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The Environmental Quality Board Evaluates Petition that Proposes Further Setbacks for Unconventional Oil and Gas Operators

The Legal Intelligencer

(By Alex Graf and Morgan Madden)

On October 22, 2024, the Clean Air Council (CAC) and Environmental Integrity Project (EIP) (collectively, “Petitioners”) filed a rulemaking petition with the Pennsylvania Environmental Quality Board (EQB) to increase minimum setback distances from unconventional oil and gas wells. The EQB is a 20-member independent board chaired by the Secretary of the Pennsylvania Department of Environmental Protection (PADEP) and is the body responsible for adoption of all PADEP regulations. Petitioners assert in their submission that alleged health impacts, in addition to alleged groundwater and surface water pollution, associated with unconventional oil and gas wells require the EQB to take action to increase minimum setback distances.

At present, Section 3215 of the 2012 Oil and Gas Act, 58 Pa.C.S.A. § 3215, establishes the setbacks from unconventional oil and gas wells, measured horizontally from the vertical well bore, at 500 feet from buildings and 1,000 feet from water supply extraction points, water wells, surface water intakes, and/or reservoirs. Petitioners seek to expand the current setbacks to require that any unconventional oil or gas well be at least 3,281 feet from any building and/or drinking water well, 5,280 feet from any building serving vulnerable populations, and 750 feet from any surface water of the Commonwealth. While the rulemaking petition does not explicitly define what constitutes “surface water,” it generally contends that the EQB’s authority to protect Pennsylvania’s water extends broadly over waters of the Commonwealth.

More specifically, the Petitioners have requested that the EQB promulgate regulations under Title 25 of the Pennsylvania Code, 25 Pa. Code §§ 78a.1, et seq., to increase the minimum setback distances, arguing that the EQB has broad authority under the Oil and Gas Act to promulgate regulations governing the development of oil and gas resources in Pennsylvania. Indeed, Section 3274 of the Oil and Gas Act is one sentence in length and simply states that, “[t]he Environmental Quality Board shall promulgate regulations to implement this chapter.” 58 Pa.C.S.A. § 3274. Several industry interest groups submitted comments to the EQB on the rulemaking petition on this point, arguing that the EQB lacks statutory authority under the Oil and Gas Act to expand, contract, or alter the statutory setback requirements.

The rulemaking petition submitted by Petitioners heavily relies on the 2020 43rd Statewide Investigating Grand Jury Report (Grand Jury Report), issued following an omnibus investigation overseen by then-Attorney General, now Governor, Josh Shapiro. The Grand Jury Report detailed the investigation into PADEP’s regulatory oversight of the fracking industry over a two-year period and analyzed findings that government agencies failed to exercise proper oversight of the unconventional oil and gas industry. As a result, the Grand Jury Report outlined eight recommendations for legislative, executive, and administrative action by the Commonwealth, the first of which was to “take action to expand the no-drill zone between fracking and homes from 500 to 2,500 feet and to adopt a more protective no-drill zone of 5,000 feet for schools and hospitals.” It is worth noting that in PADEP’s rebuttal to the Grand Jury Report, it highlighted that there were no findings of wronging on PADEP’s part and stated that it failed as a “meaningful tool for improving the regulation of the unconventional gas industry” because the report was not informed by the applicable law or facts.

Before the EQB (or any government regulatory agency) can promulgate rules, there are several significant regulatory review steps petitions must work their way through before an agency can promulgate a rule that amends an existing regulation. Generally, the EQB has the authority to refuse to accept a rulemaking petition for review for a number of reasons, which include (1) whether the EQB has considered the issue within the previous two years; (2) whether the action requested by the petition is currently in litigation; (3) whether the action requested is inappropriate for EQB review due to policy or regulatory considerations; or (4) whether the petition involves an issue previously considered by the EQB and the petition does not contain new information to warrant reconsideration. 25 Pa. Code § 23.5. As discussed below, the rulemaking petition submitted by Petitioners could potentially implicate one of the enumerated refusal bases, but it has yet to be seen how the EQB will move forward on the petition.

On November 21, 2024, PADEP made the administrative determination that the rulemaking petition itself complied with the EQB petition policy. That policy addresses administrative aspects of petitions including (1) that all rulemaking petitions to be heard by the EQB are complete, (2) that the petition requests an action to be taken that falls within the purview of the EQB, and (3) that the requested action does not conflict with federal law. 25 Pa. Code § 23.2. The determination on the part of PADEP that Petitioners rulemaking petition complied with the petition policy does not mean, however, that the EQB has accepted the rulemaking petition for review.

After PADEP determined that the petition was compliant, it recommended to the EQB that the EQB accept the petition for further study at the April 8, 2025 meeting of the EQB. At that meeting, Petitioners were given the opportunity to present to the EQB their reasons for why the EQB should accept their rulemaking petition. During their presentation, Petitioners heavily focused on the alleged adverse health and environmental consequences of unconventional oil and gas development. Despite the presentation, Public Utility Commission (PUC) Commissioner Kathryn Zerfuss, a member of the EQB, moved to table the Petition, reasoning that she wished to give the EQB additional time to consider the petition given the complexity of the issues at stake.

To move the petition forward again, the rules of order prescribe that a member of the EQB will have to move to un-table the petition to advance the petition for consideration at the next regularly scheduled EQB meeting. The EQB meeting scheduled for July 8, 2025, has been cancelled, and the next meeting is scheduled to take place on August 12, 2025.

If the EQB ultimately accepts the petition for review at the August EQB meeting, notice of acceptance will be published in the Pennsylvania Bulletin within 30 days of that decision. 25 Pa. Code § 23.6. Within 60 days of the EQB decision, PADEP will be required to prepare a formal report evaluating the petition and including a recommendation on whether the EQB should approve the action requested in the petition. Id. In the event PADEP needs additional time to prepare its report, it may take that time; however, PADEP would have to report to the EQB at its next regularly scheduled meeting how much additional time it will require to complete the report. Id. If the recommendation is to amend the regulation, the report shall specify the anticipated date the EQB would consider a proposed rulemaking. Id.

If issued, a copy of the PADEP final report will be sent to Petitioners, and the Petitioners may opt to submit a written response to the report for the EQB’s consideration within 30 days. 25 Pa. Code § 23.7. If PADEP’s report recommends regulatory amendments, it will prepare a proposed rulemaking within six months of sending the report to the Petitioners. 25 Pa. Code § 23.8. If no regulatory amendments are recommended, PADEP will present its report at the next EQB meeting that occurs at least 45 days after it mailed its report to the Petitioners. Id.

Thus, the timeline for complete review and decision making on the rulemaking petition is somewhat uncertain given the EQB’s tabling of the issue and subsequent meeting cancellations. EQB action on the rulemaking petition has been largely administrative up to this point, so its substantive position on the rulemaking petition in the context of current setbacks from unconventional oil and gas wells remains to be seen.

Alexandra N. Graf is an associate in Babst Calland’s Environmental Practice Group and focuses her practice on federal and state permitting, regulatory compliance, environmental due diligence, and environmental litigation. Contact her at 412-394-6438 or agraf@babstcalland.com.

Morgan M. Madden is an associate in Babst Calland’s Public Sector, Energy and Natural Resources, and Employment and Labor groups and focuses her practice on land use, zoning, planning, labor and employment advice, and litigation. Contact her at 717-868-8381 or mmadden@babstcalland.com.

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Employer Guidance for Workplace Interactions with ICE

Contractor’s Compass

(by Steve Antonelli and Alex Farone)

The Trump administration’s efforts to prioritize immigration law enforcement has resulted in increased activity by U.S. Immigration and Customs Enforcement (“ICE”) and an uptick of questions from employers about how to handle ICE investigations. This article provides guidance to employers for potential interactions with or inspections by ICE at the workplace, including preliminary actions, suggested steps during an ICE visit (whether announced or unannounced), and follow-up recommendations.

There is a common misconception that only employers that specifically seek or intentionally hire unauthorized workers are at risk of a visit from ICE. However, there are multiple avenues by which a generally law-abiding employer may find itself unknowingly employing an unauthorized worker. For example, an individual may have presented the employer with fraudulent documentation for the Form I-9 employment eligibility verification, and the employer may not have realized the document was inauthentic. Or an employer may have lawfully hired a noncitizen with proper employment paperwork but later may forget to reverify the worker’s Form I-9; in this instance, the individual’s work authorization could lapse or expire without the employer noticing.

To the extent an employer’s office or work facility is private property, employers have certain legal rights when faced with an ICE arrival. Employers should become familiar with their rights and best practices in the event of an ICE visit to minimize the risk of inordinate disruption to the workforce or operations, or the unauthorized seizure of company property and information. Employers should seek to balance (1) lawful compliance and cooperation with (2) private property rights and a general duty of care for employees.

Babst Calland recognizes that the topics of immigration enforcement and undocumented persons have been politicized. We therefore offer this guidance objectively, without advocating for any particular position beyond what is legally required.

Recommended Precautionary Actions Before ICE Arrives

Designate Public and Private Spaces

ICE agents can only be present in areas open to the public (such as parking lots, reception areas, lobbies, etc.) without a judicial warrant or specific employer consent. Therefore, employers should clearly identify the boundaries of non-public areas with signs such as “Private” or “Non-Public Area” to avoid ambiguity. Once signs are posted, management should explain these “new” boundaries or designations to the workforce, with special emphasis on its explanation to security guards, receptionists, and other public-facing employees.

Understand the Types of Documents ICE Could Present

With a few exceptions, ICE generally cannot lawfully search persons or private spaces, or seize persons or private property, without certain documentation.[1] As explained below, employers should ensure that key personnel are trained to identify and/or differentiate these documents.

A judicial warrant provides the broadest search and/or seizure rights. A judicial warrant can be either a search warrant or an arrest warrant. A judicial warrant must be signed and dated by a judge or magistrate, and it must describe with particularity the place to be searched and/or the person or items to be seized. A judicial warrant will have the name of a court at the top of the document. Only a valid judicial warrant permits an ICE agent to enter private/non-public spaces at the workplace, and only a valid judicial warrant requires the employer’s cooperation. An employer must strictly comply with a judicial warrant, but it is not required to take any action to assist ICE beyond what is reasonably required by the judicial warrant. For example, an employer can be required to move an employee identified in the warrant into a contained area for questioning, but it cannot be required to sort employees into groups by citizenship status or nationality for an inspection by ICE.

An administrative warrant is much more limited than a judicial warrant. An administrative warrant is signed by an immigration officer, and it allows ICE to arrest a non-citizen suspected of committing immigration violations. An administrative warrant is usually identified as a document “issued by the Department of Homeland Security” and is typically on a Form I-200 or I-205. Notably, an administrative warrant does not give an ICE agent the right to enter private/non-public spaces at the facility unless the employer consents.[2] Additionally, when faced with an administrative warrant, an employer is not required to tell ICE whether the employee named in the warrant is currently working or to bring the employee to the agent (or vice versa).

Alternatively, ICE could present an employer with a subpoena, a notice of inspection, or a notice to appear. A subpoena is a written request for information or documents that provides a certain time limit to respond and does not require immediate compliance. Like a subpoena, a notice of inspection is a document informing an employer that it must produce employees’ I-9 Forms for an audit[3] within 3 business days. A notice to appear is a document directed to an individual instructing them to appear before an immigration judge.

Assign An On-Site Response Coordinator

Employers should assign a particular managerial or supervisory employee at each facility to be the on-site response coordinator who can serve as a single point of contact with ICE in the event that ICE arrives, as well as a back-up coordinator if the designated worker is absent or unavailable. These personnel should be trained to differentiate between the above-described documents, and to understand and be aligned with the employer’s policy for lawful compliance with visits from ICE.

Review Applicable Collective Bargaining Agreements

For any locations that have a unionized workforce, employers should review the applicable collective bargaining agreements (CBAs) proactively to determine whether they require any additional conduct by the employer in the event of an ICE visit. For example, some CBAs might include provisions that give the union the right to be present during any ICE inspections or on-site employee interviews, or require that the employer notify all union employees when ICE agents arrive. Any additional CBA requirements should be implemented with the below recommended actions for facilities with unionized employees.

Recommended Actions If ICE Arrives

*All recommended actions below should be conducted in a calm, professional, and polite manner to prevent escalation of the interaction.*

Notify key personnel – The first step is to immediately notify the facility supervisor, the on-site response coordinator(s), and the employer’s legal counsel. Ask the agents to wait in a specific space or designated location until either a supervisor, on-site response coordinator, or legal counsel arrives to prevent disruption.

