Flaster Greenberg Continues to Grow Business, Corporate, Estates & Tax Teams, Deepens Real Estate Department and Adds National Aviation Practice

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Flaster Greenberg PC is pleased to announce three new attorney additions. Daniel B. Markind has joined the firm as a shareholder effective August 31, 2018, bringing with him a nationally known Aviation Practice and over 35 years of experience as a real estate and corporate transaction attorney. Tax attorney Eric Loi and trusts and estates attorney Courtney Dolaway Zeuner also joined the Flaster Greenberg team last week.

“Flaster Greenberg is excited to begin Q4 by welcoming three new attorneys,” said Alan Zuckerman, Managing Shareholder of Flaster Greenberg. “Dan Markind has built an impressive aviation practice and is a nationally recognized real estate and corporate attorney. All three of our new hires will make a fantastic addition to our growing law firm.”

Daniel Markind’s real estate and corporate practice has focused on representing some of the largest companies in the United States in sophisticated purchase, sale, financing, leasing, zoning and land use, workout and development matters. He also has helped form numerous start-up and smaller entities and has assisted in their growth. Over the past decade, Markind has developed a sub-specialty in energy law, including solar and wind energy, and oil and gas development and leasing. He speaks widely on Marcellus Shale and other mineral extraction issues and represents numerous companies and individuals involved in different capacities related to natural gas and oil leasing, production, transmission and waste disposal.

Markind also brings with him a national aviation law practice, adding Flaster Greenberg to a short list of nearly a dozen full-service firms that handle aviation law in the United States. He represents airports in litigation against the Transportation Security Administration, in business matters for the purpose of growing the business at their airports, and with regard to the energy assets at their airports. In addition, he represents companies that seek to assist airlines in establishing their business model, that seek to make airports safer and that seek to transact business at airports.

Former General Counsel of the Philadelphia International Airport, Markind currently serves as outside general counsel and outside specialty counsel to numerous airports. He is recognized as one of the nation’s foremost authorities on the relationship of aviation law to mineral extraction law.

A graduate of the University of Pennsylvania Wharton School of Business and University of Pennsylvania Law School, Markind is rated AV preeminent by Martindale-Hubbell® and has been named to the prestigious “Best Lawyers in the America” list for his work in real estate law. He is licensed to practice law in Pennsylvania, New Jersey and New York.

Eric Loi joins us as a member of the firm’s Business & CorporateEmployee Benefits and Executive Compensation and Taxation Departments. Focusing his practice in tax and areas related to employee benefits and executive compensation, he advises corporate, non-profit, and governmental employers on issues relating to the design, administration, and compliance of qualified and non-qualified retirement plans and health and welfare plans.

Most recently, Loi worked an as associate at Norris McLaughlin & Marcus, P.A. Prior to entering private practice, he worked for a large national accounting firm where he advised large multi-national companies and U.S. companies of all sizes and industries on compensation and employee benefit matters, as well as other general federal tax matters. Licensed to practice law in New Jersey, New York and the District of Columbia, Loi received his J.D. from the University of Buffalo Law School and his LL.M. in Tax from Georgetown University Law Center.

Courtney Dolaway Zeuner joins us as a member of the firm’s Trusts & EstatesTaxation and Business & Corporate Departments. She focuses her practice on estate planning, estate administration, business succession, and general corporate matters and represents individuals and business owners in their estate plans and corporate planning. Prior to joining the firm, she worked as senior associate at Baratta, Russell & Baratta, P.C.

Dolaway Zeuner is licensed to practice law in Pennsylvania and New Jersey, along with the United States District Courts for the District of New Jersey and the Eastern & Middle District of PA. She received her J.D. and LL.M. with a focus on estate planning from Villanova University Charles Widger Law School.

Marcellus Shale Update – 7.11.2018

President Donald Trump kicked off the 2018 NATO summit by blasting Germany over the Nord Stream 2 pipeline deal.  At the opening reception, Trump declared:

“We are protecting Germany, we are protecting France, we are protecting all of these countries and then numerous of the countries go out and make a pipeline deal with Russia where they are paying billions of dollars into the coffers of Russia.  I think that is very inappropriate.”

