July 26, 2023

EPA Proposes to Usurp State’s Judgment and Standards for Stream Impairment Classification

Charleston, WV

Environmental Alert

(by Robert Stonestreet and Kip Power)

The federal Environmental Protection Agency (EPA) has taken rare action in proposing to not only supersede the role of the West Virginia Department of Environmental Protection (WVDEP) in addressing water quality conditions in the state, but also seeking to impose a new standard for determining how to classify the biological health of West Virginia waters. Under Section 303(d) of the federal Clean Water Act, state governments are required to identify, every three years, waters within their borders that do not meet designated water quality standards. Such waters are deemed “impaired” for the water quality standards exceeded and are placed on what is known as a “303(d) List.” That list must include waters that fail to meet numeric water quality standards – i.e., specific concentrations of iron, aluminum, and other substances. Waters can also be “impaired” for failure to comply with “narrative” water quality standards – i.e., narrative descriptions of certain prohibited conditions, such as distinctly visible foam, sludge deposits, foul odors, or discoloration. West Virginia’s narrative standards also provide that waters can be considered “biologically impaired” if they contain “materials in concentrations which are harmful, hazardous, or toxic to man, animal or aquatic life.”

When a stream is placed on the 303(d) List, it is put in line for the development of a pollution reduction plan (known as a “total maximum daily load” or “TMDL”). Among other things, a TMDL results in more restrictive permit limits for discharges associated with the parameters deemed to be contributing to the impairment.

For more than 20 years, the WVDEP has used the West Virginia Stream Condition Index (WVSCI) as the primary methodology for evaluating whether a stream is “biologically impaired.” Under WVSCI, a stream is considered impaired if it does not support a certain volume and diversity of insects and other aquatic life even if the stream meets all numeric water quality standards. …

July 21, 2023

The Role of Local Government in the Energy Transition

Pittsburgh, PA

The Foundation for Natural Resources and Energy Law

(by Blaine Lucas and Anna Jewart)

§ 31.01 Introduction*

At a national level, public support for renewable energy generation has increased significantly. National approval, however, does not necessarily translate into local support. Local governments have long enjoyed considerable freedom to regulate traditional energy sources, such as oil and gas, under their police powers. At the behest of residents concerned about its impacts, local governments are similarly exercising their authority to restrict renewable development under zoning, siting and other land use ordinances, efforts that may undermine renewable portfolio standards and other state energy transition policy goals. This chapter will focus on local land use regulation of the most common forms of renewable energy development—utility-scale wind and utility-scale solar projects. In this context, this chapter will

* Cite as Blaine A. Lucas & Anna S. Jewart, “The Role of Local Government in the Energy Transition,” 69 Nat. Resources & Energy L. Inst. 31-1 (2023).

Blaine Lucas is a shareholder and member of Babst Calland’s Public Sector and Energy and Natural Resources Groups. He is responsible for coordination of the firm’s representation of traditional and renewable energy industry clients on land use and other local regulatory matters. He has represented energy clients in obtaining local government approvals for a wide variety of projects and defended these approvals through the appellate courts. He has assisted both traditional and renewable energy industry clients in analyzing the substantive impact and procedural requirements of land use, noise, road, and other local ordinances. Blaine has served as solicitor for boroughs, townships, municipal authorities, and zoning hearing boards, and has represented municipalities as special counsel on zoning, zoning enforcement, transportation, economic development, and local taxation issues. …

July 20, 2023

The New Privacy Shield – European Commission Adopts the EU-U.S. Data Privacy Framework

Pittsburgh, PA

Firm Alert

(by Ember Holmes and Justine Kasznica)

On July 10, 2023, the European Commission (EC) adopted the European Union-United States Data Privacy Framework (DPF), an adequacy decision concluding that the U.S. has adequate data privacy and security infrastructure in place for secure transfer of personal data from the European Economic Area (EEA), which is comprised of the 27 European Union Member States, Norway, Iceland, and Liechtenstein, into the U.S. Prior to the adoption of the DPF, in order to transfer data from the EEA to the U.S., organizations in the U.S. were required to use one of the EC-approved safeguards, such as standard contractual clauses or binding corporate rules. These safeguards, set forth in Article 46 of the General Data Protection Regulation (GDPR), are onerous and complicated. The DPF allows for the safe and secure flow of data for U.S. multinational corporations and organizations doing business with those in the EEA. The importance of this data flow cannot be overstated – organizations across all sectors, whether large or small, will have equal opportunity to participate in the digital economy and to engage in streamlined international commerce.

