The Site Report - Construction Law Insights, Issue 6, June 2025

 

Issue 6, 2025

Welcome to our sixth issue of The Site Report for 2025! In this edition, we address Pennsylvania and Amazon's newest data center project, one of North Carolina’s largest-ever economic development announcements, how the artificial intelligence revolution can help construction projects, West Virginia and the newest wind farms projects, the Department of Transportation and Disadvantaged Business Enterprise programs, supply chain transparency, and Europe's hydrogen medaproject. We also introduce you to our newest partner, Jason Wandling, and his extensive permitting experience.

Thank you for reading.


Amazon and Pennsylvania Join the Leaders in Pursuing Creative, Renewable Solution to Data Center Energy Requirements

By Riley D. Breen, Summer Associate, and Barry A. Naum

As the popularity and use of language learning models such as Chat-GPT and Co-Pilot and other Artificial Intelligence (AI) products rapidly expand and as data centers continue to search for building and electric capacity to manage that demand, big business has begun to seek approval from states in a race to see who will become the front-runner in the new AI industry. Making huge steps in this endeavor, Amazon Web Services (AWS) seeks to establish its dominance in the AI industry with a $20 billion investment to build two new data centers in Pennsylvania over the next 10 years, fueled by carbon-free nuclear power.

Click here to read the entire article. 

 


JetZero Announces Facility Construction Plans in North Carolina

“The facility is expected to create over 14,500 jobs and produce up to 20 Z4s a month, with operations anticipated to begin in the late 2030s.”

Why this is important: The planned JetZero project in Guilford County, North Carolina, presents enormous opportunities across multiple sectors of the state's economy, particularly in the Triad region. The magnitude of the planned facility, which is slated to break ground in 2026, is expected to create opportunities for a large number of local construction companies both during the initial project and during additional phases of construction and expansion. Additionally, local and state officials are anticipating an influx of other businesses and facilities to support JetZero’s operations, which would create additional construction opportunities in the Triad and surrounding region. Beyond these direct and “spin off” commercial construction projects, JetZero’s hiring plans could also result in additional residential construction in the area to support the growing workforce, and local colleges are already planning to expand existing programs or implement new programs to help support workforce development in anticipation of JetZero’s long-term hiring goals. While all of these opportunities are highly contingent on JetZero’s success as a startup company and its ability to get its prototype “all wing”-design commercial passenger aircraft in the air, if JetZero is successful, this project will present great opportunities across multiple industries. --- Steven C. Hemric 

 


Why 2025 is the Year AI will Revolutionise Construction

“Generative AI is the tech buzzword of the decade; American Big Tech firms alone announced an investment of $300bn in AI infrastructure.”

Why this is important: Despite the daily barrage of articles, discussions, and news stories related to the development and use of generative artificial intelligence (AI), the construction industry may be one of the slowest industries to embrace AI technology. Part of the reason for this relates to the very nature of the construction industry’s work product. Large language models (LLMs) were initially developed for written text, not for product details, architectural renderings, CAD drawings, and documents filled with architectural, engineering, and construction instructions. AI was not focused on analyzing construction data needed to bring projects to life in three-dimensional planning.

The landscape for using AI is expanding so that the construction industry can take advantage of the technology. AI can now monitor live stream video from a job site so that the contractor can monitor safety for workers. AI can analyze 3D building scans to help building design teams and help identify construction and planning conflicts for various tradesmen. AI can help with automation of digital and mechanical systems. Further, Agentic AI allows AI to learn from prior mistakes that can be useful on repetitive projects and designs. Called Hierarchical Reinforcement Learning (HRL), goals are broken down into sub-goals for more accurate construction planning and implementation. Creating industry-native environments in which AI agents can work will help the industry improve construction durations, reduce the variety of skills and number of contractors in a time of labor shortages, and allow for adaptable construction practices as unexpected issues arise during construction. --- Stephanie U. Eaton 

 


WV Public Service Commission Approves Grant, Tucker County Wind Farm Construction

“According to a release from the Public Service Commission of West Virginia, who gave Catamount Wind its approval, the agreement reduces the number of wind turbines being built from 72 to 37, extends the turbine blades’ length from 499 feet to 640 feet, and limits electric output to 150 megawatts of power.”

Why this is important: The long-planned construction of a wind farm in both Grant and Tucker counties has finally received the go-ahead from the Public Service Commission of West Virginia. The approval from the Public Service Commission comes after Catamount agreed to reduce the number of turbines built for the project from 72 to 37 and agreed to increase the original planned length of the blades from 499 feet to 640 feet. Catamount also agreed to limit the electrical output of the project to 150 megawatts of power, as well as other modifications to address environmental, safety, and aesthetic concerns. Finally, Catamount agreed that if the project does not start within the next five years, the approval from the Public Service Commission will be invalidated.

