D.C. Circuit Upholds EPA’s CERCLA Hazardous-Substance Designations for PFAS as State-Law Settlements Highlight Expanding Liability Landscape
September 15, 2026 —
Ashleigh K. Myers, Amanda G. Halter, Jillian Marullo & Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law BlogOn August 18, 2026, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit upheld the 2024 designation by the U.S. Environmental Protection Agency (EPA) of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). (See Chamber of Commerce of the United States of America, et al. v. EPA, No. 24-1193 (D.C. Cir. Aug. 18, 2026).)
The decision leaves EPA’s PFOA and PFOS hazardous substance designations in place and provides guidance on the scope of EPA’s authority to make future hazardous substances designations under CERCLA Section 102(a). The decision also likely resolves a challenge to the rule that has spanned two presidential administrations. After taking office, the Trump administration had obtained an abeyance of the litigation challenging the Biden-era rule while EPA reconsidered its position. In September 2025, EPA informed the court that it had decided to retain the designations, while signaling that it would work with Congress and industry to address CERCLA liability concerns for “passive receivers.” The litigation then resumed, with the current Administration defending the rule.
Reprinted courtesy of
Ashleigh K. Myers, Pillsbury,
Amanda G. Halter, Pillsbury,
Jillian Marullo, Pillsbury and
Anthony B. Cavender, Pillsbury
Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com
Ms. Halter may be contacted at amanda.halter@pillsburylaw.com
Ms. Marullo may be contacted at jillian.marullo@pillsburylaw.com
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com
Read the full story...
U.S. Supreme Court Decision May Negate State Law Requirement to File a Certificate of Merit with the Complaint in a Federal Action Against a Design Professional
April 27, 2026 —
Christopher Olsen & Phillip Boldt - ConsensusDocsTo deter frivolous and unfounded claims against design professionals, states throughout the country have enacted statutes which generally require litigants to furnish a formal certification of merit (“COM”) from a qualified expert or face potential dismissal of their lawsuit. These COM statutes can impose a significant front-end burden on claimants who must pay an expert to review project records, interview the project team, and prepare a formal report before the lawsuit can be filed—often regardless of the amount in controversy. However, in light of a recent U.S. Supreme Court decision in a medical malpractice case, most, if not all of these statutes, may no longer be enforceable in federal court. This article examines the recent decision in Berk v. Choy, 146 S. Ct. 546 (2026), the decisions thus far which have applied Berk to invalidate COM statutes, and other categories of statutes applicable to the construction industry which may face a similar fate.
The U.S. Supreme Court Decision (Berk v. Choy)
In Berk, the plaintiff, Harold Berk, sued a doctor for medical malpractice under Delaware law in Delaware federal court. 146 S. Ct. at 551. Under Del. Code, Tit. 18, § 6853(a)(1), an affidavit of merit (like a COM) must accompany a complaint alleging medical malpractice. Id. Berk failed to include an affidavit of merit with his complaint. Id. at 552. Applying Delaware state law, the federal court dismissed Berk’s medical malpractice claim. Berk appealed to the Third Circuit, arguing that the affidavit of merit required by § 6853(a)(1) is unenforceable in federal court because it is more onerous than the Federal Rules of Civil Procedure. The Third Circuit affirmed the District Court’s ruling, finding § 6853(a)(1) enforceable in federal court.
Reprinted courtesy of
Christopher Olsen, Peckar & Abramson, P.C. and
Phillip Boldt, Peckar & Abramson, P.C.
Mr. Olsen may be contacted at colsen@pecklaw.com
Mr. Boldt may be contacted at pboldt@pecklaw.com
Read the full story...
New York Enacts First-in-the-Nation Statewide Data Center Moratorium
August 03, 2026 —
Joshua L. Sturtevant - SheppardAs of May 2026, nearly 12 gigawatts of data center load requests were in the New York Independent System Operator interconnection queue, with more than two-thirds of capacity requests entering the queue in 2025 alone. On July 14, 2026, in response to concerns over this rapid growth, Governor Kathy Hochul issued Executive Order No. 62 (the “Order”) imposing a temporary moratorium on data centers in New York State. Among the concerns cited in the Order are the cost burden on ratepayers associated with transmission upgrades required to accommodate large loads, potential environmental impacts, and large-scale water use.
The moratorium is intended to halt activities while the state government develops a comprehensive legal framework for data center development. While dozens of municipal and county-level moratoriums are in place throughout the U.S., and while the legislatures of several states, including Maine, have proposed moratoriums, the Order is the first statewide moratorium to be enacted nationally.
Read the full story...Reprinted courtesy of
Joshua L. Sturtevant, SheppardMr. Sturtevant may be contacted at
jsturtevant@sheppard.com
"Resilient Rebuild Hub" Helps Wildfire-Impacted Homeowners Build Back Stronger
September 21, 2026 —
California Nevada Cement AssociationNEWPORT BEACH, Calif., Sept. 21, 2026 /PRNewswire/ -- When homeowners in a fire-ravaged Pacific Palisades neighborhood banded together last year to rebuild with fire-hardened materials rather than standard wood framing, they weren't just rebuilding houses: they were rewriting the playbook for how California communities can rebuild after wildfire. Today, the Building with Resilience effort is making that playbook available to every homeowner facing the same decision with the launch of its new Resilient Rebuild Hub for exploring fire resistant, non-combustible construction options.
The Resilient Rebuild Hub helps homeowners understand options for fire-resistant, concrete-based construction and connect with architects, engineers, and contractors who can build them. This includes six noncombustible building systems:
- Insulated Concrete Forms (ICF): stackable, high-density foam blocks filled with concrete which save 20-50% on monthly heating and cooling costs, reduce outside noise by up to 80%, offer exceptional earthquake performance and 4-hour fire resistance rating.
