June 01, 2014

Literary Resources

JoAnne L. Dunec


The Federal Information Manual

P. Stephen Gidiere III
ABA Section of Environment, Energy, and Resources, Second Edition, 2013

For those seeking to formally obtain federal documents, generally the Freedom of Information Act (FOIA) comes to mind. However, according to the author of The Federal Information Manual:

There is no single comprehensive statute that governs federal information. Instead a patchwork of statutes, common law, regulations, executive orders, and judicial decisions governs the federal government’s handling of information. What law applies in any given situation depends on the entity that controls the information (e.g., Congress or an executive branch agency), what action that entity is taking (e.g., collecting, destroying, or disclosing information), and the nature of the information (e.g., personal privacy information, national security information, or confidential business information).


The author continues, “FOIA is just one of dozens of statutes governing federal information, and a given dispute may turn on a less familiar one like the Paperwork Reduction Act, the Classified Information Procedures Act, or a rider buried in an appropriations bill.”

The Federal Information Manual is intended as a guide to understand the applicable federal laws. Originally published in 2006, the new edition provides a comprehensive update and expanded coverage. The book commences with an overview of federal information disputes, which describes not only the players but also trends in federal information law.

Chapter 2 covers response to an agency information request and related enforcement, administrative subpoenas, the Paperwork Reduction Act, and agency use of web cookies and other persistent tracking technology. Management of agency records, including coverage of the Federal Records Act, the Information Quality Act, and correction of personal information under the Privacy Act are addressed in Chapter 3. Classified information is covered in Chapter 4.

Access to federal records is addressed by Chapter 5, including records of executive branch agencies, personal information under the Privacy Act, presidential records, common law right of access, and access by the media. Chapter 6 explores electronic records and federal public websites, and includes, among other things, an overview of the Electronic Freedom of Information Act Amendments of 1966, the E-Government Act of 2002, and the Computer Matching and Privacy Protection Act. Chapter 7 outlines the elements of a successful FOIA request. Chapter 8 covers various rationale for withholding agency records and includes a discussion of the effect of the 2011 Supreme Court decision, Milner v. Department of the Navy, which eliminated a frequently used FOIA exemption, and subsequent agency and Congressional response.

Litigation involving federal records is addressed in Chapter 9, which includes litigating to (1) compel disclosure under FOIA, and (2) prevent disclosure of confidential business information. Discovery in non-FOIA civil litigation with the government and standing in information cases is also addressed. A new section, litigation under the Privacy Act, has been added to the chapter. The Privacy Act of 1974 has been added to the appendixes in the new edition.

Finally, Chapter 10 covers homeland security, commencing with a discussion of the impact of September 11 on federal information policy. Subsequent coverage includes the use of FOIA exemptions to protect homeland security information, critical energy infrastructure information, the USA Patriot Act, and the Homeland Security Act of 2002. The book concludes with a table of federal information statutes, as well as a table of cases.



McLinden, S., “Green Laws: Shopping Center Owners are Striving to Keep Up as More U.S. Cities Adopt Energy-Saving Mandates Similar to Those Enforced in Europe,” Vol. 34, No. 12 SCT Shopping Centers Today (Dec. 2013), published by the International Council of Shopping Centers (ICSC), highlights new energy-benchmarking laws for shopping centers. According to the author, Boston, Chicago, Minneapolis, and Philadelphia “have passed mandates this year and others are looking at doing so.” He notes:

Municipalities and environmental groups argue that these efforts will lower operating costs and thus boost property values. But critics say the measures, though well intentioned, cannot be applied equitably to multitenant retail buildings and can look like an attempt to shame owners into energy efficiency.

“The benchmarking mandates,” the author explains, “require owners of midsize and large shopping centers and other commercial buildings to track and report energy-consumption and greenhouse-gas data.” However, “[m]ost tenants are separately metered” and according to Will Teichman, director of sustainability at Kimco Realty, “it remains a maddening challenge to access energy-consumption data from them.”

Barry Wood, a regional operations manager and sustainability expert with Jones Lang LaSalle, says “one option could be to set up a benchmarking system that breaks internal reports into two groups: one for tenants, which are each individually metered, and another for shopping center areas that are controlled by landlords. That way, we don’t compare oranges to apples.” The author notes, “[t]he Washington, D.C.-based Building Owners and Managers Association International calls the various cities’ laws a local issue with nationwide implications.”