Verify agent identify – The response coordinator should clarify whether the agents are police officers or ICE agents and request their names and badge numbers.

Department of Homeland Security (DHS) regulations require ICE agents to, at the time of an arrest, identify themselves as immigration officers with arresting authority if it is “practical and safe to do so.” However, agents are not currently required to provide their name or badge number.
Recently, there has been an increase in reported instances of ICE agents concealing their faces, wearing plainclothes, and/or arriving in unmarked vehicles when making arrests. The DHS Assistant Secretary for Public Affairs has stated to news outlets that ICE agents are utilizing masks and face coverings to protect themselves from increasing threats and online doxing. Employers should be aware of this trend and train the on-site response coordinator to anticipate this possibility.

Verify agent purpose – The response coordinator should ask the agents about the nature of their visit. Common purposes include:

Initiation of Form I-9 Audit – If ICE intends to audit a company’s Form I-9 compliance, ICE must first provide the employer with a Notice of Inspection. This notice document gives the employer at least 3 business days to produce the requested I-9 Forms.[5] Additional productions and procedures will ensue if ICE determines that there are any Form I-9 errors, suspicious documents, or discrepancies, and employers should consult with an immigration attorney for further guidance if this occurs.
Facility Search or “Raid” – ICE can arrive without warning to investigate an employer.
Detention of specific person(s) – ICE can arrive without warning to detain specific person(s).
Fraud Detection and National Security (FDNS) visit – this is an unannounced visit related to an employer’s recent immigration petition(s) where ICE agents conduct compliance reviews to ensure the employer is complying with the terms and conditions of the petition(s). This article does not address such visits, as FDNS visits are only relevant for employers who have had an H-1B or L-1 intracompany transfer petition(s) adjudicated.

Verify documentation – The response coordinator should ask to see a warrant.

If a judicial warrant is provided, the employer should analyze it to determine its scope and ask for a copy of it. Employers are not required to provide access to any area not specified in a judicial warrant.
- If there is an issue with the judicial warrant (i.e. it is not signed, not dated, is missing the correct workplace address, or does not sufficiently describe the premises to be searched or items to be searched for), an employer can accept the warrant but should note its objection so that counsel can challenge the search or seizure later if sufficient grounds exist. To be clear, in this instance, the search or seizure will still occur.
If an administrative warrant is provided, the response coordinator can (but is not required to) state: “I’m sorry, but this is private property. It is company policy not to provide consent or permission to enter private or non-public areas of the facility or to access our information or records without a valid warrant signed by a judge.”
If no warrant of any kind is provided, the response coordinator can (but is not required to) make the same statement.

Use independent judgment if considering voluntary consent.

Employers can decide to voluntarily consent to a search or seizure of employer property by ICE without a sufficient warrant. Moreover, ICE agents are permitted to make statements intended to encourage voluntary consent or to imply that giving consent is required even in circumstances where it is not (such as when the agents do not possess a judicial warrant).
If considering consenting to a search or seizure without a sufficient warrant, employers should use independent judgment to evaluate the totality of the circumstances in addition to any statements made by the agents.
Please note that non-management and non-supervisory employees do not have the authority to act on behalf of an employer to give such consent.

Be respectful, but clear, if exercising the company’s rights.

Never attempt to block an ICE agent’s movements. If an employer believes ICE is exceeding its authority, the response coordinator can voice the employer’s objection and state that the company does not consent, but they should not argue and never physically interfere with the agent’s actions.
If a search is to occur (whether pursuant to a valid warrant, voluntary consent, or over the employer’s objections in the absence of both), ask to be provided with a list of any items seized.
If agents attempt to seize something that is critical to company operations (such as a computer, proprietary information, or an important file), explain why the item is critical to the company’s operations, request a more limited or targeted seizure, and/or ask to make a copy of the information before it is seized.
Employers can notify employees that they have the right to remain silent, but employers cannot instruct employees not to respond to questions. Company representatives should not be confrontational, obstructive, or evasive.
Though ICE agents are not currently required to wear body cameras, employers and employees alike have the right to record an encounter with ICE. Consider recording interactions with ICE agents to clearly document all statements and actions. Efforts to record an encounter should never interfere with the agents’ activities.

Recommended Actions After ICE Visit

Document as much as possible – The response coordinator should interview employees and make a record of the details of the event in an incident report. The report should include details such as the number of agents, a description of what they were wearing, whether the agents kept anyone from moving around the workplace freely, a detailed list of the locations of any search (including smaller spaces such as closed drawers), a detailed description of any property seized, a detailed list of statements made by the employer declining consent or asserting legal rights, and any statements made by the agents.

Follow-up notifications – The employer should call its legal counsel immediately to discuss next steps. If the workplace is unionized, the employer should notify the union steward that ICE visited the workplace.
Engage and encourage open communication with and among the workforce – Employers should be open and honest with the workforce about what occurred. In addition to individual instances of absenteeism, fear of action by ICE may lead to employees discussing their concerns or voicing disagreement with the employer’s response (or potential response) to ICE. Employers must be aware that certain employee collective action (discussions, protests, other concerted activity, etc.) may be protected under the National Labor Relations Act if it relates to the terms and conditions of employment, even for non-union workers or those who may not be authorized to work in the U.S.

Provide reasonable leave – If ICE detains a worker, consider providing the worker with an unpaid leave of absence during and in the immediate aftermath of the detention. While not legally required, an employer could consider handling the matter in a manner similar to how it might provide or allow leave in the event of a sudden medical issue or other unexpected absence. Failure to provide such comparable leave could give rise to a claim for national origin discrimination. Employers are never, however, required to provide an indefinite leave of absence.

If you have any questions about additional employer guidance concerning workplace investigations by ICE or any other federal or state agency, please contact Alexandra G. Farone at (412) 394-6521 or afarone@babstcalland.com or Stephen A. Antonelli at (412) 394-5668 or santonelli@babstcalland.com.

This article is reprinted with permission from the July 2025 issue of Contractor’s Compass and Babst, Calland, Clements and Zomnir, P.C. for educational purposes. This information is not designed to be, nor should it be considered or used as a substitute for specific legal advice. All rights reserved. Attorney Advertising.

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[1] While police officers are allowed to search and arrest without a warrant in the event of different types of emergencies such as while in “hot pursuit” of a criminal suspect, ICE agents are not police officers (regardless of whether their uniforms say “Police”). ICE agents may not search and seize without a warrant if they are merely in “hot pursuit” of a suspected undocumented person. Under applicable law, this type of warrantless search or seizure by ICE is only permitted if the agent is in “hot pursuit” of an individual who “poses a public safety threat” or who the agent personally observed crossing the border.

[2] One key exception is the “in plain view” principle. With or without a warrant, ICE agents are always allowed to look at anything in “plain view,” including computer screens or papers sitting out on desks, or listen to audible conversations that can be overheard without a listening device. If what the agent sees or hears in “plain view” gives them probable cause that unlawful activity is, has, or will occur, they can search the relevant private area and seize relevant items without a warrant.

[3] The Form I-9 is a document used to verify the identity and employment eligibility of individuals within the United States. Federal law requires employers to create and maintain I-9 Forms and supporting documentation for all employees.

[4] As of the date of this publication, federal legislation has been introduced to require ICE agents to wear a legible identification that displays the employing agency name/acronym and either the agent’s last name or badge number. This proposed bill also would prohibit non-medical face coverings that obscure identity unless the agents are faced with environmental hazards or are engaged in covert operations.

[5] Employers are cautioned against voluntarily consenting to a search or seizure of Forms I-9 if ICE agents do not have a judicial warrant for this information or if the 3-day period after receiving a Notice of Inspection has not yet expired. The Form I-9 rules are nuanced and strict, and it is very common for employers to unknowingly violate a rule due to an unintended error on the forms or in record-keeping. Employers can be subject to monetary fines for substantive violations and any uncorrected technical violations regardless of whether the violation was intentional.

Amidst EPA’s Reconsideration, PADEP Publishes Proposed State Plan for Greenhouse Gas Emissions from Existing Oil and Natural Gas Facilities

PIOGA Press

(by Gary Steinbauer and Gina Buchman)

On May 31, 2025, the Pennsylvania Department of Environmental Protection (PADEP) published notice of opportunity for public comment on its Proposed State Plan for 40 CFR Part 60, Subpart OOOOc Emissions Guidelines for Greenhouse Gas Emissions from Existing Crude Oil and Natural Gas Facilities in the Pennsylvania Bulletin. 55 Pa.B. 3810.

PADEP is obligated to undertake this rulemaking pursuant to section 111(d) of the Clean Air Act and its implementing regulations, which require states to establish, implement, and enforce standards of performance for existing sources of a pollutant for which emission guidelines have been issued by the United States Environmental Protection Agency (EPA). In March 2024, EPA published Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review. 89 Fed. Reg. 16820 (Mar. 8, 2024). This rule, referred to by some as the “Methane Rule,” established new New Source Performance Standards regulating greenhouse gases (GHGs) and volatile organic compounds (VOCs) emissions for the Crude Oil and Natural Gas source category that begin construction, reconstruction, or modification after December 6, 2022 (referred to as OOOOb) and emission guidelines for states to use in developing, submitting, and implementing state plans to establish standards of performance to limit GHG emissions (in the form of methane) from sources existing as of December 6, 2022 in the Crude Oil and Natural Gas source category (referred to as OOOOc). OOOOb and OOOOc are very similar as it relates to methane reduction. States, industry trade groups, and oil and gas companies have challenged the Methane Rule, and these challenges are pending before the D.C. Circuit Court of Appeals.

States can either adopt EPA’s model emission guidelines as their state plan or develop their own standards that are equally as or more stringent than the federal model rule. States may apply standards less stringent than those included in OOOOc by taking into consideration the remaining useful life (RULOF) of the regulated facilities, or classes of regulated facilities in their plans. The state must demonstrate to EPA that each such facility (or class of such facilities) cannot reasonably achieve the degree of emission limitation in the model rule due to (1) unreasonable cost of control resulting from plant age, location, or basic process design; (2) physical impossibility or technical infeasibility of installing necessary control equipment; or (3) other circumstances specific to the facility. 40 C.F.R. § 60.24a(e).

The state must also demonstrate that there are fundamental differences between the information specific to these facilities (or class of such facilities) and the information EPA considered in determining the degree of emission limitation achievable in the model emission guidelines. Id. If the state has made the required demonstration, it may apply a less stringent standard of performance, but it must be no less stringent than necessary to address the fundamental differences identified and set a standard of performance in the form required by the applicable emission guideline. 40 C.F.R. § 60.24a(f). If the state applies less stringent standards based on an operating condition(s) within the designated facility’s control, such as remaining useful life or restricted capacity, the state’s plan must also include requirements for the implementation and enforcement of such operating condition(s), such as requirements for monitoring, reporting, and recordkeeping. 40 C.F.R. § 60.24a(g).

EPA promulgated regulations outlining the specific process for RULOF demonstrations in 2023 to give states greater clarity on and predictability for applying less stringent standards of performance consistent with CAA Section 111. 88 Fed. Reg. 80,480. In the preamble to that 2023 final rule, EPA acknowledged that the OOOOc emissions guidelines “address large, complex, and highly diverse source category[y].” 88 Fed. Reg. at 80, 512. As such, EPA suggested that RULOF may play a more significant role in state plans for OOOOc. Id.

PADEP has chosen to adopt EPA’s model OOOOc emissions guidelines as its Proposed State Plan, while also seeking comments on whether RULOF should be considered in establishing a standard of performance in its State Plan “for any facility or class of facilities that would be regulated.” Operators that believe that they own and operate oil and natural gas facilities that should be subject to differing standards under a RULOF analysis, should consider providing as much information as possible to PADEP in the public comment period regarding unreasonable costs of control resulting from facility age, location, and design, infeasibility of installing equipment, and other specific details that would be relevant to such analysis.

In the Proposed State Plan, PADEP explains that it believes OOOOc, as part of the New Source Performance Standards, to be adopted by reference under 25 Pa. Code §122.3 and the Department has the statutory and regulatory authority to adopt the OOOOc performance standards through its federally enforceable plan approval, state operating permits, Title V permit programs, or general permits. The Department intends to develop General Plan Approval(s)/Operating Permit(s) that would incorporate the OOOOc model rule and the compliance, monitoring, recordkeeping, and reporting requirements required by federal regulation. PADEP says that it intends to collaborate with industry in developing these permits and will provide opportunity for public comment. What is not clear, however, is whether there will be additional opportunity for public comment regarding the State Plan that is submitted to EPA regarding its findings on RULOF.

