Articles, Alerts & Perspectives Archive

EPA Extends Certain Compliance Deadlines for Oil and Natural Gas Clean Air Act Requirements

Environmental Alert

(by Gary Steinbauer, Gina Buchman and Christina Puhnaty)

On July 31, 2025, EPA published in the Federal Register its highly anticipated Interim Final Rule to extend several deadlines in 40 C.F.R. Part 60, Subparts OOOO, OOOOa, OOOOb and OOOOc that were promulgated in EPA’s 2024 Methane Rule. 90 Fed. Reg. 35966 (July 31, 2025). That same day, environmental groups filed a lawsuit challenging the Interim Final Rule. Envtl. Defense Fund v. U.S. EPA, Case #25-1164 (D.C. Cir.). Absent a stay by the court, which the environmental groups are currently not seeking, the Interim Final Rule and the various extended deadlines are effective.

Summary of Deadline Extensions

The Interim Final Rule extends numerous compliance deadlines for oil and gas air emission sources subject to the New Source Performance Standards in 40 C.F.R. Part 60 Subparts OOOO, OOOOa, OOOOb and OOOOc. The previous compliance deadlines were published in a March 2024 final rule. 89 Fed. Reg. 16820 (March 8, 2024). The Interim Final Rule, which became effective upon publication, extends many deadlines in OOOOb, the date that the requirements of the Super-Emitter Program apply with respect to OOOO, OOOOa, and OOOOb, and the date by which states must submit plans to EPA pursuant to the OOOOc emissions guidelines.

EPA extended the following OOOOb compliance deadlines to at least January 22, 2027:

Process Controllers: The date by which process controller affected facilities are required to be zero-bleed devices. 40 CFR §§ 60.5370b(a)(5)(i), 60.5390b(a), 60.5415b(h)(1).

Storage Vessels:
- The date by which receiving additional crude oil, condensate, intermediate hydrocarbons, or produced water throughput at tank batteries triggers a modification. 40 CFR § 60.5365b(e)(3)(ii)(C) and (D).
- The date by which a legally and practicably enforceable limit used to determine the potential VOC and methane emissions from a storage vessel must include the elements provided in paragraphs 40 CFR § 60.5365b(e)(2)(i)(A) through (F). 40 CFR § 60.5365b(e)(2)(i).
- The date by which the potential for VOC and methane emissions from storage vessels must be calculated using a generally accepted model or calculation methodology that accounts for flashing, working, and breathing losses, based on the maximum average daily throughput to the tank battery determined for a 30-day period of production. 40 CFR § 60.5365b(e)(2)(ii).

Covers and Closed Vent Systems: The date by which a required closed vent system or cover must be designed and operated with no identifiable emissions and corresponding inspections must be performed. This new compliance deadline is 18 months after the date the Interim Final Rule is published in the Federal Register or upon startup, whichever is later. 40 CFR §§ 60.5411b(a)(3), § 60.5411b(b)(4), 60.5416b(a)–(b).

Control Devices: The date by which you must install and operate a continuous burning pilot or combustion flame, as applicable, and the date by which an alert must be sent to the nearest control room whenever the pilot or combustion flame is unlit. 40 CFR §§ 60.5412b(a)(1)(viii) and (3)(viii), 60.5413b(e)(2), 60.5415b(f)(1)(vii)(A)(1), 60.5417b(d)(8)(i), 60.5417b(i)(6)(v).

EPA also gave regulated facilities until November 28, 2025, or 180 days after startup, whichever is later, to comply with continuous monitoring system requirements for enclosed combustors or flares. 40 CFR §§ 60.5370b(a)(9)(i) and (iii).

