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Welcome to our eleventh issue of The Site Report for 2025! In this edition, we address a wide variety of topics relevant to the construction industry: construction issues taking the stage in 2026; the uptick in merger and acquisition activity; the Supreme Court‘s opinion related to tariffs; increasing demand for warehouse construction; the data center boom’s impact on the power grid; exploration of potential construction of data centers in outer space; the effect of project costs; the impact of property battles on pipeline construction; the seemingly increased interest in solar power in West Virginia; and how the federal government is backing nuclear power.
2026 National Labor & Employment Law Symposium, February 1, 2026, Steamboat Springs, Colorado
For those of you interested in labor and employment law topics, please join this exclusive gathering of top national and international labor and employment lawyers for the latest legal updates in a close-knit, collegial atmosphere. More than a dozen sessions, in a roundtable format, will cover cutting-edge labor and employment topics. In between sessions, participants will have plenty of time to enjoy skiing in Steamboat Springs or networking over drinks or dinner. Click here to learn more.
Congratulations to Gerald Titus on His Appointment to the West Virginia Supreme Court
We are very pleased to announce that our colleague Gerald M. Titus III has been appointed by Governor Patrick Morrisey to serve on the Supreme Court of Appeals of West Virginia. He will fill the vacancy created by the tragic passing of Justice Tim Armstead. Michael J. Basile, Spilman’s Managing Member, added, “Governor Morrisey could not have selected a more capable or principled individual. Gerald has been an indispensable member of our firm for many years. His legal acumen, judgment, and character make him exceptionally well-suited for this role, and we are immensely proud to see him reach this milestone in his career.” Click here to learn more.
Thank you for reading, and have a very happy Thanksgiving!
Stephanie U. Eaton - Co-Chair, Construction Group and Editor, The Site Report
and
Julian E. Neiser - Co-Chair, Construction Group and Chair, Litigation Department
| | Building for 2026 – What can We Expect? | | |
As the construction industry looks ahead to 2026, I offer the following considerations for our construction industry readers:
1. Potential interest rate reductions could provide an opportunity for property owners to refinance some of the $1.8 million in commercial real estate debt, which in turn could lead to new development where construction has become stagnant with high inflation and interest rates over the past several years.
2. For projects that involve repurposing office and retail properties into residential or mixed-use properties, contractors who have never engaged in projects of this nature need to carefully evaluate the cost to convert and be code-compliant before tackling them. In addition to residential and mixed-use space, developers should also consider recreational and entertainment venue uses when considering the conversion of unprofitable office and retail space.
3. Labor shortages remain in both the property management and maintenance sectors, but also in the skilled trades. For contractors, connecting with vocational and community colleges to tap into graduates continues to be an important source for new labor, especially as necessary construction skill sets continue to evolve with technology.
4. Using technology such as smart-building platforms, predictive maintenance tools, and AI scheduling can improve productivity and reduce downtime. In fact, many articles in prior editions of The Site Report have emphasized how the use of technology -- such as drones to survey construction progress and storm damage during construction, robots to detect potential hazards, wearable technology to more accurately identify worker locations on (especially larger) construction sites to minimize injury, and incorporation of smart thermostats to more efficiently regulate HVAC usage.
5. The importance of carefully reviewing insurance policies with brokers to understand what is and is not insured for a construction project cannot be understated. Severe storm damage, while becoming more prevalent, may or may not be covered. The insurance limit may or may not reflect the value of the property it is intended to cover. Business disruptions, losses, and lost profits, which are very often not recoverable under a construction contract, may be insurable (for a cost, of course).
6. Preparedness for cyberattacks also cannot be understated. Data and/or financial loss from a cyberattack may or may not be covered by insurance. Revenue loss is often the most significant business impact. Moreover, cyberattacks rarely occur in isolation. A single phishing incident can trigger a domino effect resulting in financial losses, harm to the business’ reputation, and potential regulatory investigation. Regular training for your entire staff on how to spot potential cyberattacks and what to do if one is suspected should be a first line of defense to protect your company’s business. If your company is subjected to a cyberattack, contact your insurer and legal counsel immediately. Our firm has experience mitigating the impacts of these attacks, and we are happy to evaluate the situation with you.