A copy of the Proposed State Plan is available on the DEP eLibrary. The Proposed State Plan is 193 pages and includes various appendices. The Department will accept written comments on the proposed plan for a 60-day comment period, which closes on July 30, 2025. In addition, the Department is holding seven public hearings on its proposal in June and July, where the public can provide comments on the proposal. Further information regarding these hearings and registration can be found on the Department’s website.

As of the date of this article, PADEP must submit its state plan to EPA by March 9, 2026, with compliance deadlines in 2029. However, less than one week after the Department opened its Proposed State Plan for comment, the federal Office of Management and Budget received what it describes as the EPA’s interim final rule to extend deadlines in OOOOb and OOOOc. In the past, EPA has issued interim final rules for rules related to the Agency’s organization, procedure, or practice. These interim final rules typically become effective upon publication in the Federal Register or 30 days after publication and provide a relatively short period for submission of public comments. EPA has followed prior interim final rules with a final rule that considers and responds to comments submitted on the interim rule. Although EPA’s interim final rule that is undergoing review by OMB has not been released to the public, it may extend the current March 9, 2026, deadline for the Department to submit the Proposed State Plan to EPA under 40 C.F.R. § 60.5362c.

Babst Calland’s Environmental Practice Group is closely tracking PADEP’s Proposed State Plan and EPA’s pending interim final rule, and our attorneys are available to provide strategic advice on how these actions may affect the oil and gas industry in Pennsylvania and can assist with drafting and submitting comments on PADEP’s proposal. For more information or answers to questions, please contact Gary Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com or Gina Buchman at (202) 853-3483 or gbuchman@babstcalland.com.

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Environmental Quality Board Proposes Changes to Notification Rules for Unauthorized Spills into Waters of the Commonwealth

FNREL Water Law Newsletter

(by Lisa M. Bruderly, Jessica Deyoe and Christina Puhnaty)

On April 5, 2025, the Environmental Quality Board (EQB) published a public notice proposing to amend 25 Pa. Code § 91.33 (relating to incidents causing or threatening pollution). See 55 Pa. Bull. 2589 (Apr. 5, 2025). This proposed rule intends to clarify which unauthorized discharges require immediate notification to the Pennsylvania Department of Environmental Protection (PADEP) but does not change which unauthorized discharge incidents require immediate PADEP notification.

Section 91.33 currently requires the person responsible for an unauthorized discharge to immediately notify PADEP if a discharge results in pollution, creates a danger of pollution of the waters of the Commonwealth, or would damage property. The proposed rule would require a person responsible for unauthorized discharges to either report the discharge to PADEP immediately, or create and retain a written analysis of certain factors determining that an unauthorized discharge does not cause or threaten pollution. A signed statement attesting the document’s accuracy must accompany the documentation if it is provided to PADEP at PADEP’s request. The proposed rule would require analysis of the following factors:

the properties of the substance or substances discharged;
the location or locations involved;
the weather conditions before, during, and after the incident;
the presence and implementation of adequate response plans, procedures, or protocols; and
the duration of the accident or other activity or incident.

If any one of the above factors, or a combination of the factors, can adequately establish that there is no risk of the substance reaching waters of the Commonwealth, no further analysis of the other factors is required to determine whether immediate notification to PADEP is required. The proposed rule also allows the person responsible to choose to report an unauthorized discharge rather than undertaking the evaluation and documentation of the above-listed factors.

The proposed rule also incorporates a federal list of reportable quantities—by referencing 40 C.F.R. § 117.3—that if discharged in a quantity greater than or equal to those reportable quantities, must be immediately reported to PADEP without undergoing analysis of the above factors. While the reportable quantities listed at section 117.3 are not exhaustive of all possible substances that may cause or threaten pollution to waters of the Commonwealth, the quantities listed in the federal regulation are considered large enough by PADEP that an unauthorized discharge involving those quantities of those substances would likely cause or threaten pollution of waters in the Commonwealth, making it appropriate to incorporate in this regulation.

Supreme Court Scales Back Scope of NEPA Review on Some Projects

GO-WV

(by Robert Stonestreet)

Through a unanimous 8-0 decision, the Supreme Court of the United States addressed what it described as “continuing confusion and disagreement in the Courts of Appeals” over the scope of judicial review for claims asserting violations of the National Environmental Policy Act (NEPA). Seven County Infrastructure Coalition v. Eagle County, No. 23-975 (May 29, 2025). In doing so, the Supreme Court clarified that decisions by federal agencies under NEPA are entitled to substantial deference, and courts should not be in the business of second-guessing how agencies weigh competing considerations under NEPA. “The bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.” Additionally, the Supreme Court ruled that NEPA does not compel federal agencies to address the environmental effects of projects separate in time or place from the construction and operation of the proposed project at issue.

Justice Kavanaugh authored the main opinion joined by Justices Alito, Thomas, and Barrett along with Chief Justice Roberts. Justice Sotomayor penned a separate concurring opinion joined by Justices Kagan and Jackson. Justice Gorsuch did not participate in the case.

Rail Project at Issue

In December 2021, the federal Surface Transportation Board approved an application to construct an 88-mile rail line in Utah’s Uinta Basin that would primarily transport crude oil to interstate rail lines and ultimately to refineries along the Gulf Coast.

NEPA required the Board to evaluate environmental impacts of the proposed project and consider potential alternatives to the project that would avoid or minimize those impacts. The Board’s NEPA evaluation was reflected in an Environmental Impact Statement (EIS) spanning more than 3,600 pages. Several non-governmental organizations and a local county filed a legal challenge under NEPA in the District of Columbia Circuit Court of Appeals, alleging that the Board failed to adequately consider the impacts of certain “upstream and downstream” activities that are separate from the proposed rail line. Specifically, the Board did not perform a detailed analysis of (1) increased crude oil development that may occur in the Uinta Basin once the rail line goes into service; or (2) air emissions at refineries along the Gulf Coast associated with processing crude oil extracted from the Uinta Basin.

Court of Appeals Decision

Finding in favor of the challengers, the D.C. Circuit agreed that future crude oil development and refining were “reasonably foreseeable impacts” that the Board should have evaluated. The D.C. Circuit rejected the Board’s position that those effects arose from other projects that were separate in time and space from the rail line and were also beyond the jurisdiction of the Board, which does not regulate crude oil extraction or refining.

Kavanaugh Opinion

The main court opinion makes clear that judicial review under NEPA involves affording substantial deference to the decisions by the federal agencies involved. That is because assessment of environmental effects and feasible alternatives involves “a series of fact-dependent, context-specific, and policy-laden choices.” Thus, courts “should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness.” Nevertheless, Justice Kavanaugh observed that “[s]ome courts have strayed and not applied NEPA with the level of deference demanded by the statutory text and this Court’s cases.” In doing so, “NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects.”

Kavanaugh’s opinion wholly rejects the notion that NEPA requires federal agencies to consider other existing or potential future projects that are separate in space and time from the proposed project under consideration. The opinion observes that NEPA’s focus is the “project at hand – not other future or geographically separate projects that may be built (or expanded) as a result of or in the wake of the immediate project under consideration.” Consequently, “NEPA does not require the agency to evaluate the effects of that separate project.” The Board was therefore “[a]bsolutely correct” in concluding that it need not perform a detailed analysis of the potential for future crude oil development in the Uinta Basin and refining activities along the Gulf Coast.

Lastly, Kavanaugh observed that NEPA litigation should not be a forum for project opponents “to air their policy objections to proposed federal actions.” “Citizens may not enlist the federal courts, ‘under the guise of judicial review’ of agency compliance with NEPA to delay or block agency projects based on the environmental effects of other projects separate from the project at hand.”

Concurring Opinion

The concurring opinion authored by Justice Sotomayor and joined by Justices Jackson and Kagan observes that the Board lacked jurisdiction over potential future crude oil development and refinery activities, and lacked authority to restrict transportation of crude oil on the proposed rail line. Therefore, there was no need for the Board to consider impacts of those activities.

What’s Next?

NEPA has been called one of the most litigated environmental statutes in the United States. This decision should set a higher bar for project opponents to succeed on NEPA claims. The Court made clear that the judiciary should afford substantial deference to how federal agencies weigh the respective impacts and benefits of a proposed project. Whether this pronouncement will prompt developers to move forward with additional projects, and how much deference will actually be afforded by the lower courts, remains to be seen. This decision does not directly affect the legal landscape for challenges brought under substantive environmental statutes like the Clean Water Act, Clean Air Act, or Endangered Species Act, although actions challenging major projects that allege violations of these statutes are often paired with a NEPA claim.

If you would like to discuss this decision or NEPA in general, please contact Robert M. Stonestreet at rstonestreet@babstcalland.com or 681.265.1364.

Click here, to view the article online in the July issue of GO-WV News.

Pipeline Safety Regulatory Initiatives Under the Trump Administration

GO-WV

(by Lee Banse)

Introduction

Since entering office, President Trump has issued multiple executive orders seeking to promote the deregulation of American business, improve government efficiency, and unleash American energy.[1] In response, the U.S. Department of Transportation (DOT) and its agency responsible for pipeline safety, the Pipeline and Hazardous Materials Safety Administration (PHMSA), have initiated multiple rulemakings to achieve these objectives. This article will provide a brief overview of the initiatives that will impact operators subject to PHMSA’s pipeline safety regulations. Operators can engage with DOT and PHMSA by providing comments to assist in the deregulatory efforts.

DOT Initiatives

Ensuring Lawful Regulation; Reducing Regulation and Controlling Regulatory Costs Request for Information

On April 3, 2025, citing President Trump’s executive orders related to deregulation and government efficiency,[2] DOT published a request for information (RFI) seeking the public’s input to identify which DOT regulations, guidance, paperwork requirements, or other regulatory obligations can be modified or repealed.[3] The RFI is broad in scope and applies to all DOT programs, including the pipeline safety regulations, and seeks information to help drive future deregulatory rulemakings and initiatives. DOT requested comments on the RFI to be submitted by May 5, 2025, but has also established an email inbox, Transportation.RegulatoryInfo@dot.gov, which remains open on a continuous basis for the public to submit additional ideas on programs suitable for modification or repeal.

Administrative Rulemaking, Guidance, and Enforcement Procedures Notice of Proposed Rulemaking

On May 16, 2025, DOT published a notice of proposed rulemaking (NPRM) to recodify certain DOT administrative procedures and practices in the Code of Federal Regulations (CFR).[4] Known informally as the “Rule on Rules,” the NPRM primarily addresses the process and procedures that control how the DOT performs its core regulatory functions of rulemaking, guidance development, and enforcement. The first Trump administration promulgated a Rule on Rules in 2019,[5] but the Biden administration rescinded nearly all its provisions in 2021.[6] The NPRM would reinstate, update, and expand on the requirements in the first Rule on Rules.

The NPRM includes rulemaking procedures that would apply to all DOT modes for each phase of a rulemaking and would recodify in the CFR provisions related to the DOT Regulatory Reform Task Force (RRTF). The RRTF is responsible for evaluating existing and proposed DOT regulations and providing recommendations to the Secretary of Transportation on whether regulations should be repealed or modified to reduce unnecessary regulatory burdens. Another key proposal in the NPRM includes heightened procedural requirements for rulemakings determined to be economically significant and high-impact (established through an estimation of the costs and job losses attributed to the proposed rule).[7]

For enforcement requirements, the NPRM includes provisions that stress that DOT must use its investigatory powers in a manner consistent with due process, basic fairness, as well as avoiding the use of enforcement as a “fishing expedition” to search for potential non-compliance.[8] The NPRM also proposes to disqualify DOT personnel with personal animus against specific regulated parties from participating in enforcement against those parties, and allows operators to petition the DOT’s Office of General Counsel (OGC) to determine if DOT personnel violated an enforcement rule.[9] If a violation occurred, DOT OGC may, among other relief, remove the responsible DOT enforcement team from the case.[10]

For the first Rule on Rules, the Trump administration directly issued a final rule without providing an opportunity for public comment, because the rule only incorporated internal DOT administrative procedures into the CFR. For this rulemaking, since certain proposals in the NPRM would confer express rights to regulated parties, such as the ability to petition the OGC about DOT violations of enforcement procedures, DOT is seeking public comment. The public comment period for the NPRM closes June 16, 2025. Following the comment period, DOT will begin to evaluate the public comments and work to finalize the rule.