Regarding OOOOc, the EPA emission guidelines that States are required to use when regulating existing sources (i.e., regulated emission sources that commenced construction, modification, or reconstruction on or before December 6, 2022), EPA extended the deadline for States to submit their OOOOc plans to January 22, 2027. 40 CFR § 60.5362c(c). As indicated in our recent Alert, the Pennsylvania Department of Environmental Protection (“PADEP”) has issued public notice and provided an opportunity for comment for its proposed OOOOc plan. The comment period on PADEP’s proposed OOOOc plan closed on July 30, 2025. Several commenters urged PADEP to delay implementation of the OOOOc plan until EPA finalizes its reconsideration of OOOOc, and others raised concerns about PADEP’s analysis, or lack thereof, related to considering the “remaining useful life and other factors” when devising the proposed OOOOc plan requirements. PADEP’s proposed OOOOc plan noted the original March 2026 deadline for submission to EPA. It remains to be seen whether PADEP will continue moving forward with its plan given that it now has an additional 10 months to finalize and submit Pennsylvania’s OOOOc plan to EPA for approval.

EPA also extended deadlines in OOOOa and OOOOb associated with the so-called “super emitter program” created under the March 2024 Methane Rule. In the preamble for the Interim Final Rule, EPA notes that in implementing the “super emitter program,” which would allow EPA-approved third parties (using EPA-approved technologies) to provide EPA with data on super-emission events, “EPA has experienced unanticipated difficulties and concerns that require additional time for effective and lawful administration of various program procedures.” 90 Fed. Reg. at 35976. EPA is delaying implementation of the super-emitter program until after January 22, 2027, during which time EPA will not act on applications seeking approval for remote-detection technologies for use under the program. See 40 CFR §§ 60.5371a and 60.5371b.

The Interim Final Rule indicates that EPA may make additional, substantive revisions to the 2024 Methane Rule in a separate reconsideration action. EPA invites comments on the revisions in the Interim Final Rule by September 2, 2025, even though the rule became effective on July 31, 2025.

Environmental Groups’ Challenge

Ten environmental groups promptly filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit, challenging the Interim Final Rule. The Court has set initial filing deadlines, including a deadline to file any dispositive motions by September 18, 2025. A briefing schedule has not been established.

Press releases by the environmental groups suggest that they may attack the Interim Final Rule on both procedural and substantive groups. Procedurally, the grounds contend that EPA violated the law by offering no opportunity for public input. Substantively, the groups indicate that they plan to defend the 2024 Methane Rule requirements, including the original deadlines and requirements of that rule.

Babst Calland’s Environmental Practice Group is closely tracking these regulatory developments, and our attorneys are available to provide strategic advice on how these actions may affect your business. For more information or answers to questions, please contact Gary Steinbauer at (412) 494-6590 or gsteinbauer@babstcalland.com, Gina Buchman at (202) 853-3483 or gbuchman@babstcalland.com, Christina Puhnaty at (412) 394-6514 or cpuhnaty@babstcalland.com, or your Babst Calland relationship attorney.

Clearing the Air on Public Nuisance and Preemption: A Look at Climate-Change Litigation in Pa. and Beyond

The Legal Intelligencer

(by Casey Alan Coyle and Stefanie Pitcavage Mekilo)

According to the United Nations, climate change “is the defining issue of our time.” https://www.un.org/en/global-issues/climate-change (last visited July 28, 2025). Yet views diverge over precisely what the solutions to the issue should be—and who is authorized to pursue them. Over the years, efforts to address climate change have taken many forms, from international agreements to federal statutes to interstate compacts. As policies evolve, some state and local governments have begun exploring novel theories through existing doctrine—including the law of public nuisance—for a pathway to seek relief, through individual courts, for alleged climate‑related harms. Several recent decisions, however, reveal that the legal landscape remains in flux, with courts charting different courses through the crosswinds of federal law.

Federal Common Law and the Displacement Doctrine

Despite the proclaimed extinction of “federal general common law” in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal common law still exists today in certain areas of national concern. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 410–421 (2011). One such area is the general subject of environmental law and, specifically, ambient or interstate air and water pollution. Id. Thus, federal common law can apply to transboundary pollution suits, and they are often based on a theory of public nuisance. Under federal common law, a public nuisance is defined as “unreasonable interference with a right common to the general public.” Restatement (Second) of Torts § 821B(1) (1979).

