Articles, Alerts & Perspectives Archive

PADEP Issues Clarification for Blast Site Buffer Area in Noncoal Mining Operations Rules

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(by Joe Reinhart, Sean McGovern and Christina Puhnaty)

The Pennsylvania Department of Environmental Protection (PADEP) issued a final rule correcting an inconsistency between the noncoal mining regulations in 25 Pa. Code ch. 77 and the storage, handling, and use of explosives regulations in 25 Pa. Code ch. 211. Noncoal mine operators are required to conduct blasting operations with explosives in compliance with these two chapters. Chapter 211 provides that when explosives are being loaded into drill holes ahead of a blast, the blast site plus a buffer zone of 50 feet around the blast site must be cleared of all persons and equipment except those necessary to prepare for the blast. Prior language at 25 Pa. Code § 77.564(g)(7), however, required “work within a radius of 50 feet of the blast area” to cease, which PADEP determined resulted in “a larger disruption of activities at a noncoal mine than is necessary to ensure mine worker and public safety, which was not intended and is not consistent with the same safety requirements in Chapter 211.” Exec. Summary, Final-Omitted Rulemaking: Blast Site Clarification for Noncoal Mining Operations (Nov. 12, 2024). PADEP has revised section 77.564(g)(7) to resolve this inconsistency by replacing the term “blast area” (defined in 25 Pa. Code § 211.101 as “the area around the blast site that must be cleared and secured to prevent injury to persons and damage to property”) with “blast site” (defined in section 211.101 as “the specific location where the explosives charges are loaded into the blast holes”).

Environmental Groups’ Petition to Amend Regulations to Increase Setbacks from Oil and Gas Wells Clears Initial Regulatory Requirements

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Matthew C. Wood)

On November 21, 2024, the Pennsylvania Department of Environmental Protection (PADEP) notified the Clean Air Council (CAC) and Environmental Integrity Project (EIP) that the agency had reviewed their rulemaking petition requesting amendments to 25 Pa. Code Chapter 78a and determined that it complies with the petition policy of the Environmental Quality Board (EQB). Letter from PADEP (Nov. 21, 2024). Specifically, in October 2024, CAC and EIP submitted a rulemaking petition to increase the minimum setback distances from unconventional oil and gas wells to 3,281 feet from any building and drinking water well; 5,280 feet from any building serving vulnerable populations, e.g., schools, daycare centers, and hospitals; and 750 feet from any surface water of the Commonwealth. See Clean Air Council and Environmental Integrity Project Petition (Oct. 22, 2024) (Petition). Current setback requirements include 500 feet from buildings and 1,000 feet from water supply extraction points.

In their petition, CAC and EIP cite the 2020 43rd Statewide Investigating Grand Jury Report (43rd Grand Jury Report) that concluded, among other things, that the Commonwealth “take action to expand the no-drill zone between fracking and homes from 500 to 2,500 feet and to adopt a more protective no-drill zone of 5,000 feet for schools and hospitals.” Petition at 2 (citing the 43rd Grand Jury Report at 93–94). They also allege that the people living near unconventional oil and gas wells experience negative health consequences, that the wells release dangerous pollution, and the wells contaminate surface and groundwater, and for these reasons, the EQB should increase the minimum setbacks to protect public health and public resources. See generally id. Governor Shapiro has subsequently reported implementing other recommendations from the 43rd Grand Jury Report that he oversaw as then-Attorney General. See, e.g., Press Release, PADEP, “Shapiro Administration, DEP Requires All Fracking Companies to Be More Transparent About Chemicals Used in Drilling” (Jan. 26, 2024).

The petition must clear a number of regulatory hurdles prior to any proposed rulemaking to amend the relevant regulations. Initially, EQB will review the petition at its next regularly scheduled meeting, where CAC and EIP will have an opportunity to offer a presentation on why EQB should accept the petition and PADEP will make a recommendation to EQB whether to accept the petition. 25 Pa. Code § 23.4. EQB can refuse to accept the petition for certain reasons, enumerated in 25 Pa. Code § 23.5, but if EQB accepts the petition, notice of acceptance will be published in the Pennsylvania Bulletin within 30 days. Id. § 23.6. In addition, PADEP has 60 days to prepare a report evaluating the petition, including a recommendation on whether EQB should approve the action requested in the petition; if changing a regulation, PADEP must identify the anticipated date EQB will consider a proposed rulemaking. Id. PADEP must send the report to CAC and EIP, who may submit a written response within 30 days, id. § 23.7, and the report and any CAC and EIP comments will inform PADEP’s ultimate recommendation, id. § 23.8.