The Western press was stunned.  CNN posted as its website headline “Trump starts visit by insulting allies.”

Of course, readers and watchers of CNN probably have no idea what President Trump is talking about.  That network has been so busy talking about Michael Cohen, Rod Rosenstein and other sideshows it has ignored many of the world events that really shape our future.

If you think about it, it’s pretty incredible that readers of this blog, and the excerpts that I post sometimes on Linkedin and that get posted by other sites, are better informed about the Nord Stream 2 issues than readers and listeners of CNN, MSNBC or Fox.  My guess is that you will see a lot of scrambling today as these “news organizations” try to explain what the pipeline is all about.  It’s even possible that because of this, Stormy Daniels’s lawyer might not get on the air – at least for a day or two.

President Trump is absolutely right in both what he said about Nord Stream 2 and how he said it.  As I discussed last week, Nord Stream 2 is a problem from an economic standpoint in that it ties Germany more closely to Russia, it is bad environmentally because it encourages continued Russian development of natural gas without environmental constraints in a delicate Arctic ecosystem, and it is wrong politically in that it bypasses Poland, Ukraine and the Baltic States, cutting them off from transshipment payments.

Further, the Germans are doing this as they continue to fail to live up to their NATO commitment to spend 2% of the country’s GDP on defense.  As of 2016, only Greece, the UK, Estonia and Poland joined the US in living up to its NATO commitment.  Again as I mentioned last week, the Estonian Foreign Minister just came out against Nord Stream 2.

None of this has swayed German Chancellor Angela Merkel, who pushes forward with the pipeline plan.  Today she acted offended when the American President calls her out on it.

Much to the chagrin of the “smart set”, I imagine Donald Trump will get a lot of credit from Mr. and Ms. America for standing up to this sort of action by a European leader, which we have seen over and over again.  Don’t be surprised if the Baltic States and Poland reinforce President Trump’s concerns over Nord Stream 2 as the summit continues.  Donald Trump may have looked like the isolated leader coming into the NATO summit, but due to energy issues it may look very different coming out.

Questions? Let Dan know.

Marcellus Shale Update – 7.3.2018

As we approach Independence Day, the disconnect between what is reported in the press and what the world situation actually is remains very curious.

Today, speaking on MSNBC’s Morning Joe, host Joe Scarborough and Council of Foreign Relations President Richard Haass bemoaned the fact that President Donald Trump is eviscerating the post-World War II order and not replacing it with anything.  Haass said we voluntarily are giving up our international position of primacy.  One wonders if Mr. Haass has spent much time looking at Nord Stream 2, the gas pipeline from Russia to Germany through the Baltic Sea, bypassing Ukraine, Russia and the Baltic States.

The effect of this pipeline will be to give Russia greater control over Europe’s energy supply.  It will enrich Putin, remove any control or payment that these other countries would have received, and make German Chancellor Angela Merkel even more subservient to Russia.  Ukraine for example, may lose 2% of its GDP as a result of the loss of trans-shipment payments.

Trump, who according to Morning Joe and much of the Western press is a Russian stooge, adamantly opposes the pipeline.  The Trump Administration is going so far as to have Secretary of State Mike Pompeo announce that the United States has made it clear that Russia should not be allowed to get more opportunities to exert political influence not only in Germany, but also in Europe in general, if Nord Stream 2 is implemented.  The current Administration has threatened to sanction any company involved in the project.

None of this has stopped Merkel, ostensibly the leader of the country blazing the trail toward a “green economy”.  She is determined to get this pipeline built, increase her dependency on Putin’s energy and rely more fully on Russian gas production from environmentally sensitive areas of the Arctic.

All of this sounds upside down, doesn’t it?  Indeed yesterday Estonia’s Minister of Foreign Affairs Sven Mikser said it is in the EU’s best interests to stop the project as it serves Russian geopolitical interest.  Earlier today, the German environmental group Nabu filed a lawsuit with Germany’s highest constitutional court asking to halt the pipeline.