PHMSA Initiatives

Mandatory Regulatory Reviews to Unleash American Energy and Improve Government Efficiency Advance Notice of Proposed Rulemaking

On June 4, 2025, PHMSA published an advance notice of proposed rulemaking (ANPRM) seeking public comment to identify requirements in the pipeline safety regulations suitable for repeal or modification.[11] The ANPRM is broad in scope and requests comments on any PHMSA interpretation, guidance document, or any other material implementing the pipeline safety regulations which are suitable for modification or repeal. Additionally, the ANPRM seeks comment on whether PHMSA should codify in the pipeline safety regulations a requirement to conduct periodic regulatory reviews so that the agency is continuously reviewing and identifying regulations that require modification. Public comment on the ANPRM is due by August 4, 2025.

Liquified Natural Gas Facilities Advance Notice of Proposed Rulemaking

On May 5, 2025, PHMSA published in the Federal Register an ANPRM seeking public comments to help guide amendments to 49 C.F.R. Part 193, the safety standards applicable to liquified natural gas (LNG) facilities.[12]

Citing the growing importance of LNG to the economy and that the current Part 193 requirements incorporate out-of-date industry standards that no longer align with modern LNG operations or facilities, PHMSA requested public comment to understand how best to revise Part 193. Specific topics discussed in the ANPRM include (1) the appropriate means to clarify the scope of PHMSA’s jurisdiction over LNG facilities; (2) whether different types of LNG facilities, e.g., peak shavers and export terminals, should be regulated differently; (3) possible amendments to LNG facility reporting requirements; and (4) how best to update the current industry standards incorporated in Part 193. The public comment period for the ANPRM closes on July 7, 2025.

Repair Criteria Advance Notice of Proposed Rulemaking

On May 21, 2025, PHMSA published an ANPRM requesting public comment on how best to update the agency’s repair criteria in 49 C.F.R. Part 192 for gas pipelines, and in 49 C.F.R. Part 195 for hazardous liquids and carbon dioxide pipelines, as well as updating inspection requirements for in-service breakout tanks.[13] Parts 192 and 195 include repair criteria and remediation timelines for certain pipeline anomalies, such as dents and corrosion. These requirements differ depending on whether the pipeline is subject to Part 192 or 195 integrity management (IM) requirements.

Noting that certain Part 192 or Part 195 repair criteria and timelines had not been updated for an extended period and do not accommodate advances in modern technologies and methods to manage pipeline integrity, PHMSA requested public comment on an extensive list of topics to help guide a future rulemaking to modernize the repair criteria and reduce their current regulatory burden. Certain specific topics in the ANPRM include (1) whether the current repair criteria and remediation timelines provided commensurate safety benefits when measured against compliance costs; (2) whether the current regulations can appropriately accommodate the use of innovative technologies or methods; (3) identification of potential amendments to annual, incident, and safety-related condition reporting; and (4) identification of potential changes to the IM repair criteria for longitudinal seam weld corrosion on hazardous liquid pipelines.[14] The comment period for the ANPRM closes on July 21, 2025.

Public Comments on Interpretation Requests

Apart from new rulemakings, PHMSA has also adopted a new process which allows the public to provide comments on interpretation requests under review by the agency. Under PHMSA’s regulations, any person may file an interpretation request seeking PHMSA’s guidance on the meaning of its regulations or how the regulations would apply in specific circumstances.[15] Previously, PHMSA did not make an interpretation request publicly available until it also published its response. Under the Trump administration, PHMSA now publishes the interpretation requests it receives on its website,[16] and provides a 30-day comment window, so that the public may provide input on how PHMSA should respond. The new process provides operators with notice of pending interpretation requests that may have industry-wide implications and allow operators to participate in the interpretation process.

Conclusion

For pipeline operators, the current focus of DOT and PHMSA to improve efficiency, modernize, and deregulate its programs provides an opportunity to inform DOT and PHMSA’s efforts by providing comments in the rulemaking proceedings. Additionally, operators should be aware that the situation remains dynamic, and it is likely that DOT and PHMSA will continue to add new deregulatory initiatives alongside those already announced. Operators should continue to track DOT and PHMSA activity to determine if there are any new initiatives that they may want to participate in.

Lee Banse is an attorney in Babst Calland’s Washington, D.C. office and a member of the Energy and Natural Resources and Pipeline and HazMat Safety groups. Mr. Banse represents clients in pipeline safety matters before the Pipeline and Hazardous Materials Safety Administration (PHMSA), state agencies, and federal courts. Contact him at lbanse@babstcalland.com or 202-853-3463.

Click here, to view the article online in the July issue of GO-WV News.

________________________________

[1] Exec. Order No. 14,192, “Unleashing Prosperity through Deregulation,” 90 Fed. Reg. 9,065 (Feb. 6, 2025); Exec. Order No. 14,219, “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative,” 90 Fed. Reg. 10,583(Feb. 25, 2025); Exec. Order No. 14,154, “Unleashing American Energy,” 90 Fed. Reg. 9,065 (Feb. 6, 2025); Exec. Order No. 14,156 “Declaring a National Energy Emergency,” 90 Fed. Reg. 8,433 (Jan. 29, 2025).

[2] Department of Transportation, “Ensuring Lawful Regulation; Reducing Regulation and Controlling Regulatory Costs,” 90 Fed. Reg. 14,593 (Apr. 3, 2025).

[3] Id.

[4] Department of Transportation, “Administrative Rulemaking, Guidance, and Enforcement Procedures,” 90 Fed. Reg. 20,956 (May 16, 2025).

[5] Department of Transportation, “Administrative Rulemaking, Guidance, and Enforcement Procedures,” 84 Fed. Reg. 71,714 (Dec. 27, 2019).

[6] Department of Transportation, “Administrative Rulemaking, Guidance, and Enforcement Procedures,” 86 Fed. Reg. 17,292 (Apr. 2, 2021).

[7]90 Fed. Reg. 20,956, 20,968 (May 16, 2025).

[8] Id. 20,972-20,973.

[9] Id. 20,976.

[10] Id.

[11] Pipeline and Hazardous Materials Safety Administration, “Pipeline Safety: Mandatory Regulatory Reviews to Unleash American Energy and Improve Government Efficiency,” 90 Fed. Reg. 23,660 (Jun. 4, 2025).

[12] Pipeline and Hazardous Materials Safety Administration, “Pipeline Safety: Amendments to Liquified Natural Gas Facilities,” 90 Fed. Reg. 18,949 (May 5, 2025).

[13] Pipeline and Hazardous Materials Safety Administration, “Pipeline Safety: Repair Criteria for Hazardous Liquid and Gas Transmission Pipelines,” 90 Fed. Reg. 21,715 (May 21, 2025).

[14] Id. 21,717-27,719.

[15] 49 C.F.R. § 190.11(b).

[16] https://www.phmsa.dot.gov/standards-rulemaking/pipeline/interpretations/pending-pipeline-interpretations

Pennsylvania Municipal Vacancies 101

The Legal Intelligencer

(by Michael Korns and Anna Hosack)

With election season just around the corner, Pennsylvania municipalities often face the issue of municipal vacancies. While some municipalities have highly contested elections, others, particularly small boroughs, may struggle to find individuals even willing to serve. Municipalities often have questions regarding the rules for these openings, which follow rules from multiple statutes and codes. To add to the confusion, the rules for filling vacancies differ greatly depending on the type of municipality and the exact timing of when the vacancy occurs. This article provides a broad overview of how vacancies occur, how they are filled, and for how long the new official will serve.

How Vacancies Occur

Vacancies on municipal governing bodies can occur in several ways. Most commonly, they occur due to the death, resignation, or relocation of the elected official. The timing of the vacancy depends on the cause. Where a vacancy occurs by the death of an elected official, the official and operative date of the vacancy is the date of death. Where a vacancy occurs by resignation, the date of the vacancy is either (i) on the date the municipality’s governing body accepts the resignation as a whole by vote at a public meeting or (ii) 45 days from the date the resignation was tendered, whichever comes first. An elected official may withdraw their resignation in writing prior to the governing body’s acceptance, so long as 45 days have not passed.

Relocations are the trickiest vacancies to date, as in those cases, the vacancy occurs when the elected official has established a permanent domicile outside of the municipality. Most commonly, the operative date of vacancy is the date they moved into a new home. However, in other cases, this analysis may be more nuanced, particularly if they continue to own property inside the municipality and it is unclear when they have permanently moved without intent to return. Complicating matters further, the relocating elected official may often choose to submit a letter of resignation. If the letter is submitted before the relocation occurs, then the standard rules for a letter of resignation apply. If it is sent after the relocation, the vacancy should still be dated to when the elected official relocated, and the resignation letter is irrelevant to that analysis.

Filling the Vacancy

Regardless of how the vacancy occurs, from that date, the municipality’s governing body is on the clock. More specifically, the governing body has 30 days to act from the date of the vacancy before the authority to fill the position passes.

How the remaining elected officials of the governing body find a person to fill the vacancy is within the governing body’s discretion. The governing body is not required to advertise the position, hold interviews, or follow any other specific process to fill the vacancy. It is, however, important to note that if a quorum of the governing body is participating in deliberations about the vacancy, those deliberations are subject to the Pennsylvania Sunshine Act, 65 Pa.C.S. §§ 701-716, and must occur at an advertised public meeting to allow for public comment, and the discussion must be listed on the agenda 24 hours in advance. While soliciting and accepting resumes and letters of interest, along with the consideration of multiple candidates, is an advisable best practice, these actions are not legally required.

When filling the vacancy of an elected official at the local municipal level, there is no requirement that the replacement be of the same political party as their predecessor. The only requirement is that the new appointee be eligible to serve in the seat, which means they must be a registered elector in the municipality and meet the residency requirements of the position, which typically requires that they be a resident of the municipality for over a year. If the position is elected by ward, they would also need to meet the residency requirements of that ward. The rules for certain County offices may differ, so always consult your Solicitor regarding any vacancy in your municipality.

Typically, any official action of a municipality requires only a standard majority (i.e., a majority of the members of the governing body at a meeting). However, in some municipalities, the vote must consist of a majority of the entire board, not just those who are in attendance at a meeting. Thus, for a five-person board with a single vacancy, a vote of three elected officials would be required, even if only three are in attendance at the public meeting. If the vote to fill a vacancy results in a tie, the vacancy has not been filled.

If, for whatever reason, the Board is unable to vote to appoint a replacement within 30 days, the next 15 days provide an opportunity for the municipality’s vacancy board to fill the position. At the start of every year, each municipality must appoint a vacancy board chair to serve in this specific capacity. They then chair a meeting with the remaining members of the board. Ideally, this allows them to break any tie and render a decision. If, however, the municipality is still unable to fill the position, then the Court of Common Pleas of the County may fill the vacancy upon the request of the municipality. The Court may also act upon a petition by ten or more qualified electors.

Term of Office

The timing of the vacancy raises one more question. How long does the appointed official serve? This rule is governed by 53 Pa.C.S. § 3132, which designates that an appointed official shall serve until the first Monday in January following the next municipal election that occurs at least 50 days after the date of the vacancy. While awkwardly phrased, this procedure is simple. Municipal appointments run through a calendar year and expire with the swearing in of a successor at a reorganization meeting. A municipal election in Pennsylvania occurs in the fall of each odd-numbered year. What this means in practical terms is that, if a vacancy occurs more than 50 days before the fall municipal election, the appointment will last until the following January, when a new successor is sworn in. That successor will then serve the remainder of the prior official’s term, or a full term if the prior official’s term would have been completed by that point. If, however, the vacancy occurs less than 50 days before the next municipal election, the selection of the successor will be two years forward to the next municipal election.

One final complication, however, concerns the question of how candidates for any special election are named on the ballot. If the vacancy occurs prior to the primary, candidates can be named on the ballot via nominating petitions or papers, as in any other election. If, however, it occurs too late for candidates to appear on the primary ballot, there will be no municipal primary election. Instead, the candidates will be chosen by the major political parties in proceedings governed by their respective bylaws, and there will be no primary to select nominees.