7. Finally, however redundant this may sound, I cannot emphasize enough the importance of reviewing and understanding what is in your construction contract. Force majeure clauses are not all the same – and can often be tailored to address a potential risk anticipated by the parties for a given site. Risk shifting provisions, such as indemnity clauses and liability waivers, need to be balanced in consideration of who faces the risk of foreseeable and unforeseeable events. Dispute resolution provisions need to clearly establish what the parties need to do in the event of a significant dispute that cannot be resolved informally.
We look forward to working with all of you as you, too, focus on wisely growing your businesses in 2026. --- Stephanie U. Eaton
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“Construction firms, contech providers and consultants have all made recent deals to combine forces or expand into new markets.”
Why this is important: Despite the challenges currently facing the construction industry, including tariffs and the recent government shutdown, we have seen a recent uptick in mergers and acquisitions within the industry. It is great to see that there has been an encouraging increase in the number of strategic transactions in the third quarter involving contractors, Contech firms, and consultants.
For example, in the third quarter, Granite Construction, the California-based civil contractor and road builder, acquired two aggregate producers and Nevada-based Cinderlite Trucking, which operates five aggregate yards. With these purchases, Granite has increased its aggregate production volume to 25 million tons (from 16 million tons in 2021).
On the consulting side, New York City-based construction cost consulting firm, Cumming Group, acquired LeftField, a project management consulting firm, allowing it to bring its clients a broader suite of integrated services.
OpenSpace, a construction technology firm focused on reality capture, has reached terms to acquire Disperse, a progress tracking startup. This acquisition will help OpenSpace strengthen its spatial AI capabilities and give contractors a deeper understanding of construction projects.
This recent activity demonstrates the resilience of the construction industry. Despite ongoing challenges, there is still a strong interest and desire among contractors, suppliers, and consultants to grow strategically and strengthen their position in the market. --- Suzanne Y. Pierce
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“Several justices seemed skeptical of the Trump administration’s claims of broad tariff authority under a 1977 emergency powers act.”
Why this is important: The Supreme Court of the United States recently heard arguments on whether President Trump overstepped his legal authority by imposing sweeping tariffs under the 1977 International Emergency Economic Powers Act (IEEPA). Justices appeared skeptical of the administration’s claim that IEEPA gives the president broad power to impose "regulatory" tariffs simply by declaring a national emergency. Several justices questioned the interpretation of statutory language—especially the meaning of “regulate … importation”—and whether that really allows for tax-type levies, as opposed to traditional regulation. Key justices, including Chief Justice Roberts and Justices Barrett and Gorsuch, expressed concern that allowing such powers would let the executive branch override Congress’s constitutional authority to impose tariffs. On the other side, the administration’s lawyers argued IEEPA grants flexibility and cited past precedents, such as actions under the Trading With the Enemy Act. If the court rules against the President, it could force the administration to issue billions in tariff refunds and call into question the legality of trade deals tied to these emergency tariffs.
--- Jason E. Wandling
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“Net absorption for U.S. industrial real estate increased nearly 20 million square feet year over year in Q3, buoyed by activity in Phoenix and Indianapolis, per Colliers.”
Why this is important: Since the announcement of increased tariffs on U.S. imports and the volatile short-term impacts that have ensued, the industry has been attempting to predict and waiting to see the long-term impacts of the changed tariff environment. Many expected long-term shifts to U.S.-based manufacturing and distribution, and this reported increase in demand for stateside warehouse space seems to indicate they may have been correct. Apart from direct tariff impacts, this story also highlights that large-scale businesses are settling into the environment and “have definitely become more desensitized to the short-term noise as they look at making long-term decisions.” These projects increased stability in the supply chain network planning, which should be an overall positive. This story also highlights that new industrial construction is focused on strategic markets, many of which are within the footprint of Spilman’s practices. As those projects continue—and as new projects in those markets continue to be planned—Spilman’s Construction Practice Group will be following the situations on the ground to be ready to assist clients across the industry. --- Steven C. Hemric
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“Data center demand for computing facilities that can consume as much power as entire cities, but America's electrical grid is struggling to keep pace.”
