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James W. Semple joins Leaders in Law as the exclusive Dispute Resolution Law member in Delaware, USA

Leaders in Law, the leading platform in its field, is delighted to welcome James W. Semple as our exclusively recommended & endorsed Dispute Resolution Law expert in Delaware, USA. James’ office is located in Wilmington.

Mr.Semple has more than 45 years of experience assessing and resolving complex business disputes in a broad range of contexts.  As a charter member of the Delaware Chapter of the American Board of Trial Advocates, and an ABA-trained mediator for the Delaware Superior Court, Jim has tried, mediated, arbitrated, and advocated in hundreds of legal and alternative dispute resolution proceedings.

He has represented clients in jury and bench trials in virtually every type of business dispute before the Federal District Court, the Delaware Superior Court, the Delaware Supreme Court and the Court of Chancery.  He represents clients ranging from individuals to Fortune 50 corporations in major complex commercial litigation cases, contract disputes, advancement disputes, employment and non-compete agreement disputes, complex tort cases, and complex insurance coverage actions.

If you require any assistance in this area, please use the contact details provided in James’ profile below or contact us at info@leaders-in-law.com & we will put you in touch.

Washington Joins Chorus of States with Major Environmental Justice Laws

Washington State has joined a growing number of states that have adopted keystone environmental justice laws. On May 17, 2021, Governor Jay Inslee signed the Healthy Environment for All (HEAL) Act, E2SSB 5141, into law.

The new law recognizes that many communities experience disproportionately greater environmental health impacts as a result of multiple social, economic, and environmental stressors. Its principal objectives are to reduce and eliminate these disparities and to “remedy the effects of past disparate treatment of overburdened communities and vulnerable populations.” The law builds on recommendations in a 2020 report prepared by a state-funded environmental justice task force.[1] Over the next several years, the legislation will inject environmental justice considerations into state administrative agency actions. These considerations are likely to affect a range of agency activities and initiatives from grant programs and rulemaking to project approvals and enforcement cases.[2] 

Key Takeaways

Several state agencies, including the Department of Ecology, will be required by the law to:

  • Adopt environmental justice principles into their strategic planning and budgeting and funding decisions.
  • Develop and implement a community engagement plan with a focus on empowering overburdened communities and vulnerable populations, and on considering them in agency decision-making.
  • Consult with Indian tribes on decisions affecting tribal rights and lands and when carrying out certain agency environmental justice obligations.
  • Develop metrics and reports for tracking progress toward environmental justice goals.[3] 

For members of the regulated community, the most salient aspect of the law likely will be environmental justice assessment requirements. By July 1, 2023, covered state agencies must develop a process for conducting environmental justice assessments for “significant agency actions.” Based on these assessments, the agencies must seek “to reduce or eliminate the environmental harms and maximize the environmental benefits created by the significant agency action on overburdened communities and vulnerable populations” to the extent “feasible and consistent with the underlying statute being implemented.” Even if the law does not expand agency authority, these assessments are likely to influence regulatory requirements and, ultimately, how the agencies administer and enforce their programs.

Environmental Justice, Overburdened Communities, and Other Critical Concepts

At the heart of the law are several foundational concepts with which environmental attorneys and their clients should become familiar. The first, naturally, is “environmental justice,” defined as:

the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, rules, and policies. Environmental justice includes addressing disproportionate environmental and health impacts in all laws, rules, and policies with environmental impacts by prioritizing vulnerable populations and overburdened communities, the equitable distribution of resources and benefits, and eliminating harm.

Although derived in part from an EPA definition that addresses the procedural aspects of environmental regulation, the state’s definition incorporates outcome-based components.

The law also includes other definitions to assist with identifying relevant environmental benefits and harms, as well as the communities experiencing the disproportionate environmental and health burdens that the law seeks to remedy. For example, “overburdened communities” are “a geographic area where vulnerable populations face combined, multiple environmental harms and health impacts, and includes, but is not limited to, highly impacted communities ….”

A critical piece of the state’s environmental justice program will be an “environmental health disparities map,” which the Department of Health is charged with maintaining.[4] The map must use up-to-date information and data to identify “cumulative environmental health impacts and overburdened communities.” The map is likely to play a primary role in efforts to implement the state’s environmental justice initiatives by identifying relevant communities and impacts.[5]

Environmental Justice Assessments

The scope, methods, and applicability of agency environmental justice assessments for significant agency actions will be shaped over the next several years by each agency, an interagency workgroup, and a soon-to-be established environmental justice council.[6] A “significant agency action” is defined broadly as an “action that may cause environmental harm or may affect the equitable distribution of environmental benefits to an overburdened community or a vulnerable population.” As a starting point, the law identifies certain rulemaking, large capital and transportation projects, and agency legislation requests as significant agency actions. But, after considering guidance from the environmental justice council and interagency workgroup, agencies can define additional agency actions that would trigger environmental justice assessments.