While the above covers the broad outlines of filling a vacancy, this area of law is filled with nuance, and a precise reading of the specific codes must be followed. In addition, coordination with County election bureaus is vital to ensure that the correct positions and terms are listed on the ballot.

Michael T. Korns is senior counsel at Babst Calland Clements and Zomnir, P.C. and focuses his practice primarily on municipal permitting, planning, subdivision and land use, and zoning issues. He is also a member of the firm’s Energy and Natural Resources group. Contact him at 412-394-6440 or mkorns@babstcalland.com.

Anna R. Hosack is an associate at the firm and focuses her practice primarily on municipal, real estate, land use, and zoning law. Contact her at 412-394-5406 or ahosack@babstcalland.com.

To view the full article, click here.

Pipeline Safety Regulatory Initiatives Under the Trump Administration

PIOGA Press

(by Lee Banse)

Introduction

DOT Initiatives

Ensuring Lawful Regulation; Reducing Regulation and Controlling Regulatory Costs Request for Information

Administrative Rulemaking, Guidance, and Enforcement Procedures Notice of Proposed Rulemaking

PHMSA Initiatives

Mandatory Regulatory Reviews to Unleash American Energy and Improve Government Efficiency Advance Notice of Proposed Rulemaking

Liquified Natural Gas Facilities Advance Notice of Proposed Rulemaking

Repair Criteria Advance Notice of Proposed Rulemaking

Public Comments on Interpretation Requests

Conclusion

[2] Department of Transportation, “Ensuring Lawful Regulation; Reducing Regulation and Controlling Regulatory Costs,” 90 Fed. Reg. 14,593 (Apr. 3, 2025).

[3] Id.

[4] Department of Transportation, “Administrative Rulemaking, Guidance, and Enforcement Procedures,” 90 Fed. Reg. 20,956 (May 16, 2025).

[5] Department of Transportation, “Administrative Rulemaking, Guidance, and Enforcement Procedures,” 84 Fed. Reg. 71,714 (Dec. 27, 2019).

[6] Department of Transportation, “Administrative Rulemaking, Guidance, and Enforcement Procedures,” 86 Fed. Reg. 17,292 (Apr. 2, 2021).

[7]90 Fed. Reg. 20,956, 20,968 (May 16, 2025).

[8] Id. 20,972-20,973.

[9] Id. 20,976.

[10] Id.

[12] Pipeline and Hazardous Materials Safety Administration, “Pipeline Safety: Amendments to Liquified Natural Gas Facilities,” 90 Fed. Reg. 18,949 (May 5, 2025).

[13] Pipeline and Hazardous Materials Safety Administration, “Pipeline Safety: Repair Criteria for Hazardous Liquid and Gas Transmission Pipelines,” 90 Fed. Reg. 21,715 (May 21, 2025).

[14] Id. 21,717-27,719.

[15] 49 C.F.R. § 190.11(b).

[16] https://www.phmsa.dot.gov/standards-rulemaking/pipeline/interpretations/pending-pipeline-interpretations

TAKE IT DOWN Act Signed into Law by President Trump

TEQ Magazine

(by Kristen Petrina)

On May 19, 2025, President Trump signed into the law the “TAKE IT DOWN Act (the “Act”). The Act includes data privacy, digital protections, and AI governance requirements of companies to remove deepfakes from “covered platforms”, particularly with a focus on nonconsensual intimate imagery (“NCII”).

The Act, whose acronym stands for “Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act” includes both criminal and civil elements; however, it does not create a new private right of action, rather provides the Federal Trade Commission with the enforcement authority over failures to comply with the notice and removal obligations, which would constitute an unfair or deceptive act or practice under the Federal Trade Commission Act.

Criminal and Civil Liability

The Act criminalizes the publication of an authentic or computer-generated NCII and outlines penalties for when the images of “intimate visual depiction” as defined in 15 USC 6851(5)(A), of an adult or minor and imposes new obligations on social media and online platforms to respond to requests to promptly remove unlawful NCII. Synthetic or computer-generated NCII, includes the term “digital forgery” meaning “any intimate visual depictions of an identifiable individual created through the use of software, machine learning, artificial intelligence, or any other computer generated or technological means, including by adapting, modifying, manipulating, or altering an authentic visual depiction, that, when viewed as a whole by a reasonable person, is indistinguishable from an authentic visual depiction of the individual.” An identifiable individual includes someone “(i) who appears in whole or in part in an intimate visual depiction; and (ii) whose face, likeness, or other distinguishing characteristic (including a unique birthmark or other recognizable feature) is displayed in connection with such intimate visual depiction.”

Criminal Liability for “Knowingly” Publishing NCII

Involving Adults. The Act prohibits the use of an interactive computer service to knowingly publish an intimate visual depiction of an adult identifiable individual, who is not a minor, if (i) the intimate visual depiction was obtained or created under circumstances in which the person knew or reasonably should have known the identifiable individual had a reasonably expectation of privacy; (ii) what is depicted was not voluntarily exposed by the identifiable individual in a public or commercial setting; (iii) what is depicted is not a matter of public concern; and (iv) publication of the intimate visual depiction is intended to cause harm or causes harm, including psychological, financial or reputational harm, to the identifiable individual. For synthetic or computer-generated digital forgeries, the test is similar, except to establish criminal liability, the depiction would have to be published without consent of the identified individual.
Involving Minors. Under the Act, NCII involving minors, defined as anyone under the age of 18 years, sets forth stricter prohibitions making it unlawful to publish NCII of an identifiable individual who is a minor with the intent to (i) abuse, humiliate, harass, or degrade the minor; or (ii) arouse or gratify the sexual desire of any person.
Consent, Disclosure and Disclosure Exceptions. The Act recognizes that the consent to create an image is not the same as consent to publication, stating that the fact that (i) an identifiable individual providing consent for the creation of an image; or (ii) the identifiable individual disclosure of the intimate visual depiction to another individual does not establish or constitute consent to publication. However, certain exceptions apply to allow for disclosure to law enforcement, professional obligation reporting requirements, or publication of an individual’s own images.

Civil Liability for Failure to Comply with Notice and Removal Requirements

The criminal provisions of the law went into effect immediately, the Act provides, “covered platforms” a year after the date the law went into effect, to develop a process for notice and removal of NCII identified from their platforms within 48 hours of receiving a valid request from an identifiable individual or someone authorized to act on the individual’s behalf. A covered platform means “a website, online service, online application, or mobile application that (i) serves the public or (ii) for which it is the regular course of business of trade or business of the website, online service, online application, or mobile application to publish, curate, host or make available content of nonconsensual intimate visual depictions.” Covered platforms do not include ISPs, email providers, online services that consist primarily of not user generated content, or services for which chat, comment or interactive functionality is directly related to the provision of not user generated content.

A covered platform must provide a clear, easy to understand and conspicuous policy which shall include valid removal request requirements, how to submit a removal request and the removal responsibilities of the platform. A valid removal request must be in writing, with a physical or electronic signature, and include (i) enough information to locate the depiction; (ii) a statement of the individuals’ good faith belief that the depiction was not consensual; and (iii) the requester’s contact information.

Within 48 hours of a valid removal request, the covered platform must remove the intimate visual depiction and make reasonable efforts to identify and remove any known identical copies of such depiction.

The Act gives covered platforms liability protections from claims from content posters based on the covered platforms good faith removal, disabling access to, or removal of, material claimed to be NCII, regardless of whether the intimate visual depiction is ultimately determined to be unlawful or not.

Covered Platform Next Steps

While the removal obligations will not take effect until May of 2026, covered platforms face significant obligations to confirm compliance. Knowledge of the Act allows companies to develop a business model to aid in immediate removal of NCIIs as it must occur with 48 hours. Therefore, companies that host user generated content, should prepare to take the following steps to determine if and how they would need to comply:

Determine if you or your company would be a covered platform.
Determine whether your company has enough resources, proper operating and escalation procedures, and training to implement the Act’s requirements.
Establish a notice process and policy.
Review your data privacy, AI, cybersecurity, document retention and digital governance policies.
Consider engaging professional support to confirm that your company is prepared to comply with the Act’s requirements.

Kristen Petrina is an associate in the Corporate and Commercial and Emerging Technologies groups of Babst Calland. She represents domestic and international clients on a broad range of general corporate and commercial law matters and advises businesses on data privacy and protection and security compliance.

Mo Money Mo Problems: As Noneconomic Damages Awards Continue to Rise, So Do Concerns Over Their Constitutionality

The Legal Intelligencer

(by Casey Alan Coyle)

The music genre hip-hop recently celebrated its 50^th anniversary. According to PBS, “no song announced hip-hop’s entrance into the mainstream louder” than the 1997 single “Mo Money Mo Problems” by Brooklyn-born Rapper Christopher Wallace, better known by his stage names “Notorious B.I.G.” and “Biggie.” https://www.pbs.org/wgbh/americanexperience/features/songs-of-the-summer-1997/. Built on a sample of Diana Ross’s “I’m Coming Out,” the track featured the chorus: “I don’t know what, they want from me/ It’s like the more money we come across/ The more problems we see.” Now, nearly three decades later, that hook captures an emerging trend in the law.

The Fourteenth Amendment’s Due Process Clause “prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). While this concern precipitated the creation of a framework to assess the constitutionality of punitive damages awards over 30 years ago, no such rubric exists to determine whether compensatory damages awards comport with due process. Pennsylvania litigants are therefore left to challenge excessive compensatory damages awards under the common law. But as noneconomic damages awards continue to grow, so do concerns over their constitutionality, especially where they dwarf the economic damages, if any, awarded. This begs the question: when it comes to noneconomic damages, is it a case of mo money, mo problems?

Compensatory v. Punitive Damages

Compensatory and punitive damages, though typically awarded at the same trial, serve distinct purposes. Compensatory damages compensate for proven injury or loss. They aim to redress the concrete loss that the plaintiff suffered because of the defendant’s conduct and include both economic harm (such as lost wages or out-of-pocket expenses) and noneconomic harm (like mental anguish, pain and suffering, and embarrassment and humiliation). Punitive damages, on the other hand, focus on deterrence and retribution. They have been characterized as “quasi-criminal” or “private fines.” Bert Co. v. Turk, 298 A.3d 44, 58 (Pa. 2023). “Unlike compensatory damages, which serve to allocate an existing loss between two parties, punitive damages are specifically designed to exact punishment in excess of actual harm to make clear that the defendant’s misconduct was especially reprehensible.” Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 54 (1991) (O’Connor, J., dissenting).

Compensatory damages awards are presumed valid under Pennsylvania law regardless of their size. To that end, Pennsylvania courts have often stated that large verdicts “are not necessarily excessive verdicts; each case is unique and dependent on its own special circumstances,” Hyrcza v. W. Penn Allegheny Health Sys., Inc., 978 A.2d 961, 979 (Pa. Super. Ct. 2009), adding that reviewing courts are “reluctant to reverse a jury verdict that bears a reasonable resemblance to the damages proven,” Crespo v. Hughes, 167 A.3d 168, 189 (Pa. Super. Ct. 2017). In contrast, punitive damages awards are closely scrutinized by reviewing courts because they “pose an acute danger of arbitrary deprivation of property.” Honda Motor Co. v. Oberg, 512 U.S. 415, 432 (1994). Closer examination is needed because “juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974).

Because of this concern and to ensure that “the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and the general damages recovered,” in BMW of North America, Inc. v. Gore, the U.S. Supreme Court established a framework—commonly referred to as the “Gore guideposts”—for courts to consider when reviewing the constitutionality of a punitive damages award. 517 U.S. 559, 574–575 (1996). The guideposts are: (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages awarded; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. Id. Later, in Campbell, the Court articulated five subfactors that applied to an examination of the first Gore guidepost.

But neither the U.S. Supreme Court nor Pennsylvania’s appellate courts have established a test for evaluating the constitutionality of compensatory damages awards. For its part, the Pennsylvania Supreme Court has simply stated that a compensatory damages award “will not be upset unless it is so excessive as to shock the conscience of the court or it is clearly based on partiality, prejudice or passion.” See, e.g., Bailets v. Pa. Turnpike Comm’n, 181 A.3d 324, 336 (Pa. 2018). But it has not articulated a corresponding standard for determining excessiveness. Amid this void, the Pennsylvania Superior Court has held that reviewing courts may consider the following non-exhaustive factors in assessing whether a verdict is excessive: (1) the severity of the injury; (2) whether the injury is manifested by objective physical evidence or solely revealed by the plaintiff’s’ subjective testimony; (3) whether the injury is permanent; (4) whether the plaintiff can continue with their employment; (5) the size of the plaintiff’s out-of-pocket expenses; and (6) the amount demanded in the plaintiff’s original complaint. See, e.g., Brown v. End Zone, Inc., 259 A.3d 473, 486 (Pa. Super. Ct. 2021).

