Articles, Alerts & Perspectives Archive

Justine M. Kasznica: Pittsburgh Can Be the Center of a New Industrial Revolution — For Space

Pittsburgh Post-Gazette

For more than half a century, space exploration has been defined by brief human visits to space and to the moon. The NASA Apollo missions proved humanity could reach the Moon, while the International Space Station demonstrated that humans could live in space for extended periods. But these efforts, remarkable as they were, remained temporary by design.

A week before the launch of NASA’s Artemis II crewed lunar orbit mission, NASA unveiled plans to establish a permanent lunar base near the Moon’s south pole. The effort includes at least two crewed missions per year, a 30-lander robotic campaign, and major investments in habitats, mobility systems, and — most notably — an interoperable lunar power grid and communications network. NASA will invest $30 billion over the next decade.

NASA also announced Space Reactor-1 Freedom, a nuclear-powered interplanetary spacecraft targeting a Mars launch by 2028 and a new plan for the International Space Station that expands the current platform with government and commercial modules rather than retiring it. Funding will come from repurposed programs and more efficient use of existing resources.

While public attention for this new effort will naturally gravitate toward launch sites in places like Florida and mission control centers in Texas, the deeper economic opportunity lies in the industrial backbone needed to sustain this vision. In particular, Pittsburgh and the broader Keystone Region including Ohio and West Virginia.

Building in space

NASA is signaling something far more ambitious than exploration. It is laying the groundwork for permanence, building in space with commercial industry at the helm.

The agency is moving away from symbolic milestones toward sustained infrastructure, assembling the foundation for a permanent human presence beyond Earth. It is creating a space-based industrial economy, one that will depend on supply chains spanning manufacturing, energy, robotics, materials science, and logistics. NASA is becoming an anchor customer catalyzing entire industries.

This region brings a unique combination of strengths aligned with a lunar economy. Its legacy in energy, robotics, and advanced manufacturing positions it to produce critical components for space infrastructure. The same expertise that once powered America’s industrial rise can now be redirected toward building systems for the lunar surface.

Importantly, the region is not starting from scratch. Companies like Astrobotic Technology in Pittsburgh are already contributing to NASA’s lunar ambitions through landers, delivery systems, and lunar power technologies. Other Pennsylvania-based firms, including Westinghouse, Ansys, and Advanced Cooling Technologies, are leaders in space nuclear technologies, computing and simulation, and thermal technologies respectively.

Building here for space

This growing base of activity provides a nucleus for a broader network of manufacturers, robotics firms, materials companies across Pennsylvania, Ohio, and West Virginia.

The region is further strengthened by research institutions, space-oriented institutes and centers, and strong community colleges and technical schools. southwestern Pennsylvania’s leadership in robotics and AI — particularly in the Pittsburgh area — positions it to develop technologies for autonomous construction, maintenance, and operations on the Moon.

NASA assets such as the Glenn Research Center in Ohio and the Independent Verification and Validation Facility in West Virginia offer critical capabilities directly tied to propulsion, power, communications, materials development and mission assurance.

Energy is another of the region’s advantages. Decades of expertise in reactor and grid technologies translate directly to the challenge of powering off-world systems.

Finally, the region can play a catalytic role in NASA’s Ignition plans and implementation, by developing the innovations needed to sustain human health, enable closed-loop life support, and support long-duration survival in extreme extraterrestrial environments.

As NASA deepens its reliance on commercial partnerships, a wide network of companies will be needed to deliver the systems required for sustained lunar operations. The Keystone Region is well positioned to compete in the specialized manufacturing and engineering layers of this supply chain.

Building the 21^st century

What is unfolding is not just another phase of space exploration. It is the early stage of a new industrial revolution.

The Keystone Region helped build the infrastructure that powered the 20th century. It will help build the infrastructure that could define the 21st and beyond.

But this opportunity will not materialize on its own. Capturing it will require state-level action and investment as well as coordinated action across states and sectors. Pennsylvania, Ohio, and West Virginia must position themselves as a unified industrial space corridor, aligning workforce development, strengthening university-industry partnerships, and engaging proactively with federal agencies.

The question is no longer whether humanity will establish a lasting presence in space. NASA’s plans make clear that it will. The question is which regions on Earth will help make it possible and who will benefit when they do.

Justine Kasznica is a shareholder and chair of the Emerging Technologies Group at the Pittsburgh law firm Babst Calland and is a co-founder and board chair of the Keystone Space Collaborative, a nonprofit organization supporting the Tri-State Region’s space industry.

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McNees Attorney Joins Babst Calland In Harrisburg

Law360 Pulse

(by James Boyle)

An attorney with nearly 10 years of experience representing clients in commercial real estate development and transactions has moved her practice to Babst Calland Clements and Zomnir PC’s Harrisburg, Pennsylvania, office after more than four years with McNees Wallace & Nurick LLC.

Kate W. Millikan has been welcomed to Babst Calland as senior counsel in the corporate and commercial practice group in the Harrisburg office, the firm announced Thursday. Millikan told Law360 Pulse she has been with the firm for about a month and is “happy and pleased” about her addition to the firm.

Millikan said her decision to move to Babst Calland sprouted from a business trip to Pittsburgh. She was in town closing a transaction for a client and stayed with a friend from law school who practices at Babst Calland. They talked about the firm, and those conversations turned into an opportunity for Millikan to join a team of attorneys she held in high regard.

“There are a lot of attorneys at Babst Calland I know personally and professionally, through our overlapping years of practice,” Millikan said. “The quality of their personalities as individuals and as legal practitioners played a huge part in my decision to move. It is hard to find people to work with whom you like and are good at their jobs.”

Babst Calland’s strong reputation for its commercial real estate practice also played a key role in Millikan’s decision to join the firm, she said. Her work largely focuses on managing the legal requirements for the development of condominiums and mixed-use communities, and Babst Calland has the resources she needs to expand her practice, Millikan said. “Babst Calland’s clientele are front-runners in commercial development, including data center projects,” Millikan said. “This is a win-win situation for both of us, where I can help their clients and they can help my practice.”

Millikan’s practice represents clients from all sides of commercial real estate transactions and development, including builders, investors, and lenders and guides projects through financing, land use and zoning permits and regulatory approvals. She has been involved in development projects throughout Pennsylvania and in New Jersey and North and South Carolina, Millikan said.

“I am heavily focused on commercial real estate, with a special emphasis in commercial condominiums and mixed-use planned community development,” Millikan said. “I draft the declarations forming and the ancillary documents governing commercial condominiums and large-scale planned communities, such as shopping centers, 55 and older communities, developments featuring retail and residential uses, office complexes, and industrial sites.”

Millikan said she enjoys the tangible aspects of her practice, where she can get involved with a development project on the ground floor and see her efforts result in physical buildings and neighborhoods in a matter of years.

“I get to see concept plans and help build the strategy to make them happen,” Millikan said. “In three to four years, I can see what I pictured come to life. I also enjoy the challenge of helping the project adapt to changes as they evolve.”

Donald C. Bluedorn II, managing shareholder of Babst Calland, said in a statement to Law360 Pulse on Friday that the firm is “very pleased” to add Millikan to the Harrisburg office.

“Kate is a well-respected real estate lawyer with experience in managing complex commercial transactions and property development matters,” Bluedorn said. “She will be a tremendous asset to our firm and clientele, especially in serving the needs in the development or redevelopment of multi-unit residential, commercial, industrial, and mixed-use projects.”

Millikan earned her law degree from Penn State Dickinson Law in 2015 and started her legal career as an associate with Martson Law Offices. She moved to McNees Wallace & Nurick in February 2018, then left the firm to practice at Troutman Pepper Locke in December 2019. In April 2022, Millikan returned to McNees Wallace’s Harrisburg office.

–Editing by Linda Voorhis.