Similarly, the content of the environmental justice assessments will be clarified through agency action over the next couple of years. As a baseline, the law requires the assessments to:

  • “Where applicable, utilize cumulative environmental health impact analysis … that considers the effects of the proposed action.”
  • Identify “overburdened communities and vulnerable populations who are expected to be affected … and the potential environmental and health impacts.”
  • Identify impacts to tribal rights and resources.
  • Consider community input and describe how environmental justice communities may become involved in the development of the action.
  • Identify “options … to reduce, mitigate, or eliminate identified probable impacts on overburdened communities and vulnerable populations, or provide a justification” for not addressing those impacts.

The law reigns in the potential scope of environmental justice assessments by specifying that they should resemble the familiar State Environmental Policy Act checklists that agencies use to evaluate environmental impacts for countless projects. The law also states that the checklist is not intended to be “a comprehensive or an exhaustive examination of all potential impacts” and does not require “novel quantitative or economic analysis” of the proposed agency action.

Pending the outcome of the assessments, agencies then must attempt to minimize or avoid “environmental harm” and “maximize the environmental benefits” for “overburdened communities and vulnerable populations.” The law specifies several “methods” that the agencies must consider “consistent with agency authority, mission, and mandates,” including, among others:

  • Eliminating “disparate impact of environmental harms.”
  • Reducing cumulative health impacts.
  • Providing for “equitable participation and meaningful engagement” of impacted communities in the development of the agency action.
  • “Prioritizing equitable distribution of resources and benefits.”
  • Providing “positive workforce and job outcomes.”
  • “Modifying substantive regulatory or policy requirements.”

The law contemplates that “other mitigation techniques” will be developed by the agencies as well based on input from a range of sources, such as the environmental justice council and “representatives of overburdened communities and vulnerable populations.”

The environmental justice assessment process also will provide grounds for challenging agency actions.  Future agency determinations about what constitutes a significant agency action will be particularly important in determining the extent to which these challenges are premised on environmental justice issues.

Conclusion

The Healthy Environment for All Act will spur additional action to address environmental justice issues in Washington. To date, state agencies have incorporated some environmental justice principles into programmatic planning and funding decisions. The new law will shape agency actions across a spectrum of areas. During the legislative process, the potentially more far-reaching mandates of earlier bill versions were watered down. However, as agencies take steps to implement the law over the next several years, members of the regulated community – particularly, those that interact with the Department of Ecology – should anticipate that environmental justice principles will increasingly affect general regulatory requirements and are likely to play a more substantial role in facility-specific enforcement, permitting, and compliance issues. Businesses located in overburdened communities and/or vulnerable populations, in particular, should be prepared to track implementation efforts to determine proactively how environmental justice factors could affect their operations.


[1] The Environmental Justice Task Force was required to provide a report to the Governor and the legislature by October 31, 2020, with recommendations for incorporating environmental justice principles into state agency actions. The task force was funded through a budget proviso for the Department of Health in ESB 1109.

[2] In addition to the HEAL Act, the Washington State legislature recently passed E2SSB 5126, a greenhouse gas “cap and invest” law, which includes significant environmental justice provisions. The environmental justice provisions in that legislation will be evaluated in a separate news alert.

[3] State agencies that are not required to comply with the environmental justice law may choose to do so.

[4] The Department of Health has already developed an initial version of the map. It incorporates measures such as diesel emissions, ozone, and proximity to hazardous waste sites and their relationship to communities experiencing higher rates of poverty and certain health issues, like cardiovascular disease.

[5] By November 2022, the Washington State Institute for Public Policy, a non-partisan public research group, must evaluate the “measures and methods” in the environmental health disparities map and issue a report on its findings.

[6] The environmental justice council will have several non-binding functions: providing a public forum for hearing and learning about environmental justice concerns; and developing guidance on agency environmental justice implementation, environmental justice assessments, and health disparities mapping; evaluating agency progress in applying guidance from the council; and developing recommendations for additional legislative action to address environmental justice issues. The advisory council will include 14 members appointed by the Governor. The interagency workgroup will offer technical assistance and information-sharing services to advance agency implementation and evaluation of the environmental justice requirements and will share information about specific agency functions and activities to support the council’s guidance and assessment responsibilities.

Article by

Stacey Sublett Halliday
Julius M. Redd
Allyn L. Stern
Augustus E. Winkes
Beveridge & Diamond PC

Use of Trademarks in the U.S.

As North America brings its intellectual property laws in line with the United States-Mexico-Canada Agreement (USMCA), the way trademarks are handled in Mexico and Canada has recently changed. While Mexico now requires a business to use its mark to obtain a Mexican trademark registration, Canada no longer requires the use of a mark in order to obtain a Canadian trademark registration.