The Noneconomic Damages Dilemma

The test fashioned by the Superior Court may prove useful for assessing the excessiveness of a verdict consisting entirely of economic damages. But its utility is less clear in cases involving noneconomic damages, to which just three of the six factors seemingly apply (specifically, the first, second, and third). Indeed, without considering the relationship between the noneconomic damages and the economic damages awarded and comparable cases involving similar noneconomic damages awards, judicial review of a noneconomic damages award would seem illusory. And absent meaningful judicial review, nothing stops a jury from awarding punitive damages under the guise of noneconomic damages, thereby eluding constitutional review.

Two recent cases highlight this concern. In Caranci v. Monsanto Co., No. 210602213 (Phila. Cnty. Ct. Com. Pl.), a husband and wife filed a products liability action against Monsanto, alleging the husband’s use of Roundup caused him to develop non-Hodgkin’s lymphoma. The jury found the product was defective and awarded the couple $25 million in compensatory damages and $150 million in punitive damages. However, because the couple withdrew their request for economic damages, the compensatory damages consisted entirely of noneconomic damages. On appeal, the Superior Court panel applied the above six-factor test and found that the verdict was not excessive. Caranci v. Monsanto Co., ___ A.3d ___, 2025 WL 1340970, at *16 (Pa. Super. Ct. May 8, 2025). In doing so, however, the Court did not address the fifth and sixth factors. The panel also did not respond to Monsanto’s contention that the compensatory damages award was significantly higher than other large products-liability verdicts involving serious illnesses in Pennsylvania and compensatory damages awards against Monsanto in other jurisdictions—considerations required under the third Gore guidepost and, in any event, ones that would seem to be part and parcel of an assessment of whether a verdict shocks the conscience. And beyond summarily dismissing it as “mere conjecture and not grounds for relief,” id., the panel did not address Monsanto’s argument that the $25 million noneconomic damages award contained a punitive element given the couple’s withdrawal of their request for economic damages and the attendant due process concerns.

More recently, in Gill v. ExxonMobil Corp., No. 200501803 (Phila. Cnty. Ct. Com. Pl.), a husband and wife filed a products liability action against ExxonMobil and other defendants, alleging the husband developed acute myeloid leukemia from supposed years-long exposure to multiple products. The jury found for the couple and awarded them $725 million in compensatory damages consisting solely of noneconomic damages. ExxonMobil filed a post-trial motion, arguing that the verdict was excessive, among other things. Notably, ExxonMobil contended that “[t]he size and nature of the compensatory damages presents constitutional issues related to Due Process and excessive fines under both the Pennsylvania and United States Constitutions, despite punitive damages not being an element of available damages to Plaintiffs. Indeed, the extraordinary damages award here cannot be understood as anything [other] than a punitive damages award in disguise.” (Def. Exxon Mobil Corp.’s Br. in Supp. of Mot. for Post-Trial Relief at 52 n.34.) The trial court denied the motion. In its ensuing Rule 1925 opinion, the court acknowledged that “at trial there was no economic harm alleged, and … only noneconomic harm was considered by the jury” (Op. at 351), which would seem to weigh in favor of a finding of excessiveness. Likewise, the court noted that the plaintiff demanded the jurisdictional threshold—$50,000—in the original complaint (id.), meaning the noneconomic damages award exceeded the demand by a factor of 14,000. Nonetheless, the trial court reiterated its belief that the jury verdict was not excessive.

What’s Next

Monsanto filed a reargument application in Caranci on May 22, 2025, and merits briefing before the Superior Court will begin on June 23, 2025, in Gill. But regardless of the outcome of those appeals, they have brought to the fore the due process concerns posed by large verdicts involving noneconomic damages. Only time will tell if Biggie was right.

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Casey Alan Coyle is a shareholder at Babst, Calland, Clements and Zomnir, P.C. He focuses his practice on appellate law and complex commercial litigation. Coyle is also a former law clerk to Chief Justice Emeritus Thomas G. Saylor of the Pennsylvania Supreme Court. Contact Coyle at 267-939-5832 or ccoyle@babstcalland.com.

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Strength in Structure: Job Descriptions, Performance Evaluations, and Disciplinary Writings

Legal Intelligencer

(by Morgan Madden and Steve Antonelli)

In the ever complex and evolving landscape of employment law, some of the most effective compliance tools are not found in case law or federal regulations but in routine and consistent documentation. Job descriptions, performance evaluations, and disciplinary writings are three foundational tools that can play a crucial yet often underestimated role in shaping and defending employers’ decisions. These documents are not standalone checkboxes, rather their effectiveness lies in their interconnectedness. Job descriptions lay the groundwork for expectations, performance evaluations track whether and how those expectations are met, and disciplinary writings memorialize any shortcomings or failures to meet them.

The proper use and maintenance of these documents can bolster compliance with key employment statutes. In the event of litigation, these records almost always become central to the body of evidence considered by a factfinder. Employers that use them regularly and consistently are often in a far stronger position to defend against claims and to demonstrate legitimate, nondiscriminatory reasons for adverse employment actions.

Job Descriptions: The Foundation of Employment Expectations

Job descriptions are more than administrative formalities—they define the who, what, and why of a role. A well-crafted job description outlines an employee’s essential functions, required qualifications, and reporting relationships. As an employer’s expectations change, so too should corresponding job descriptions. For example, how many employers allowed remote/hybrid work before March 2020?

Accurate and up to date job descriptions benefit both employers and employees because they help guide hiring decisions, compensation structures, and employee development. They can also play a pivotal role in litigation. They help delineate essential job functions and impact whether an employee’s accommodation request is reasonable in an ADA case, and they have a significant bearing on whether a position is exempt from overtime laws in a wage and hour case, to name a few examples.

To be legally useful and operationally effective, job descriptions should: (1) use objective, clear language that describes observable duties and requirements; (2) align with actual work performed, not just idealized roles or inherited templates; and (3) be updated regularly to reflect pertinent changes in the role.

Written Performance Evaluations: The Roadmap of Employee Progress

Performance evaluations are the primary method by which employers track and communicate an employee’s progress toward fulfilling the expectations set forth in the job description. Just as is the case with job descriptions, specificity and consistency in evaluations and performance reviews are critical.

Evaluations that praise (or criticize) an employee in vague or overly broad terms can create problems later when and if disciplinary action becomes necessary. Specific feedback about an employee’s performance is worth far more than general qualifiers – both in terms of employee engagement and success, and potential claim defensibility. For example, if a performance review simply states that an employee is “exceeding” or even “meeting” expectations, it could become difficult to justify a subsequent adverse employment action absent a clear record of interim performance problems. Instead of general praise, or criticism, employers should aim to evaluate performance as specifically as they can.

While formal performance reviews occur periodically (often annually), evaluation of employees’ performance should be fluid and ongoing. Informal or interim reviews, which can provide a more dynamic view of performance, are particularly useful when issues arise mid-year. It is possible for an employee to have a strong annual review followed by a drop in performance, and employers should refrain from waiting for the balance of the year to address the regression. An informal or interim review (and documentation thereof) can help right the proverbial ship by helping the employee to address the shortcoming and improve their performance and by putting the employer in position to support a negative review or defend an adverse employment action that follows a positive formal review.

In litigation, inconsistent performance evaluations can damage an employer’s credibility and can even allow a plaintiff to argue that an employer’s stated reason for an adverse employment action is pretextual.

To ensure evaluations serve both legal and operational goals, employers should: (1) tie evaluation criteria to the duties in the job description; (2) train managers on how to write effective evaluations that are honest, objective, and constructive; and (3) complete evaluations promptly and review them for consistency with other employment records.

Disciplinary Records: The Anchor of Employment Decisions

In the event of litigation, whether before a judge or an arbitrator, disciplinary documentation is often the most scrutinized aspect of the employment record with exceedingly high evidentiary value. It serves as the employer’s front-line defense as to both the explanation for and timing of the adverse employment action, as well as the evidence of any prior notices and opportunities to improve. Disciplinary records can also play a key role in other adversarial proceedings such as unemployment compensation hearings and union grievances, where the employer may have to justify that a termination or suspension was for either willful misconduct or just cause, respectively. In those settings, disciplinary records should be especially robust and involve specific language and allowances as the supporting documentation often serves as the tipping point in these matters.

Progressive discipline policies are an excellent tool in guiding disciplinary decisions. They allow employers to document each step taken – verbal warnings, written warnings, improvement plans, and suspensions – to demonstrate fair and consistent disciplinary actions.

Effective disciplinary documents should follow some basic principles. They should be issued promptly following the performance shortcoming or incident giving rise to the discipline. They should also: (1) refer to expectations set forth in the job description and/or previous performance evaluations; (2) contain details and be free from emotional or subjective language; and (3) demonstrate consistency across employees in similar circumstances.

Each of these three tools – job descriptions, performance evaluations, and disciplinary records – serves a distinct purpose. When aligned, they form a comprehensive and cohesive employment record that benefits both employers and employees by setting expectations, tracking performance, and documenting corrective actions. Strategically aligning these tools establishes a fair and transparent employment framework. For employees, it promotes understanding of expectations and how performance is measured. For employers, it builds a documented history that is invaluable both in day-to-day management of an operationally effective workforce, and in the event of litigation.

Employers should not wait for a lawsuit to evaluate their HR documentation practices. Instead, they should regularly review their job descriptions and align those documents with current duties and expectations so that performance evaluations can be conducted consistently.

By treating these basic HR documents as a strategic defense rather than administrative chores, employers can significantly reduce legal exposure while promoting a culture of clarity, fairness, and accountability.

Stephen A. Antonelli is a shareholder in the Employment and Labor and Litigation groups of Babst Calland. His practice includes representing employers of all sizes, from Fortune 500 companies and large healthcare organizations to non-profit organizations and family-owned businesses. He represents clients, in all phases of employment and labor law, from complex class and collective actions and fast-paced cases involving the interpretation of restrictive covenants, to single-plaintiff discrimination claims and day-to-day human resources counseling. Contact him at santonelli@babstcalland.com.

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Natalie Baughman Joins Babst Calland’s Washington, DC Office

Babst Calland announced that Attorney Natalie Baughman has joined the firm’s Washington, DC office as a shareholder and member of its Environmental practice group.

Natalie Baughman has a deep expertise in CERCLA site remediation, particularly in complex, multi-party cleanups involving decades of contamination. Her practice also includes representing clients in enforcement actions, environmental litigation, and permitting and compliance matters arising under the Clean Water Act, Safe Drinking Water Act, and state environmental laws.

Prior to joining Babst Calland, Ms. Baughman worked in the U.S. Department of Justice’s Environmental Enforcement Section and the District of Columbia’s Department of Energy and Environment, where she oversaw the agency’s work on the CERCLA cleanup of the Anacostia River and numerous other contaminated sites. Ms. Baughman has represented clients in administrative and civil judicial enforcement cases in both government positions.

Ms. Baughman earned her B.S. from Northwestern University in 2002. She received her J.D. from the University of Maryland School of Law in 2009.

Ms. Baughman is admitted to practice in the District of Columbia and Maryland.

Legislative & Regulatory Update

The Wildcatter

(by Nikolas Tysiak)

Cavallo Mineral Partners LLC v. EQT Production Company, 2025 WL 800433 (Pa. Super., March 13, 2025). In this case, landowner Des Moine Field conveyed his 200 acre tract in Washington Twp., Greene County, PA to the McChesneys in 1990, using the following language: “ALSO EXCEPTING AND RESERVING, for the benefit of Grantees, his heirs and assigns, all oil and gas not previously excepted, reserved or conveyed, together with the right to mine and operate for the same . . .” (emphasis added). Field eventually purported to convey his oil and gas rights to Cavallo Mineral Partners. The McChesneys leased their oil and gas rights to EQT, which eventually included these interests in an oil and gas production unit. Cavallo eventually brought a quiet title declaratory action suit, alleging ownership of the oil and gas rights. EQT (and other co-defendants) eventually won on procedural grounds following competing motions for summary judgment, and the suit was dismissed without prejudice. In that decision, the court pointed out that Cavallo still had claims that could be made regarding the apparent Scrivener’s Error regarding the use of the term “grantees” in the reservation, and Cavallo was instructed to amend its complaint accordingly, which it failed to timely do. Instead, it further appealed the underlying case on procedural grounds. The Superior Court found that Cavallo could only succeed on its procedural claims if it were likely to succeed on the merits of its case. The court determined, based on the existing claims and record, that Cavallo was unlikely to succeed on the merits because the deed from Fields to the McChesneys did not properly except or reserve the oil and gas rights for the benefit of Fields or his heirs, successors and assigns. The attempted appeal was therefore quashed, but it appears that Cavallo is still able to amend its complaint to argue for a scrivener’s error reformation of the 1990 deed.