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Powering the Region’s Data Center Growth

TEQ Magazine

(featuring Justine Kasznica)

Guiding hyperscale and modular projects across Pennsylvania and West Virginia, Babst Calland is helping shape the power-secure future of this mission-critical infrastructure.

The rapid growth of data centers – driven by cloud computing, artificial intelligence, and the need for low-latency digital infrastructure – has transformed what were once primarily real estate projects into some of the most complex developments in the energy and infrastructure sectors in our region.

At the core of modern data center development is power. Securing sufficient, reliable, and resilient electricity has become one of the defining challenges for developers, particularly as grid congestion, interconnection delays, and regulatory scrutiny increase. Many projects now require sophisticated power purchase agreements (PPAs), power generation agreements (PGAs), and on-site or co-located generation solutions to meet capacity and uptime requirements.

Today’s data center projects sit at the intersection of power generation, environmental regulation, land use, construction, and technology governance, requiring coordinated legal strategies across multiple disciplines. Babst Calland’s legal team has become increasingly involved from the earliest stages of development on projects – advising on site acquisition and control, evaluating water and energy access, and assessing regulatory and permitting risks across state and federal jurisdictions, and land use and zoning approvals, including variances and conditional use permits, often require public hearings and coordination with local governments, which often add another layer of complexity and potential delay.

Behind-the-Meter Power and Islanded Systems Gain Momentum

Grounded in active, large-scale work, Babst Calland is currently guiding the development of well over 3,000 megawatts of new power generation capacity tied to data center projects across Pennsylvania and West Virginia. These projects range from hyperscale campuses to smaller modular facilities encompassing the design, permitting, interconnection, and financing of both behind-the-meter generation assets, such as natural gas turbines and solar paired with battery storage, as well as fully islanded power systems.

These islanded systems are designed to provide baseload power, redundancy, and resiliency, supporting mission-critical workloads that cannot tolerate downtime. By considering both conventional and emerging energy solutions, companies are now navigating the technical and legal complexities of meeting power demand while maintaining operational flexibility.

Attorney Justine Kasznica, team leader of Babst Calland’s data center development practice, outlined the various near-term challenges and opportunities facing the industry.

Site Selection & Development

Data Center companies look for large-scale sites with an emphasis on water and energy access, infrastructure alignment, regulatory compliance, and risk analysis on co-located energy infrastructure, including gas pipelines, electric transmission, solar generation, and battery energy storage systems (BESS). Companies also need to be concerned about land use and zoning matters, variances, conditional use approvals, and public hearings when developing new or expanded facilities.

Contracts Drive Risk Allocation and Performance

Contracting has become a central risk-management tool in data center development. Engineering, Procurement and Construction (EPC), design-build, and modular construction contracts must address accelerated schedules, supply-chain constraints, and performance guarantees tied to uptime and efficiency. On the operational side, agreements governing power supply, cooling systems, and maintenance increasingly focus on redundancy, preventative maintenance, and vendor accountability.

Leasing and colocation agreements must also address power allocation, connectivity, shared infrastructure, and scalability. For operators and tenants alike, service-level agreements (SLAs) and enterprise technology contracts—covering SaaS, IaaS, and software licensing—are critical to ensuring performance standards are met as infrastructure becomes more virtualized and cloud-based.

Energy-related contracting continues to evolve as well. Solar PPAs, BESS service agreements, and SREC contracts now routinely include detailed provisions governing pricing mechanisms, dispatch rights, performance guarantees, and risk allocation among developers, operators, utilities, and investors.

Permitting, Regulatory Compliance, and Workforce Considerations

Beyond construction and power, data center development raises broader compliance issues. Environmental permitting at the federal, state, and local levels remains a key consideration, particularly for projects involving on-site generation or significant land disturbance. At the same time, operators must navigate data privacy, cybersecurity, and cross-border compliance requirements – especially when structuring public, private, or hybrid cloud environments.

Workforce issues are also gaining attention. Skilled labor shortages, safety compliance, and employment regulations affect both construction and long-term operations, making workforce planning an increasingly important component of development strategy.

When disputes arise, they often span multiple areas of law, including commercial contracts, zoning and environmental compliance, and cybersecurity or data-privacy incidents – underscoring the interconnected nature of today’s data center projects.

A Rapidly Evolving Sector

As data centers grow in scale and strategic importance, development has become less about standalone facilities and more about integrated infrastructure ecosystems. Power generation, land use, technology, and regulatory compliance are no longer parallel tracks – they are deeply interdependent.

The result is a shift toward multidisciplinary legal and advisory models that mirror the complexity of the projects themselves. For developers, investors, and operators, success increasingly depends on addressing these issues holistically, from site selection and power strategy through long-term operation and eventual decommissioning.

To view the article, click here.

Non-Compete vs. Non-Solicit Agreements: Key Considerations for Pennsylvania Lawyers

The Legal Intelligencer

(by Steve Silverman and Katerina Vassil)

Employers wanting to protect their trade secrets and goodwill often ask counsel to include restrictive covenants in their employment agreements to limit departing employees from harming them in future employment. Two of the most common include non-competition (non-compete) and non-solicitation (non-solicit) provisions, which are often thought to be equally enforceable. In practice, these restrictive covenants are not interchangeable and not equally enforceable, which is why familiarity with the client’s business interests and precise drafting are both essential. A recent Pennsylvania Superior Court decision serves as a primer on restrictive covenants and provides valuable insight into Pennsylvania courts’ historical handling of non-compete and non-solicit agreements, with one noteworthy deviation from years of established case law.

On February 18, 2026, in First Nat. Trust Co. v. English et al., No. 1109 WDA 2025 (Pa. Super. Feb. 18, 2026), the Pennsylvania Superior Court issued a non-precedential opinion that serves as a one-stop shop for all things Pennsylvania restrictive covenant law. The Court breaks down the requirements for enforceable non-competes and non-solicits, what constitutes adequate consideration to support employment agreements, and the standards for obtaining injunctive relief, as well as more nuanced issues like the meaning of the term “solicit” and the use of non-acceptance provisions.

The primary focus of the opinion, however, is on non-competes and non-solicits and their limitations. Non-competes restrict a former employee’s ability to work for a competitor or start a competing business within a specific time frame and geographic area. Courts are hesitant to uphold non-compete agreements that overly restrict an employee’s ability to engage in work opportunities within their profession. But non-compete agreements will be upheld so long as they are of reasonable duration, geographic scope, and necessary to protect legitimate business interests. If a non-compete agreement is overly broad and fails to address legitimate protectible business interests, courts will often refuse to enforce them. Similarly, if the geographic scope is overinclusive, courts will likely strike, or in some instances, rewrite the non-compete as an unfair restriction on the former employee.

Conversely, non-solicit agreements allow ex-employees to work for competitors but restrict them from soliciting customers and clients of the former employer for a specified time period. Non-solicits do not typically include explicit geographic limitations, because these implicitly exist based on where the specific customers or clients are located. If customers and clients are scattered in various locations, an explicit geographic limitation could make the non-solicit agreement overly restrictive and provide insufficient protection for the former employer. Instead, because a non-solicit provision identifies a definitive and finite set of business contacts that the former employee is prohibited from contacting or soliciting, such a provision is already limited in geographic scope to exclusively where those specific business contacts are.

As a matter of public policy, courts are reluctant to limit employees’ future employment as an unfair restraint on trade. For that reason, courts often closely examine an employer’s right to enforce a restrictive covenant before doing so. Generally, courts have been more likely to enforce non-solicit clauses than non-competes because non-solicit agreements, by definition, pose less restrictions on the employee’s ability to work in their chosen profession. Theoretically, an employee could begin working right next door to their former employer without violating the non-solicit agreement so long as they don’t bring the employer’s customers or confidential business information along with them. It is simply easier to convince a judge that an ex-employee can still earn a living and yet honor his or her non-solicit obligations than it is with a non-compete that may force that employee to move across the country to continue working in their field.