The right to assert a federal common-law public nuisance claim is not without limits, however. Where Congress has addressed a particular federal issue by statute, “there is no gap for federal common law to fill,” and the federal common law—and any implied right of action arising thereunder—are displaced. Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 856 (9th Cir. 2012). The test for whether congressional legislation displaces federal common law is “whether the statute speak[s] directly to [the] question at issue.” Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978).

In American Electric Power Co. v. Connecticut (“AEP”), 564 U.S. 410 (2011), the U.S. Supreme Court applied these displacement principles in the climate-litigation context. The AEP Court held that the Clean Air Act (“CAA”), and the Environmental Protection Agency (“EPA”) action it authorizes, displace any federal-common law public nuisance abatement action involving greenhouse gas emissions, adding: “federal judges may [not] set limits on greenhouse gas emissions in [the] face of a law empowering [the] EPA to [do] the same.” Id. at 424, 429. Similarly, in Kivalina, the Ninth Circuit Court of Appeals held that the CAA displaces any federal common-law public nuisance damage action concerning greenhouse gas emissions on field preemption grounds. In doing so, the Ninth Circuit determined that displacement of federal common law does not turn on the nature of the remedy, but on the cause of action itself. Notably, however, neither decision addresses whether the CAA preempts state common-law public nuisance claims.

State-Law Climate Claims in the Shadow of Federal Preemption

In the wake of AEP, several state and local governments have filed suits against fossil-fuel companies under state tort law seeking damages for the effects of global climate change, including, among others, the State of California, People ex rel. Bonta v. ExxonMobil Corp., No. CGC-23-609134 (Cal. Super. Ct. S.F. Cnty.); the State of Delaware, State ex rel. Jennings v. BP Am. Inc., No. N20C-09-097 MMJ CCLD, 2024 WL 98888 (Del. Super. Ct.); the State of Rhode Island, State v. Chevron Corp., No. PC-2018-4716 (R.I. Super. Ct.); the City of Baltimore, Mayor & City Council of Balt. v. B.P. P.L.C., No. 24-C-18-004219 (Balt. Cir. Ct.); the City of New York, City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021); the City and County of Honolulu, City & County of Honolulu v. Sunoco LP, No. 1CCV-20-0000380-LWC (Haw. 1st Cir.); Boulder County, Colorado, Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., No. 2018CV30349 (Colo. Dist. Ct.); and the New Jersey Attorney General, Platkin v. ExxonMobil Corp., No. MER-L-001797-22 (N.J. Super. Ct.). Two distinct lines of authority have emerged from these efforts.

On one front are the courts that have rebuffed state-law tort claims as being preempted by federal law. In City of New York, the City instituted a state-law tort suit against five oil companies to recover damages caused by their production and sale of fossil fuels around the world. The Second Circuit Court of Appeals held that the CAA displaces the City’s claims, concluding that “[a]rtful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions,” and that “[s]uch a sprawling case is simply beyond the limits of state law.” 993 F.3d at 91, 92, 96.

Several state courts have reached the same result. In Jennings, for example, the State of Delaware filed a state-law tort action against several fossil-fuel companies seeking damages, due to out-of-state or global greenhouse emissions and interstate pollution. The Delaware Superior Court held that the claims were preempted by the CAA and thus “beyond the limits of Delaware law.” 2024 WL 98888, at *9. And in Mayor & City Council of Baltimore, the Circuit Court for Baltimore City rebuffed a similar suit against 25 national and international fossil-fuel companies, holding that “the Constitution’s federal structure does not allow the application of state law claims like those presented by Baltimore,” and that “[g]lobal pollution-based complaints were never intended by Congress to be handled by individual states.” Baltimore, No. 24-C-18-004219, Mem. Op. & Order, slip op. at 11, 12.