Antero Resources Corporation v. Pike, 914 S.E.2d 757 (W. Va. Inter. Ct., 2025). In this case, landowners excepted and reserved oil and gas from under 2 tracts, totaling 97 acres, in 1895. By 1942, the oil and gas became divided as follows: Rufus G. Fordyce, Edna L. Fordyce and Margaret Fordyce Pike (as joint tenants with the right of survivorship) – ½ interest; Daisy G. Broadwater – ½ interest. In 1949, Rufus, Edna and Daisy conveyed their interests in the 97 acres to Dora Jewell. The 1949 deed makes no reference to the interest of Margaret F. Pike, or to the deed where she acquired her interest. In 1976, successors to Jewell leased the oil and gas under the land, which eventually came into the possession of Antero Resources. Various wells were apparently timely drilled under the terms of the lease. Antero brought suit in 2019, seeking a declaratory judgment, asking the court to find that the successors to Jewell had effectively adversely possessed the 97 acres as against the potential interests of Margaret Fordyce Pike and her heirs at law. The Pike heirs counterclaimed, alleging intentional trespass, conversion, and demanding forfeiture of Antero’s oil and gas infrastructure. The trial court found Antero had not established that the non-Pike heirs and successors had successfully adversely possessed the Pike heirs’ oil and gas rights, as the requirements of ouster, specifically the right under ouster to receive actual notice of such ouster, had been fulfilled. The Intermediate court disagreed with this, citing caselaw indicating that actual notice of an ouster is not affirmatively required, but instead constructive notice can be relied upon IF the adverse possession is clearly in opposition and detriment to the rights of party to be deemed ousted (i.e., clear exclusive possession in an open, hostile and notorious manner). The intermediate court therefore overturned the trial court decision and remanded the case for additional proceedings in the trial court.

Miller v. Bunting, 2025 Pa. Super. 80 (April 8, 2025). This involves a suit where the plaintiff claimed ownership of coal rights under a tract of land containing 14.1219 acres pursuant to a deed that purportedly clearly excepted and reserved such coal rights. The Superior Court noted that the language of the deed clearly reserved such coal rights. In addition, the court produced a lengthy analysis of the intent of the parties regarding the coal rights and further concluded that the plaintiffs’ claims to the coal were “without merit.” Later, the court entertained the plaintiffs’ claim regarding Doctrine of Merger argument, where it was claimed that the coal estate and the surface estate merged under the ownership of the plaintiffs’ grantors, causing the plaintiffs’ to receive such coal rights by their deed. The court rejected this argument, pointing out that the Doctrine of Merger in Pennsylvania “is now practically extinct,” and can only occur under equitable grounds as necessary to prevent injustice. In other words, the parties involved must intend for a merger of titles to occur. The court further pointed out that traditionally, merger involves a greater estate subsuming a lesser estate. In this case, the two estates involved, covering the surface and the coal rights, were both for “fee simple” and neither estate could be construed as greater or lesser than the other. Finally, the court found that “expert reports” on interpretation of deeds is irrelevant as an issue of fact, because the meaning of deeds is strictly a matter of law for a court to decide. The orders granting summary judgment for the defendants below were affirmed.

Golden Eagle Resources II, LLC v. EQT Production Company, 2025 WL 874413 (Pa. Super. Ct. March 20, 2025). This suit involves the interpretation of competing clauses in an oil and gas lease regarding settling disputes. The lease from Golden Eagle to EQT’s predecessor included a clause requiring arbitration of disputes. However, the associated addendum to the lease allowed the parties to bring suit in any appropriate court. In addition, the addendum indicated that any conflict between the lease document form and the addendum should be settled in favor of the addendum. Golden Eagle made several arguments regarding the interplay of these clauses, but ultimately the court determined that the language of the addendum controlled, and no arbitration could be compelled. The court was particularly influenced by the fact that Golden Eagle had instigated the suit, implying that the more appropriate time to seek arbitration would have been before the filing of their lawsuit, and not on appeal.

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POWERING THE FUTURE: How Our Region Can Lead America’s Data Center Development

Pittsburgh Business Times

(by Moore Capito featuring Matt Smith)

With the surge of artificial intelligence, the demand for data centers to support that computing power is growing fast. “One of the challenges is that we as human beings and as businesses require so much more computing power than we ever have,” said A.A. Moore Capito, a shareholder specializing in energy and emerging technologies with the law firm Babst Calland. “That growth has continued consistently over the past 50 years, but at this current moment, we are seeing an exponential increase in demand.”

Yet, with this rapid growth comes significant challenges as businesses compete for power and land. With a wealth of energy resources, affordable land, and proximity to densely populated areas, this region is right in the thick of the trend.

Capito recently joined Allegheny Conference on Community Development Chief Growth Officer Matt Smith in the Pittsburgh Business Times offices for a conversation about the opportunities and challenges for the region, when it comes to data center growth.

Surging demand for power

Data centers are energy giants. They require a massive amount of power to process information, particularly as artificial intelligence capabilities expand. In February, Goldman Sachs Research predicted global power demand from data centers will increase 50 percent by 2027 and up to 165 percent by the end of 2029.

This spike in demand is forcing businesses and industry to rethink how to power their operations. Traditional reliance on the energy grid alone may no longer suffice.

“What I would consider the biggest challenge today is providing the power to sustain the growth that we need,” Capito said.

“A lot of these folks in the tech sector are saying we can’t rely on the grid anymore. We have to find alternative ways to power these very necessary components of our business and life, frankly, in today’s age.”

Because it offers several alternatives to the power issue, the region is positioned to attract data center projects, Smith and Capito said.

“Interestingly, we do a lot of work in our region with nuclear companies that are really at the cutting-edge of small modular reactors (SMRs), micro reactors, some even larger,” said Smith, noting how nuclear and natural gas combined can solve our energy shortage.

In a move that made international headlines, Constellation Energy and Microsoft announced plans last fall to restart a unit of the Three Mile Island nuclear plant to power the tech company’s data center use for 20 years. And Amazon Web Services is reported to be buying a data center campus in Salem Township in Westmoreland County that is collocated with a nuclear power generation plant.

Nuclear is far from the only option. Capito said Pennsylvania, West Virginia and Ohio’s rich natural gas resources have been underleveraged in data center planning so far.

“A lot of these developers see it as a nuclear play, but we know that doesn’t happen fast,” he said, which means they need an energy source to bridge that gap. “It’s got to be natural gas, and that is why we have an incredible opportunity here.”

There are a number of collaborative projects in play that lean on the region’s natural gas resources, Smith said.

In April, for example, Homer City Redevelopment and Kiewit Power Constructors Co. announced plans to turn what had once been the largest coal-burning power plant in Pennsylvania into a natural gas-powered data center campus. The new Homer City Energy Campus will deliver up to 4.5 gigawatts of power to support AI-driven hyperscale data centers.

Similarly, Liberty Energy Inc., Imperial Land Corp. and Range Resources have created a strategic alliance to support the development of a power generation facility within the Fort Cherry Development District in Washington County to serve data centers, industrial facilities and other high-energy-use businesses in Pennsylvania.

Finding ready-to-go sites

To attract AI and data center developers, this region doesn’t just offer abundant energy that can be drawn upon; it also has “ready-to-go” sites where projects can start quickly and operate efficiently, unique higher education assets like Carnegie Mellon University and the University of Pittsburgh, and access to key North American markets.

“It’s like walking into a hotel room,” Capito said. “You want the bed made. You want the towels on the rack, and you want the remote right beside you. You want it ready to go. And that’s the same way that developers want it.”

Our industrial legacy is serving us well in this regard. Southwestern Pennsylvania is already home to ample industrial sites tied to the power grid. These well-connected locations offer developers the infrastructure they need to hit the ground running.

“Because of our rich legacy of manufacturing and industrial strengths in Southwestern Pennsylvania, we have a lot of sites, we have abundant energy resources, and we have a highly skilled workforce,” Smith said. “We also have a lot of those sites specifically tied into the grid. This region will lead the way in ensuring our nation is energy dominant.”

Another example of seizing our region’s opportunity is the recent request by the Allegheny Conference and more than 20 organizations to the U.S. Department of Energy’s Office of Policy for using DOE land for AI infrastructure that would support data center demand and the administration’s goals.

We’re seeing the attractiveness of the region’s assets in recent moves by manufacturers that support the energy industry’s supply chain, Smith and Capito said.

Mitsubishi Electric Power Products Inc., for example, is building an $86 million manufacturing facility and testing lab in Beaver County, where it will make gas-insulated and vacuum circuit breakers, an important component for modernizing electric grids.

And the Switzerland-based power grid technology company Hitachi Energy has announced a $70 million expansion of its three manufacturing facilities in Westmoreland County. It makes high-voltage technologies, including switchgears, circuit breakers, generator circuit breakers and other products needed in power grids. Pennsylvania is supporting the expansion with a $184,000 Pennsylvania First grant and a $145,000 WEDnetPA grant to train employees.

That’s good news for the industry, which will need a steady, reliable supply of parts, Smith said.

“The reason you’re seeing this is that there is a huge power generation demand coming and large-scale investment is needed to meet that demand. Southwestern Pennsylvania is positioned to address that looming demand for power,” he said. “We stand at the center of energy resources and building the component parts that are essential to the grid supply chain.”

Cutting red tape

Business-friendly regulation is also giving this region an edge, Smith and Capito said.

Dealing with the regulatory environments and local, state and federal government to navigate those regulations can be very difficult, said Capito.

The PA Permit Fast Track Program, for example, has streamlined permitting for large economic development and infrastructure projects that require multiple permits from different agencies. And in March, Gov. Josh Shapiro proposed a state energy siting board to reduce red tape even further.

“One of the things that is of the utmost importance, if not the most important, for AI and data centers is speed,” Smith said. “Developers want to get the projects started quickly and want to get the projects done fast.”

Capito said he sees things speeding up at the federal level, too, thanks to President Donald Trump’s desire to invest heavily in AI.

“This is a critical industry,” Capito said. “It is a big national security component, managing the information flow of all of these systems that we have running that control essentially everything that you see and touch and feel every single day.”

Moore Capito is a shareholder at Babst Calland, where he represents clients in all phases of complex corporate, commercial and real estate transactions, and entity, joint venture, and partnership structuring and formation, and general business matters. His practice also focuses on counseling energy clients in various transactional matters of natural gas assets, joint developments, leasing, and operations. Moore also assists companies in navigating the complex legal landscape of emerging technologies, including data center development, ensuring projects are compliant with relevant laws and regulations.

Matt Smith serves as Chief Growth Officer of the Allegheny Conference on Community Development. In this role, Matt leads the Conference’s economic development efforts with a focus on growth of the regional economy through the attraction and retention of business investment and talent. He is also responsible for the organization’s local, state and federal policy and advocacy efforts, which are strategically oriented toward increasing economic competitiveness and accelerating growth opportunities regionwide.

Business Insights is presented by Babst Calland and the Pittsburgh Business Times.

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EQB Tables Petition for Study to Increase Required Minimum Setbacks from Unconventional Oil and Gas Wells

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(by Joe Reinhart, Sean McGovern, Matt Wood and Alex Graf)

On April 8, 2025, the Pennsylvania Environmental Quality Board (EQB) tabled consideration of the Clean Air Council (CAC) and Environmental Integrity Project’s (EIP) petition for a rulemaking seeking to amend 25 Pa. Code ch. 78a to increase required minimum setbacks from unconventional oil and gas wells from 500 feet to 3,281 feet. During the meeting, Public Utility Commission (PUC) Commissioner Kathryn Zerfuss moved to table the petition, stating that the members of the EQB need more time to consider materials submitted by industry members and others prior to the meeting, which the EQB approved. Tabling the petition followed a Pennsylvania Department of Environmental Protection (PADEP) presentation recommending that the EQB accept the petition for further study, with the caveat that the recommendation was not an indication of PADEP’s substantive position on the petition. See PowerPoint Presentation, PADEP, “Petition for Rulemaking: Unconventional Gas Well Setbacks” (Apr. 8, 2025). CAC and EIP also presented their argument for why the EQB should accept the petition for further study at the meeting, which largely focused on the positions taken in their petition regarding potential adverse health and environmental consequences to people and resources located near unconventional oil and gas wells.

