leave of absence. The supervisor responded, by text message, “U working for Redhook or u working in the union?” (Redhook is how RHCG Safety is known.) The Board found that by juxtaposing working for the employer with working in the union, the supervisor’s text strongly suggested that the two were incompatible. The Board accordingly ruled that the text constituted an unlawful interrogation and violated Section 8(a)(1) of the NLRA.

Significantly, the NLRB found that for purposes of determining legality, it doesn’t matter whether the message actually coerced the employee, so long as the interrogation was coercive in nature. To this end, the Board found certain facts weighed in favor of making the text coercive in nature. First, the employee was not an open union supporter at the time of the interrogation. Second, the supervisor did not communicate to the employee any legitimate purpose for asking if he was working in the union. Finally, the supervisor didn’t provide the employee with any assurances against reprisals.

This case suggests that seemingly offhanded communications between supervisors and employees may be determined to be coercive, interrogative, and in violation of the NLRA. Employers should consider their communication policies and train supervisors on methods of communicating with employees, particularly during a union election.

Read more legal analysis at the National Law Review.

This post was written by Minal Khan of  Barnes & Thornburg LLP.
blockchain

Blockchain for the Humanitarian Sector

A network of global charities has begun using blockchain to provide costs savings and transparency to donations. Organisations including Oxfam, Save the Children, Mercy Corps and Christian Aid are three of the 42 members of the Start Network, which trialled the use of blockchain in humanitarian projects last year. The group will work on the project with start-up fund management platform Disberse.

Disberse uses blockchain, which records all transactions in a distributed digital ledger, to try to ensure that less money is lost on exchange rate fluctuations and traditional banking fees. It will also help charities to fight fraud, by tracking all transactions. The ultimate aim would be to track every dollar in aid, from original donor to each individual assisted.

The Start Network plans a three-stage experiment, using blockchain to:

  • Support decentralised decision making by the Start Fund, a peer-reviewed emergency relief fund aimed at rapid response to small-to-medium-scale disasters.
  • Trigger and speed up pay-outs, using “smart contracts” – self-executing arrangements that are guaranteed to deliver swiftly.
  • Enhance transparency by developing a form of “digital ledger” for use in all Start Fund transactions.

A report – Blockchain for the humanitarian sector – published in 2016 by the Digital Humanitarian Network for OCHA, the United Nations’ humanitarian affairs office, concluded:

  • Blockchain “has the potential to transform the humanitarian sector by providing cost savings and traceability of information flows, and by reducing transaction times”.
  • Potential uses are in information management, identification, supply chain tracking, cash programming and humanitarian financing.
  • Since the technology can offer solutions to existing humanitarian challenges, it may be wise to begin studying its impact and experimenting with future implementation.
This post was written byJonathan Lawrence of K & L Gates.
gavel sanctuary cities

Stanford University’s Loss in Interferences of Three Patents Covering Testing Methods for Fetal Aneuploidies for Lack of Written Description is Vacated

The Board of Trustees of the Leland Stanford Junior University v. The Chinese University of Hong Kong, Jun. 27, 2017, Before O’Malley, Reyna, and Chen.

Takeaway:

  • The Federal Circuit declined to reconsider its decision in Biogen MA, Inc. v. Japanese Found. for Cancer Research, 785 F.3d 648 (Fed. Cir. 2015) that parties cannot bring civil actions in district court under 35 U.S.C. § 146 for review of the PTAB’s decisions in interferences declared on or after September 16, 2012.

  • In evaluating whether a claim satisfies the written description requirement, the fact finder may consider what a person of ordinary skill in the art would understand from a description of a product or technique in the specification as of the filing date of the application. Post-filing date publications may only be used as evidence of the state of the art existing on the filing date.

Procedural Posture:

Stanford University (“Stanford”) appealed from orders of the PTAB in three interference proceedings between Stanford and Chinese University of Hong Kong (“CUHK”), which found the claims of three Stanford patents directed to testing methods for fetal aneuploidies unpatenable for lack of written description.  The appeal was initially filed pursuant to 35 U.S.C. § 146 in the District Court for the Northern District of California, and the parties engaged in discovery there.  On May 7, 2015, the Federal Circuit affirmed the lower court’s decision in Biogen MA, Inc. v. Japanese Found. for Cancer Research, 785 F.3d 648 (Fed. Cir. 2015), holding that under the AIA, for interferences declared after September 15, 2012, an appeal from an interference decision has to be made to the Federal Circuit.  The parties then jointly requested transfer from the Northern District of California to the Federal Circuit, which was granted.  The Federal Circuit considered the case on the merits, vacated and remanded.

