Wake Forest Law Review
29Sep

Repairing our National Parks and the Implications of the Great American Outdoors Act

Categories: Current Issues Blog
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Grand Teton National Park, Wyoming. Photo Courtesy of Christina Adele Warburg, U.S. Department of the Interior.

By Davis LaBarre

In the midst of a global pandemic, the one bright spot for many has been spending time outdoors. Increased travel restrictions and cancelled overseas trips have led to packing up the car to visit the beautiful parks our own country has to offer.[1] This summer, Congress passed the Great American Outdoors Act, which became law Aug. 4, 2020.[2] The Act will provide billions of dollars for U.S. national parks to help with repairs and maintenance.[3] However, ensuring that Yellowstone and the other 418 national parks are beautiful for your next family vacation is just the tip of the Glacier Bay National Park iceberg. Linda Bilmes, who served on the U.S. Department of Interior National Parks Advisory Committee, declared that the Act is “the biggest land conservation legislation in a generation.”[4] This post examines two of the larger impacts of the Act: (1) establishing the National Parks and Public Land Legacy Restoration Fund, and (2) endeavoring to fully fund the Land and Water Conservation Fund (“LWCF”).[5]

The Act establishes the National Parks and Public Land Legacy Restoration Fund.[6] The fund will receive 50 percent of all energy development revenues due and payable to the United States from oil, gas, coal, or renewable energy on federal lands and waters for each of the next five fiscal years.[7] Bilmes estimates this will provide up to $9 billion over the next five years, including $6.5 billion earmarked for the 419 national parks.[8] Funding will improve and repair roads, trails, campgrounds, monuments, fire safety, utilities, and visitor infrastructure—which could include COVID-19 tailored updates.[9] Although the number of visitors has increased over the past decade, the parks’ budget has remained unchanged.[10] Accordingly, this new funding will attempt to decrease a $12 billion backlog of maintenance expenses that parks have incurred.[11] Funding helps more than just the typical outdoor enthusiast. Investing in the maintenance of our national parks will likely create more than 110,000 infrastructure jobs.[12] The creation of the Legacy fund will further ensure that the parks’ maintenance backlog does not remain in disarray while also creating jobs, so that Americans can continue to enjoy the parks for years to come.

The Act also fully funds the LWCF providing that all amounts will be made available “without further appropriation or fiscal year limitation” starting perpetually in 2021.[13] The $900 million represents the ceiling that may be authorized, but in most years, Congress has appropriated less than $450 million to the LWCF.[14] This funding guarantees $900 million per year to be paid for by royalty payments from offshore oil and gas drilling that occurs in federal waters.[15] This money will help fund the four main federal land programs (National Parks, National Forests, Fish and Wildlife, and Bureau of Land Management), which support conservation efforts and protect biodiversity.[16] Money will also be given in the form of grants to state and local governments to acquire land for recreation and conservation.[17] Additionally, the LWCF produces economic benefits because the funds have a direct impact on growing the outdoor recreation economy by “increasing recreational access to public lands in every state.”[18] Further, a recent economic study shows that “every $1 million invested in LWCF could support between 16.8 and 30.8 jobs.”[19] Therefore, investing $450 million more than is typically appropriated to the LWCF could result in upwards of 13,000 new jobs.

Although 2020 may have not been a great year thus far, the Great American Outdoors Act highlights one bipartisan effort Americans should be proud of because the Act will help repair and maintain our national parks, support conservation, and create jobs. If you have not had the chance to visit a national park, get outside and appreciate what Wallace Stegner said is “America’s best idea.”[20]

[1] Yellowstone saw an increase in traffic this summer compared to recent years. Nathan Rott, ‘We Had to Get Out’: Despite The Risks, Business is Booming at National Parks, Nat’l Pub. Radio  (Aug. 11, 2020, 5:00 PM), https://www.npr.org/2020/08/11/900270344/we-had-to-get-out-despite-the-risks-business-is-booming-at-national-parks.

[2] See Great American Outdoors Act, 54 U.S.C. §§ 200401–200402.

[3] Dan Harsha, The Biggest Land Conservation Legislation in a Generation, Harv. Gazette  (July 27, 2020),  https://news.harvard.edu/gazette/story/2020/07/the-likely-impact-of-great-american-outdoors-act/.

[4] Id.

[5] Randy Dann & Lucas Satterlee, Congress Passes Great American Outdoors Act, Rocky Mtn. Min. L. Newsl., No. 3, 2020, at 8–9.

[6] Id.

[7] 54 U.S.C. § 200402.

[8] Harsha, supra note 3.

[9] Id.

[10] Id.

[11] Id.

[12] Restoring Parks, Creating Jobs, Cadmus Grp. (Nov. 2018), https://cadmusgroup.com/wp-content/uploads/2019/07/Cadmus-PEW-Jobs-Analysis_07122019.pdf.

[13] 54 U.S.C. § 200402(c).

[14] Id.

[15] Harsha, supra note 3.

[16] Id.

[17] Id.

[18] The Great American Outdoors Act Economic Benefits, Nat’l Governors Ass’n, https://www.nga.org/wp-content/uploads/2020/06/GAO-Act-Economic-Benefits-Factsheet.pdf (last visited Sept. 29, 2020).