There are three branches of the DPF – the EU-U.S. DPF, the Swiss-U.S. DPF, and the UK Extension to the EU-U.S. DPF. With the July adoption of the EU-U.S. DPF by the EC, the EU-U.S. DPF permits flow of information from the E.U. to the U.S. The Swiss-U.S. DPF and UK Extension to the EU-U.S. DPF will enable personal data transfers from those jurisdictions if and when the Swiss and UK Governments officially recognize the adequacy decision.

In the U.S., the DPF is implemented and administered by the U.S. Department of Commerce (DOC), and on July 17, 2023, the DOC launched the Data Privacy Framework program website. …

July 18, 2023

Where Can a Corporation Be Sued For, Well, Anything? (An Evolving Test)

Pittsburgh, PA

Litigation Alert

(By Christina Manfredi McKinley and Joseph Schaeffer)

The 14th Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Am. XIV § 1. For corporations, the question of what constitutes due process—and specifically, where the corporation can be sued for conduct unrelated to corporation’s conduct in the forum (i.e., “general personal jurisdiction”)—has continued to evolve. Indeed, over the last century, the Supreme Court’s jurisprudence has contracted the available fora in which a corporation can be subjected to general personal jurisdiction, culminating in 2014 with the concept that there are only two locations in which a corporation is “at home” for general jurisdiction purposes:  where it is incorporated or where it maintains its principal place of business. This test has been a practical one, and has provided both (some degree of) certainty to corporate defendants and a disincentive to otherwise-inclined forum shoppers.

At the close of this past term, however, the Supreme Court in Mallory v. Norfolk Southern Railway Co.[1] rejected a due process challenge to a Pennsylvania law that requires out-of-state corporations to submit to general jurisdiction in the Commonwealth as a condition of registering to do business within Pennsylvania.

The concept of “personal jurisdiction” is an important one in the law. It refers to the ability of a court to take an action that is binding on parties in front of it.[2] A court that has “general jurisdiction” over a defendant can entertain any cause of action against that defendant, irrespective of whether the defendant’s complained-of conduct has a nexus to the forum. …

July 17, 2023

D.C. Circuit Decision Vacates PHMSA’s Final Rule Applied to Gathering Lines

Pittsburgh, PA and Washington, DC

PIOGA Press

(By Christina Manfredi McKinley and Keith Coyle)

On May 16, 2023, the D.C. Circuit issued a decision vacating in its entirety a challenged piece of a rule related to safety valve requirements for gas gathering lines. That decision, GPA Midstream Association and American Petroleum Institute v. United States Department of Transportation and Pipeline and Hazardous Safety Administration, held that the agency violated the Administrative Procedure Act and acted arbitrarily and capriciously when it failed to explain, let alone consider, why the rulemaking’s safety standard would be practicable and make sense for regulated gathering lines until issuing the final rule, when there could be no peer review or public comment.

In 2020, PHMSA published a notice of proposed rulemaking to comply with a Congressional directive to the agency to consider the use of valve, or automatic shutoff technology, on gas transmission lines. But the notice of proposed rulemaking and risk assessment said nothing about the costs and benefits of applying the standard to gathering pipelines. Nevertheless, because of certain pre-existing rules, new or replaced regulated gathering lines would have been subject to the proposed standard unless expressly carved out by the rule.

As such, in their comments to the proposed rule, the Petitioners sought an exemption for gathering pipelines. Among other things, they argued the risk assessment lacked the cost-benefit data needed to justify applying the rule to gathering pipelines. Knowing these objections, PHMSA proceeded with the rulemaking anyway. In the final rule’s preamble, PHMSA addressed some of the objections. It pointed out that the proposed rule never said regulated gathering lines would be exempt—which is correct because the proposed rule said nothing at all—and it included some data about gathering lines in the final rule’s risk assessment. …

June 29, 2023

Companies face uncertainties as governments crack down on PFAS

Pittsburgh, PA

Smart Business

(By Adam Burroughs featuring Jean Mosites)

Fluorinated chemicals, or per- and polyfluoroalkyl substances (PFAS), are a large and diverse family of chemical compounds used in myriad consumer, commercial and industrial products. Because these “forever chemicals” do not break down and tend to accumulate when released into the environment, numerous state and federal agencies are emphasizing, and increasingly enforcing, new waste and water management practices.