Historically, it has been easier for employers to meet the legal requirements of a non-solicit than a non-compete because non-solicits have typically involved less stringent requirements. For example, an employer enforcing a non-compete must show that the geographic restriction is reasonable, justified, and not overly broad, but an employer enforcing a non-solicit need not prove any of those elements since no geographic restriction was required. Instead, that employer must be able to specifically identify which clients and customers his ex-employee can no longer solicit business from and then justify that restriction. But enforcing a non-solicit provision can also have its own challenges, such as clearly defining and proving what is and is not considered a “solicitation.”

In First Nat. Trust Co. v. English et al., the Superior Court threw in another twist – a new requirement that non-solicits must include reasonable geographic limitations to be enforceable. The Court reviewed the trial court’s determination that the non-solicit provision in the employment agreement at issue lacked geographic confines, ultimately agreeing that the provision unduly restricted movement in long-term relationships. If relied on by other courts, this would make non-solicit agreements far more complicated to draft to ensure their enforceability. Employers would be forced to make difficult decisions: either include a broad geographic scope in their non-solicits to guarantee capturing an entire customer base that could not be solicited or self-edit to limit those customers by limiting the geographic scope of the provision to avoid overreaching that would render the provision unenforceable. Even more significant, this requirement could invalidate countless employment agreements containing non-solicits without geographic restrictions.

Notably, the Superior Court relies on Pittsburgh Logistics Systems, Inc. v. Beemac Trucking, LLC, a case decided by the Pennsylvania Supreme Court in 2021 concluding that restrictive covenants are only enforceable if the restrictions are reasonably limited geographically. This reliance is misplaced, as Beemac exclusively addresses the geographic scope of non-compete agreements and is silent on geographic limitations for non-solicits. Thus, the Superior Court’s conclusion that the non-solicit clause is unenforceable as written due to the lack of geographic limitation appears to be in error. A geographic restriction requirement in non-solicits could force attorneys to identify the location of every customer the employer-client seeks to prohibit the employee from soliciting. This could also require these agreements to be regularly updated, raising issues of additional consideration and enforceability. Besides impracticability, this could significantly increase the employer’s legal expenses and potentially throw judicial review of these provisions into disarray. For those reasons, hopefully other courts will see that in this particular instance, the Superior Court simply misspoke when noting that a non-solicit must also have a geographic restriction to be enforceable.

When enforcing restrictive covenants, courts seek to strike a balance between protecting an employer’s legitimate business interests and limiting unfair restrictions on an employee. Requiring geographic limitations in non-solicits guarantees an imbalance that contradicts this exact objective – whether it be overinclusive or underinclusive, non-solicit agreements cannot include explicit geographic limitations while maintaining adequate protections for both employer and employee. Ultimately, employers must seek to strike a balance by utilizing narrowly tailored restrictive covenants that ensure enforceability to protect their legitimate protectible business interests.

In First Nat. Trust Co., the Superior Court also addressed the use of “non-acceptance” provisions, which restrict an employee’s ability to accept business from customers or potential customers that the employee had contact or involvement with during their employment. Non-acceptance provisions restrict a former employee from accepting business even if the former employee does not initiate contact or affirmatively solicit the customer or client or if the customer seeks out the employee directly to continue the business relationship. For example, a non-acceptance provision in a non-solicit agreement would prohibit an employee from accepting business from a customer or client that contacts or seeks out the employee directly to continue their business relationship. The use of non-acceptance provisions has increased over the last few years, as they provide protection for employers. In First Nat. Trust Co., however, the Superior Court determined that the trial court properly concluded that the non-acceptance provision was overly broad because it restricted pre-existing customers, family, and friends of former. The lesson is clear: non-acceptance provisions should be drafted carefully to avoid overbreadth that may render them unenforceable, keeping in mind that business relationships that predate the employment at issue may be exempt from such provisions.

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Steve Silverman is a shareholder in the Litigation and Employment and Labor groups of Babst Calland. Mr. Silverman devotes a significant amount of his practice to the defense and prosecution of theft of trade secrets and non-compete suits. Contact him at 412-253-8818 or ssilverman@babstcalland.com.

Katerina Vassil is an associate in the Litigation Group of Babst Calland. Ms. Vassil represents clients in a variety of litigation practice areas, including commercial, energy and natural resources, environmental, and employment and labor. Contact her at 412-394-6428 or kvassil@babstcalland.com.

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Navigating Opportunities and Challenges for Data Centers in the Region

TEQ Hub

(featuring Justine Kasznica)

Behind-the-Meter Power and Islanded Systems Gain Momentum

Attorney Justine Kasznica, team leader of Babst Calland’s data center development practice, outlined the various near-term challenges and opportunities facing the industry.

Site Selection & Development

Contracts Drive Risk Allocation and Performance

Permitting, Regulatory Compliance, and Workforce Considerations

A Rapidly Evolving Sector

POWERING THE FUTURE: Navigating Opportunities and Challenges for Data Centers in the Region

Pittsburgh Business Times

(featuring Justine Kasznica and Anna Jewart)

Energy-rich and workforce-strong, Pennsylvania is the focus of an increased national demand to develop and power data centers – centralized technology hardware facilities that support digital services such as AI, streaming and more. “By 2030, $1 trillion of new invested private capital will be devoted to data center projects,” said Justine Kasznica, chair of the Emerging Technologies Group and team lead of the data center development practice for the law firm Babst Calland.

To fuel the global demand signal, approximately 100 gigawatts of new power generation will need to come online, fueling the 1000 terawatt-hours of new electricity projected to be consumed on an annual basis by 2030. Forty-five percent of that is expected to be driven by the United States.

Domestically, the Commonwealth of Pennsylvania ranks among the top states for growth in data center development. In 2025 alone, more than 90 billion dollars’ worth of new data center, energy, and AI infrastructure commitments were announced across Pennsylvania.

But despite tremendous demand and potential for significant regional economic opportunities, communities in which these centers are proposed are faced with a number of issues, and developers need to be prepared to address them.

“They have to go somewhere and the somewhere is in someone’s community no matter where it is; whether it’s rural, urban or suburban, it’s somebody’s home,” said Anna Jewart, an attorney who focuses her practice in real estate, land use and zoning, in the Energy and Natural Resources, and Public Sector groups at Babst Calland.

Babst Calland’s multidisciplinary data center development team includes specialists in land use and zoning, real estate, environmental and regulatory, energy, construction, emerging technologies, and corporate law. On the land use side, Babst Calland works closely with developers to navigate Pennsylvania’s highly localized land use process in its more than 2,500 municipalities. To position themselves for success, the best developers seek legal counsel early in the siting process. Early consideration of local, as well as state and federal regulations, in addition to potential local community concerns, is key to selecting the most appropriate site for development.

“The right data center in the right location can be very good for a community,” Jewart said. “If you properly develop a site and address concerns early on, you can really provide a relatively low impact use for a community, especially compared to some of the other industrial uses that they are replacing in a community that really needs reinvestment.”

As people learn more about data centers, community involvement and attention to development increases. Pennsylvania’s land use approval processes often require public hearings and public meetings. These processes offer a forum for developers to welcome community concerns and often shape neighbors’ expectations of how the facility is going to impact day-to-day life in their community. A successful developer will treat these hearings as an opportunity, not a burden. Long-time residents often have information about a property or community that may be valuable to developers. Concerns raised during these meetings and hearings are also, mostly, reasonable and capable of being addressed through design or operational practices.

“If you have a good project, you’ve not only anticipated those concerns, but you also are able to adapt throughout the process to be able to impose additional conditions, change your design or respond to what people are telling you,” Jewart said.

The 70-20-10 rule

In Pennsylvania, land use approval processes, governed by the Pennsylvania Municipalities Planning Code, and implemented through local ordinances, are designed to ensure people have the opportunity to have their voices heard.