Why this is important: Artificial Intelligence (AI) is not new, but it has certainly taken center stage in national energy production and development discussions. The article amplifies the fact that the U.S. energy grid is old and in need of serious renovation. In addition to current development and consumer needs, AI centers are requesting and requiring a range of multiple gigawatts of power. Some analysts estimate that trillions of dollars are likely to be invested between now and 2030, with as much as $3 trillion by 2028. A key roadblock is access to fundamental components needed for infrastructure upgrades, such as transformers. With supply chain delays, resource market fluctuation, and the ever-increasing competition from multiple market sources, the increased demand on the grid is also creating delays in the development of other legitimate projects because of the backlog of planned but possibly hypothetical AI data projects. Acres of space, gigawatts of power, and potential environmental consequences are the holy trinity of the AI frenzy. How the grid will sustain itself and expand to meet these demands is yet to be determined. --- Sophia L. Hines
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“Proponents say this represents a natural step in the evolution of moving heavy industry off the planet’s surface and a solution for the ravenous energy needs of artificial intelligence.”
Why this is important: Some claim that building data centers in low Earth orbit is a way to avoid the environmental costs of building them on the Earth itself. Though this sounds far-fetched and may be currently impractical, if not impossible, firms are positioning themselves to investigate the possibilities. Rendezvous Robotics has partnered with Starcloud to explore building large, modular data centers in orbit. Their approach relies on a “self-assembling tile technology” derived from MIT’s Project TESSERAE, where smart tiles equipped with processors, batteries, and electromagnetic controls can autonomously assemble into large structures once deployed from a rocket. Starcloud envisions powering these orbital data centers with solar and cooling panels spanning up to four kilometers—far larger than anything currently deployed in space, such as the ISS’s 240 kW solar arrays. While this concept promises major advantages, including constant solar power and reduced dependence on Earth-based infrastructure for energy-hungry AI workloads, it faces significant engineering challenges such as heat dissipation in the vacuum of space, high launch costs, and ensuring reliable in-space assembly. The current agreement between the two companies is exploratory, focusing on defining Starcloud’s requirements and aligning future in-orbit tile tests to evaluate feasibility. Interest from investors in space-based AI infrastructure is strong, but the technology still needs to prove itself before large-scale orbital data centers can become a reality. --- Jason E. Wandling
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“Resistance from landowners is visible across the country as companies pursue new oil, gas and carbon projects.”
Why this is important: The Trump administration’s plans for energy dominance are running into the same problem that stymied the Biden administration’s attempts to boost clean energy production – claims of property rights that stop new projects from being built, such as pipelines for oil and gas. Currently, the Federal Energy Regulatory Commission has 1,500 miles of new gas pipelines in its list of pending projects. The focus by property owners opposing the new pipelines and power lines President Trump wants to build is arguing that the new projects cannot be built as they violate the property rights of landowners and constitute improper use of eminent domain. Forces opposing Trump projects are joining with environmental groups to keep new energy projects from being built. In fact, groups just stopped a proposed 2,000-mile CO2 pipeline in the Midwest by arguing the project violated a farmer’s property rights. The solution to these issues is likely the one used to complete the MVP pipeline in Appalachia – Congressional legislation to exempt such projects from environmental lawsuits. --- Mark E. Heath
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“Dodge Construction Network forecasts early-stage activity to decelerate, especially as macroeconomic risks mount.”
Why this is important: Rising economic pressures and inflated labor and material costs are dampening developer enthusiasm for new nonresidential construction planning. According to Dodge Construction Network, the “Dodge Momentum Index” (which tracks early-stage planning activity) fell 7.1 percent in October. While planning remains significantly higher than in 2024 (up 52 percent year-over-year, with commercial up 54 percent and institutional up 49 percent), much of that growth has been driven by large data center and hospital projects. Excluding data centers, commercial growth would be more modest (43 percent). Despite solid activity in some sectors, momentum is softening in areas like hotels, warehouses, and education. Dodge warns that if project costs remain elevated, planning will slow down in the near term, especially with mounting uncertainty about the economy. Significantly, however, 45 major projects of $100 million or more entered planning in October, including billion-dollar data centers and large hospital expansions. --- Jason E. Wandling
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“'The idea is to have people who are solar home owners to be able to mingle with what we call the ‘solar curious’ — those who are interested in going solar,’” said SUN West Virginia Program Associate Cory Chase.