Despite the access to data and reporting complications, according to one study energy savings have occurred. As reported by the author:

The benchmarking process alone saves participants some 7 percent in energy costs, on average, over a three-year period, according to a U.S. Green Building Council study of 35,000 buildings that use the EPA’s Energy Star Portfolio Manager reporting system. A follow-up analysis showed that half their energy savings were achieved through low-cost or no-cost operations measures.

Other U.S. cities that have passed energy-use reporting ordinances include Austin, Texas; New York City; San Francisco; Seattle; and Washington, D.C. The author notes, “Austin’s ordinance, passed in 2009, is considered the second most ambitious in the world, after that of Melbourne, Australia.”

In a sidebar to the article, the author describes the newest energy-benchmarking laws as follows:

Boston: The ordinance requires commercial buildings measuring at least 35,000 square feet to report energy and water use and greenhouse-gas emissions annually. Starting in 2014, the program will be phased in, beginning with commercial buildings measuring 50,000 square feet or more. Those measuring between 35,000 and 50,000 square feet have until 2016 to comply.

Chicago: The law [passed in 2013] requires the owners of commercial buildings measuring more than 50,000 square feet to track and verify energy consumption starting in 2014. As with most of these city benchmarking laws, though, no hard improvements in energy efficiency are mandated. Some lawmakers had tried to oppose the measure citing concerns that older, less-energy-efficient building would be place at a competitive disadvantage. Starting in 2015, individual building information will be made public.

Minneapolis: This ordinance, passed in February [2013], requires that the owners of large commercial structures track and verify energy consumption using the same EPA tool that the laws of the other cities require. The law will apply to shopping centers and other commercial buildings measuring 100,000 square feet or more, starting in 2014. In 2015 it will extend to buildings measuring between 50,000 square feet and 100,000 square feet.

Philadelphia: Regulations were issued late this year with a compliance deadline of October 31 for commercial and mixed-use buildings with at least 50,000 square feet of indoor space. General building information is to be combined with utility-consumption data to create “relative energy-performance scores.” Noncompliance will trigger a fine.

Brownfield Redevelopment

The dissolution of all redevelopment agencies in California in 2012 has caused many unforeseen circumstances, including casting doubt on the efficacy of a state law, the Polanco Redevelopment Act (referred to as the Polanco Act), which was a powerful tool used by former redevelopment agencies to facilitate environmental cleanup of blighted areas in California. The following two articles describe new California legislation (the Gatto Act; effective January 1, 2014) that provides a new brownfield cleanup tool. The first is a “reader alert” article and is oriented to practitioners who are familiar with the Polanco Act. The second provides more background and detail regarding the Gatto Act.

Goldberg, L., “The Gatto Act (AB 440): The Newest Tool in the Brownfield’s Toolbox,”Vol. 32, No. 1 California Real Property Journal, a publication of the Real Property Law Section of the State Bar of California, compares and contrasts the Gatto Act (Cal. Health & Safety Code §§ 25403-03.8) enacted by Assembly Bill (AB) 440, and the Polanco Act (Cal. Health & Safety Code §§ 33459-59.8), noting that the Polanco Act “has not been replaced; it remains valid law.”

According to the author, although the Gatto Act was modeled after the Polanco Act, “it is a misnomer to call the Gatto Act ‘Polanco 2.’” The article first addresses the similarities between the two acts, then describes the differences. Both laws provide a process “similar to nuisance abatement to compel [environmental] cleanup.” If the responsible party fails to undertake the cleanup, the local agency can conduct the hazardous materials investigation and clean and recover its costs from the responsible party. Under both laws, the author notes, the property owners can be required to “turn over environmental assessment information. In this way, the Gatto Act, like the Polanco Act, can be used as an information-gathering tool.”

Other similarities include the following:

[T]he Gatto Act gives local agencies the authority to require cleanup of blighted contaminated properties and, following cleanup, the local agency, the redeveloper, its lender, and subsequent purchasers receive immunities from state regulatory action for any release or releases addressed in an approved cleanup plan. [In addition, both provide] comprehensive cost recovery rights that include recovery of attorneys’ fees and staff time in addition to cleanup costs, . . . . [T]he local agency can use the Gatto Act regardless of whether it owns the property targeted for cleanup or has any intention of acquiring it, . . . And finally, the local agency can take title to the property during the cleanup and not enter into the chain of liability.