At a typical public meeting or hearing, Jewart said that in her experience, about 70 percent of citizens attending will have reasonable concerns that typically stem from how the proposed data center will impact their livelihoods, home values, and their children’s futures. They typically want answers or commitments on addressable issues such as potential sound, air quality, traffic, aesthetics, water consumption and electricity rates.

Another approximately 20 percent of citizens will raise fears or assumptions that are grounded in reasonable concerns but based on false assumptions, misinformation or disinformation. They might have absorbed information that is false or uncorroborated, applicable to past iterations of the technology, or informed by the bad reputation of a differently designed center in another community. This is a group whose concerns can often be addressed through education, both through the public hearing process and through active community engagement.

Unfortunately, oftentimes, the remaining 10 percent are going to be unhappy with the project, regardless of the information provided. Still, developers need to listen and respect their concerns, even if they might not ever come around on the project.

“Your main audience is those 70 percent of people who have true concerns about how they are going to live their lives with this technology located next to them,” Jewart said. “When you do that, you have a successful project. When you address that extra 20 percent then you have a really successful project.”

But in some instances, there can be true community support, as well. “Seeing the potential for new revenue and low impact on school districts and public safety with a current data center project, residents of one community are ‘waiting with open arms’ for its completion,” Kasznica said.

Proposed regulations

Earlier this month, Governor Shapiro, in his budget address, proposed that data centers be required to fully fund their own power infrastructure – a call to BYOP, or bring your own power, as part of a responsible infrastructure development grid strategy.

“The Governor’s proposal is a direct response to the single greatest community concern voiced about data centers – that data centers drive rising electrical costs that will be borne by the average ratepayer. The idea is to encourage data center projects to bring their own power generation sources rather than to rely on an already strained grid for electricity,” Kasznica said.

Babst Calland is working on several projects that have either a power plant or equipment on site to generate the necessary electrical power. Not only does this fuel the data center, but it addresses the demand to generate more power by 2030.

In addition, the Governor’s data center strategy emphasizes the need for community engagement and transparency, setting high environmental and water consumption standards as well as the development of AI education and workforce training programs.

In a similar vein, at the federal level, the White House has introduced a federal compact for hyperscalers (massive-scale data processing and storage providers like Microsoft Azure and Google Cloud) to meet certain requirements, notably that projects cannot increase the ratepayer experience. One hundred percent of all infrastructure costs associated with creating a data center project must be met by the hyperscaler looking to build that data center project. The compact also sets out a “water-positive” approach. Hyperscalers cannot tax local water supplies but rather are required to find ways to recycle or produce water necessary for cooling data center facilities. Finally, the compact calls on hyperscalers to mitigate community impacts like traffic, noise, and environmental effects, and to support AI education and workforce programs in local areas where facilities are built.

At the local level, many residents have a misconception about what a municipality can do versus what might be in the regulatory jurisdiction of the county, state, federal government, or one of the agencies (such as the Department of Environmental Protection).

“For the most part, the most control that municipalities have is if they choose to enact zoning regulations,” Jewart said.

Zoning powers allow municipalities to identify and restrict where data centers can be located within their boundaries. Municipalities cannot prohibit or exclude data centers entirely, but they can limit where they are located. For example, many municipalities may choose to only allow data centers in industrial districts, where you might find an industrial park, or to areas burdened by old brownfields. Next, the municipality has the authority, through zoning, to regulate issues such as setbacks, height and noise limits, and landscaping restrictions. But zoning can only regulate where data centers operate, not how they operate.

Many other issues that are of concern to a local community, for example, air quality or utility rates, are not regulated by the municipality and cannot legally be addressed through a zoning or other local ordinance. However, when it comes to concerns that involve other agencies, a developer can still work with the community, perhaps by making voluntary concessions that work toward the best solutions. For example, if there are concerns over water consumption, they can propose an alternative system design during the zoning process.

Currently, Babst Calland is guiding the development of data center projects that account for nearly 4 gigawatts of power. Some, potentially robust projects in western Pennsylvania, are “bring your own power” centers, measuring 1 gigawatt each. Others, measuring from 500 to 600 megawatts, are in the central and eastern part of the state. Many of the newer projects will be grid-connected, meaning they are setting “digital reality structures” that can support data center development. Other projects include hybrid facilities.

“When developers come to us, they are looking for local support,” Kasznica said.

When Babst Calland’s land use team gets the call early in the process to assist with the site selection process and help educate the community, well before any applications are submitted, it can greatly increase the likelihood of success of a data center project.

Babst Calland also provides project management support across every other facet of data center development, including supply chain issues.

“There’s a real race to get these projects up and going, but there are all sorts of issues,” Kasznica said, adding, for example, that current development has some necessary power equipment on hold with suppliers for three years.

A new project should be built in roughly three to four years based on hyperscaler and investor demand. But ideally, these projects should take two years if supply chain and permitting processes run smoothly.

Advice to developers – look at local regulations “yesterday”

“If there is one piece of advice to developers across the board, it’s to find a local partner in your regulatory compliance team to walk with you hand-in-hand as you go through that two- to three-year process,” Jewart said.

Developers with a potential property under contract – or even close to it – should immediately start looking at local regulations because they can change relatively quickly, and, in many instances, are the biggest barrier to development.

“Make communities know that you’re understanding their concerns and you’re going to address them as best you can; the process will be quicker, and you’ll meet that 2030 date,” Jewart said.

Reprinted with permission from the Pittsburgh Business Times.

To view the PDF, click here.

To view the full article and video, click here.

Non-Solicitation vs. Non-Compete Agreements: When to “Employ” One, the Other, or Both

Firm Alert

(by Steve Silverman and Katerina Vassil)

Employers who want to protect their trade secrets and goodwill can use several types of restrictive covenants to limit departing employees from harming them in future employment. Two of the most common are non-competition (non-compete) and non-solicitation (non-solicit) provisions that can be included in employment agreements. These provisions are often confused by employers and thought to be equally enforceable, but in practice they are not. The following addresses the differences between these two types of restrictions, their respective limitations on enforcement, and why an employer may want to use one over the other, or even both.

Non-competes restrict a former employee’s ability to work for a competitor or start a competing business within a specific time frame and geographic area. Courts are hesitant to uphold non-compete agreements that overly restrict an employee’s ability to engage in work opportunities within their profession. Non-compete agreements are upheld so long as they are of reasonable duration, geographic scope, and necessary to protect legitimate business interests. If a non-compete agreement is overly broad and fails to identify legitimate business interests to be protected, courts will often refuse to enforce them. A reasonable geographic scope limitation is essential to a non-compete because of the nature of the business interest that the agreement seeks to protect.

Conversely, non-solicit agreements allow ex-employees to work for competitors but restrict them from soliciting customers and clients of the former employer for a specified time period. Non-solicit agreements do not typically include explicit geographic limitations. Instead, geographic limitations implicitly exist in non-solicit agreements based on where the specific customers or clients are located. If these customers and clients are scattered in various locations, an explicit geographic limitation could make the non-solicit agreement overly restrictive and provide insufficient protections for the former employer. Instead, because a non-solicit provision identifies a definitive and finite set of business contacts that the employee is prohibited from contacting or soliciting, such a provision is already limited in geographic scope to exclusively where those specific business contacts are.

As a matter of public policy, courts are often reluctant to limit employees’ future employment as an unfair restraint on trade. For that reason, courts will often closely examine an employer’s right to enforce a restrictive covenant before doing so. But generally, courts are more likely to enforce non-solicit clauses than non-competes. By definition, non-solicit agreements pose less restrictions on the employee’s ability to work in their chosen profession. Theoretically, an employee could begin working right next door to their former employer and would not violate the non-solicit agreement so long as they don’t bring the employer’s customers or confidential business information along with them. It is simply easier to convince a judge that an ex-employee can still earn a living and yet honor his or her non-solicit obligations than it is with a non-compete that may force that employee to move across the country to continue plying his or her trade.