Catamount was granted a siting certificate for the project back in 2002, and it was originally planned to be a much larger project than what was ultimately approved. If the initial plan for the project had been completed, it would have resulted in over 150 turbines being built along with a 250-megawatt electric generating facility. While the final approved project is much less grand and ambitious than its original vision, it still represents a positive shift in the attitude towards green energy projects in the state. Approving a green energy project that will power the homes of over 40,000 West Virginians is a hopeful and impactful step towards not only cheaper energy for the residents of Tucker and Grant Counties but also a more positive and open outlook by the state as a whole towards future clean energy projects. --- Jonathan E. Gharib, Summer Associate 

 


DOT Agrees to Remove Race, Gender-Based Criteria from DBE Program

“In a proposed settlement, the agency said the initiative ‘can no longer pass constitutional scrutiny,’ effectively abandoning its defense of the decades-old policy.”

Why this is important: Since the U.S. Supreme Court ruling against affirmative action programs in higher education admissions, the federal DBE program, SBA’s Section 8(a) program, and state- and local-level M/WBE programs have been subject to increased scrutiny and challenges. The SBA’s Section 8(a) program has already undergone changes, and the construction industry has been anticipating changes in DOT’s DBE program. This proposed settlement would force implementation of those changes in the DBE program, and if implemented as stated in the proposed settlement, the changes would have immediate, far-reaching impacts. While not a death knell for the DBE program, the entire DBE certification process would have to be revamped, and it is very likely that most DBEs would need to be recertified through a new process focused on particularized inquiries into how each applicant has been harmed due to their race or gender. That alone would be a massive undertaking, but the potentially larger impact would come from the proposed settlement’s mandate that “DOT may not approve any federal, state, or local DOT-funded projects with DBE contract goals where any DBE in that jurisdiction was determined to be eligible based on a race- or sex-based rebuttable presumption.” If this term is implemented, awarding of new DOT-funded projects across the country could come to a standstill until the recertification process is complete, which would have a large cascading effect on specialty highway construction businesses while no new projects are being awarded.

All of the above being said, this settlement is not set in stone and could change, as it still needs the court’s approval and is being challenged by multiple advocacy groups. Spilman’s Construction Practice Group is monitoring this case and proposed settlement closely and is ready to assist construction businesses in navigating the changing DBE landscape. --- Steven C. Hemric 

 


How Supply Chain Transparency Can Help Businesses Offset Tariff Costs

“As new tariffs reshape global trade, construction firms are reassessing supply chains to manage rising costs and hidden risks.”

Why this is important: Since President Trump first announced new tariffs in his inaugural address, the news regarding further tariffs, retaliatory tariffs imposed on the United States, and temporary extensions has been difficult for anyone to keep up with. For the construction industry, this lack of stability can be troublesome, especially for those sourcing materials from affected countries. Since January, the cost of materials in the United States, such as steel (15-25 percent), aluminum (8-10 percent), and lumber (15 percent), has skyrocketed. In a time of uncertainty, finding answers to one major question could ease the minds of American construction businesses: Where exactly are the materials we buy coming from?

Contracting with a seller and keeping track of tariffs imposed on their respective nation is just the tip of the iceberg. Not only do American businesses need to know where they are buying resources and goods from, but they need to know where those sellers are sourcing their own materials to discover any hidden exposure to tariffs or labor scrutiny. If you buy an elevator from a German business, not only do you need to understand tariffs imposed on Germany, but tariffs on every nation that the manufacturer sourced materials from, and so on. Multi-tiered supply chains have proven extremely hard to track, and new tariffs make it even more likely that businesses could get caught paying more than they expected.

Industry leaders are beginning to invest in supply chain transparency technology that will provide verifiable data to trace materials back to their points of origin. Access to this information will allow businesses to evaluate risks before buying and monitor price fluctuations, regulatory exposure, sustainability, and economic stability more closely. When such programs are made available, businesses should expect them to be a work in progress. How effective supply chain tracking is will largely depend on how successful businesses are in engaging their suppliers. Successful implementation will require a globally minded team that can work directly with suppliers to ensure data is reliable.

While major tech innovations are on the horizon, businesses can begin mitigating risks already by shifting away from regions where forced labor, deforestation, or water scarcity is present. Taking a proactive approach to ensuring compliance with evolving trade and sustainability standards is the best way to develop long-term relationships. With tariffs and trade standards rapidly changing, visibility is everything, and the key to achieving it is to partner with suppliers who openly communicate and foster collaboration. Peace of mind is always worth the price, and businesses that continue to gamble by not effectively managing their supply chain risk will be caught in a whirlwind of ever-changing policy. --- Gabriel P. Papadopoulos, Summer Associate 

 


“We Didn’t See This Coming”: U.S. Stunned as $134 Billion European Hydrogen Megaproject Becomes Largest Construction Site on Earth

“Amidst growing environmental concerns, the construction industry is pivoting towards sustainability with the integration of hydrogen fuel cells, heralding a potential revolution in clean energy practices.”