Interference:

  • The Federal Circuit declined to revisit its holding in Biogen, noting that although Stanford briefed this issue in its opening brief, Stanford did not raise this issue again in its reply brief or in oral argument. Rehearing en banc and a petition for certiorari in the Biogen case were denied; thus, in the Federal Circuit’s view, “Biogen is the law in this circuit and we, as a panel, will not revisit it.”

  • The Federal Circuit declined to consider the record developed during discovery in the district court. Because the district court lacked subject matter jurisdiction to review the interference decisions, the Federal Circuit agreed with CUHK’s position that the activities in the district court were a nullity and should not be considered by the Federal Circuit or remanded to the Board for consideration.

Written Description:

  • Sufficiency of written description is evaluated from the perspective of one of ordinary skill in the art at the time of the invention, “by examining the record evidence as to pre-filing date art-related facts.” The post-filing date publications may be considered to the extent they “contain art-related facts … existing on the filing date,” but may not be used as a source for the knowledge about art-related facts that did not exist on the filing date.

  • The Board awarded patents in interferences to CUHK because it found that the Stanford patents’ specification disclosed “targeted” rather than “random” sequencing, and the specification would not have indicated to one of ordinary skill in the art that Stanford’s inventor Dr. Quake was in possession of the claimed random massively parallel sequencing (“MPS”) method. The Federal Circuit held that the PTAB erred because it did not adequately explain why the Illumina platform for sequencing DNA, referenced and described in Stanford’s original application, did not provide sufficient written description support for random sequencing.  The Board improperly relied on the testimony of CUHK’s expert, who only described that an earlier sequencing technique, Roche 454, was used for targeted sequencing, and “failed to cite to the Roche 454 references with specificity.”  The Board also erred in finding that, because Stanford’s application did not preclude targeted MPS sequencing, it did not disclose to a person of ordinary skill in the art random MPS sequencing.

This post was written by Georg C. Reitboeck  Ksenia Takhistova Christopher Gresalfi of Andrews Kurth Kenyon.

marijana Medical Marijuana Laws

Recreational Pot Comes to Nevada…But Why Are The Shelves Empty?

On July 1, 2017, Nevada became the fifth state in the United States to legalize the sale of recreational marijuana. The epicenter of “what happens here, stays here” tourism just added a new vice to its repertoire! So, what’s the problem?

Among other things, Nevada’s recreational marijuana dispensaries are facing the specter of empty shelves. Why? Because a wrinkle in the ballot measure that legalized recreational marijuana sales in Nevada gives licensed liquor wholesalers a temporary 18-month monopoly on marijuana distribution rights… “unless the [Nevada] Department [of Taxation] determines that an insufficient number of marijuana distributors will result from this limitation.” In order to fill its shelves, a Nevada-licensed recreational marijuana dispensary must use a licensed recreational marijuana distributor to transport the product from the cultivation facility to their stores (whereas dispensaries selling medical marijuana were allowed to move “medical-use” product from cultivation locations without an independent distribution network).

Despite efforts by marijuana dispensaries to stock up prior to July 1, overwhelming demand for recreational marijuana has resulted in dwindling supplies. And now, distributors are nowhere to be found. That is because very few liquor wholesalers have applied to become licensed marijuana distributors, and those that have made such application have failed to meet the requirements for licensure. The Nevada Department of Taxation (NDOT) reported that as of July 7, 2017, ZERO distribution licenses have been issued by NDOT.

Perhaps liquor wholesalers fear risking their federal alcohol permits issued by the Alcohol and Tobacco Tax and Trade Bureau? It would appear that marijuana distribution licenses would have to be issued to persons other than liquor wholesalers – however, nothing is that simple. A small group of liquor wholesalers, known as the Independent Alcohol Distributors of Nevada, sued and, on June 21, won a temporary injunction against NDOT to prevent marijuana distribution licenses from being issued to persons other than liquor wholesalers.