“They’re attempting to significantly reduce PFAS compounds that may be present in water, air, soil and many products to mitigate any health-related risks that may come with them,” says Jean M. Mosites, shareholder and co-chair of the Environmental Practice Group at Babst Calland. “Because of this, businesses are facing regulatory uncertainty, high costs of mitigation, and the potential for class-action litigation amidst increasing public awareness.”

Smart Business spoke with Mosites about the uncertainties facing businesses as governments work to address the known or suspected impacts of PFAS.

How have government regulations changed recently?

Recently, the Environmental Protection Agency (EPA) laid out a whole-of-agency approach to addressing PFAS. The roadmap sets timelines by which the agency plans to take specific actions and commit to bolder new policies.

Some states have already enacted laws regulating the presence of PFAS in drinking water, food packaging and consumer products. There have been increased federal and state regulation across a variety of program areas, including drinking water, site remediation and operational permits issued under the Clean Water Act.

Among the more sweeping recent government regulatory developments has been the EPA’s March 2023 proposal of a first-ever national drinking water standard called the National Primary Drinking Water Regulations. The proposed standard is far below any of the standards adopted by the states, all of which will need to revise their laws to be as strict as federal law when finalized. …

June 23, 2023

Employment Eligibility Verification Requirement Flexibility to End August 30, 2023

Pittsburgh, PA

Employment and Labor Alert

(by Alex Farone and Steve Antonelli)

All employers must soon resume physically inspecting the Form I-9 and employment eligibility documentation for new employees, a requirement that has not been strictly enforced since the beginning of the COVID-19 pandemic.

The U.S. Immigration Customs Enforcement (ICE) of the Department of Homeland Security (DHS) had temporarily allowed remote I-9 verification during the pandemic for employees working remotely. After several extensions, these permitted flexibilities are scheduled to end on July 31, 2023. ICE has announced that employers will have a 30-day grace period until August 30, 2023, to reverify in person all employment eligibility documents for employees who were hired after March 20, 2020 with virtual or remote examination. This requirement particularly relates to Section 2 of the Form I-9, where the employer must certify by signature under penalty of perjury that they have examined evidence of the employee’s identity and documentation authorizing them to work in the U.S. within three business days of the employee’s first day of employment, thereby verifying employment eligibility. For all new hires moving forward, the in-person verification requirements will resume on July 31, 2023.

Employers may perform the in-person inspections themselves by requesting that these employees visit the office or by sending another employee to perform the inspection in person. Alternatively, employers are permitted to designate an authorized representative, including non-employees such as third-party notaries, to conduct the in-person inspection on behalf of the employer. In fact, DHS permits any person other than the employee in question to act as an employer’s authorized representative. Some employers utilize third-party services for this function, and others request contact information for a friend or family member of the employee to have them perform this role. …

June 15, 2023

Seeing the Forest for the Trees: Understanding How Original Jurisdiction in ACRE Cases Impacts Your Municipality

Pittsburgh, PA

Legal Intelligencer

(By Michael Korns and Anna Hosack)

Municipalities in Pennsylvania are “creatures of the state,” and thus, have only those powers that have been granted to them by the Commonwealth.  One of the foundational statutes of Pennsylvania municipal law is the Pennsylvania Municipalities Planning Code (“MPC”), 53 P.S. § 10101 et seq.  The MPC grants municipalities the right to regulate subdivision, land use, and zoning, and establishes the procedures and guidelines that govern local land regulation.  However, the MPC is just a statute, and what powers the state has granted, it can just as easily take away.  A recent opinion from the Commonwealth Court shows the dangers of relying solely on the MPC procedural rules when other statutes are also potentially in play and highlights the importance of understanding when the normal day to day protocols of the MPC may be superseded by other laws.