A second set of decisions follow a different path. In City & County of Honolulu v. Sunoco LP, 537 P.3d 1173 (Haw. 2023), for instance, the Hawaii Supreme Court concluded that while the CAA had displaced federal common law, it did not preempt state-law tort claims, so the plaintiffs’ public nuisance and other state-law tort claims against fossil-fuel producers could proceed. 537 P.3d at 1203, 1208. And just two months ago, the Colorado Supreme Court echoed that holding in allowing similar claims to proceed. Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy USA, Inc., No. 24SA206, ___ P.3d ___, 2025 WL 1363355, at *6–8 (Colo. May 12, 2025). In reaching their decisions, both courts rejected the defendants’ characterization of plaintiffs’ claims as targeting emissions-producing activities, instead agreeing with the plaintiffs that, at bottom, their claims concerned deceptive marketing and failure to warn.

Climate-Change Litigation in Pennsylvania

That current of climate-change litigation has now found its way to Pennsylvania. In 2024, Bucks County filed suit against several fossil-fuel companies and a trade association, asserting claims for public nuisance, among others. Bucks County alleged that the defendants engaged in a decades-long campaign to “discredit the scientific consensus on climate change; create doubt in the numbers of consumers, the media, teachers, and the public about the climate change impacts of burning fossil fuels; and delay the energy economy’s transition to a lower-carbon future.” Bucks County v. BP P.L.C., No. 2024-01836, Compl. ¶ 1 (Bucks Cnty. Ct. Com. Pl.). Per the complaint, this purported campaign “drove up greenhouse gas emissions, accelerated global warming, and brought about devastating climate change impacts to Bucks County.” Id. The defendants responded by filing preliminary objections on various grounds, including federal preemption.

The trial court sustained the preliminary objections, holding “today we join a growing chorus of state and federal courts across the United States, singing from the same hymnal, in concluding that the claims raised by Bucks County are not judiciable by any state court in Pennsylvania” and are “solely within the province of federal law.” Bucks County, No. 2024-0183, Decision & Order, slip op. at 11, 15. In reaching that conclusion, the court relied upon the holding in AEP, even though the Supreme Court had expressly acknowledged that none of the parties briefed preemption or otherwise addressed the availability of state-law nuisance claims. The trial court thus found that the CAA “preempts Pennsylvania State law in this case.” Id. at 13.

The trial court rejected Bucks County’s argument that its case “does not seek to regulate or abate [greenhouse gas] emissions” but instead involves “Defendants’ deceptive marketing campaign.” Bucks County, No. 2024-0183, Pl.’s Br. in Resp. to Defs.’ Joint Opening Br. at 1–2. The court noted that Bucks County’s complaint used the word “emissions” more than 100 times; its counsel conceded at oral argument that advertising, production, transportation, and sale of the defendants’ fossil fuel products did not harm the County; and according to its counsel, it is the combination of current emissions and emissions from many years ago that caused the alleged damages to Bucks County. Citing City of New York, the court reasoned that “artful pleading cannot transform [Bucks County’s] Complaint into anything other than a suit over global greenhouse gas emissions.” Bucks County, No. 2024-0183, Decision & Order, slip op. at 14.

The trial court concluded by writing: “[O]ur federal structure does not allow Pennsylvania law, or any State’s law, to address the claims raised in Bucks County’s Complaint. … Thus, this court lacks subject matter jurisdiction because the claims raised by Bucks County are preempted by federal law.” Id. at 16.

What’s Next?

Bucks County appealed to the Pennsylvania Superior Court on June 13, 2025. Although a briefing schedule has not yet been issued, it is anticipated that merits briefing will conclude before the end of the year, with oral argument to follow. However the Superior Court rules, its decision may help to clear the air on what role state law has to play—if any—in climate-related nuisance litigation.

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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.

Stefanie Pitcavage Mekilo is a litigation associate at the firm. She focuses her practice on complex commercial litigation, environmental litigation, and energy litigation, regularly representing businesses in high-stakes disputes in state and federal courts and administrative tribunals throughout the country. She is also a former law clerk to John E. Jones and Christopher C. Conner of the U.S. District for the Middle District of Pennsylvania. Contact her at 570-590-8781 or smekilo@babstcalland.com.