Supporters of the project say that Nord Stream 2 will give Germany access to a cleaner form of energy than it currently uses.  That this might be so shows how dirty Germany’s current power supply is.  Despite refusing to greenlight any power project that is not “renewable” this decade (or perhaps because of this), Germany remains highly dependent on a very dirty form of coal called “lignite”.

Why then, is the Trump Administration, which according to many press reports (a) is in the pocket of Putin, (b) doesn’t care about the environment and (c) is willing to tear apart the old European alliance, so opposed to this pipeline?  Even if its only concerns are geopolitical and economic, the fact that the Administration is opposed to Nord Stream 2 shows that something is missing from the national debate.  A Putin puppet would just go along.  Instead the United States is taking a remarkably hard line.  Nowhere, however, is this nuance reflected in the press.

The topic of energy encompasses so many facets of our modern political debate, from geo-political power to environmentalism to future economic growth, that these stories have to be part of the discussion.  Trump may be secretly aligned with Putin.  None of us really knows.  The fact though that the Trump Administration is fighting so hard against Putin’s interests in this critical field is a story that needs to be told.  Each reader or listener then can draw his/her own conclusions.  It certainly may not show that Trump is an environmentalist, but it argues against the idea that he’s in Putin’s pocket.

Why Scarborough, Haass, the rest of MSNBC, CNN and even Fox News  fail to report on Nord Stream 2 remains mystifying.  It only increases the level of suspicion and derision with which the American press is held.

Questions? Let Dan know.

Marcellus Shale Update – 6.26.2018

For the second time in two months, a lead energy story comes from Canada.

On Monday, newly elected Ontario Premier (Governor) Doug Ford announced that he immediately would dismantle Ontario’s carbon cap and trade system.  Mr. Ford gave no specifics, but his announcement put $2.9B (Canadian) in carbon tradable allowances in limbo.  Already California, which was integrating its system with Ontario’s, announced it would no longer accept or trade Ontario carbon credits.  Quebec stopped as well.

Cap and trade is an attempt to find a quasi-free market solution to environmental externalities.  There are many variations of these systems, but in Ontario companies that emit at least 250,000 tons of greenhouse gasses per year have to purchase an equal amount of “allowances”. The allowances were made available at quarterly auctions and could be purchased on the free market, hence the integration with California and Quebec.

Regardless of how the program is wound down, the fact that Premier Ford is ending it will have repercussions among all such programs.  The more potential investors believe a program is subject to political influences the less they will be willing to participate, increasing prices and decreasing efficiency.  It’s one more byproduct of the politicization of the climate issue.

Another byproduct is the attempt to use the court system for political purposes.  Yesterday US District Judge William Alsup granted a motion by BP, Royal Dutch Shell, Exxon Mobil, ConocoPhillips and Chevron to dismiss lawsuits by the Cities of San Francisco and Oakland attempting to hold these companies liable for the impact to Bay Area residents of climate change.

From the beginning, this case went opposite the way the plaintiffs intended.  Attorneys for the defendants obtained copies of bond documents executed by the cities when they issued their revenue bonds in which they made no mention of any threat to public welfare from climate change.  The Judge held a special hearing to try to understand the science of climate change.  This did not go well for the cities.  Anticipated “smoking guns” – in the form of internal emails among employees of the companies suggesting they knew they were causing climate change but were hiding it – never materialized.

Instead, Judge Alsup ruled that while global warming was a real threat, it must be fixed by “our political branches.”  “The benefits of fossil fuels are worldwide,” he continued. “The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”

It is likely that similar suits brought by New York City and other municipalities will end up the same way.  This is a good thing, because we need as a society to decide what our future energy mix will be, not by judicial fiat.

Finally, on the same theme three new studies came out over the last two months that contradict the “environmentalist” position about the evils of fracking.

Peer reviewed studies from the University of Cincinnati, Penn State and Yale all reached the conclusion that there is little correlation between hydraulic fracturing and groundwater contamination.  The researchers were almost apologetic in their conclusions, noting in the Cincinnati study that the findings contradicted what they had expected.  Indeed, the Cincinnati study had been partially funded by environmental groups opposed to fracking.