In R. Bruce McNew v. East Marlborough Township, No. 29-MD-2022, 2023 WL 3081354 (Pa. Cmwlth. Apr. 26, 2023), the Pennsylvania Commonwealth Court revisited the impact of the Agricultural Communities and Rural Environmental Act (“ACRE”), 3 Pa.C.S. § 101 et seq., and the Right to Farm Act, 3 P.S. §§ 951-958 (“RTFA”), on a municipality’s ability to regulate forestry and timber harvesting within its boundaries.

Fundamentally, Pennsylvania municipalities have no inherent power of their own; but rather, they possess only such powers of government as are expressly granted to them by statute and as are necessary to carry the same into effect.  Through enactment of the MPC, the General Assembly authorized the governing body of each municipality to enact, amend, and repeal zoning and subdivision and land development ordinances to allow for local regulation of land use.   …

June 14, 2023

Why AI Isn’t Going to Replace Your Lawyer…Yet

Pittsburgh, PA

TEQ Magazine

(By Dane Fennell)

Artificial Intelligence (AI) has made its way into the legal profession — though not in the way that some news headlines might suggest. Recently, a program called ChatGPT passed several law and business school exams. However, for anyone who has any thoughts that we are entering an age of AI legal representation, flesh and blood lawyers who engage in utilizing AI on a daily basis can confirm that those days are a long way off.

“While AI is being used as a tool in a number of different areas of the law, it’s not yet capable of taking over all human roles,” says Dane Fennell, Senior Counsel at Babst Calland. “It’s just an arrow in the quiver that professionals can use to help them be more efficient, saving them and their clients time and money.”

Fennell discusses the state of AI technology in the legal profession — how it’s being used, and what it can and can’t do.

How would you characterize AI’s place in the legal world?

There are a number of ways that AI has found its way into the legal profession. For example, in M&A due diligence, AI can be used to review large volumes of documents to assist the legal team to home in on the key aspects of a deal with much more speed and efficiency than a manual review. This saves clients time and money, and actually enables the review team to expand the scope of a review to find the “needle in the haystack” issues.

Consumer-based programs are helping those who find themselves with relatively minor legal issues, such as parking tickets and credit card fees. …

June 13, 2023

Pennsylvania Supreme Court Vacates the Commonwealth Court 2018 Decision that had Invalidated “Public Resource” Portions of Chapter 78a Regulations

Pittsburgh, PA

PIOGA Press

(By Jean Mosites and Kevin Garber)

The Marcellus Shale Coalition v. Department of Environmental Protection and Environmental Quality Board, 573 M.D. 2016.

In April 2023, the Pennsylvania Supreme Court vacated the Commonwealth Court’s decision that had invalidated several “public resource” provisions in 25 Pa. Code Chapter 78a. The Supreme Court’s decision is an abrupt departure from its 2018 decision affirming the preliminary injunction on Count I that had been imposed by the Commonwealth Court in 2016. The Supreme Court’s latest ruling puts these regulations into effect in the well permit process for the first time.

There is no statutory right to judicial review of new regulations in Pennsylvania. Such challenges must proceed in the form of declaratory judgment action in the Commonwealth Court or “as applied” in an appeal before the Environmental Hearing Board on a case-by-case basis. The latter course is duplicative, lengthy and costly, offering only piecemeal relief. MSC challenged portions of the new Chapter 78a regulatory package through a declaratory judgment action in October 2016, seeking relief for its members from regulations beyond the scope of Environmental Quality Board’s (EQB) authority, regulations with high cost and little discernible benefit.

Count I of MSC’s Petition for Review challenged Sections 78a.15(f) and (g), and the related definitions contained in Section 78a.1 of the Chapter 78a regulations. The provisions created a new pre-permitting process for well permit applicants, requiring new notice and comment opportunities in addition to those expressly authorized by Act 13, as adopted in 2012. The relevant defined terms include:

Common areas of a school’s property—An area on a school’s property accessible to the general public for recreational purposes. …

June 13, 2023

The Future of Pennsylvania’s RGGI Rule Remains Uncertain

Pittsburgh, PA and Washington, DC

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Mining

(By Joseph Reinhart, Sean McGovern, Gina Falaschi Buchman and Christina Puhnaty)

As previously reported in Vol. 39, No. 2 (2022) of this Newsletter, the Pennsylvania Department of Environmental Protection’s (PADEP) CO2 Budget Trading Program rule, or RGGI Rule, which links the commonwealth’s cap-and-trade program to RGGI, was published in the Pennsylvania Bulletin in April 2022. See 52 Pa. Bull. 2471 (Apr. 23, 2022). RGGI is the country’s first regional, market-based cap-and-trade program designed to reduce carbon dioxide (CO2) emissions from fossil fuel-fired electric power generators with a capacity of 25 megawatts or greater that send more than 10% of their annual gross generation to the electric grid.