Overall, it is also easier for an employer to meet the legal requirements of a non-solicit than a non-compete. For instance, an employer enforcing a non-compete must show that the geographic restriction is reasonable, justified and not overly broad. An employer enforcing a non-solicit, however, need not prove any of those elements since no geographic restriction is required. Instead, that employer must be able to specifically identify which clients and customers his ex-employee can no longer solicit business from and then justify that restriction. But enforcing a non-solicit provision can also have its own challenges, such as clearly defining and proving what is and is not considered a “solicitation.” Hopefully, good drafting of that provision by an experienced attorney will adequately address that issue. Additionally, the non-solicit should include a “non-acceptance” clause prohibiting the employee from accepting business from those clients or customers who initiate contact with the employee first.

Some employers may want to use a “belt and suspenders” approach by utilizing both non-compete and non-solicit provisions in their employment agreements. The thought being if one is not enforceable, then the other may be. The downside is that some courts that invalidate one may think there is overreaching in trying to enforce the other. Typically, whether to utilize both types of provisions depends on the unique needs of the employer and the particular threats posed by the employee given the nature of their position. For instance, it will be easier to enforce both provisions against a C-Suite employee than it will against a salesperson.

A recent case illustrates the differences between non-competes and non-solicits and yet may also throw some of these distinctions for a loop. On February 18, 2026, the Pennsylvania Superior Court issued a non-precedential opinion in First Nat. Trust Co. v. English et al., No. 1109 WDA 2025 (Pa. Super. Feb. 18, 2026), which is in essence a one-stop shop for all things Pennsylvania restrictive covenant law, with analysis and application of the Pennsylvania courts’ historical handling of non-compete and non-solicit agreements. However, the Superior Court included a deviation from years of established case law on non-solicit principles by saying that non-solicits need a geographic limitation to be enforceable.

If relied on by other courts, this would make non-solicit agreements far more complicated to draft to ensure their enforceability. Employers would be forced to make difficult decisions: either include a broad geographic scope in their non-solicits to guarantee capturing an entire customer base that could not be solicited or self-edit to limit those customers by limiting the geographic scope of the provision to avoid overreaching that would render the provision unenforceable. Just as significantly, this requirement could invalidate literally tens of thousands of current employment agreements containing non-solicits without geographic restrictions. In drafting non-solicits with added geographic restrictions, attorneys could be forced to identify the location of every customer the employer-client seeks to prohibit the employee from soliciting. This would also require these agreements to be regularly updated, raising issues of additional consideration and enforceability. Besides impracticability, this would significantly increase the employer’s legal expenses and potentially throw judicial review of these provisions into disarray. For those reasons, hopefully other courts will see that in this particular instance, the Superior Court simply misspoke when noting that a non-solicit must also have a geographic restriction to be enforceable.

The bottom line is that employers must weigh the potential risks versus potential rewards in deciding whether to bind their employees to non-compete or non-solicit provisions, or even both. Regardless, the ultimate goal is to strike a balance by using those restrictive covenants that protect the employer’s legitimate protectible interests that are narrowly tailored enough to be enforceable.

If you have questions about the use of non-competes or non-solicit agreements under existing state law or how to properly enforce them, please contact Steve Silverman at 412-253-8818 or ssilverman@babstcalland.com or Katerina Vassil at 412-394-6428 or kvassil@babstcalland.com.

DEP Publishes Final Environmental Justice Policy and PennEnviroScreen EJ Tool and Methodology Document

FNREL Water Law Newsletter

(by Lisa Bruderly and Ethan Johnson)

On January 3, 2026, the Pennsylvania Department of Environmental Protection (DEP) announced the publishing of the Final Environmental Justice Permit Review and Public Participation Policy (EJ Policy) and the Final PennEnviroScreen EJ Tool and Methodology Document. See 56 Pa. Bull. 81 (Jan. 3, 2026). Both documents were updated from September 16, 2023, interim final versions.

In the 2026 final versions of both documents, DEP’s revisions largely focus on expanding, clarifying, and refining policies and key terms in response to public comments. The core substantive policies remain the same as the 2023 interim versions. For example, in the 2026 final EJ Policy, DEP added to the definition of “environmental justice” that it involves “the centering of environmentally burdened community voices in addressing environmental justice concerns.” DEP also broadened the definition of “community-based organizations” by including any organizations, not just those that are private or public. DEP also clarified that community-based organizations are not officially selected or appointed by DEP. Additionally, DEP expanded EJ area coverage by redefining which census block groups are considered EJ areas. More specifically, DEP revised the criteria so that census block groups that lacked overall scores due to data gaps but were in the top 5% of PennEnviroScreen Pollution Burden Scores qualified as EJ areas. National Pollutant Discharge Elimination System (NPDES) permits for industrial wastewater facilities remained on the list of enhanced public participation trigger projects in the 2026 final version. In a substantive change, DEP reclassified concentrated animal feeding operations as public participation opt-in projects instead of public participation trigger projects.

In the 2026 final EJ Tool and Methodology Document, DEP added violence, political engagement/political disenfranchisement/political powerlessness, gentrification, climate change, industrial developments, and drinking water as additional future considerations, as well as offering strategies on integrating this new data in the future. In considering drinking water, DEP stated that it may be beneficial to include more data on the quality of drinking water systems in the future. The 2026 version recognized the constraints of only using statewide data and discussed the potential development of regional screening tools that could incorporate “hyperlocal” data. Additionally, DEP included a new “Model Updates” section that explained DEP’s intention to update the PennEnviroScreen data “on a periodic basis.” DEP also stated there are “substantial improvements” that could be made to the PennEnviroScreen model that may warrant additional public comment periods.

DEP published a Comment Response Document that includes more detail on these 2026 revisions as well as summaries of the agency’s responses to public comments.

PAPUC Announces Increase in Act 13 Impact Fees

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Matthew Wood and Christina Puhnaty)

On January 24, 2026, the Pennsylvania Public Utilities Commission (PAPUC) published notice of an increase in the Act 13 unconventional gas well impact fees for calendar year 2025. 56 Pa. Bull. 580 (Jan. 24, 2026). Act 13 of 2012 allows counties or municipalities to impose fees on unconventional gas wells within their borders based on a 15-year fee schedule, provided the county or municipality passed an impact fee ordinance. Act 13 requires a significant portion of the funds received from the impact fees to go to the affected local governments, with remaining fees being divided between various state agencies and funds, including the Marcellus Legacy Fund. The impact fees are intended to offset the local impacts of unconventional gas well drilling and are based on the average annual price of natural gas. They are adjusted on an annual basis as appropriate to reflect upward changes in consumer price index if the total number of unconventional wells spud in a given year exceeds the prior year.

PAPUC reported 444 wells spud in 2025 as compared to 309 in 2024. Some categories of PAPUC’s impact fees for 2025 increased significantly as compared to 2024 fees (as much as 116%), while others barely increased. Impact fees for calendar year 2025 for horizontal unconventional gas wells are $59,700 for Year 1, $47,800 for Year 2, $35,800 for Year 3, $23,900 for Years 4–10, and $12,100 for Years 11–15. Horizontal unconventional gas wells pay the yearly fee upon spudding plus two subsequent years. Fees after the first three years are based on production levels. Impact fees for calendar year 2025 for vertical (producing) unconventional gas wells are $11,900 for Year 1, $9,600 for Year 2, $7,200 for Year 3, and $4,800 for Years 4–10. Vertical wells producing gas levels above a 90,000 cubic feet average in any one given month during the current reporting year are subject to 20% of the applicable horizontal well fee rounded to the nearest $100. Active vertical wells are assessed a fee for 10 years.