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Navigating Local Permitting Roadblocks to Renewable Energy Deployment in Pennsylvania

Allegheny County Bar Association- Lawyers Journal

(By Anna Jewart)

Over the past several years, developers have targeted the vast rural and undeveloped lands of Pennsylvania for renewable energy development. Yet, Pennsylvania lags behind the rest of the country in terms of renewable energy deployment. Beyond well-reported issues involving grid-interconnection and permitting backlogs, those seeking to develop renewable energy in the Keystone State often experience deal-killing roadblocks early on during local land use permitting.

Pennsylvania law recognizes that effective use of zoning power typically requires expertise and knowledge of local conditions, making it uniquely suited to local regulation. Outside the broad framework established by the Pennsylvania Municipalities Planning Code, 53 P.S. §10101, et seq., (“MPC”) and rare statutory exceptions, the two-thousand-plus municipalities in Pennsylvania are each free to determine if and how to regulate land use matters within their borders. This means that unlike most areas of the law, the rules may change entirely the moment you cross a municipal line.

This decentralized legal framework creates challenges for renewable development, which has faced significant NIMBY-ism over the past several years. In response, many municipalities have sought to make renewable development untenable or even impossible through adoption of onerous land use regulations. While many states have expressly limited municipal discretion in renewables siting through adoption of state-wide permitting or statutory protections, Pennsylvania has not.

However, generally applicable land use jurisprudence does help protect against unreasonable local regulation. First, municipalities cannot expressly prohibit renewable energy uses. Ordinances that attempt to do so are de jure exclusionary, and unconstitutional. Second, an ordinance that appears to permit a use, but under conditions that it cannot in fact be accomplished may be found to be de facto exclusionary. Ordinances often attempt to make renewable development impossible through the imposition of high setbacks, minimum lot sizes, or lot coverage restrictions. Others restrict renewables to zoning districts unsuitable for these uses or impose prohibitions on the use of prime agricultural soils or steep slopes, further limiting the land available. Exclusionary zoning ordinances may be challenged through a “substantive validity” challenge brought before the municipal governing body or zoning hearing board pursuant to the MPC, or one may petition the municipality for a voluntary amendment.

A third manner in which municipalities may seek to restrict renewable development is through the imposition of onerous application requirements. These may include the submission of environmental studies, interconnection studies, or detailed plans and designs not readily available at the early phase of development during which local land use approval processes occur. Others require third-party permitting prior to approval, which might not be practical or legally possible. Ordinances that attempt to duplicate or supplant county, state, or federal regulations may be challenged under a preemption theory, and established land use jurisprudence directs that a lack of third-party permitting is not grounds for denial but should be imposed as a condition of approval. Challenges to these types of provisions can generally be brought in the same manner as a challenge to an exclusionary ordinance.

An increasingly popular fourth way in which municipalities try to limit, or profit from, renewable energy development is through the imposition of high “application”, “impact”, or “host benefit” fees. Municipalities increasingly attempt to impose five or even six figure “application” fees for solar and wind applications. Others have sought to have developers pay a yearly fee per megawatt hours generated. Municipal fees are required to be reasonably related to the administrative costs associated with them. Excessive fees may be challenged. While other states have implemented authorization for renewable energy “community benefit agreements” or “impact fees” payable to the host municipality, Pennsylvania has not. As creatures of statute, municipalities lack the authority to exceed the powers granted to them by the General Assembly and cannot, as the law stands today, require a developer to pay out a yearly fee.