Three legal challenges were filed in response to the publication of the final rule. On April 25, 2022, owners of coal-fired power plants and other stakeholders filed a petition for review and an application for special relief in the form of a temporary injunction, which was granted. See Bowfin KeyCon Holdings, LLC v. PADEP, No. 247 MD 2022 (Pa. Commw. Ct. filed Apr. 25, 2022); Vol. 39, No. 3 (2022) of this Newsletter. Briefing has been filed and the court heard 30 minutes of oral argument in the case on November 16, 2022. On March 24, 2023, the Supreme Court of Pennsylvania granted requests to dismiss the preliminary injunction because the petitioners had failed to pay the bond required to secure the preliminary injunction. Petitioner Bowfin KeyCon Holdings, LLC, which has an interest in some of the subject coal-fired power plants, filed an appeal of the bond amount in summer 2022, claiming that the bond was infeasible or impossible to pay and asked the court to reduce it to a negligible amount. …

June 13, 2023

In Response to Environmental Groups’ Request, PADEP Declines to Issue Order to Shell Plant to Cease Operations

Pittsburgh, PA

 The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Matthew Wood and Christina Puhnaty)

On February 17, 2023, the Clean Air Council (CAC) and the Environmental Integrity Project (EIP) sent a letter to the Pennsylvania Department of Environmental Protection (PADEP) requesting that the agency issue an order to Shell Chemical Appalachia LLC (Shell) to temporarily halt operations at the Shell Polymers Monaca Plant in Beaver County, Pennsylvania (Plant). See Letter from EIP & CAC to PADEP (Feb. 17, 2023). Specifically, CAC and EIP alleged that people living near the Plant had been exposed to volatile organic compounds (VOCs), nitrogen oxide (NOx), and other pollutants emitted in violation of Shell’s plan approval, the federal Clean Air Act, and the Pennsylvania Air Pollution Control Act (APCA). CAC and EIP cited PADEP’s February 2023 notice of violation (NOV) documenting the Plant’s exceedances of the 12-month rolling total emission limitations for VOCs in November and December 2022 and the 12-month rolling total emission limitations for NOx in December 2022, as well as the agency’s December 2022 NOV for the same VOCs emissions violations during September and October 2022. CAC and EIP also highlighted multiple malfunction reports submitted to PADEP by Shell documenting alleged violations of the visible emissions limitations of the Clean Air Act and Shell’s plan approval related to emissions from the Plant’s flares.

CAC and EIP urged PADEP to immediately act using the authority granted to it under the APCA, arguing that the statute allows the agency to issue orders to facilities to cease operations in violation of the APCA, plan approvals, or permits, citing as precedent a stop construction order PADEP issued in 2018 related to incidents during the construction of the Mariner East 2 pipeline. …

June 12, 2023

West Virginia Supreme Court Refuses to Extend Employer’s Duty of Care in Speedway v. Jarrett

Charleston, WV

Employment Bulletin

(by Mychal Schulz)

The West Virginia Supreme Court issued a decision in a closely watched case where the estate of a motorcyclist killed by an employee after she left work, and who was found to have numerous prescription drugs in her system at the time of the accident, sought to impose liability on the employer.

Facts.
Brandy Liggett began her employment with Speedway on September 13, 2015, and she received training while working at a Speedway store on September 13, 14, and 15. On September 15, Ms. Liggett worked the 6 a.m. to 2 p.m. shift. During that shift, her manager, Bobby Jo Maguire, and another employee, Jennifer Wells, observed Ms. Liggett nod off to sleep. Specifically, Ms. Maguire observed Ms. Liggett appearing to fall asleep a couple of times while watching training videos. Ms. Maguire sent Ms. Liggett outside, believing that the fresh air would wake her up, but then Ms. Maguire and Ms. Wells observed Ms. Liggett nodding her head and appearing to fall asleep while standing next to a trash can outside. Ms. Wells remarked to Ms. Maguire that “something was going on” and that “something might be wrong with” Ms. Liggett.