Impact fees for calendar year 2024 for horizontal unconventional gas wells were $51,800 for Year 1, $40,200 for Year 2, $34,500 for Year 3, $17,200 for Years 4–10, and $5,600 for Years 11–15. Impact fees for calendar year 2024 for vertical (producing) unconventional gas wells were $10,400 for Year 1, $8,000 for Year 2, $6,900 for Year 3, and $3,400 for Years 4–10.

Pennsylvania EQB Accepts Three Oil and Gas Rulemaking Petitions for Further Study

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Matthew Wood and Christina Puhnaty)

At its December 9, 2025, meeting, the Pennsylvania Environmental Quality Board (EQB) voted to accept three oil and gas-related rulemaking petitions for further study. A rulemaking petition by the Clean Air Council (CAC) and Environmental Integrity Project (EIP) seeks to amend 25 Pa. Code ch. 78a to increase unconventional gas well setback distances (CAC and EIP Petition). The CAC and EIP Petition proposes to increase the minimum setback distances for any new unconventional oil and gas well to 3,281 feet from any building (currently 500 feet) and drinking water well (currently 1,000 feet for water supply extraction points, water wells, surface water intakes, and reservoirs), 5,280 feet from the property boundary of any building serving vulnerable populations (not currently addressed), and 750 feet from any surface water of the commonwealth (currently 300 feet from a wetland greater than one acre and 750 feet from certain other waters). As reported in Vol. 42, No. 2 (2025) of this Newsletter, the EQB voted to table the CAC and EIP Petition at its April 8, 2025, meeting, and did not address it for three months, causing the petition to expire, after which CAC and EIP resubmitted it to the EQB on September 18, 2025. The EQB’s acceptance of this rulemaking petition was published in the Pennsylvania Bulletin on December 27, 2025. See 55 Pa. Bull. 8758 (Dec. 27, 2025).

The EQB also voted to accept a petition submitted by Marcellus Shale Coalition (MSC), the Pennsylvania Coal Alliance (PCA), and the Pennsylvania Independent Oil and Gas Association (PIOGA), which requests a rulemaking to clarify how attainable bottom is determined during well plugging and how plugging of oil and gas wells should proceed from that point (MSC, PCA, and PIOGA Petition). This petition seeks clarifications concerning well plugging requirements, given the Pennsylvania Department of Environmental Protection’s (PADEP) priority to plug orphan wells and to receive federal funding for that purpose. The proposed amendments to 25 Pa. Code chs. 78 and 78a would state that an operator is presumed to have made a reasonable effort to achieve the attainable bottom if the well has been cleaned out to at least 200 feet below the coal protective casing (or to the coal seam if no coal protective casing is present) or surface casing, whichever is deeper, and an additional 100 feet of well bore cannot be cleaned out within one eight-hour work shift. The EQB’s acceptance of this rulemaking petition was also published in the Pennsylvania Bulletin on December 27, 2025. See 55 Pa. Bull. 8758 (Dec. 27, 2025).

The EQB also accepted a separate rulemaking petition from MSC that seeks to amend 25 Pa. Code § 78a.58(a) to allow fluids from various oil and gas operations to be processed and stored at the site at which they are produced, at the well site where they are used, or at a well site where they are distributed to other well sites for use in stimulating those wells (MSC Petition). This petition requests these changes to encourage efficient storage, handling, and reuse of fluids from oil and gas operations, arguing the current regulatory language limits PADEP’s ability to authorize certain fluid processing activities. The EQB’s acceptance of this rulemaking petition was also published in the Pennsylvania Bulletin on December 27, 2025. See 55 Pa. Bull. 8759 (Dec. 27, 2025). The CAC and EIP Petition, MSC, PCA, and PIOGA Petition, and MSC Petition are each available on the EQB website here under the December 9, 2025, meeting summary.

For each of these rulemaking petitions, next steps include PADEP’s preparation of a report evaluating the petition that includes a recommendation whether the EQB should approve the actions requested in the petition, with the anticipated date EQB will consider the proposed rulemaking. Petitioners are sent a copy of PADEP’s report and are permitted to submit a written response. PADEP prepares a recommendation to the EQB based on the report and comments received from the petitioner.

PADEP Publishes Draft Updated Erosion and Sediment Control Policy

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Matthew Wood and Christina Puhnaty)

On December 6, 2025, the Pennsylvania Department of Environmental Protection (PADEP) published for public comment a draft revised policy for erosion and sediment (E&S) control and stormwater management for earth disturbance associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities (Draft Guidance). 55 Pa. Bull. 8318 (Dec, 6, 2025). The Draft Guidance applies to both unconventional and conventional operators.

The draft policy would replace the existing 2012 version and includes permitting process requirements for general and individual erosion and sediment control permits. It also outlines regulatory requirements for erosion and sediment control, post construction stormwater management, stabilization, and restoration, co-permittees, and pre-construction meetings.

Regarding revisions to the existing policy, PADEP said at the September 2025 Oil and Gas Technical Advisory Board meeting it is not a “radical departure” from the way the program is currently being administered; that many of the changes are organizational. Oil and Gas TAB Meeting (Sept. 11, 2025). Specific substantive changes include increasing the distance by which support facilities, e.g., impoundments, staging areas, tank farms, auxiliary roads, parking lots, or borrow areas, are considered substantially connected and part of a project from 900 feet to 1,320 feet.

PADEP also adds details concerning filing deed instruments for stormwater control measures after a project is completed. For projects that do not require a well permit under the 2012 Oil and Gas Act, for any property containing a post-construction stormwater management plan with stormwater control measures (PCSM SCM), the E&S permittee or co-permittee must record an instrument with the County Recorder of Deeds Office. The purpose of the instrument is to

identify the PCSM SCM, provide for necessary access related to long-term operation and maintenance for PCSM SCMs and provide notice that the responsibility for long term operation and maintenance of the PCSM SCM is a covenant that runs with the land that is binding upon and enforceable by subsequent grantees and provide proof of filing with the [Notice of Termination] under 25 Pa. Code § 102.7(b)(5).

Draft Guidance at 5. For projects that require a well permit, “the permittee must certify that they are responsible for long-term operation and maintenance of PCSM SCMs remaining on the well site after post drilling restoration in accordance with the PCSM/[site restoration] Plan included in the [PADEP]-approved E&S permit,” in addition to other requirements after post-plugging restoration if any PCSM SCMs remain on site. Id.

PADEP incorporated references to 25 Pa. Code ch. 78a, the regulations that govern unconventional wells that had not been promulgated in 2012 when the current policy was published. PADEP also added language stating that if an operator restores the well site within the nine-month statutory period, it is not required to comply with the requirements to restore the site to approximate original conditions, even though it still must stabilize the site to permanent stabilization requirements in 25 Pa. Code ch. 102. PADEP accepted comments on the Draft Guidance through January 20, 2026, and the Draft Guidance will become final when it is published in the Pennsylvania Bulletin. The Draft Guidance and current 2012 guidance are available on PADEP’s eLibrary website here (in the Technical Guidance Draft Documents and Technical Guidance Final Documents folders, respectively).

PADEP Publishes Renewal of General NPDES Permit for Stormwater Discharges Associated with Mining Activities

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)

The Pennsylvania Department of Environmental Protection (PADEP) has reissued BMP GP-104, its General NPDES Permit for Stormwater Discharges Associated with Mining Activities, for a new five-year term with an effective date of March 28, 2026, and an expiration date of March 27, 2031. Pursuant to 25 Pa. Code § 92a.32, a National Pollutant Discharge Elimination System (NPDES) permit is required for stormwater associated with mining activity. BMP GP-104 is intended to provide NPDES permit coverage for eligible coal and noncoal mining and reclamation authorizations to address stormwater associated with mining activities. Both bituminous and anthracite coal mining operations are eligible for coverage under BMP GP-104. Discharges that do not qualify for coverage under BMP GP-104 include discharges from non-stormwater sources, discharges to high quality or exceptional value designated waters, and discharges to exceptional value wetlands. PADEP’s District Mining Offices retain authority to require individual NPDES permits for any other discharges deemed to be more suitably controlled under an individual NPDES permit because of water quality concerns and specific effluent limits that must be applied.