Procedurally, an EQB member would have to motion to un-table the petition to advance the petition for consideration, which could occur at the earliest at EQB’s next regularly scheduled meeting, currently set for June 10, 2025. The April meeting featured much debate by the EQB as to the exact timeline of events if the petition is un-tabled and considered during the June meeting. Ultimately, if the petition is considered, the EQB will vote on whether the petition should be further studied by PADEP. The EQB may refuse to accept a petition for further study if it determines that the EQB has considered the issue in the past two years as part of a rulemaking, the requested action is currently in litigation or is not appropriate for rulemaking due to policy or regulatory considerations, or the petition involves an issue previously considered by the EQB and does not contain new or different information to warrant reconsideration. 25 Pa. Code § 23.5. If the EQB accepts the petition, notice of acceptance will be published in the Pennsylvania Bulletin within 30 days. Id. § 23.6.

Upon publication of the acceptance in the Pennsylvania Bulletin, PADEP has 60 days to prepare a report evaluating the petition, but may take additional time if necessary. Id. The report includes a recommendation on whether the EQB should approve the action requested in the petition. Id. This report must identify the anticipated date the EQB will consider a proposed rulemaking in the report if it contains any regulatory amendments. Id. CAC and EIP are entitled to receive the report and make comments that will inform PADEP’s ultimate recommendation. Id. §§ 23.7–.8. Following the report, if PADEP recommends regulatory amendments, it will prepare a proposed rulemaking within six months of sending the report to CAC and EIP. Id. § 23.8. If no regulatory amendments are recommended, PADEP will present at the EQB meeting at least 45 days after it mailed its report to CAC and EIP. Id.

CAC and EIP filed their petition on October 22, 2024. See Clean Air Council and Environmental Integrity Project Petition (Oct. 22, 2024) (Petition). To support their arguments, they cite to the 2020 43rd Statewide Investigating Grand Jury Report (43rd Grand Jury Report) published under then-Attorney General Josh Shapiro, now Governor, which concluded in part that the commonwealth “take action to expand the no-drill zone between fracking and homes from 500 to 2,500 feet and to adopt a more protective no-drill zone of 5,000 feet for schools and hospitals.” Petition at 2 (citing the 43rd Grand Jury Report at 93–94). The petition also alleges that people residing near unconventional oil and gas wells experience negative health consequences, that the wells release dangerous pollution, and that the wells contaminate surface and groundwater, and for these reasons, the EQB should increase minimum setbacks to protect public health and public resources. See generally id. On November 21, 2024, the Pennsylvania Department of Environmental Protection (PADEP) informed CAC and EIP that the petition complied with the EQB petition policy. Letter from PADEP (Nov. 21, 2024). Information and materials for the EQB’s June meeting will be posted to PADEP’s website.

PADEP Issues General Permit for Gaseous Fuel-Fired Spark Ignition Internal Combustion Engines
On April 5, 2025, the Pennsylvania Department of Environmental Protection (PADEP) issued the General Plan Approval and/or General Operating Permit for Gaseous Fuel-Fired Spark Ignition Internal Combustion Engines (BAQ-GPA/GP-16). 55 Pa. Bull. 2680 (Apr. 5, 2025).

A General Permit is a plan approval and operating permit for a specific category of sources that PADEP has determined can be adequately regulated under standardized conditions. Section 6.1(f) of the Air Pollution Control Act (35 Pa. Stat § 4006.1(f)) and 25 Pa. Code ch. 127, subch. H (relating to general plan approvals and operating permits) authorize PADEP to develop General Permits.

PADEP is also authorized to require new sources to control air pollution through the use of best available technology (BAT) under section 6.6 of the Air Pollution Control Act. In developing General Permits, PADEP establishes BAT for new sources, which can include equipment, devices, methods, or techniques to control air emissions to the maximum degree possible utilizing technologies that are available or may be made available. 25 Pa. Code § 121.1.

GP-16 sets BAT emission limits for certain new gaseous fuel-fired spark ignition internal combustion engines that are more stringent than the applicable New Source Performance Standards for these engines in 40 C.F.R. pt. 60, subpt. JJJJ, and 40 C.F.R. pt. 63, subpt. ZZZZ. GP-16 includes standardized requirements related to BAT and additional terms including recordkeeping and reporting requirements, a compliance certification, source testing requirements, and compliance with applicable New Source Performance Standards. The use of the GP-16 is restricted to facilities that are minor sources.

Prior to the issuance of this General Permit, sources seeking to install and operate spark ignition engines were either required to meet certain exemption criteria or go through the full plan approval process to permit these sources. GP-16 will streamline the permitting process for owners and operators who wish to install spark ignition engines at their facilities in Pennsylvania.

A copy of the General Permit, application instructions, the comment and response document, and technical support document can be found on PADEP’s website here.

PADEP Settles with Industry Groups on Control of VOC Emissions from Conventional Oil and Gas Sources
On March 31, 2025, the Pennsylvania Department of Environmental Protection (PADEP) entered a settlement agreement with the Pennsylvania Independent Oil & Gas Association (PIOGA), PA Independent Petroleum Producers (PIPP), and PA Grade Crude Oil Coalition (PGCC) (collectively, Petitioners) pertaining to the Control of VOC Emissions from Conventional Oil and Natural Gas Sources pursuant to 25 Pa. Code ch. 129.

The settlement arises out of a December 5, 2022, petition for review of the emergency-certified final-omitted Control of VOC Emissions from Conventional Oil and Natural Gas Sources by the Petitioners in the Commonwealth Court of Pennsylvania. PIOGA, PIPP and PGCC Petition (Dec. 5, 2022) (Petition). Petitioners challenged the rule on the grounds that (1) the regulation did not meet the requirements to be issued as a final omitted rulemaking; and (2) PADEP did not develop the regulation for conventional oil and gas wells separately and independently from those regulations developed for unconventional oil and gas wells, as required by Act 52 of 2016. The rule was adopted by the Environmental Quality Board (EQB) through an emergency certified final-omitted rulemaking approved by the Governor, without notice and comment, which adopted reasonable available control technology standards (RACT) to control volatile organic compound (VOC) and methane emissions from existing and future conventional oil and gas operations and unconventional oil and gas operations, respectively. PADEP contended that the emergency certified final-omitted rulemaking process was appropriate pursuant to the PA Commonwealth Documents Law because notice and comment from the public was unnecessary, impractical, and contrary to the public interest.

In resolution of the petition for review of the rule, the parties agreed to a settlement that stipulates that for the leak detection and repair (LDAR) monitoring threshold, a separate tank battery surface site is not aggregated with the well or wells that supply the tank battery. See PIOGA v. DEP Settlement Agreement FAQ (Mar. 31, 2025). Further, if the well that supplies the separate tank battery surface site is subject to LDAR on its own due to the barrel of oil equivalent produced per day, the separate tank battery surface site is not automatically also subject to LDAR. PADEP did not conduct a separate RACT analysis for a conventional oil and gas separate tank battery surface site. LDAR will be required at a separate tank battery site if: (1) the separate tank battery surface site receives more than 15 barrels of oil or the equivalent amount of natural gas per day, and (2) one or more of the wells supplying the separate tank battery surface site produced five or more barrels of oil or the equivalent amount of natural gas per day.

Additionally, the settlement explains how PADEP calculated the 2.7 tons per year trigger for controlling VOC emissions from a storage vessel and states that VOC recovery and control requirements are not impacted by the number of wells connected to a particular tank. The recovery requirement is not impacted by how much methane is emitted from a tank, it instead relates to the collection of VOC emissions. VOC recovery and control requirements are also not impacted by the number of wells connected to a particular tank. The settlement also requires that for 10 years, rulemakings under the Air Pollution Control Act, 35 Pa. Stat. §§ 4001–4106, concerning conventional oil and gas well operations shall be undertaken separately and independently from unconventional wells.

Shapiro Administration Launches Permit Application Tracking Webpage
On January 14, 2025, the Pennsylvania Department of Environmental Protection (PADEP) launched a new webpage to track the progress of permit applications. See Commw. of Pa., “Track Your Permit Application” here (Permit Tracker). The Permit Tracker allows interested parties to search permits by program area (e.g., oil and gas, by county, permit type, and other details). Applicants can also check the status of a permit application, including which step of the review process the permit is in, the target date for completing that step, and contact information for the permit reviewer.

According to an accompanying press release, PADEP co-developed the Permit Tracker with the Commonwealth Office of Digital Experience (CODE PA) to modernize the permitting process, and in response to requests from the business community. Press Release, PADEP, “Shapiro Administration Launches New Permit Tracker; Businesses Applying for DEP Permits Can Now See Progress in Real-Time” (Jan. 16, 2025). PADEP said that it continues the agency’s “commitment to transparency and improving the user experience for applicants working with us to build a better Pennsylvania.” Id. In addition to PADEP’s efforts to reduce its permit application backlogs, the agency said the Shapiro administration has been hiring staff to improve operational efficiency. Id.

Implementation of the Permit Tracker follows CODE PA’s October 2024 launch of another website to educate stakeholders about state grant opportunities and assist applicants through the application process. That tool, available here, covers multiple grant categories, including energy and oil and gas. More information about CODE PA’s other efforts can be found on its website here.

PADEP Begins Accepting Grant Applications for Industrial Decarbonization Program
On February 26, 2025, the Pennsylvania Department of Environmental Protection (PADEP) announced it had begun accepting grant applications for the Reducing Industrial Sector Emissions in Pennsylvania (RISE PA) Program. See Press Release, PADEP, “Shapiro Administration Launches RISE PA Initiative to Create Energy Jobs, Cut Costs, Grow Pennsylvania’s Energy & Manufacturing Industries, and Lower Toxic Air Pollution” (Feb. 26, 2025). The RISE PA Program is funded by a $396-million award under the 2022 Inflation Reduction Act for projects that will reduce carbon emissions from the industrial sector, including from fuel combustion, industrial process emissions, natural gas and oil systems, coal mining, and other electricity usage.

As previously reported in Vol. 42, No. 1 (2025) of this Newsletter, President Trump’s Executive Order No. 14,154, “Unleashing American Energy,” created uncertainty around RISE PA’s future by pausing clean energy and climate-related funding under the Inflation Reduction Act. Exec. Order No. 14,154, § 7, 90 Fed. Reg. 8353 (Jan. 20, 2025). The Shapiro administration, however, sued the federal government and the funds were unfrozen on February 24, 2025.

The RISE PA Program awards are tiered based on project size: up to $40 million for small-scale projects; up to $100 million for medium-size projects; and up to $220 million for large-scale projects. Small-scale awards are administered by the Pennsylvania Technical Assistance Program (PennTAP), while medium- and large-scale awards are administered by PADEP.

The Shapiro administration offered examples of eligible projects, including, “installing energy-efficient heat recovery systems to reduce the energy required to heat or cool an industrial facility, electrifying an industrial plant by swapping out diesel-powered generators with equipment that runs on electricity, and capturing coal mine methane from mining operations.” Press Release, supra. The program also includes bonus award opportunities based on taking one or more additional actions and depending on the size of the project. These include a Community Benefits Bonus (for projects in low-income and disadvantaged communities that include a Community Benefits Plan; up to 10% of total project cost), a Fair Labor Bonus (committing to one or more labor-related requirements, based on project size; up to 10% of total project cost), and a GHG Emissions Reduction Bonus (available to medium- and large-scale projects based on the percentage reduction of GHG emissions; up to 10% of total project cost).

The RISE PA website includes step-by-step instructions for applying online, mock project application answers and budgets, and other guidance to assist applicants, as well as a form to submit public feedback about the program. PADEP is currently accepting applications for medium- and large-scale projects, with an application deadline of August 29, 2025, and first award announcements in fall 2025. All projects must be completed by April 1, 2029.

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