In response, on July 7, Governor Sandoval endorsed emergency regulations that would give NDOT the authority to determine whether there are a sufficient number of marijuana distributors to service the market – a determination that would allow NDOT to open up distributor licensing to those other than licensed liquor wholesalers. The emergency regulations will be considered by NDOT on July 13. Stay tuned.

This post was written by  Kate C. Lowenhar-Fisher   Jennifer J. Gaynor   Jeffrey A. Silver and Gregory R. Gemignani  of Dickinson Wright PLLC.

American Health Care Reform

Senate Unveils Changes to the Better Care Reconciliation Act of 2017: Significant Changes, but Uncertainty Remains

On July 13th, the Senate released the updated version of the Better Care Reconciliation Act (BCRA) of 2017. While the new version makes some significant changes to the original Senate proposal, the major components of the original bill remain intact.

Will the Changes Result in Additional Support?

Securing the required votes to pass the revised BCRA will be very difficult, with two GOP Senators, Rand Paul (R-KY) and Susan Collins (R-ME) announcing soon after its release they cannot even support beginning debate on the measure, a key procedural Senate vote. Senator Paul believes the bill doesn’t go far enough to repeal the Affordable Care Act (ACA) while Collins believes the Medicaid cuts are far too deep.  Four other Republican Senators have publicly said they remain undecided and many moderates in the Caucus have not announced their position.

Currently, Senate Republican Leader Mitch McConnell (R-KY) plans to begin the procedural process to allow debate on the bill as early as next week, following an anticipated Congressional Budget Office score Monday of the new language and the possible addition of an amendment by Senator Ted Cruz (R-TX).  In an effort to appease more conservative Senators, the Cruz amendment would allow non-ACA compliant plans to exist alongside ACA compliant plans in the exchanges. However, that causes angst for many moderates who are concerned about the potential loss of assurances such as coverage for pre-existing conditions.  Similar to the dynamic that unfolded in the House, moderates and conservatives in the Senate are deeply divided and appeasing one group tends to aggravate the other.

The following are highlights of the changes in the most recent version of the BCRA:

Changes to the Medicaid Provisions

  • Allows CMS to increase federal contributions to states above the limits imposed by per capita caps or Medicaid block grant amounts, if the state, or a location within the state, has a declared public health emergency.
  • Modifies requirements for Medicaid block grants to allow them to be applied to the Medicaid expansion population, and to prohibit states from using unspent block grant funds for non-Medicaid services.
  • Would retain an ACA requirement for states to cover children up to age 19 with incomes below 133% of the federal poverty level.
  • Allows states to receive relief from reductions in allowable disproportionate share hospital (DSH) payments during the following quarter in 2018 or 2019 if the state terminates its Medicaid expansion, and modifies the formula by which non-expansion states can receive additional DSH allocations.
  • Would allow seniors and the disabled to have Medicaid cover services provided during the three months prior to enrollment, as in current law.  Other Medicaid beneficiaries would be limited to retroactive coverage during the month of enrollment.
  • Would allow states to apply for an aggregate of up to $8 billion in additional federally funded payments for home and community based services (HCBS) providers through a demonstration project.  The 15 states with the lowest density are given priority in applying for these demonstration project funds.
  • Would expand federal support for services provided to members of an Indian tribe by enrolled Medicaid providers that are not Indian Health Services facilities.

Insurance-Related Changes

  • Consumers will be permitted to use HSA funds to pay health insurance premiums for the first time.  This will allow consumers to use pre-tax dollars to pay for health insurance, and could reduce the financial incentives that have long supported employer-provided health insurance coverage.
  • The so-called “Cruz Amendment” has been included in the revised BCRA.  This amendment would permit insurers to sell individual health insurance policies that do not comply with the market reforms in the ACA, so long as the insurer also sells an ACA-compliant policy in the same state.
    • The non-ACA-compliant policies would be exempt from a number of popular market reforms, including:
      • Actuarial value requirements
      • Essential health benefits coverage
      • Limits on out-of-pocket expenses
      • Community rating
      • Guaranteed issuance of policies
      • Prohibition of pre-existing condition exclusions
      • Limitations on coverage waiting periods
      • No-copay preventive care coverage
      • Medical Loss Ratio requirements
    • Coverage under a non-ACA-compliant policy does not constitute creditable coverage, so persons moving from non-compliant policies to ACA-compliant policies will be subject to a 6-month waiting period.
    • Non-ACA-compliant policies are not included in the ACA’s risk adjustment program (42 U.S.C. §18063).