A business may spend significant resources attempting to use a trademark in the U.S., but ultimately fail to satisfy legal and technical requirements. Not only are such attempts wasteful, but they may also pose an obstacle to pursuing an otherwise legitimate trademark registration. To successfully register a trademark in the U.S., a business is required to use the trademark on or in connection with its products and/or services, but the law has different requirements for each.

U.S. TRADEMARKS FOR PRODUCTS

For a trademark associated with products, advertising alone, such as use in a brochure or on a website, is not normally enough. The mark must be placed in any manner on the products or on the containers of the products, or on tags or labels affixed to the products. If the nature of the products makes such placement impracticable, then it may be acceptable for the mark to be used on displays associated with the sales of the products. Additionally, the products must be sold or transported in interstate commerce.

The simplest way to satisfy this requirement is to put the trademark directly on the products, such as by incorporating the mark into the mold of molded products, stamping or printing the mark onto the products, or applying a tag or label to the products carrying the mark. The mark could also be applied to the packaging or container of the products.

For an example of displays associated with the sales of a product, the mark can appear with the product in a catalog or on a website, but there are specific requirements for those uses. If used in a catalog, the mark must be accompanied by a description or picture of the product, and the same catalog page generally must include ordering information such as a phone number or a web address. If used on a website, the mark must still be accompanied by a description or picture of the product, and the webpage must include the direct ability to order the product, such as a “Buy Now” or “Add to Cart” button on the webpage.

U.S. TRADEMARKS FOR SERVICES

For a trademark associated with services, the mark must be used or displayed in the sale or advertising of the services, and the services must be rendered in interstate commerce. That is, the services must be rendered in more than one state, or in some other way in interstate commerce, or in the U.S. and a foreign country, and the company rendering the services is engaged in commerce in connection with the services.

ENSURING CORRECT U.S. TRADEMARK USE: THE ABCD TEST

To ensure that your trademarks, aside from being placed on the products or used in connection with the sale of services, are being used correctly, use this ABCD test:

  1. Adjective: Use the trademark in the position of an adjective describing the product, followed by the common descriptive noun for the product. For example, use “KLEENEX tissue” not simply “a KLEENEX,” or “XEROX photocopier” rather than simply “the XEROX.”
  2. Brand identification: Properly identify the status of the trademark as a brand with the appropriate trademark symbol e.g., ® for a registered mark and ™ for a mark not yet registered.
  3. Consistency: Be strictly consistent in displaying the mark. If the trademark is punctuated, capitalized or colored in a certain way, it is critical to maintain the same formatting. Any change of any of those properties could be considered a change to the mark, that is, adopting a different mark. Such consistency will also help ensure that others recognize that this is a trademark and not just another word. While it makes sense for a company to adopt a different mark from time-to-time, such changes should only be done intentionally, after careful thought and transition planning, rather than by accident or in a casual attempt at creativity.
  4. Distinctive: Use the mark in a way that is distinctive, that sets it off from surrounding text, such as in a different typeface, color or capitalization
Article by;

Nicholas A. Kees
Alexander C. Lemke
Godfrey & Kahn S.C.

What’s the difference between Medicare and Medicaid?

While many people in Oklahoma use the terms “Medicare” and “Medicaid” interchangeably, they’re actually two different programs that apply to different groups of people. If you’re planning for the future or need to get low-income insurance, it’s important to know which program is for you. Here’s a rundown on the differences between Medicare and Medicaid.

Which option do you qualify for?

Medicaid is a taxpayer-funded program that helps low-income people pay for health care. To qualify, you can’t make more than the maximum income limit. Medicaid helps you pay for various expenses like doctor’s visits, hospital stays, X-rays, medication and other medical costs. Unlike Medicare, anyone who meets the income requirements can get on Medicaid regardless of their age.

Medicare is more relevant for people who deal with elder law issues. If you worked and paid into Social Security for most of your life, you might qualify for Medicare when you turn 65. Medicare is an insurance program that helps elderly people pay for medical costs. If you didn’t pay into Social Security, you could buy Medicare when you turn 65. An elder law attorney could offer more advice on planning from the future.

If you haven’t reached the age of 65, you might qualify for Medicare if you’re disabled or currently undergoing dialysis. In any case, Medicare offers four parts, each with its own set of coverage. Depending on your financial situation, you might have to pay a deductible for your insurance.

When should you start thinking about the future?

Even if you’re confident that you’ll qualify for Medicare when you turn 65, it’s still important to start planning for the future while you’re relatively young and healthy. With your attorney’s help, you could start thinking about collecting benefits, securing health insurance, planning for Social Security and more.

https://www.leaders-in-law.com//lawyers/donna-j-jackson/