In this renewal of BMP GP-104, PADEP clarified an oversight in the prior version of the general permit that PADEP admits in its 2026 Renewal Fact Sheet likely caused some sites to be overdesigned with respect to erosion and sedimentation controls. The prior BMP GP-104 arguably required all facilities subject to the general permit to meet the 10-year, 24-hour design standard for erosion and sedimentation controls, a more onerous requirement only required by regulation for coal mining and large noncoal permits. The new BMP GP-104 clarifies that the following permit types may meet the less stringent two-year, 24-hour standard specified in 25 Pa. Code ch. 102: small noncoal, noncoal short term construction, bluestone, reclamation of forfeited noncoal mines, and government financed construction contracts. The renewed BMP GP-104 also requires additional operation and maintenance assurances for permanent stormwater control structures that will remain post-mining, a requirement previously reserved only for impervious surfaces remaining post-mining. Finally, the new BMP GP-104 requires permittees to register for electronic submittal of discharge monitoring reports.

The new and prior versions of the BMP GP-104 and supporting documentation are available on PADEP’s eLibrary here.

PADEP Issues Final Revised Environmental Justice Policy

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)

On January 3, 2026, the Pennsylvania Department of Environmental Protection (PADEP) published its final revised Environmental Justice Policy, as well as updates to the Pennsylvania Environmental Justice Mapping and Screening Tool (PennEnviroScreen) Methodology Documentation. See 56 Pa. Bull. 81 (Jan. 3, 2026); 56 Pa. Bull. 83 (Jan. 3, 2026). The final Environmental Justice Policy (TGD No. 015-0501-002) is now in effect. PADEP had been operating under its Interim-Final Environmental Justice Policy since 2023 while soliciting comments on the policy from the public, as reported in Vol. 40, No. 4 (2023) of this Newsletter. PADEP reported that it received over 700 comments during the comment period and published a Comment Response Document alongside the final policy.

The final policy uses PennEnviroScreen to determine whether facilities are in environmental justice areas based on 32 environmental, health, socioeconomic, and demographic indicators, as explained in the PennEnviroScreen Methodology Documentation (TGD No. 015-0501-003). Environmental effects indicators include proximity to coal mines, abandoned mine lands, land remediation projects, oil and gas wells, and railroads. The data sets contained within PennEnviroScreen are updated on a rolling basis. The Environmental Justice Policy also identifies permit types that require enhanced public participation. “Trigger Projects” that are automatically subject to the policy include various mining permits, including those for bituminous and anthracite underground and surface mines, large industrial mineral surface and underground mines, coal refuse disposal and processing, large coal preparation facilities, and the use of biosolids for reclamation. National Pollutant Discharge Elimination System permits for industrial wastewater facilities discharging at or above 50,000 gallons per day and air permits for new, major sources of hazardous air pollutants or criteria pollutants are also considered trigger projects. On its own initiative or upon request from a community, PADEP may subject other projects to the new policy as “Opt-In Projects.”

The final Environmental Justice Policy now defines environmental justice areas as census block groups with a PennEnviroScreen score equal to or above the 80th percentile score or census block groups lacking overall scores due to data gaps, but with the highest 5% of PennEnviroScreen Pollution Burden Scores. Under the prior Interim-Final policy, only census block groups with a PennEnviroScreen score equal to or above the 80th percentile score were considered environmental justice areas.

PADEP’s Environmental Justice TGDs and the Comment Response Document are available on PADEP’s eLibrary here.

House Bill 416 Expedites Permitting Procedures, Enhances PAPUC Oversight, and Repeals RGGI

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)

House Bill 416 was signed into law by Governor Josh Shapiro on November 12, 2025. This bill is part of the Pennsylvania budget package for Fiscal Year 2025–26. This bill includes several significant changes to industry regulations, including expedited permitting processes for certain air and water permits, measures to ensure grid reliability, and the repeal of the Regional Greenhouse Gas Initiative (RGGI) regulations.

House Bill 416 repeals the regulation promulgated by the Pennsylvania Department of Environmental Protection (PADEP) for a carbon cap-and-invest program linked to RGGI regulations found in 25 Pa. Code ch. 145, subch. E. PADEP promulgated this regulation in 2022, but it was never implemented due to various legal challenges. For a summary of Pennsylvania’s RGGI rule, see Vol. 39, No. 2 (2022) of this Newsletter. The Pennsylvania Commonwealth Court ruled that the regulation constituted an unconstitutional tax in 2023, which the litigants appealed to the Pennsylvania Supreme Court. For a summary of the commonwealth court’s decision, see Vol. 40, No. 4 (2023) of this Newsletter. Upon the passage of House Bill 416, the Commonwealth filed applications to discontinue its appeal given the legislative abrogation of the regulation at issue. On January 6, 2026, the Pennsylvania Supreme Court issued a per curiam order granting PADEP’s application to discontinue the appeal in light of House Bill 416. See Bowfin v. Dep’t of Env’t Prot., Nos. 106 MAP 2023, 107 MAP 2023, 2025 WL 3854118 (Pa. Jan. 6, 2026) (per curiam) (mem.). The supreme court also dismissed Constellation Energy’s appeal and, in doing so, vacated the commonwealth court’s decision. See Shirley v. Pa. Legis. Ref. Bureau, 113 MAP 2023, 114 MAP 2023, 115 MAP 2023, 116 MAP 2023, 2025 WL 3854690 (Pa. Jan. 6, 2026) (per curiam) (mem.).

The bill also accelerates permitting processes for specific air and water-related general permits. For general permits under the Air Pollution Control Act, PADEP must respond within 20 days, and a final determination must be made within 30 days of the application (if technical deficiencies are addressed within 25 days of submission). If PADEP has not issued a final determination within 30 days of submission, the application is deemed approved and the applicant may proceed under the provisions of the general permit. Similar provisions apply to general National Pollutant Discharge Elimination System permits, where PADEP must respond within 40 days and a final determination must be made within 60 days (if technical deficiencies are addressed within 50 days of submission).

Finally, the bill requires the Pennsylvania Public Utility Commission (PAPUC) to investigate and validate load forecasts submitted by utility companies to the PJM Interconnection. The PAPUC must also coordinate with other states and PJM to ensure accurate system planning. This additional oversight is necessary due to anticipated growth in electricity demand from the construction of new data centers, vehicle and building electrification, and other large load additions.

Cue Lee Corso: Reprieve From Heightened Standard To Enforce Online Arbitration May Be Short Lived

The Legal Intelligencer

(by Casey Alan Coyle and Ryan McCann)

Lee Corso was a fixture in college football for over 60 years, first as a coach and then as an analyst on ESPN’s College GameDay program. Coach Corso is known to many casual sports fans for his headgear segment, where he would put on the head of the mascot of the team he picked to win the signature game of the week—a feat he accomplished 431 times throughout his illustrious broadcasting career. But for diehard College GameDay fans, Coach Corso is synonymous with his catchphrase “Not so fast, my friend!,” which he often employed (with glee) when disagreeing with a pick from another analyst. While the college football season does not kick off for another six months, Coach Corso’s catchphrase is apropos because the reprieve from the heightened standard to enforce online arbitration agreements in Pennsylvania may be short lived.

Chilutti v. Uber

The story begins in 2016, when a woman registered for an Uber rider account. As part of the registration process, the woman agreed to Uber’s hyperlinked terms and conditions, which, in turn, contained an arbitration agreement. Such agreements are commonly referred to as “browsewrap” agreements. In contrast, “clickwrap” agreements are where a website presents users with specified contractual terms on a pop-up screen and users must check a box explicitly stating “I agree” in order to proceed. Three years later, the woman was injured while riding in an Uber. She and her husband subsequently filed a negligence suit against the company and its subsidiaries. The defendants filed a petition to compel arbitration, arguing that the terms and conditions of Uber’s app required the couple to arbitrate their claims. The trial court granted the petition and stayed the matter pending arbitration, and the couple appealed to the Superior Court.