Other Notable Items

  • Substance use disorder treatment and recovery service funding is increased from $2 billion for one year to approximately $5 billion per year from 2018 through 2026.
  • Purchasers in the individual market will be able to buy catastrophic/lower-premium plans and still be eligible for tax credits.
  • While most of the Affordable Care Act tax repeals remain, this version does not repeal the net investment income tax, additional Medicare tax, and the limit on insurance company deductions for executive compensation.

As we continue to monitor the Senate debate on the BCRA, we will provide updates on the status of the Senate repeal and replace efforts.

This post was also written Nick Welle, Anil Shankar , Jennifer F. Walsh, Morgan J. Tilleman Marian E. Dodson of  Foley & Lardner LLP,

immigration travel ban

Opportunity Foreclosed: The International Entrepreneur Parole Rule May Die Before it Gets Out of the Gate

The U.S. and worldwide entrepreneur community had been looking forward to July 17th with great anticipation.  This was supposed to be the effective date of the new International Entrepreneur Parole immigration regulation.  This refreshing and innovative immigration option for foreign entrepreneurs would solve an enormous problem in the U.S. immigration system: the non-existence of a visa for start-ups founded by or being driven by talented foreign nationals.  Yet on July 11, 2017 the Department of Homeland Security published a notice in the Federal Register seeking comments on its desire to rescind the rule.

This entrepreneur parole process would not have been a cakewalk for applicants:  only those who could meet the stringent requirements associated with it would be able qualify (to be approved, entrepreneurs would have to own at least 10% of the enterprise and would have to have raised significant capital from established U.S. investors or government grants).  Applications would be very strictly reviewed, and only applicants who clearly qualified and passed required government background checks would be approved for this temporary status.

Yet despite the strict criteria, the entrepreneur community was delighted that the U.S. government (during the Obama administration) had finally rolled out an immigration solution to the enormous talent crisis facing the U.S. technology sector.

The technology industry is fueled in large part by immigration.  As of January, 2016 immigrants had started more than half (44 of 87) of America’s start-up companies valued at $1 billion dollars or more and are key members of management or product development teams in over 70 percent (62 or 87) of these companies.* Immigrants play vital roles in the technology industry in job creation, innovation and leadership.

The data shows that these immigrants are not taking jobs away from native born Americans – instead they are creating jobs for Americans.  For years the U.S. has not graduated enough graduates in STEM fields to fill even a fraction of the open positions requiring STEM skills.  By 2020, projections indicate that 1.4 million computer specialist positions will be open in the U.S. but domestic universities will only produce enough graduates to fill 29 percent of those jobs.  As an example, in Massachusetts today, there are seventeen technology jobs for every person who graduates with a college degree in computer science or information technology.   And international students are disproportionately more likely to get their degrees in a STEM field – they make up over 30% of the post-baccalaureate degrees in STEM fields.  These immigrants are not just studying STEM subjects – they are innovating and inventing technology, pharmaceutical and engineering solutions at a rapid pace.  In 2011, 76 percent of patents awarded to the top 10 U.S. patent-producing universities had an inventor that was foreign-born.  In recent years, foreign nationals contributed to more than three quarters of patents in the fields of information technology, molecular and microbiology and pharmaceuticals.  Many of these inventions are making all of our lives better.  In 2016, all six American winners of the Nobel Prize in economics and scientific fields were foreign-born.

To remain competitive in the global marketplace, the U.S. needs to be able to attract and retain the best talent, the sharpest minds, and those who are passionate about building solutions, building companies, and building community.  While we have many home grown entrepreneurs who fit this description, we do not have enough of them.  We need, and should be welcoming, not turning away, brilliant, hard-working, upstanding foreign entrepreneurs.

Despite paying lip service to the need to create jobs and economic growth, the current Administration seems bent on ending the International Entrepreneur Parole solution without focusing on or acknowledging the myriad positive contributions of immigrants to our country.

