Industry publication, December 2001

NYC 9/11 Public Portal Document

WASHINGTON OBSERVER

Supreme Court Won’t Rule on contracts was constitutional. That case is Sherbrooke Tuifinc. u Minnesota Dept, of Transportation. “I don’t think the DBE com­

Merits of Adarand III Case munity has a lot to be happy about because the [Supreme] court still has the proclivity to rule against these type of cases,” says Arnold M. Jolivet, the National Association of Minority ^phose who thought the U.S. Supreme Court saw problems Contractors’ national executive director. I with the latest version of the Adarand minority contract- In 1995, the high court ruled for white-owned Adarand, I ing case were right. On Nov. 27, the justices said in a saying federal racial classifications must be “narrowly tai­ unanimous opinion they won’t rule on the merits of the case, lored” and “further compelling national interests.” But it sent which was before them for the third time since 1995. Some the case to a lower court for a decision. The case then moved hoped the court would use the case, up to an appeals court and in 2000 the Adarand Constructors Inc. v. Mineta—or high court remanded the matter, now Adarand III—to rule on disadvantaged Adarand II, to the lower court. Noting a business enterprise programs in federal- aid highway contracts. That will have to Other highway change in U.S. DOT DBE rules, the appeals court ruled for DOT. Adarand wait for another day. But observers see that day coming. They say several other DBE cases in lower appealed again, creating Adarand III. Adarand I centered on DBE rules for DBE highway cases are pending around the country. courts may end up the relatively small program of direct fed­ eral road contracts. In its new order, the “The single most important point is that the Supreme Court did not uphold at Supreme Court. Supreme Court said it thought Adarand UI would deal with DBE rules for federal- the federal program. It simply dismissed aid highway work. In that program, total­ the case on procedural and jurisdictional ing more than $20 billion a year, U.S. grounds without...rendering an opinion on whether the pro­ DOT provides most of the funds but states let the contracts. gram is constitutional,” says Michael Kennedy, the Associated But the high court said Adarand asserted it wasn’t challeng­ General Contractors’ general counsel. “For all intents and ing federal-aid rules. purposes, this ends the Adarand case.” The justices said the lower court held Adarand lacked William Perry Pendley, Adarand’s attorney, says he’s disap­ standing to challenge the direct federal contract rules. They pointed by the outcome but the firm has another DBE suit in added that “we do not examine standing...simply to reach an district court against the Colorado Dept of Transportation. issue for which standing has been denied below—exactly John Payton, a Washington attorney who filed a brief support­ what petitioner asks that we do here. Petitioner points out ing the U.S. position in Adarand, says, “There are other chal­ that this case presents questions of fundamental national lenges and one of them will probably find its way back to the importance calling for final resolution by this court. But the [Supreme] court.” On Nov. 15, the chiefjudge of the U.S. Dis­ importance of an issue should not distort the principles that trict Court in Minnesota, James M. Rosenbaum, said the U.S. control the exercise of our jurisdiction.” Dept, of Transportation’s DBE program for federal-aid highway —By Tom Ichniowski

■ Energy Agency sees need standoff between Democrats and ■ Taxes Ban on Internet for 1,200 new powerplants Republicans. But the senators, who call levies extended two years themselves “centrists,” have no public The federal Energy Information works spending in their plan. At press time. President Bush was set to Administration is forecasting that The centrists, led by John Breaux (D- sign legislation that extends for two 374,000 Mw of additional U.S. electric La.) and Olympia Snowe (R-Maine), years the moratorium on Internet generating capacity will be needed in focus on items that are in both the access taxes. The Senate passed the 2020. An expected increase in demand House-passed stimulus package, which measure Nov. 15 after earlier disagree­ in the southern and western U.S. would reflects the GOP pro-tax-cut stance, and ments caused the moratorium to expire mean about 1,200 new 300-Mw power­ Senate Democrats’ plan, which extends on Oct. 21. The House had approved plants would be needed. EIA, the DepL unemployment benefits. Snowe notes the extension on Oct. 16. of Energy’s independent statistical and that the Democratic and Republican The dispute in the Senate centered analytical arm, released its annual Ener­ plans lack the votes for Senate passage around a fear that localities would lose gy Outlook on Nov. 14. The new figure and says the centrists’ proposal “repre­ retail sales, and sales tax revenue, to is down from the 1,300 powerplants in sents the ‘politics of the possible.’” online transactions. The White House the agency’s forecast last year. “We pre­ That proposal includes $14 billion in prefers a five-year extension, but says dict fewer nuclear and coal plant retire­ rebates for those who didn’t qualify for the two-year plan will provide time to ments,” an EIA official says. one under the tax-cut measure enacted analyze e-commerce’s impact on state in September. It also has accelerated and local tax receipts. “The govern­ ■ Spending Senate ‘centrists’ depreciation ($26 billion), expensing ment should be promoting Internet craft $57-billion package ($852 million), a 13-week extension of usage and availability, not discouraging unemployment benefits ($8 billion), it with access taxes or discriminatory As Congress remrns from its Thanksgiv­ and a $4.7-billion tax credit to help taxes,” says Mark Weinberger, an assis­ ing break, a small, bipartisan group of laid-off workers buy health coverage. tant secretary at the Treasury Dept senators is hoping that a $57-billion Construction hopes public works proposal they developed will be the money will be added to one of the —Compiled by Tom Ichniowski, Sherie basis for ending the stimulus-package remaining 2002 appropriations bills. Winston and Lira Behrens

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