[19] Heidi Peltier, Employment Impacts of Conservation Spending, Rsch. Gate(May 2020), https://www.researchgate.net/publication/341554349_Employment_Impacts_of_Conservation_Spending.

[20] See Dann & Satterlee, supra note 5.

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16Oct

Plumbers Forced to Pay in Withdrawal Liability Case

Categories: 4th Cir. Blog
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By Kayleigh Butterfield

On June 29, 2015, the Fourth Circuit issued a published decision in the civil case Trustees of the Plumbers & Pipefitters National Pension Fund v. Plumbing Services, Inc. The case involved the Plumbers and Pipefitters National Pension Fund (“Fund”) and its suit against Plumbing Services, Inc. (“PSI”) and PSI’s successor company (collectively “Defendants”) for failing to pay withdrawal liability pursuant to 29 U.S.C. § 1381. The Fourth Circuit affirmed the district court’s grant of summary judgment in favor of the Fund.

PSI’s Agreement to Contribute

On April 8, 1998, the sole shareholder of PSI, Kenneth Julian, agreed in writing that PSI would make contributions to the Fund “as provided for by the [labor] Agreements now existing and hereafter.” Pursuant to this agreement, PSI began making contributions to the Fund in 1998 and continued to do so until 2011. On March 10, 2011, Julian—writing again on behalf of PSI—stated that PSI wanted to “abolish its working relationship with” the union that maintained the Fund. PSI’s successor, PSI Mechanical, filed articles of incorporation shortly before PSI went out of business in the summer of 2011. Julian remained the shareholder of PSI Mechanical.

Over a year after the March 10 letter, the Fund notified Julian that PSI had incurred withdrawal liability of $188,685 because the company was continuing the type of work that previously obligated it to contribute. PSI refused to pay and instead formally objected and sought review of the withdrawal liability. The Fund ultimately rejected PSI’s objections and demanded payment. Defendants did not pay, and failed to demand arbitration.

Statutory Framework

The issue of withdrawal liability stems from Congress’s enactment of the Employment Retirement Income Security Act (“ERISA”), which was meant to promote and stabilize employee benefit plans in private industries. In 1980, Congress expanded that goal by passing the Multiemployer Pension Plan Amendments Act (“MPPAA”), which established withdrawal liability for building and construction employers who (1) cease to have an obligation to contribute and (2) continue to perform the same type of work for which contributions were previously required in the jurisdiction of the collective bargaining agreement.

If an employer objects to an imposition of withdrawal liability, the plan sponsor must review the matter and notify the employer of the outcome and basis for its decision. If the employer still disagrees with the response, it must demand arbitration within 60 days after the sponsor’s notification, or 120 days after the employer’s initial request for review. Without a demand for arbitration, the employer is considered to have waived review of the withdrawal liability determination.

No Issue with Jurisdiction, Venue, or Merit Findings

The Fourth Circuit first addressed Defendants’ motions to dismiss for lack of personal jurisdiction and to transfer venue. The standard of review for jurisdiction is de novo, while the Court reviews venue transfer under abuse of discretion. The Court quickly disposed of the personal jurisdiction issue, noting that ERISA is a nationwide program that allows for a nationwide service of process. Thus, Defendants argument that it lacked “minimum contacts” with the chosen jurisdiction was moot. The Court went on to examine the four factors considered for a venue transfer, and found that (1) the weight accorded to plaintiff’s choice of venue was strong; (2) witness convenience and access was irrelevant given the lack of witness testimony needed for this case; (3) Defendant’s were not substantially inconvenienced; and (4) the interest of justice favored keeping the original venue.

Next, the Fourth Circuit addressed Defendant’s argument that the district court lacked subject matter jurisdiction because the action for withdrawal liability should have been brought under the National Labor Relations Act as opposed to ERISA. The Court explained that because Section 1145 of ERISA explicitly requires contractually obligated employers to contribute to a retirement fund in accordance with the operative collective bargaining agreement, it creates a federal right of action for collecting delinquent contributions as well as overdue withdrawal liability. Thus, the district court had subject matter jurisdiction over the Fund’s claim.

Finally, the Fourth Circuit reviewed de novo the district court’s grant of summary judgment on the merits. The Court noted that the Fund met its initial burden of providing sufficient evidence for its motion by providing an affidavit, correspondence, admissions from PSI, and a number of other documents. The Defendants failed to then provide evidence showing that there was a genuine issue for trial. Defendants did not dispute that they never demanded arbitration. Rather, they argued that PSI was not an employer subject to the arbitration requirement because Julian’s letter was not sufficient to bind PSI to future contributions.

The Fourth Circuit disagreed, stating that the text of Julian’s letter of assent clearly bound PSI to successor agreements under federal law. The Court noted that PSI’s conduct—decision to sign the letter, and contributing to the Fund for 13 years prior to withdrawing—also supported its obligations to contribute. Further, because PSI’s successor had the same shareholder and performed the same type of work, it was considered the same employer under ERISA. The Fourth Circuit concluded that Defendants were therefore one employer subject to the arbitration requirement, and, since they failed to demand arbitration, summary judgment in favor of the Fund should be upheld.

Affirmed

For the foregoing reasons, the Fourth Circuit affirmed the district court’s grant of summary judgment for the Fund.

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