Other countries will benefit from the vacuum that will be created by the dissolution of this rule.  Canada, for example, has a very entrepreneur-friendly immigration option.  If this fledgling International Entrepreneur Parole program is not revived, the U.S. will have lost a major battle in the highly competitive, global war for talent.

*All statistics cited in this post are from The Economic Impact of Immigration on the U.S., published by the Mass Technology Leadership Council, June, 2017.

This post was contributed  by  Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C..

California Supreme Court Rules Homeowners Forfeited Right to Challenge Coastal Development Permit Conditions By Undertaking Work Authorized By Permit

The California Supreme Court ruled on Thursday in Lynch v. California Coastal Commission that two homeowners who obtained a coastal development permit (CDP) from the California Coastal Commission (Commission) to construct a new seawall forfeited their right to challenge mitigation conditions attached to the permit because they accepted the benefits conferred by the permit by undertaking the work authorized.

Key procedural takeaway: With exceptions noted below, if a permit applicant accepts a proffered CDP and acts on that permit – even while expressly reserving its asserted right to challenge the legality of the permit – the permittee has forfeited its right to subsequently challenge the permit in court.

Key takeaway on the merits of the claim: None. Since the Supreme Court ruled that the permittees had forfeited their right to challenge the CDP by undertaking the authorized construction, it found no need to address the underlying merits of the permittee’s challenge. In particular, the Court left unaddressed the contention that the mitigation conditions were unconstitutional, including the condition that limited the life of the seawall to 20 years unless reauthorized at the end of the term.

Homeowners Challenge CDP Conditions

The homeowners, Barbara Lynch and Thomas Frick, sought a CDP (more precisely, an amendment to the 1989 CDP authorizing construction of the existing seawall) to authorize demolition of an existing seawall, construction of a replacement seawall and rebuilding of a lower stairway providing access from the bluff to the beach. The Commission granted the CDP allowing seawall demolition and reconstruction but imposed several permit conditions.

The homeowners filed an administrative writ petition in superior court challenging the following three permit conditions: (1) a prohibition on reconstruction of the lower stairway; (2) a 20-year expiration period on the seawall permit and a prohibition on relying on the seawall as a source of geologic stability or protection for future blufftop redevelopment; and (3) a requirement that prior to expiration of the 20-year period, the homeowners must apply for a new permit to remove the seawall, change its size or configuration, or extend the authorization period.

Around the same time, the homeowners recorded deed restrictions on their property stating that the CDP conditions were covenants, conditions and restrictions on the use and enjoyment of their properties, satisfied all other permits conditions, obtained the permit and demolished and reconstructed the seawall.

Lower Court Rulings

The trial court issued a writ directing the Commission to remove the three challenged conditions from the CDP and found that the conditions prohibiting reconstruction of the stairway and imposing a 20-year expiration period were not valid. The appellate court reversed the trial court, determining that plaintiffs had waived their claims and, in any event, both conditions were valid.

California Supreme Court Ruling

Though the Court affirmed the appellate court’s reversal of the trial court decision, it did so on a different basis. The appellate court’s ruling rested on the concept of waiver while the Court found that the homeowners forfeited their right to challenge by accepting the benefits of the permit. The Court explained that forfeiture differs from waiver in that forfeiture results from a failure to invoke a right and waiver denotes an express relinquishment of a known right. The Court identified the crucial point as being that the homeowners “went forward with construction before obtaining a judicial determination of their objections.” By accepting the benefits of the CDP and undertaking the permitted project, the homeowners effectively forfeited the right to maintain their otherwise timely objections.

The Court rejected the homeowners’ argument that because the challenged permit conditions did not affect the design or construction of the seawall, it was possible to challenge the conditions while the project was being built. Such a rule, the Court said, would effectively expand the Mitigation Fee Act (Gov. Code, §§ 66000 et seq.), which establishes a procedure for developers to proceed with a project and still protest the imposition of “fees, dedications, reservations, or other exactions.” Not included in this list, however, are land use restrictions. The Court stated that only the Legislature has the power to declare that permits may be accepted and acted upon, even while the underlying land use restrictions imposed as a condition of that permit are being challenged in court.

