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Expert Analysis

• Science-Based Definition Of US Waters Won't Pass In Court

  

  The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers recently proposed a science-backed definition of "waters of the United States" for the Clean Water Act, but the U.S. Supreme Court is unlikely to be persuaded that science trumps a constitutional or statutory limit on the EPA's and the Corps' authority, says Jeffrey Porter at Mintz Levin.

• What Justices' Groundwater Ruling Means For State Disputes

  

  The U.S. Supreme Court's recent decision in Mississippi v. Tennessee aids future negotiations over interstate groundwater resources, both by explicitly informing states what the default rule is, and by implicitly giving states authority to trade off water rights across a broader spectrum of water resources, says Robin Craig at USC Gould School of Law.

• BGC-Cantor Suit Highlights Independent Directorship Issue

  

  The Delaware Chancery Court recently sent breach of fiduciary duties claims to trial in the disputed merger between BGC and a unit of Cantor Fitzgerald, highlighting both the legal benefits of seeking out directors that meet the court's criteria of independence from the controller, and the significant, negative impacts when they are not, say attorneys at Fried Frank.

• How Dealmakers Can Bridge M&A Differences In US, Europe

  

  As business continues to heat up globally, differing practices and norms in mergers and acquisitions can lead to misunderstandings between U.S. and European dealmakers, but a comparison of documentation structures and processes can help avert these complications, say Piotr Korzynski and Piotr Jaskiewicz at Baker McKenzie.

• Feds May Need Power To Take State Lands For New Grid

  

  The Biden administration's plan to move the U.S. electricity sector to renewable energy will require extensive new high-voltage transmission infrastructure, but since states have the ability to block construction of power lines, Congress will need to give federal regulators eminent domain authority over state-owned lands to get the job done, say attorneys at V&E.

• How Canceling The Border Wall Affects Gov't Contractors

  

  President Joe Biden's cancellation of the border wall project has left some federal contractors in the lurch, but including protective flow-down termination clauses in their contracts can guard against subcontractor liability and ensure recovery, says Adrien Pickard at Shapiro Lifschitz.

• Biden Climate Push Means Fossil Fuel Cos. Must Innovate

  

  The Biden administration's strong focus on climate change puts unprecedented pressure on oil, gas and coal companies to strategically embrace new clean and low-emission technologies, predict and minimize environmental impacts, and prioritize innovation in order to sustain long-term viability, say attorneys at Akin Gump.

• How Environmental Litigation Can Block Renewable Projects

  

  While renewable energy projects can reduce greenhouse gas emissions, they are not immune from environmental challenges filed by citizens groups, conservation organizations and even competitors — so project developers must plan their environmental and permitting reviews carefully, say Jonathan Brightbill and Madalyn Brown at Winston & Strawn.

• Gulf Coast Offshore Wind: Opportunities And Challenges

  

  A recent announcement from the U.S. Department of the Interior signals opportunities for clean energy developers on the Gulf of Mexico outer continental shelf, but offshore wind projects in the region will still face many environmental and technical hurdles, say attorneys at Shearman.

• 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.