The Start of the Legislative Session

By Skye David

On May 16, the North Carolina General Assembly will return to Jones Street, and the 2018 short session will convene. Legislators and staff have been publicly stating that this session will be a quick six-week session, and then legislators will be out in time to fundraise and campaign for the November midterms. While this seems promising for most, those who are familiar with General Assembly happenings will proudly inform you that this is what legislators say every year.

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For Section 75-1.1, the Dividing Line Between Contract and Non-Contract Claims Can Be Fuzzy

By Stephen Feldman

North Carolina courts have, on several occasions, attempted to describe the dividing line between ordinary breach of contract claims and claims that allege “substantial aggravating circumstances” relating to a breach. The latter category of claims violate N.C. Gen. Stat. § 75-1.1.

This blog post unpacks a recent decision that sheds light on this dividing line. The case is Swift Beef Co. v. Alex Lee Inc., authored by U.S. District Judge Max Cogburn.

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New ERISA Disability Claims Regulations: Final Words On the Final Rule

By Norris A. Adams II
and Caitlin H. Walton

In the final installment of our three-part series on ERISA’s new disability claim-processing procedures, we will wrap up our discussion by providing a run-down of the remaining changes to the regulations. Click here to read part one and here to read part two.

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Blockchain and Potential Impacts to Agriculture and Food Safety

By Jeremy Muhlfelder

Blockchain, the distributed, immutable, public ledger technology that underlies popular cryptocurrencies like Bitcoin, has the potential to impact all realms of commerce by removing inefficient third-party intermediaries from industry systems and processes. The food industry, particularly livestock and agricultural production, is fraught with administrative headaches and a lack of transparency. These problems make the food industry ripe for disruption, and implementing blockchain technology in the food supply chain, as promoted by companies like IBM, is an important step for the industry to enter the age of exponential technology. Matthew Wilson, Retailers and Producers Turn to IBM Blockchain to Improve Safety, available at (Aug. 24, 2017).

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North Carolina’s Participation in the Volkswagen Settlement

By Brian Phillips and Phyllis D. Jones

On September 18, 2015, the U.S. Environmental Protection Agency (EPA) cited the Volkswagen Group of America, Inc. (VW) with a Notice of Violation (NOV) for noncompliance of Section 203(a)(3)(B) of the Clean Air Act (CAA), 42 U.S.C. § 75229(a)(3)(B). This NOV was issued because Volkswagen manufactured and installed defeat devices in certain model year 2009 – 2015 2.0-liter diesel engine light-duty vehicles that circumvented EPA’s nitrogen oxide (NOx) emissions standard. The complaint filed by EPA alleges the defeat devices cause the vehicle’s emissions to exceed EPA’s standards during normal driving conditions. During normal driving conditions, the software renders certain emission control systems inoperative resulting in increased emissions.

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Air, Water and Soil Impacts of GenX: Health Goals, Ongoing Investigations and the Litigation Front

By Heather S. Kennealy and Edmund Woloszyn

The Chemours Company plant in Fayetteville produces a wide variety of films, fibers, and specialty chemicals at a 2,000-acre facility on the border of Cumberland and Bladen Counties along the banks of the Cape Fear River. E. I. du Pont de Nemours and Company (DuPont) owned and operated the Fayetteville Works Facility from around 1971 until around 2015, when DuPont formed Chemours and transferred ownership to it. DuPont currently leases a portion of the Fayetteville Works Facility from Chemours and has ongoing operations at the Facility.

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The Chair’s Comments: Here’s To Living In Interesting Environmental Law Times

By Stanford Davis Baird

In the last EENR newsletter, I remarked what an interesting time it is to practice environmental law. Evolving environmental policy, changing regulations, and interesting court cases make this a fascinating area of law. Two cases involving North Carolina lawyers that were in the news during the weeks since our last newsletter highlight this fact even more. The decision by the U.S. Court of Appeals for the Fourth Circuit in Upstate Forever v. Kinder Morgan Energy Partners, L.P. appears to break new ground in Clean Water Act jurisprudence and challenges long-held and accepted notions regarding point source discharges. This is an important case that may well be combined with a recent Ninth Circuit case from Hawaii for appeal to the U.S. Supreme Court. In a different case, on April 26, 2018, a federal jury awarded $50 million in punitive damages to neighbors of large-scale hog farms in Eastern North Carolina. Considered by many a landmark test case, this verdict challenges fundamental assumptions regarding hog farm operations in the multi-billion dollar industry in North Carolina. There is certain to be much more activity in the agricultural torts space going forward. These cases are further reminders that there is rarely a dull moment for followers of environmental law.

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In the Environment of Change: EENR Three-State CLE & Annual Meeting

There’s a new twist to this year’s Environment, Energy, & Natural Resources Law Section Annual Meeting and CLE Program in Asheville, May 11-12. It will be the first-ever three-state joint conference bringing together environmental attorneys, regulators, and consultants from Georgia, North Carolina and South Carolina for continuing legal education and professional development. Planners from each state’s Environmental Law Sections have spent the past several months putting together a program of interest and relevance to those under the jurisdiction of Region IV of the U.S. Environmental Protection Agency.

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Board-Led Prayer: Reasons to Beware

By Allison Cooper

Legislative prayer[1] is under attack and the challenges appear far from over. Our Fourth Circuit’s Lund v. Rowan County[2] decision, on rehearing en banc, declaring Rowan County’s[3] prayer practices unconstitutional is a perfect illustration. Despite years of protracted litigation, Lund‘s appellate history and that of its sister cases[4] represent the fundamental difficulty our courts have in evaluating the constitutionality of legislative prayer. Each case requires a fact intensive analysis considering whether the prayer practice is in fitting with historical practices; our nation’s Establishment Clause jurisprudence does not prescribe a particular test.[5]

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When ‘The Mask’ Grows Too Heavy, BarCARES Can Help

By Claudia McClinton

An NCBA member shares her BarCARES story in recognition of Mental Health Month.

Ten years ago I found myself in quite a quandary. My law partner had been appointed to the bench so I was practicing family law and criminal law (his former caseload) at the same time. I was also carrying the financial responsibility of three attorneys (don’t ask).

As you can imagine, I was in court practically every day and yet still barely scraping by financially. Worse, I was chronically stressed, not sleeping much, if at all, and my on-the-go lifestyle had me making poor health choices. One of those poor choices, for me, was the regular consumption of alcohol in an attempt to drown out the day. That choice amplified other poor choices and, in some cases, endangered not only my life but the lives of others.  I was going down a very dark path.

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