Why this is important: The Washington, D.C.-based nonprofit Solar United Neighbors, or SUN, is expanding its presence in West Virginia by hosting another “solar co-op” in the state across Berkeley, Jefferson, and Morgan counties in 2026. The goal, according to SUN representatives, is to support participants who are interested in installing solar panels on their properties at a reduced group rate. According to figures provided by SUN, the organization has so far helped 180 families start using solar power and installed 1.4 MW of solar capacity across the state. This is important because even if the move towards residential solar is incremental, understanding the rising interest in these programs may offer insight into how residential customers are managing their energy bills, their confidence in utility providers, and their changing energy needs. --- Jamie L. Martines
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“The Trump administration struck a deal last month with the owners of Westinghouse to invest $80 billion to build nuclear plants across the U.S.”
Why this is important: The Trump administration’s Secretary of Energy Chris Wright believes most of the funds for new energy development will go to nuclear projects. The administration is working with Westinghouse to invest $80 billion in nuclear plants. The new AP1000 reactor Westinghouse is working on can power 750,000 homes and could be critical to meeting new power demands from AI projects. One of President Trump’s new Executive Orders calls for the U.S. to break ground on 10 large nuclear plants by 2030. Secretary Wright hopes to see 12 new nuclear plants under construction when President Trump leaves office in three years. --- Mark E. Heath
| Arbitration clauses in construction contracts are incredibly common, and most—if not all—of those clauses also include selection of the venue/location for the arbitration to be held. In recent years, the enforceability of some of those venue selections has become a murky topic in construction disputes, because a number of states have enacted laws prohibiting parties from requiring litigation or arbitration in a state other than the state in which the construction project at issue is located. This latest case from the North Carolina Court of Appeals joins several other states (and prior North Carolina cases) that have tackled the intersection of these “anti-forum selection statutes” and the Federal Arbitration Act and reiterates that the FAA preempts/overrides the state-level forum selection statutes. The case also addresses whether “either-or” forum selections and forum selections giving one party discretion to unilaterally choose the forum are enforceable, and determines that they are indeed “mandatory” and enforceable. This clarification from the North Carolina Court of Appeals highlights the importance for businesses of being aware of and specifically negotiating venue selections in arbitration agreements, especially when the business on the other side of the agreement is located in a different state. Spilman’s Construction Practice Group negotiates and litigates these types of issues on a regular basis and is always ready to assist businesses in navigating both the contracting and dispute resolution processes. --- Steven C. Hemric | | |
Alexander L. Turner, CIPP/US
Member; Co-Chair, Cybersecurity & Data Protection Practice Group; Co-Chair, Nursing Home Practice Group
office 336.955.8352
aturner@psilmanlaw.com
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Alex's primary area of practice is litigation, including commercial, construction and product liability litigation. Alex has been involved in arbitration and litigation involving interstate bridge construction, commercial construction projects and pipeline construction.
In terms of general litigation, Alex represents clients in commercial litigation covering all aspects of contract and commercial disputes, including management representation in employment disputes. Alex has represented insureds in a variety of litigation and in first party bad faith actions.
Regarding complex litigation, he represents large corporations; manufacturers in mass tort actions in Federal and State Courts; and clients in class actions and in mass litigation in Federal and State Courts, before the West Virginia Mass Litigation Panel, and the Supreme Court of Appeals of West Virginia. Alex is adept at managing the defense of complex matters, including crafting and implementing litigation strategy, drafting critical motions, taking and defending fact and expert witness depositions, and arguing motions before both Federal and State Courts.
Alex is a member of a variety of organizations, including the American Bar Association, West Virginia State Bar, Virginia Bar Association, DRI – The Voice of the Defense Bar, the International Association of Privacy Professionals, and the Defense Trial Counsel of West Virginia.
He is admitted to practice in the Virginia, West Virginia and North Carolina State Bars, the United States District Courts for the Middle and Western Districts of North Carolina, and the United States District Court for the Southern District of West Virginia.
Alex received his B.S. from Washington and Lee University and his J.D. from Pace University School of Law.
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