This does not mean that fracking is pristine. It’s an industrial process that produces externalities like any other.  It does contradict all of those people who claim an overwhelming body of scientific evidence exists showing the evils of fracking.  I saw many of them in January at the Delaware River Basin Commission hearing in Philadelphia about the DRBC’s proposed fracking ban within the basin.  Indeed the science mostly goes the opposite way.  Let’s hope that, unlike our immigration  “debate”, we in the energy context can move beyond wild assertions and use science as our realistic guide to protect our one lonely planet.

Questions? Let Dan know.

Marcellus Shale Update – 6.6.2018

Following a contentious few months, the Canadian Federal Government bought out Kinder Morgan’s interest in the Trans Mountain Pipeline expansion stretching from Edmonton, Alberta to the Pacific Coast north of Vancouver.  For a price of $4.5B, the pipeline switches from private to public control, with all that entails.  It does not necessarily mean that the pipeline even gets built, however, as British Columbia continues to raise environmental objections that caused the delay in the first place and resulted in Kinder Morgan’s bailing out of the project.

Bucking continued Court victories by Kinder Morgan, threats from the Province of Alberta and the wishes of both the Canadian Federal Government and a majority of Canadians polled, British Columbia still refuses to relent.  Had the pipeline asset sale not been completed, Alberta Premier Rachel Notley was prepared to enforce Alberta Provincial Bill 12 which would have seen one Canadian Province embargo oil and gas shipments to another.  This would have raised fundamental issues of Canadian federalism and the basic concept on which the Canadian nation rests.  Instead, Canadian interprovincial trade seems to be preserved, and B.C. Premier John Horgan now has a tougher foe to face.  His opposition now is the Canadian Federal Government, not an American pipeline company or a sister Canadian province.

It’s very hard now to see how Horgan comes out ahead in this dispute, but indeed the entire matter is filled with degrees of losers and no real winners.  For Canada, $4.5B in private investment in the country simply evaporated.  Now in Federal hands, no one knows how or when the pipeline assets will be sold.  The business climate in Canada to attract private direct investment has taken a huge hit.  Alberta still is a long way from seeing the pipeline built, and Alberta needs the revenue to balance its budget.  Finally, Kinder Morgan Canada watched its shares tumble on the Toronto Stock Exchange as Trans Mountain provided its main source of growth potential.

Perhaps Chris Bloomer of Canadian Energy Pipelines Association said it best.  “We can’t do this again and we need to look forward to how we don’t get into this situation again.”

We in the United States should be watching the Trans Mountain controversy very closely.  It provides a case study of what happens when the national good gives way to parochial interests, but simultaneously those interests don’t trust the national government to strike the proper balance to preserve legitimate parochial rights.  We are dangerously approaching that point in the Northeast.  It would be helpful if all would pull back from their apocalyptic political pronouncements, as neither side’s political statements hold water when subjected to critical analysis.

A perfect example is the claim by certain political leaders that we need to move immediately to a “100% Renewable Energy” future.  Politicians who state this don’t understand what that really entails.  Indeed, they shield their eyes to the downside of even attempting to put that aspiration into practice given the state of modern science.

Central to the concept of “100% Renewable Energy” is the reliance on batteries to store and transmit the energy produced from sources like solar and wind.  Batteries use lithium and are dependent on a process involving cobalt.  Last month CNN, and this week Greentech, reported on how the world’s cobalt supply is dependent on child labor from the Democratic Republic of the Congo (DRC).   One analyst predicted that the percentage of the cobalt supply expected to come from the DRC will increase from its current 66% to 73% by 2023.

The DRC is an extremely poor, politically unstable country.  Despite claims that cobalt merchants are trying to ensure their supplies don’t come from mines known to exploit children, nearly all agree this simply isn’t sufficient.

There is no way around the conclusion that the greater reliance on “renewable” sources of energy means the greater mining of non-renewable minerals such as lithium and cobalt to store and transmit the renewable power.  That means more abuse of child labor in mining the non-renewable sources.

