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Expert Analysis

• Court Challenges, New Regs May Slow Infrastructure Plans

  

  The U.S. Senate's passage of the bipartisan infrastructure bill heralds possible opportunities for companies in construction, finance and related sectors — but pending litigation and anticipated revisions to National Environmental Policy Act regulations might further complicate the already convoluted federal approval process for individual projects, say Carla Consoli and James Voyles at Lewis Roca.

• Clear Documentation Helps Avoid Power Project Disputes

  

  Claim trends show that a major driver of international arbitration disputes over the building and commissioning of power generation projects is lack of clarity around the scope of work to be performed by different parties — so defining and documenting all participants' responsibilities from the start can help head off conflicts, say engineers at Exponent.

• Beyond Maui: Groundwater Guidance Still Needed

  

  A Hawaii federal court recently became the first to apply the U.S. Supreme Court's decision in County of Maui v. Hawaii Wildlife Fund to rule on whether a permit was required for discharges from groundwater to waters of the United States, but more clarity from policymakers on this issue is still needed, say Kenneth Reich and Stephen Reich at Kenneth Reich Law.

• Justices' Pipeline Ruling Is A Close Call For Gas Industry

  

  While a recent Law360 guest article opined that the U.S. Supreme Court's PennEast Pipeline v. New Jersey decision will likely have little impact, the ruling's one-vote margin shows that the U.S. natural gas pipeline system may be more vulnerable than previously thought, says Laura Olive at NERA Economic Consulting.

• Worse Can Be Better For Nonjudicial CERCLA Allocation

  

  With the U.S. Supreme Court's recent Guam v. U.S. decision potentially reviving some previously time-barred claims under the Comprehensive Environmental Response, Compensation and Liability Act, parties seeking nonjudicial Superfund settlements should consider that a quicker, less in-depth allocation process may produce a better result, says William Ford at Lathrop GPM.

• High Court Ruling Won't Stop States From Thwarting Pipelines

  

  While the U.S. Supreme Court recently held that PennEast had the power under the Natural Gas Act to take right-of-way interests in land owned by New Jersey for construction of its pipeline, the decision eliminates only one means by which states can block such development, say ​​​​​​​Yvonne Hennessey and Mark McNamara at Barclay Damon.

• Voluntary CFIUS Filings May Limit Uncertain Outcomes

  

  Attorneys at DLA Piper outline key considerations U.S. businesses should consider when deciding whether to voluntarily notify the Committee on Foreign Investment in the United States of transactions, in order to avoid unexpected governmental review and intervention.

• How Speedway Deal Might Have Avoided Antitrust Gridlock

  

  A close examination of 7-Eleven's Speedway acquisition shows that adding certain language to the deal's closing conditions might have kept it out of prolonged Federal Trade Commission antitrust jeopardy, say attorneys at Cadwalader.

• Tips For Energy Developers Seeking To Lease Tribal Lands

  

  The Biden administration's commitment to renewable energy creates opportunities to lease tribal lands under the Helping Expedite and Advance Responsible Tribal Home Ownership Act, but renewable energy developers should carefully consider sovereign immunity questions and other unique issues associated with tribes, say attorneys at Perkins Coie.

• Biden Infrastructure Plan Will Be Challenging To Implement

  

  President Joe Biden's $2 trillion American Jobs Plan proposes incentives for environmental remediation of legacy sites, and creation of more resilient and greener energy infrastructure — but fully implementing it would take many years, and require close coordination between the White House, Congress and federal agencies, says Robert Middleton at Schiff Hardin.

• Water Rule Reinstatement Shows Specific Objections Are Key

  

  The Tenth Circuit's recent lifting of an injunction against the federal Navigable Waters Protection Rule in Colorado offers lessons for litigants seeking relief against an agency rule — including the importance of avoiding general allusions of harm that lack specificity or imminence, say attorneys at Gibson Dunn.

• Oil And Gas Contract Drafting Lessons From Texas Ruling

  

  The recent Texas Supreme Court opinion in BlueStone Natural Resources II v. Randle makes it clear that when drafting oil and gas leases, parties should explicitly state contract terms — and avoid creating contradictory terms through amendments or addenda, say Kenneth Held and Brent Hanson at Skadden.

• The UK Needs Safe Harbors For Libor's Wind-Down

  

  A synthetic Libor could come to the aid of tough legacy contracts when Libor ceases to exist later this year, but the U.K. should legislate safe harbors to mitigate transaction risk during the transition, say former Federal Reserve Bank of New York general counsel Thomas Baxter and former London Commercial Court Judge Sir William Blair.