On December 17, the U.S. Court of Appeals for the Sixth Circuit removed the stay on the OSHA COVID-19 vaccine-or-testing emergency temporary standard (ETS). The court’s decision to remove the stay has been appealed to the Supreme Court. The litigation of the ETS is far from over and AGC remains engaged, having filed its Construction Advocacy Fund-backed lawsuit in November.
Following the nationwide vacatur of the 2020 definition of waters of the United States (WOTUS) under the Clean Water Act, the U.S. Army Corps of Engineers (Corps) reverted to using the 1980s regulatory regime with prior guidance when making decisions on federal jurisdiction over waters and wetlands. The Biden Administration has also moved forward with its two-step process to repeal and replace the 2020 rule. On Dec. 7, they published a proposal to reinstate the 1980s regulatory regime with changes that would codify the Administration’s interpretations of the relevant Supreme Court rulings. AGC is preparing comments in advance of the Feb. 7 deadline.
On Dec. 3, AGC submitted comments to the U.S. Fish and Wildlife Service on proposed changes that would codify the Biden Administration’s interpretation that the Migratory Bird Treaty Act prohibits incidental take---injury or harm that occurs incidental to otherwise lawful activities. If a bird or nest is injured or harmed in the normal course of construction activities, then this could expose contractors to criminal liability should the Service take enforcement action. The Service also sought feedback on a potential new permitting program for incidental take.
Michael currently serves as the Director of Strategic Markets at Tarlton Corp. and is the Chair of AGC of America’s Building Division and a member of the Board of Directors. He is an experienced construction leader with past roles in project management, estimating, business development, and marketing. He has developed and informed company strategy, led teams and projects across multiple locations, built strong relationships with clients and partners, and won new business across markets
Only 18 states and the District of Columbia have added construction jobs since just before the start of the pandemic in February 2020 despite a pickup in most states from October to November, according to a new analysis of federal employment data released today by the Associated General Contractors of America. Association officials said one reason employment is below pre-pandemic levels in many parts of the country is the lack of available workers to hire.
On Dec. 13, AGC submitted comments (click here and here) on two proposals that seek to rescind rules put in place by the Trump Administration governing how the U.S. Fish and Wildlife Service (FWS) designates critical habit for endangered and threatened species. The first proposal would remove the definition of habitat that was implemented in response to a U.S. Supreme Court ruling that determined critical habitat first be habitat for the species in question. The second proposal would rescind a rule that guides how the Service considers impacts caused by critical habitat designations and whether it will exclude areas from listing.
Awaiting Court Decision on Nationwide Stay
On December 14, AGC of America and two of its chapters, the Dallas-based TEXO chapter of the association, and the statewide AGC of Texas chapter, filed suit in federal court to block the Biden administration’s effort to impose a COVID-19 vaccine mandate on federal contractors and subcontractors. AGC noted that many of its members that regularly construct federal projects are already being harmed, as key employees leave for other jobs in the industry to avoid the strict federal mandate. AGC’s filing includes a motion for a temporary restraining order and statements from a number of contractors detailing the damages they have already begun to experience because of the new federal contractor vaccine mandate. That mandate is different from the broader vaccine mandate that the Occupational Safety and Health Administration (OSHA) has sought to impose on all firms that employ 100 or more people. That rule gives workers the option to be tested weekly, instead of being vaccinated. AGC filed a legal challenge against that “emergency” OSHA standard in November.