It’s not a pretty picture.  When you factor in the unreliability of some of these renewable sources and the environmental degradation that will come from converting millions of acres of pervious land to the impervious coverage needed to house the massive solar and wind farms and other infrastructure this “100% Renewable” world would require, you begin to question the environmental foundation on which such a plan rests.

There is a need for increased use of solar, wind and other “renewable” energy, and there is value in spending billions of tax dollars on research to improve our energy generation, storage and transmission.  However, given the state of modern science, the idea of converting all of our energy use to renewables is not sustainable, renewable or environmentally beneficial.  Some serious discussion on all of these points without the simplistic name calling would be a very useful exercise.

Questions? Let Dan know.

Marcellus Shale Update – 5.26.2018

The on again, off again saga of Mariner East 2 is off-again.  On Thursday, a Pennsylvania State Public Utility Commission judge again suspended construction of Mariner East 2 and 2X and the use of Mariner East 1 following a petition by State Senator Andy Dinniman.  Despite the pipeline being 98% complete, PUC Judge Elizabeth Barnes wrote that the pipeline constitutes an “emergency situation which presents a clear and present danger to life or property.”  She added “(t)he rupture of a hazardous liquid pipeline at the welds of an 8-inch pipe in a (high consequence area) such as West Whiteland (Township) and the ignition of such a potential vapor cloud could have catastrophic results.”

In the end, it is doubtful that Mariner East 2 and 2X will be stopped.  However, the long term effects of this process are truly harmful to the industry and all concerned.  Serious questions have been raised both about the pipeline route and the construction, and Sunoco Logistics, the owner of the pipeline, often has simply ignored the rules for construction.   This has raised community suspicion about the project and the PUC process.  It also has made a hero of Senator Dinniman, who is not a friend of the industry.  Critics who seek to fight other pipeline projects point to Mariner East 2 of an example where the industry cannot be trusted, and they have lots of ammunition.

Despite all of these issues, pipeline buildout in 2018 in the Northeast will exceed all previous construction.  The Energy Information Agency expects an additional 20Bcf/day to be added to capacity.  Unfortunately, that buildout is spotty geographically. In the I-95 corridor, where it is needed the most, we likely will see the least.  Winter 2018-9 could see the most extreme geographic variations yet in terms of natural gas price.

In contrast to Mariner East 2, Trans Mountain in Northwestern Canada presents the opposite situation.  The pipeline owner, Kinder Morgan, continues to win in court and generally follow the rules, while the provinces squabble with each other and hurt themselves.  The latest was the British Columbia Supreme Court throwing out a challenge by the City of Vancouver and the Squamish National indigenous tribe claiming that BC did not act reasonably earlier when it gave Kinder Morgan an environmental assessment certificate.  The Court also ordered Vancouver – which is fighting so hard against the pipeline but depends on coal for much of its economic wellbeing – to pay Kinder Morgan’s legal fees.

Kinder Morgan’s self-imposed deadline of May 31 still looms, and the company now is facing major cost overruns.  Both Alberta and the Canadian Federal Government have promised to assist in the financing of Trans Mountain, and Alberta needs the revenues from the pipeline to balance its budget, but neither has been able to make it happen.

Like Mariner East, the long term ramifications may be significant.  In Mariner East 2 it’s the suspicion engendered by the pipeline company, in Trans Mountain it’s the lack of trust in the Canadian business climate.  At this point I would guess that both pipelines get built, but each will result in long term residual yet needless damage.

Finally, construction continues on the Nord Stream 2 pipeline that will take gas from Russia to Germany through the Baltic while bypassing the traditional transit route through the Ukraine.  The Trump Administration is going all out to try to block its construction, even threatening our European allies with potential economic ramification should the pipeline be finished.