- Insulated Composite Concrete Forms (ICCF): similar formwork to ICF construction with composite materials that enhance strength, simplify installation, and improve long-term performance.
- Concrete Masonry: strong, durable wall systems used for decades across California and the U.S.
- Precast Insulated Sandwich Panels: a complete building enclosure system consisting of two layers of concrete separated by a continuous layer of rigid insulation.
- 3D Shotcrete: air-sprayed concrete for strong, fast, and versatile wall systems that enable a high degree of artistic freedom together with unparalleled fire resistance.
- 3D Concrete Printing: the cutting edge of residential construction, a large-scale robotic 3D printer "squeezes" a specialized concrete mixture layer by layer to allow for organic, curved designs that are often too expensive or impossible to build with traditional methods.
The Resilient Rebuild Hub is available now at buildingwithresilience.com/how-to-build. Each part is free to access and includes case studies, technical resources, and a directory of architects, engineers, and contractors experienced in each building method.
CNCA is a not-for-profit organization committed to developing sustainable and economical construction solutions for California and Nevada with an emphasis on the use of cement and concrete. For more information, visit www.cncement.org.
CalCIMA is a trade association for the construction and essential mineral industries in California, including aggregate, essential and rare earth minerals, ready mixed concrete, and asphalt producers. In all, there are about 70 producer member companies that include 500 production sites in every county of California. Our members also include more than 100 suppliers and service providers to the industry.
Founded in 1930, the National Ready Mixed Concrete Association (NRMCA) is the leading industry advocate with a mission to provide exceptional value for our members by responsibly representing and serving the entire ready mixed concrete industry through leadership, promotion, education and partnering to ensure ready mixed concrete is the building material of choice.
Integration Can Inoculate in Utah
July 20, 2026 — Mark O. Morris - Snell & Wilmer
The Utah Court of Appeals recently reaffirmed, in the construction context, Utah’s strict approach to enforcing integration clauses to preclude parol evidence and other legal theories that would vary the written terms of a contract. In Reid v. All Surface LC, 2025 UT App 134, decided last September, the court affirmed in all respects the trial court’s grant of summary judgment based on the strength of an integration clause against a homeowner who sued a contractor for breach of contract, breach of the covenant of good faith and fair dealing, fraud, negligent misrepresentation, civil conspiracy, negligence, and breach of the implied warranty of habitability. More recently, however, the same court rejected those same arguments in Tidwell v. Jensen, 2026 UT App 13 as to tort claims arising from a used car sale.
The facts in Reid were sympathetic to the plaintiff. After being told she had a mold issue near a defective basement shower, the plaintiff solicited bids. A remediation contractor advised that while it could address the mold, the shower replacement should be handled by someone else. The plaintiff contacted All Surface LC, a shower replacement contractor. During an interview, the sales representative stated that All Surface could “do full mold remediation, tear everything out, and reframe the shower.” The plaintiff ultimately retained All Surface, expecting it would both resolve the mold issues and replace the shower.
Read the full story...
Reprinted courtesy of Mark O. Morris, Snell & Wilmer
Mr. Morris may be contacted at mmorris@swlaw.com
Ownership and Licensing in Design Agreements
April 14, 2026 — Abby Dvorkin - Snell & Wilmer
The ownership and licensing of design documents in professional services agreements play a significant role in protecting the interests of the design professional and the project owner during and after project completion. The ownership or licensing of the drawings provision typically outlines who owns the drawings and specifications, who can use the documents, and how the documents can be used during and after the project.
Project owners and developers should understand that payment for design services does not automatically transfer ownership or an exclusive right to use the professional design. Under U.S. copyright law, the default rule is that the design professional retains ownership of the instruments of service absent a contractual provision transferring ownership or a license. See 17 U.S.C. § 101, et seq. The Architectural Works Copyright Protection Act provides that copyright protection applies to “pictorial, graphic and sculptural works” and includes “architectural works.” 17 U.S.C. § 102. A design professional may only transfer copyright ownership in writing. 17 U.S.C. § 204(a).
Read the full story...
Reprinted courtesy of Abby Dvorkin, Snell & Wilmer
Ms. Dvorkin may be contacted at advorkin@swlaw.com
Sausage-Making Often Relies on the Good Sense of the Chef Rather than the Recipe
June 23, 2026 — Garret D. Murai - California Construction Law Blog
Even for lawyers, the rules governing litigation can get complex and convoluted. Does something need to be filed? What needs to be filed? When is the deadline for filing?
Simple questions with not always with straightforward answers.
This was the case in R & J Sheet Metal, Inc. v. W.E. O’Neil Construction Co. of California, 111 Cal.App.5th 878 (2025), which involved sheet metal panels lost when they fell into the Port of Long Beach harbor. Read the full story...
Reprinted courtesy of Garret D. Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com
Only A Contractor Can Appeal a Contracting Officer’s Final Decision
April 20, 2026 — David Adelstein - Florida Construction Legal Updates
A recent decision from the Civilian Board of Contract Appeals confirms that “only a ‘contractor’ may file an appeal of a contracting officer’s final decision.” Wattiker v. General Services Administration, 2026 WL 846001 (CBCA 2026) (citation omitted).
The term “contractor is not an ambiguous term. A ‘contractor’ refers to a party to a federal government contract. Wattiker (citing the Contract Disputes Act). This is why the Contract Disputes Act does not apply to parties that are NOT in contract with the federal government. Id.
In Wattiker, an appellant (appealing party) challenged the dismissal of a co-appellant. The co-appellant was dismissed because he was not a contractor, i.e., a party in contract with the federal government. In other words, the co-appellant had no privity of contract with the federal government. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com