The fifth most common way in which municipalities attempt to limit or restrict renewable development applies to those that have not adopted a local zoning ordinance. Many municipalities without a zoning ordinance adopted pursuant to the MPC have adopted “standalone” ordinances with zoning-type restrictions on renewables. These ordinances often purport to be adopted pursuant to the municipal enabling act under which the municipality was created, such as the Second Class Township Code, 53 P.S. §65101-§70105. Pennsylvania courts have long held that the regulation of land use must be done within the guardrails of the MPC, and case law further indicates that statutes like the Second Class Township Code do not on their own authorize the regulation of uses not expressly addressed therein. As they fall outside the parameters of the MPC, standalone ordinances may be challenged as either procedurally or substantively defective in the local court of common pleas.

As it stands today, successful renewables deployment in Pennsylvania depends in part on developers’ ability to weave through a wide array of local regulations intended to dissuade development. While this is an uphill battle, it can be won with proper planning and coordination. Review of local regulations should occur prior to execution of any lease or lease option agreement and should be monitored closely for changes as development progresses. Often, adverse ordinance provisions are reactionary or adopted in response to political pressure and fears, which can be calmed through positive engagement and education. Therefore, public engagement is key, and permitting risks can be mitigated by early outreach to local stakeholders, including municipal officials, solicitors, and neighboring property owners.

Anna S. Jewart is an associate in the public sector and energy and natural resources groups of Babst Calland and focuses her practice on land use, zoning, and general municipal matters with a particular focus on solar energy development.

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Reprinted with permission from the July 25, 2025 Allegheny County Bar Association’s Lawyers Journal.

EPA Extends CCRMU Compliance Deadlines and Clarifies Free Liquids Guidance

Environmental Alert

(by Ben Clapp, Gary Steinbauer and Mackenzie Moyer)

On July 22, 2025, the U.S. Environmental Protection Agency (EPA) published a Direct Final Rule and a Companion Proposal in the Federal Register to extend certain compliance deadlines for coal combustion residual (CCR) management units (CCRMUs) regulated under EPA’s May 2024 Legacy CCR Rule, under which certain inactive CCR surface impoundments and landfills became subject to federal regulation under existing EPA CCR rules. The Direct Final Rule is effective on January 22, 2026, unless EPA receives adverse comments by August 21, 2025. Comments are also due on the Companion Proposal by August 21, 2025.

As described in detail in an earlier Babst Calland Environmental Alert, CCRMUs are inactive CCR landfills and other land-based disposal areas that had previously not been regulated under EPA’s CCR rules. Under the Legacy CCR Rule, facilities covered under the rule are required to conduct an extensive, two-part investigation known as a Facility Evaluation Report (FER) to determine whether CCRMUs are present and therefore subject to the groundwater monitoring, corrective action, closure, and post-closure care requirements in EPA’s CCR rules.

The Direct Final Rule allows facilities to submit both sections of the FER at the same time, provided that both reports are submitted no later than February 8, 2027. Facilities were initially required by the Legacy CCR Rule to submit Part 1 of the FER by February 9, 2026, and Part 2 of the FER by February 8, 2027. EPA is also extending the deadline for groundwater monitoring requirements (groundwater monitoring system installation, development of sampling program, and initiation of monitoring) for CCRMUs until August 8, 2029, from the original deadline of May 8, 2028, on the grounds that the original deadline did not provide sufficient time to come into compliance. Consistent with that extension, EPA has also revised the deadline for completing the initial groundwater monitoring and corrective action report to January 31, 2030, from January 31, 2029, extended the deadlines for preparing closure and post-closure care plans to February 8, 2030, from November 8, 2028, and extended the deadline for initiating closure to August 8, 2030, from May 8, 2029.

Along with the Direct Final Rule, EPA also published a Companion Proposed Rule which would serve as the Proposed Rule to adopt the provisions in the Direct Final Rule if adverse comments are received. In the Companion Proposed Rule, EPA is seeking comment on an alternative to extend the deadline to prepare Part 2 of the FER by 12 months and whether to extend the other compliance deadlines in the Legacy CCR Rule.

Additionally, on July 10, 2025, EPA published a memorandum providing important clarifications on its previously released memorandum entitled Considerations for the Identification and Elimination of Free Liquids in Coal Combustion Residuals (CCR) Surface Impoundments and Landfills (40 CFR Part 257, Subpart D) (“Free Liquids Memo”). The Free Liquids Memo was published by EPA in the docket for the final Legacy CCR Rule.