Germany, which is almost entirely dependent on Russian gas (notice how quiet it’s been on Russia matters over the last few years), is furious with the American position.  The United States is wary of increased Russian expansion of influence in Western Europe and sees this as a tool to isolate European nations such as Ukraine, the Czech Republic, Slovakia, Poland and the Baltic States.  All of these nations have faced energy price and supply manipulation in the past from Russia.  Not coincidentally, the Germans, who are held up as environmental paragons, are now so dependent on Russian gas that they have raised no environmental objection to a pipeline being built in the Baltic Sea being used to transport Russian gas produced in the Arctic.

There are three lessons here.  First, be wary of those who wrap themselves in the banner of environmentalism.  They tend to forget about that when their economic security is threatened.  Second, understand that the current German hostility to the Trump Administration is not just about ripping up the Iran Nuclear Deal or moving the American Embassy in Israel to Jerusalem.  Nord Stream 2 is far more significant.  Finally, notice that, contrary to claims that he is being soft on Russia, the Trump Administration is fighting far harder against Russian economic interests in Western Europe than did the Obama Administration.

I am neither a Trump hater nor supporter.  I want all American Presidents to succeed.  I do think though that Nord Stream 2 is more important than many of the stories we hear on the evening news.  We would be much better informed as a citizenry if CNN and its ilk took time out from Stormy Daniels’s lawyer and talked about the ramifications of what really matters to people.

Happy Memorial Day.

Marcellus Shale Update – 5.18.2018

The Canadian pipeline civil war got even nastier this week.  To those observant enough to notice, the warning sirens for the United States are blaring.

On Wednesday, the Alberta provincial government followed through on its threat to neighboring British Columbia by passing a law permitting Alberta to control who receives Albertan energy shipments.  Premier Rachel Notley said that “if the path forward for the (Trans Mountain) pipeline through B.C. is not settled soon, I am ready and prepared to turn off the taps.”

Immediately B.C. Premier John Horgan responded by threatening to seek an injunction preventing Alberta from ever using the law.

Thanks to his leftist environmental supporters, Horgan has backed himself into a corner.  He now is fighting Alberta, the Canadian federal government in Ottawa and the B.C. Liberal Party opposition.  “We’re seeing the biggest pump prices in B.C. history” noted B.C. Liberal leader Andrew Wilkinson.  “We can’t live with that forever.”

All of this is devastating Canada’s ability to attract investment.  The Liberal federal government of Prime Minister Justin Trudeau strongly backs the Trans Mountain pipeline project, but seems powerless to make it happen.  Canadian Finance Minister Bill Morneau announced that the Federal government would provide financial assurances to anyone building the pipeline, and said that if Kinder Morgan will not go forward there are plenty of other investors who will.  That’s debatable.  Canada is now a slow growth economy.  Its provincial infighting over pipelines is but one example of a business climate unwelcoming to investors.

From an energy perspective, British Columbia is to Canada what New York and New England are to the US.  At least in Canada they don’t have the absurd spectacle of a “Sex and the City” actress so spooking the Governor of New York that he is moving ever further to the left.

Both countries now are staring into the energy abyss.  Increased local control over interstate or interprovincial projects means increased paralysis due to local veto power. New York is finding this out the hard way.

Earlier this month the owners of the Constitution pipeline extended their legal losing streak by failing to get the United States Supreme Court to overrule the Second  Circuit’s decision not to intervene in New York’s rejection of a Section 401 Clean Streams Permit.  In effect, this both killed the project and solidified State ability to block Federally-approved pipelines.

Statewide, New York has gone further.  Since 2014, New York State Court rulings enshrined the right of localities to pass on energy projects. Unfortunately for Cynthia Nixon, those localities are now vetoing “renewable” solar and wind farms.  Ultimate hypocrisy rests in Dryden, near Ithaca, which was a name plaintiff in the case that ended the State’s right to control energy projects.  Last year Dryden blocked a large solar project, claiming that it was too big and being built in the wrong place.  Dryden, they name is NIMBY.

From where, Governor Cuomo or potential Governor Nixon, do you intend to find energy to power New York’s  economy?  The winters get very cold in Upstate New York.  Like the voters in British Columbia who are dealing with massive gas price increases, the voters in New York may love environmental justice warriors now, but wait until the winter.

Questions? Let Dan know.