Nonetheless, as Ms. Liggett approached the end of her shift, she was asked if she would work an extra hour as Speedway needed another person from 2 p.m. to 3 p.m. because of a call off.  Neither Ms. Maguire nor Ms. Wells could stay, so Ms. Liggett volunteered to stay that extra hour.

At 3 p.m., Ms. Liggett left the Speedway and drove to her son’s middle school to drop off football equipment. Thereafter, she drove home, but on her way home and about five miles from the school, she crossed the center line and struck a motorcycle, killing the driver, Kevin Jarrett. …

June 8, 2023

EPA Bets on Low-GHG Hydrogen and Carbon Capture & Sequestration Technologies in Latest Proposed Power Plant Clean Air Act Rule

Pittsburgh, PA

Legal Intelligencer

(by Gary Steinbauer and Christina Puhnaty)

In the nearly decade-long saga to regulate greenhouse gas (GHG) emissions from fossil fuel-fired power plants, the U.S. EPA recently began the rulemaking process for a new set of regulations that would impose restrictions on emission units at new and existing power plants. On May 23, 2023, the U.S. EPA published a proposed rule entitled “New Source Performance Standards for Greenhouse Gas Emissions From New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions From Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule” (Proposed Rule), starting a comment period that ends on July 24, 2023. 88 Fed. Reg. 33,240 (May 23, 2023). EPA’s Proposed Rule relies heavily on hydrogen co-firing and carbon capture and sequestration (CCS) deployment as part of the decarbonization of the power-producing sector.

In the Proposed Rule, EPA proposes five distinct actions under section 111 of the Clean Air Act (CAA). First, EPA is proposing to amend existing New Source Performance Standards (NSPS) for GHG emissions from new and reconstructed fossil fuel-fired stationary combustion turbine EGUs. Second, EPA is proposing to amend existing NSPS for GHG emissions from fossil fuel-fired steam generating units that undergo a large modification. Third, EPA is proposing emissions guidelines for GHG emissions from existing fossil fuel-fired steam generating EGUs (including coal, oil, and gas-fired steam generating EGUs). Fourth, EPA is proposing emissions guidelines for GHG emissions from the “largest, most frequently operated” existing stationary combustion turbines. Lastly, EPA is proposing to repeal the Affordable Clean Energy (ACE) Rule promulgated by the Trump administration in 2019 because “the emissions guidelines established in ACE do not reflect the Best System of Emissions Reduction (BSER) for steam generating EGUs and are inconsistent with section 111 of the CAA in other respects.” 88 Fed. …

June 6, 2023

Supreme Court Removes Barrier to Appeals of “Purely Legal” Issues

Pittsburgh, PA

Litigation Alert

(by Christina McKinley and Alex Farone)

Last week, the United States Supreme Court ruled that litigants can appeal a summary judgment ruling based on a purely legal issue without filing a post-trial motion to preserve the issue. The unanimous decision authored by Justice Amy Coney Barrett in Dupree v. Younger resolved a significant split among the Circuit Courts of Appeal on this issue. No. 22-210.

For trial practitioners, particularly those who litigate within multiple circuits, Dupree will be a welcome relief, as the ruling comports with the majority of circuits, the Rules of Civil Procedure, and common sense. It will remove one more obstacle from perfecting the appellate record, and it will promote consistency among the circuits. Nevertheless, out of an abundance of caution, counsel should take care to renew their arguments in a post-trial motion even on “legal” summary judgment issues when there may be a question as to whether the issue is “purely legal.”

Prior to Dupree, the First, Fourth, Fifth, Eighth, and Eleventh Circuits had held that when a party is dissatisfied with any summary judgment ruling, that party must file a post-trial motion for judgment as a matter of law, re-raising the issue in order to preserve it for a possible appeal. In contrast, the remaining circuit courts required this preservation exercise only for summary judgment issues decided on factual grounds. With Dupree, the Supreme Court sided with the majority of circuits, drawing a procedural distinction between factual and legal summary judgment determinations. Dupree provides much needed clarity in this procedural arena, where previously, an unwary litigant risked waiver of appellate review if it thought (sensibly) that re-raising a legal issue denied at summary judgment would have been futile. …

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