The presence or absence of free liquids in a CCR disposal unit is critical to determining the threshold question of whether the unit is a legacy surface impoundment subject to the Legacy CCR Rule, and to whether a legacy impoundment may be closed with CCR remaining in place. The Free Liquids Memo provided regulated entities with information on EPA’s views regarding available methods for determining whether free liquids are present in CCR units, as required by the CCR regulations. In the July 10^thclarifying memorandum, EPA acknowledges that the Free Liquids Memo caused confusion, including among the regulated community. EPA’s July 10^th memorandum provides that the Free Liquids Memo “does not impose legally binding requirements on the EPA, states, or the regulated community. It is not a regulation, nor does it augment or modify the existing regulations.” Importantly, EPA states that the Free Liquids Memo should not be relied upon or used by EPA personnel when implementing the regulatory requirements in the CCR rules. EPA also intends to provide further clarification on the “free liquids” issue at another time.

Babst Calland attorneys continue to track these developments and are available to assist with CCR-related matters. For more information on this development and other waste matters, please contact Ben Clapp at (202) 853-3488 or bclapp@babstcalland.com, Gary Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com, Mackenzie Moyer at (412) 394-6578 or mmoyer@babstcalland.com, or any of our other environmental attorneys.

White House Releases Sweeping AI Action Plan

Firm Alert

(by Susanna Bagdasarova and Justine Kasznica)

On July 23, 2025, the White House released “Winning the Race: America’s AI Action Plan”,^[1] a sweeping federal initiative setting forth the administration’s strategy to secure U.S. global leadership in artificial intelligence. Issued pursuant to Executive Order 14179, “Removing Barriers to American Leadership in Artificial Intelligence”,^[2] the Action Plan outlines more than 90 federal policy actions across three strategic pillars: accelerating innovation, building American AI infrastructure, and leading in international diplomacy and security. The administration describes the effort as a path to “a new golden age of human flourishing, economic competitiveness, and national security,” goals that the Action Plan aims to realize through regulatory reform, infrastructure expansion and investment, and significant geopolitical engagement.

Guiding Principles

Three central principles^[3] shape the Action Plan’s policy directives across all strategic pillars:

The American worker must benefit from the AI revolution. The expansion of AI infrastructure encouraged by the Action Plan aims to generate high-paying jobs, and AI-driven advancements in sectors like medicine and manufacturing are expected to raise the overall standard of living. Rather than displacing workers, AI is intended to enhance and support their roles.
Neutrality and objectivity must be foundational components of AI technologies. AI systems must be “free from ideological bias” and be “designed to pursue objective truth rather than social engineering agendas”.
National security depends on protecting AI systems. In a rapidly technologically advancing world, security initiatives must focus on preventing theft and misuse of U.S. AI technologies, as well as risk management and monitoring for emerging threats.

Key Policy Initiatives

Among the numerous directives and recommendations in the Action Plan, the administration identified four key policy initiatives:

Exporting American AI: To bolster U.S. influence and strengthen strategic alliances, the Departments of Commerce and State, in partnership with industry, will deliver “secure, full-stack AI export packages – including hardware, models, software, applications, and standards – to America’s friends and allies around the world.” In doing so, the U.S. can set global AI standards and simultaneously prevent countries in “America’s AI alliance” from becoming dependent on AI technologies developed by its foreign adversaries.
Promoting Rapid Buildout of Data Centers: To meet rising AI demand, the Action Plan proposes reducing regulatory burdens on infrastructure buildout to streamline permitting for data centers and semiconductor manufacturing facilities. This initiative is supplemented by directives to upgrade the U.S. electric grid and revitalize American semiconductor manufacturing, all of which is to be made possible by investments in the American workforce.
Enabling Innovation and Adoption: The Action Plan emphasizes the need for deregulation at the federal level to encourage acceleration of AI development and deployment and signals future collaboration with private industry partners in determining which rules should make the cut. It further seeks to discourage state and local regulatory barriers, proposing that “the Federal government should not allow AI-related Federal funding to be directed toward states with burdensome AI regulations that waste these funds.”
Upholding Free Speech in Frontier Models: The Action Plan directs federal agencies to update procurement guidelines to contract for AI systems and services with developers “who ensure that their systems are objective and fee from top-down ideological bias.”