However, notes the author, “[t]he Gatto Act differs from the Polanco Act in several significant areas” as follows. First, the terminology differs. “Instead of using the term ‘hazardous substances,’ the Gatto Act uses the term ‘hazardous materials.’ The latter definition includes both hazardous substances and hazardous wastes.” The definition of “blight” also differs and instead “mirrors the definition of a ‘brownfield.’” Under the Polanco Act, the term “blight” has been interpreted through case law and the use of the Polanco Act was limited to areas within redevelopment plan areas. Under the Gatto Act, “[l]ocal agencies can identify blighted properties and blighted areas anywhere in their jurisdiction.” The Gatto Act also differs procedurally and “clarifies that local agencies have a right of entry to conduct the site assessment or cleanup.” Unlike the Polanco Act, the cleanup does not require consistency with the National Contingency Plan.

The author notes, that “[t]he Legislature was concerned that the Gatto Act could be used by some unscrupulous local agencies to harass property owners.” As a result, the Act “provides a right to appeal the sixty-day notice to clean up the property.”

Finally, according to the author:

One fundamental difference between the Gatto Act and the Polanco Act cannot be found in the laws themselves, but in the structure of the local agencies authorized to employ these acts. Previously, redevelopment agencies could use tax increment to fund site assessment and remediation so cost recovery was not always necessary. In contrast, cities, counties, and successor housing authorities must dip into their general funds to pay for cleanup, or negotiate with developers who may agree to fund the work. This may result in a greater emphasis on the cost recovery provisions.

In sum, the author observes, the Gatto Act “offers expanded opportunities for cities, counties, and housing authorities to address contaminated properties in ways previously reserved to former redevelopment agencies.”

Burgaard, S. L., “Cleanup Act: After Dissolution of California’s Redevelopment Agencies, AB 440 has Granted Local Governments, Developers, and Lenders the Means to Redevelop Contaminated Properties,” Vol. 37, No. 2 Los Angeles Lawyer (Apr. 2014), published by the Los Angeles County Bar Association, describes in greater detail than the article above, new legislation, Assembly Bill (AB) 440 (the Gatto Act), which will facilitate environmental remediation and redevelopment of contaminated properties in California.

The article commences with background information providing the backdrop and effect of the Polanco Redevelopment Act (referred to as the Polanco Act). The author notes, “[m]any communities in Los Angeles—including Hollywood, Little Tokyo, Exposition Park, and the Pacific Corridor—in addition to communities in other cities, including San Diego’s Gaslamp Quarter and Pasadena’s Old Town, benefitted from the Polanco Act.” The author concludes the background description by observing:

The dissolution of redevelopment agencies delayed cleanup of contaminated properties and, in some instances, brought it to a halt, eliminating a vital tool to address urban decay and foster commercial and residential growth in communities. . . . Many argued that a program was needed to address brownfields and foster redevelopment, growth, and renewal in order to continue the work that redevelopment agencies had started.

The California Legislature responded by passage of the Gatto Act, which enables cities and counties, as well as housing authorities “that assume the functions of a former redevelopment agency in which the property was transferred from [the] successor agency to the housing authority” to have similar powers that the Polanco Act gave redevelopment agencies.

The author describes the Gatto Act in detail, then subsequently also notes significant differences, including differences identified in the article above. The author notes:

[d]espite the similarities, the new law also differs significantly from the former one, mostly because of the distinct functional characteristics between redevelopment agencies and cities, counties, and other local agencies. For example, under the Polanco Act, redevelopment agencies could acquire access to properties only by eminent domain, purchase, or lease. In contrast, the new law allows local agencies to enter and access contaminated properties for site assessment and cleanup upon providing notice to owners. This expanded authority provides local agencies with a means to access brownfields in a manner more expeditious and affordable than those provided under the Polanco Act.

In addition, she explains that the Gatto Act provides a “dispute resolution process between local agencies and [the California Department of Toxic Substances Control (DTSC)], or a regional board, that was absent in the old act. . . . Furthermore, AB 440 introduces an extensive public participation process.” The author also notes, as did the author above, that the Gatto Act provides that it is “the policy successor to the Polanco Redevelopment Act [and] that any judicial construction or interpretation of the Polanco Redevelopment Act shall also be applied to it.”

In conclusion, the author observes, that local agencies have other remedies to seek remediation of brownfields sites under common law, “such as nuisance or negligence, or under other state and federal statutes such as the Hazardous Substances Account Act, the California Water Code, and CERCLA.” However, the Gatto Act “provides immunities not provided by common law or those statutes, and since it does not exclude petroleum, [the Gatto Act] may be used in ways that CERCLA cannot.”

JoAnne L. Dunec

JoAnne L. Dunec is a real estate and land use transactional attorney who is a shareholder in Miller Starr Regalia’s Walnut Creek office.