Why this is important: The construction industry is widely known to be one of the largest contributors to carbon emissions worldwide. One of the biggest carbon-emitting culprits on construction sites is the diesel generator. However, in an effort to embrace more sustainable fuel supplies, contractors at the HS2 Victoria Road Crossover Box construction site in London looked elsewhere for power. HS2 is Britain’s new high-speed railway. At the Victoria Road site, which will eventually connect London with Birmingham and is one of the largest infrastructure projects in Europe, two white containers house hydrogen fuel cells that provide power to the entire site. 

Although the high cost of hydrogen as compared to diesel fuel, as well as the complexities related to production and distribution of hydrogen, remain current barriers to more widespread use of this fuel, efforts by proponents of this clean energy source to mitigate these issues are continuing. One such proponent is GeoPura - a company based in Newcastle, England, and founded in 2019 with partner Siemens Energy Ventures - whose goal is to expand its fleet of leased hydrogen power units (HPUs), which can be mobilized to construction sites, to 3,600 by 2033. GeoPura’s focus on scalable production and distribution of hydrogen is intended to increase accessibility of its HPUs for diverse applications.

And GeoPura is not alone. Other companies that have developed or are working toward more commercial use of hydrogen include the following:

  • XCMG, which introduced a fuel-cell powered dump truck in June 2024;
  • Hyundai Construction Equipment, which developed a fuel cell electric excavator that can serve as a supplemental power source on job sites;
  • EODev, a French spin-off from the Energy Observer floating laboratory, sells GEH2 power units to rental companies such as United Rentals to use on job and other sites;
  • AFC Energy, a UK-based company, sells 30 kilowatt HPUs to global contractors and rental companies such as Speedy Hire;
  • Yanmar Energy Systems announced a fuel cell power generation system; and
  • Caterpillar, in collaboration with Microsoft and Ballard Power Systems, is validating the use of hydrogen fuel cells as data center backup power.

 --- Stephanie U. Eaton


Featured Attorney Question and Answer

Jason E. Wandling

Q: As we all know, permitting in the construction industry can be a convoluted experience. Knowing and working with local, state, and federal regulations can make or break a successful construction project. An experienced attorney working in both our Corporate and Litigation Departments, Jason Wandling most recently served as General Counsel for the West Virginia Department of Environmental Protection. Jason has experience with commercial project development, including development of brownfield sites and sites with environmental compliance requirements. He has also handled many permitting issues, including appeals from administrative agencies against allowing a permit. Further, Jason has extensive experience with litigation and insurance defense in a variety of cases, including trial experience and class action defense. With this extensive background, we asked Jason what he suggests are his best practices when it comes to permitting and the construction industry.

A: Far and away, the best overarching practice when it comes to permitting in the construction industry (or in any industry that is covered up in state or federal regulation) is to develop respectful (friendly, even) relationships with the regulators who have the responsibility to review your permitting or other regulatory submissions. Having a good working relationship with the regulators who will oversee your project increases your chances of success before any work is undertaken.

With that fundamental understanding of your relationship to the regulators, then, your task as a project proponent or project manager is to provide complete and thorough responses to inquiries from the regulator while it reviews your permitting submissions. Make sure your data is accurate and is the sort of information that the agency is asking for. If you have any questions, give them a call immediately to clear up the confusion.

Keep in close touch with the regulator throughout the permitting process. Though most regulators and permit reviewers we deal with, both at the state and federal levels, are conscientious workers and generally want to keep their workload moving, keeping friendly but permit-driven communication with the individuals reviewing your permit or worksite submissions is critical to getting your job completed on time.

Once you’ve received your permit, be on the lookout for communications from the regulator and respond to them as quickly as possible. If an inspector raises an issue during your construction, address it immediately and be sure to supply the inspector with the exact data or other information that the inspector is looking for. Addressing alleged violations immediately is your best practice for getting your job completed.

Sometimes, however, even seasoned companies and project managers run into seemingly unresolvable problems with permit reviewers or inspectors. If you find yourself in that unfortunate position, please consider giving us a call here at Spilman. We can help you negotiate reasonable solutions to get (and keep) your company out of the regulator’s line of fire and to get your project finished according to your plans and your timetable.

 

 

 

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

© Spilman Thomas & Battle, PLLC

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