Strategic Takeaways

The Action Plan highlights the administration’s intent to make artificial intelligence a central pillar of national policy. For businesses, the framework provides new opportunities, incentives, and challenges, including:

Export Control Compliance: Companies participating in “full-stack” AI export programs will need to closely navigate ITAR, EAR, and other export frameworks for compliance.
Federal Procurement Standards: AI developers should anticipate additional requirements and certifications for objectivity, transparency, and model governance to qualify for government contracts.
Infrastructure Incentives and Approvals: The expedited permitting process for data centers and semiconductor facilities may provide new opportunities for developers and investors in critical infrastructure.
Regulatory Rollback Participation: Stakeholders, particularly private industry participants, will be able to provide feedback on which regulations obstruct innovation, offering a potential avenue to shape the future legal landscape of AI.

The Action Plan introduces significant regulatory, contractual, and operational changes across the AI value chain. Companies should evaluate their existing and planned AI-related activities in light of these developments, especially those touching federal contracting, export markets, and data infrastructure. They should also keep a close eye on state and local AI regulations in the wake of the Action Plan. Although the Action Plan stops short of imposing the moratorium on state and local AI regulation that was stripped from the final version of President Trump’s budget reconciliation bill (H.R.1.), dubbed the One Big Beautiful Bill Act, one policy recommendation encourages the Federal Communications Commission to “evaluate whether state AI regulations interfere with the agency’s ability to carry out its obligations and authorities under the Communications Act of 1934.”

As federal agencies enact the recommended policy actions, the administration has signaled that it is heavily focused on achieving U.S. global AI dominance. “Winning the AI Race is non-negotiable. America must continue to be the dominant force in artificial intelligence to promote prosperity and protect our economic and national security… These clear-cut policy goals set expectations for the Federal Government to ensure America sets the technological gold standard worldwide, and that the world continues to run on American technology,” said Secretary of State and Acting National Security Advisor Marco Rubio.

President Trump also highlighted his administration’s AI strategy during his first major speech on AI at a White House AI summit on Wednesday afternoon and signed three AI-related executive orders which correlate with various Action Plan directives.

Babst Calland attorneys are tracking the most pressing issues related to data center development – including AI usage and privacy policies, related risks and regulatory requirements, as well as data center development financing, project siting, land use, zoning and regulatory compliance – and addressing pathways forward for successful projects. For questions or more information, please contact Susanna Bagdasarova at sbagdasarova@babstcalland.com or 412.394.5434 or Justine M. Kasznica at jkasznica@babstcalland.com or 412.394.6466.

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^[1] Full text available at Winning the Race: America’s AI Action Plan.

^[2]Full text available at Removing Barriers to American Leadership in Artificial Intelligence.

^[3]See White House Unveils America’s AI Action Plan.

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.

To view the full article, click here.

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.

Reprinted with permission from the July 2025 issue of Contractor’s Compass.

To read the full article, click here.

To view the PDF, click here.

________________

[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.

Employer Guidance for Workplace Interactions with ICE

Employment and Labor Alert (update from February 4, 2025)

(by Steve Antonelli and Alex Farone)

Recommended Precautionary Actions Before ICE Arrives

Designate Public and Private Spaces

Understand the Types of Documents ICE Could Present

Assign An On-Site Response Coordinator

Review Applicable Collective Bargaining Agreements

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.

________________

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

The Foundation Water Law Newsletter

(by Lisa M. Bruderly, Jessica Deyoe and Mackenzie Moyer)

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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