The Court did note that there are potential remedies available to permit applicants. Responding to the homeowners’ protest that imposing a forfeiture under the circumstances present here – where the seawall was in danger of collapsing into the sea thus allowing no time to delay repairs until resolution of the litigation – the Court offered two solutions. First, property owners can address imminent dangers by obtaining an emergency permit from the Commission under Public Resources Code section 30624. Second, property owners can try to reach an agreement with the permitting agency to allow construction to proceed while a challenge to permit conditions is resolved in court, which the court noted could prevent a finding of equitable forfeiture. Neither remedy appears to have been pursued in this case.

Insights

Developers and property owners should view the unanimous Court’s holding as applying beyond CDPs and should thus proceed with extreme caution when faced with objectionable permit conditions. By refusing to extend the Mitigation Fee Act’s “pay and protest” option beyond fees and exactions, this decision gives permitting agencies leverage to impose potentially controversial permit conditions, knowing that permit applicants are often constrained in terms of time and money when choosing between moving forward with objectionable permit conditions or going to court. Legislative action on this issue could provide some relief, but may not be likely for the foreseeable future.

This post was written by Courtney A. Davis and James T. Burroughs  Allen Matkins Leck Gamble Mallory & Natsis LLP.

Litigating Religious Land Use Cases, Second Edition

This second edition of Litigating Religious Land Use Cases is a must have resource for religious entities and practitioners alike. It provides practical advice intended to afford sound instruction for religious entities and lawyers representing them to navigate the challenges and uncertainties surrounding a religious land use claim.

Litigating Religious Land Use Cases, Second Edition is a thorough, detailed treatise that explains how to manage complex religious land use cases book in a manner that is easily understood. Although the subject-matter is complex, the author, an authority on land use issues, took great care to include practical case studies in the book that will assist anyone dealing with religious land use issues or practicing in this area of the law.

This edition includes:
• Updates in case law RLUIPA claims through March 1, 2016.
• An analysis of claims that can be raised in addition to religious land use claims.
• Text of the RLUIPA statute and attorney fee statute.
• Charts every single RLUIPA land use case decided:
o Breaking down the elements, whether a claim was justiciable or not.
o The success of the claims.
• Leading law review articles covering RLUIPA—some of which predate the statute

 

To purchase, please click here.

Regulation, Green Energy

Massachusetts Sets Energy Storage Target

On June 30, 2017, the Massachusetts Department of Energy Resources (DOER) announced that Massachusetts would adopt an aspirational 200 megawatt-hour (MWh) energy storage target to be achieved by January 1, 2020. The target is the second largest in the nation, although it is far lower than California’s 1.3 gigawatt storage mandate. Still, Massachusetts’ storage target will make the commonwealth a leader in the burgeoning energy storage field.

The process of setting storage targets began last summer, when Massachusetts enacted a law directing DOER to determine whether to set targets for electric companies to procure energy storage systems by January 1, 2020. In September 2016, Massachusetts released a report called the “State of Charge,” which recommended the installation of 600 megawatts (MW) of energy storage by 2025. The report predicted that 600 MW of storage could capture $800 million in system benefits to Massachusetts ratepayers. The energy storage industry praised the 600 MW level as a good starting point.

DOER’s “aspirational” 200 MWh by 2020 target falls short of the “State of Charge” recommendation, but leaves the door open to achieving 600 MW by 2025. DOER’s letter announcing the target noted that “[s]torage procured under this target will serve as a crucial demonstration phase” for Massachusetts to gain knowledge and experience with storage. “Based on lessons learned from this initial target,” the letter continues, “DOER may determine whether to set additional procurement targets beyond January 1, 2020.”

Beyond DOER’s storage target, Massachusetts has a broader Energy Storage Initiative, which includes a $10 million grant program aimed at piloting energy storage use cases and business models in order to increase commercialization and deployment of storage technologies. DOER also announced that it will examine the benefits of amending the Alternative Portfolio Standards, an incentive program for installing alternative energy systems, to expand the eligibility of energy storage technologies able to participate. While Massachusetts’ storage targets are not as lofty as some in the industry were hoping, the commonwealth is demonstrating a clear commitment to developing its energy storage industry beyond the few megawatts currently installed.

This post was written by William M. Friedman of  McDermott Will & Emery.