A Superior Court panel reversed, holding for the first time that an order compelling arbitration constitutes a collateral order, and thus, is immediately appealable. See Chilutti v. Uber Technologies, No. 1023 EDA 2021, 2022 WL 6886984, at *5 (Pa. Super. Ct. Oct. 12, 2022) withdrawn (Pa. Super. Ct. Dec. 27, 2022). Turning to the merits, the panel adopted a new, “strict[]” standard “to demonstrate a party’s unambiguous manifestation of assent to arbitration,” under which an online arbitration agreement is only valid if: (1) “explicitly stating on the registration websites and application screens that a consumer is waiving a right to a jury trial when they agree to the company’s ‘terms and conditions,’ and the registration process cannot be completed until the consumer is fully informed of that waiver;” and (2) “when the agreements are available for viewing after a user has clicked on the hyperlink, the waiver should not be hidden in the ‘terms and conditions’ provision but should appear at the top of the first page in bold, capitalized text.” Chilutti, No. 1023 EDA 2021, slip op. at 30. In doing so, however, the panel never addressed the Federal Arbitration Act (“FAA”) beyond a passing reference to the statute. The FAA “places arbitration agreements on equal footing with other contracts.” Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 67 (2010). Therefore, per the FAA, arbitration agreements may only be invalidated by “generally applicable contract defenses, such as fraud, duress, or unconscionability.” Id. at 68. In other words, the FAA prohibits courts from creating special rules to enforce arbitration agreements.

The Superior Court subsequently granted reargument and withdrew the panel’s opinion. By a vote of 6-3, the en banc Superior Court vacated the trial court’s order, with the majority effectively adopting the panel’s withdrawn opinion as its own. Chilutti v. Uber Techs., Inc., 300 A.3d 430, 439 (Pa. Super. Ct. 2023) (“Chilutti I”), rev’d, ___ A.3d ___, 2026 WL 156181 (Pa. 2026) (“Chilutti II”). Uber sought further review from the Pennsylvania Supreme Court, and on August 27, 2024, the Supreme Court granted Uber’s Petition for Allowance of Appeal.

Cobb v. Tesla

Approximately a month later, on September 26, 2024, the Philadelphia County Court of Common Pleas issued its Order and Opinion in Cobb v. Tesla, Inc., Case ID 231202254. There, an employee filed a class action against Tesla following a data breach at the company where the personal identifying information of the employee and others were stolen. Tesla responded by filing a petition to compel arbitration based on an arbitration provision contained in an employment agreement that the employee signed digitally before starting at the company. The trial court denied the petition, and in the process, extended the novel Chilutti I standard beyond the browsewrap agreement context. Relying on Chilutti I, the trial court held that the arbitration provision failed to provide “reasonably conspicuous notice” of the terms that would bind the employee, and therefore, was unenforceable, because the provision “is in small font, is not underlined, capitalized or bolded, and is not set off with a heading or in a different font color,” among other reasons. Cobb, slip op. at 4. The trial court further held, albeit in a conclusory manner, that the “FAA does not preempt” the elevated standard established by Chilutti I. Id. at 6. However, at least two federal district courts reached the opposite conclusion in separate thorough and well-reasoned decisions. Dieffenbach v. Upgrade, Inc., No. 4:23-CV-1427, 2025 WL 1239238, at *8 (M.D. Pa. Apr. 29, 2025) (per Munley, J.) (Chilutti I “is . . . in conflict with the language of the FAA”); Happy v. Marlette Funding, LLC, 744 F.Supp.3d 403, 412 (W.D. Pa. 2024) (per Paradise Baxter, J.) (finding the precedential effect of the Superior Court’s decision in Chilutti I “questionable for a number of reasons,” including that “the FAA preempts state laws that condition [] the enforceability of an arbitration clause upon a specific notice requirement” (internal citation and quotation marks omitted)).

Tesla appealed the decision to the Superior Court, which, unlike the plaintiff in Chilutti I, it had the ability to do as of right. The case was argued before a three-judge panel on October 21, 2025. While that decision was pending, the Pennsylvania Supreme Court issued its long awaited opinion in Chilutti II on January 21, 2026, reversing the en banc Superior Court and holding that the trial court’s order granting Uber’s petition to compel arbitration and staying court proceedings does not qualify as a collateral order. 2026 WL 156181, at *7. Because the Supreme Court ruled that the Superior Court lacked jurisdiction over the appeal, it did not address the substantive issues raised in Chilutti I, namely, whether the “strict[]” standard adopted by the Superior Court to enforce online arbitration agreements violated the FAA.

Then, on February 18, 2026, the Superior Court issued its non-precedential opinion in Cobb, holding that the trial court erred in denying Tesla’s petition to compel arbitration. No. 2879 EDA 2024, 2026 WL 458470, at *4 (Pa. Super. Ct. Feb. 18, 2026). The panel began by acknowledging that, while the trial court was influenced by its reading of Chilutti I, “Chilutti I is no longer controlling law.” Id. at *3 n.5. The panel therefore applied what it termed as the “well-established test” for determining whether a valid agreement to arbitrate exists—namely, that “courts apply state law principles of contract law.” Id. at *4. When applying those principles, the panel held that there was a valid agreement. However, the trial court did not address whether the parties’ dispute falls within the scope of the arbitration agreement—which is the second part of the two-part test to determine whether to compel arbitration—and according to the panel, neither party offered “substantive advocacy on the issue or provided “any pertinent legal authority.” Id. at *5. The panel thus remanded the matter to the trial court for consideration of that issue.

But the most significant passage of the panel’s opinion was reserved to a footnote. In footnote 6, the panel wrote: “Assuming arguendo that the general principles articulated by this Court in Chilutti I represent the current state of the law, notwithstanding the fact that the case has been overturned, we do not find that the particularized requirements for conspicuity of arbitration agreements outlined in that case apply here” because Chilutti I “arose from, and pertained to, a specific context, namely, a browsewrap agreements.” Id. at *4 n.6. As such, “even if the legal analysis underlying Chilutti I is sound as to the enforceability of browsewrap agreements, it simply has no bearing outside that peculiar context.” Id. At least one other Pennsylvania court similarly interpreted the now vacated decision in Chilutti I as applying to browsewrap agreements only. Eichlin v. GHK Co., 746 F. Supp. 3d 247, 255 (E.D. Pa. 2024) (“The Court finds that Chilutti has no import on the instant case because the decision in Chilutti is framed in the context of lengthy and hidden browsewrap agreements, not two-page written buyer’s orders like the one at bar.”).

What’s Next

Many in the defense bar gave a “sigh of relief” after the Supreme Court’s ruling in Chilutti II. Riley Brennan, “Arbitration Law in Pa. Sees ‘Reset’ Following High Court’s Uber Decision, Lawyers Say,” The Legal Intelligencer (Jan. 27, 2026). But that excitement may soon be short lived because the Superior Court’s panel in Cobb provides a pathway to revive the now defunct standard in Chilutti I. Therefore, and with the possibility of further appellate review in Cobb (the respective deadlines for reargument and allocatur have yet to expire), the reprieve afforded by Chulitti II may prove temporary. Cue Lee Corso.

—————–

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 a former law clerk to Chief Justice Emeritus Thomas G. Saylor of the Pennsylvania Supreme Court. Contact him at 267-939-5832 or ccoyle@babstcalland.com.

Ryan McCann is a litigation associate at the firm. He focuses his practice on complex commercial litigation, environmental litigation, and construction disputes. Contact him at 412-773-8710 or rmccann@babstcalland.com.

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