Sep 21, 2020

Waiver Of Money Damages And The Inadvertent Consent To Injunctive Relief

When drafting commercial contracts, attorneys often insist on including a provision requiring one or both parties to waive claims for money damages in the event of an alleged breach. For example, commercial leases often include a provision requiring the tenant to waive claims for money damages in matters pertaining to the landlord’s exercise of its judgment in withholding consent or approvals under the lease. While these provisions are intended to reduce risk by removing the exposure to money damages, they may have the unintended consequence of a finding that the parties have contracted for, and consented to, the granting of… Read more


Apr 15, 2020

They Don’t Call Us “Counselor” For Nothing: Part Two of Three

Attorney/Client Conversation

In Part One, the importance of sustaining a client’s morale was discussed.  Sustaining morale becomes particularly difficult when rendering candid advice.  Part Two will discuss the balance between sustaining morale and rendering candid advice. Rule 2.1 of the Rules of Professional Conduct, in the part entitled “Counselor,” addresses “giving candid advice”: In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.  A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. The Comment following the Rule 2.1 reveals the delicate balance a “counselor”… Read more


Nov 21, 2019

New USDA Hemp Rules: Initial Reactions

Blog_Hemp lab testing

Since the USDA’s recent release of the interim final rule for domestic hemp production, three aspects of the rule have emerged as hot topics of discussion: (1) “total THC”; (2) the requirement for testing labs to be DEA-registered; and (3) the destruction of “hot” hemp. More than 500 comments have already been submitted in response to the rule. Many of these comments express dissatisfaction with the rule’s requirement that hemp crops must be tested for “total THC,” which is derived from the sum of delta-9 tetrahydrocannabinol (THC) and delta-9-tetrahydrocaanabinolic acid (THCA). Crops testing higher than 0.3% total THC would be… Read more


Nov 13, 2019

Energy Companies Consider Petitioning Supreme Court to Review Obama Era Ozone Standards

Blog_Energy Co solicits Supreme Court

A coalition of energy companies and business groups petitioned Chief Justice John Roberts for extra time to weigh whether or not to appeal a lower court’s decision that largely upheld the Environmental Protection Agency’s (“EPA”) 2015 ozone caps. In August, the U.S. Court of Appeals for the District of Columbia upheld the Obama administration’s primary ozone standard of 70 ppb, which industry representatives maintain is too stringent. The industry challenge focused on two arguments: (1) that pollution standards should be looser to account for “background ozone” from natural sources; and (2) that the EPA should have considered “adverse economic, social,… Read more


Nov 7, 2019

USDA Issues Hemp Rule

Blog_Hemp Rule

On Tuesday, October 29, 2019, the U.S. Department of Agriculture (USDA) released the long-awaited interim final rule for the domestic production of hemp. As an interim final rule, it took effect immediately upon publication in the Federal Register on October 31, 2019. The rule allows for domestic hemp to be grown under the USDA program or a federally-approved State or Indian tribe’s plan. States and Indian tribes wishing to have primary regulatory authority over hemp production must submit a plan for approval by USDA that is in compliance with the rule’s requirements. The rule regulates where hemp can be grown,… Read more


Oct 24, 2019

New Mexico Environment Department Announces Draft Hemp Final Rule

Hemp Harvest

The New Mexico Environment Department (NMED) has released a draft final rule on hemp post-harvest processing, extraction, production, transportation, warehousing, and testing. The draft can be found here. NMED is currently accepting comments on the proposed final rule. Comments should be submitted by email to hemp.program@state.nm.us and reference a page and line number. NMED will also hold three public meeting to discuss the proposed final rule. The public meetings will be held on October 29, October 30, and November 5. Details on time and location can be found here. For more information contact Steve O’Day or Vickie Rusek.


Sep 25, 2019

James Bratton Honored by State Bar Environmental Section

blog_bratton

On September 26, 2019, the Environmental Law Section of the State Bar of Georgia will be hosting its Annual Luncheon at which it will announce this year’s winner of the Environmental Law Section’s lifetime achievement award for high achievement, professionalism, and dedication in the area of environmental law.  As part of presenting this year’s award, the Environmental Law Section will name the award after James Bratton who was the founder of the Environmental Law Section of the Georgia Bar, was a partner at Smith, Gambrell & Russell, LLP for over 50 years and passed away in January 2019 at the… Read more


May 24, 2019

The New Hemp Licenses

Hemp Field

On Friday, May 10, Georgia Governor Brian Kemp signed the Georgia Hemp Farming Act into law, legalizing the licensing of industrial hemp growers in the state. The law sets forth the requirements for grower licenses and processor permits, which will be administered by the state Department of Agriculture. The Department of Agriculture has not yet promulgated the application forms for grower licenses and processer permits, and is currently working on developing rules and regulations governing hemp production and the application process. Growing and processing hemp without a license remains illegal. Grower licenses will be issued for one calendar year, at… Read more


Dec 17, 2018

ACA Ruled Unconstitutional By Texas Court-What’s Next?

HRA: Health Reimbursement Arrangements ACA

Hours before the end of annual enrollment in the federal health care exchanges under the Affordable Care Act (ACA), a Texas district court judge ruled that the ACA is unconstitutional because the ACA’s individual mandate was eliminated. (The individual mandate is reduced to zero on January 1, 2019.) In Texas vs. United States, Judge Reed C. O’Connor struck down the law, siding with a group of 18 Republican state attorneys general and two GOP governors that the tax bill passed by Congress last December effectively rendered the entire ACA unconstitutional. Judge O’Connor ruled that, because the U.S. Supreme Court upheld… Read more


Nov 7, 2018

Breaking News: Post-Election IRS Issues Final ACA Rule Regarding Religious Exemptions

ACA Affordable Care Act

The IRS has just released new final regulations regarding religious exemptions and accommodations from the contraceptive coverage mandate of the Affordable Care Act (ACA). The rule, to be officially published on November 15th, currently in unpublished form, is available here. This final rule, released post-midterm elections, will provide a way forward for religious organizations that object to certain contraceptive coverage required under the ACA. More details soon.