If PADEP recommends regulatory amendments, the agency will prepare a proposed rulemaking within six months of sending the report to CAC and EIP; if it does not recommend amendments, PADEP will make a presentation at to EQB at “the first meeting occurring at least 45 days after [PADEP] mailed its report to the petitioner.” Id. After cancelling its December 2024 and February 2025 meetings, EQB’s next meeting is set for March 11, 2025. Meeting materials will be posted to PADEP’s website.

Shapiro Administration Launches Online Resource to Streamline Access to and Provide Information About State Grant Opportunities

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Matthew C. Wood)

On October 30, 2024, the Shapiro administration announced that Secretary for Administration Neil Weaver and the Commonwealth Office of Digital Experience (CODE PA) had launched a new tool to assist stakeholders in learning more about and applying for grants under the more than 300 state grant programs. Press Release, Pa. Office of Admin., “Shapiro Administration Launches New One-Stop Grant Search Tool to Streamline Pennsylvanians’ Access to Government Funding Opportunities” (Oct. 30, 2024). According to the administration, the “Discover State Grants” website is intended to be a comprehensive resource that allows prospective applicants to sort and filter information specific to their needs and will provide links and important information about each grant program to assist in the application process. Id.

The administration said it is working to increase participation in grant programs and “level the playing field for state and federal dollars to benefit communities, small businesses, schools, non-profits, and many others across Pennsylvania.” Id. The website lists numerous grant categories that cover a wide swathe of subcategories, including grants specifically related to the oil and gas industry. For example, grants recently or currently offered under the energy category include the Methane Emissions Reduction Program General Assistance Grant (for operators of 11 or more wells), Methane Emissions Reduction Program Small Operator Assistance Grant (for operators of 10 or fewer wells), and Orphan Oil and Gas Well Plugging Grant Program (for qualified well pluggers). Other categories include Environmental and Water, Law, Justice, and Legal Services, and Transportation. See Commw. of Pa., “Discover State Grants,” here.

Per the Press Release, CODE PA will continue to work on improving the Electronic Single Application, “a shared platform that manages the application and administration processes for grants by multiple state agencies,” and technical challenges identified by grant applicants. More information about CODE PA and its ongoing work on Discover State Grants and other initiatives is available here.

PADEP Releases Guidance and Additional Information on Industrial Decarbonization Grant Program

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Matthew C. Wood)

In November 2024, the Pennsylvania Department of Environmental Protection (PADEP) released guidance regarding its Reducing Industrial Sector Emissions in Pennsylvania (RISE PA) program. RISE PA is an industrial decarbonization grant program funded by a $396-million award through the 2022 Inflation Reduction Act’s Climate Pollution Reduction Grants. The grants seek to fund activities that will reduce greenhouse gas (GHG) emissions from the industrial sector by over 8 million metric tons by 2050. Eligible projects must reduce GHG emissions through industrial electrification, energy efficiency technologies, industrial process technologies, fugitive emission reduction technologies, switching to low-carbon fuels, onsite renewable energy technologies, carbon capture, utilization, and storage technologies, or other technologies to qualify (as determined by RISE PA). PADEP is offering grants for Small-, Medium-, and Large-scale decarbonization projects. The Small-scale award track will only be available to small- and medium-sized manufacturers (500 or fewer employees at the plant site). There is no minimum GHG emissions reduction threshold for Small-scale projects, but the amount of GHG emissions reduction will be considered during the evaluation process. For Medium- and Large-scale grants, applicants must achieve at least a 20% annual facility-wide reduction in GHG emissions per project. Small-scale projects will be eligible for up to $40 million, Medium-scale projects up to $100 million, and Large-scale projects up to $220 million. PADEP plans to begin accepting applications in early 2025, with application review and selection anticipated to begin in the middle of the year.

The future of the program, however, is now uncertain. On the first day of his second term in office, President Trump signed Executive Order No. 14,154, “Unleashing American Energy,” 90 Fed. Reg. 8353 (Jan. 20, 2025), which, among many other things, directed federal agencies to pause clean energy and climate-related funding under the Inflation Reduction Act. While the funding for RISE PA had been allocated to Pennsylvania for the program, the funding has not yet been disbursed.

In a Q&A Webinar on January 24, 2025, PADEP addressed the uncertainty. PADEP noted that it has a fully executed grant award agreement in place with the U.S. Environmental Protection Agency, and that the award cannot lawfully be terminated as long as PADEP maintains compliance with the terms and conditions of the award. While PADEP believes that pausing of disbursements required by the executive order does not directly mention the Climate Pollution Grant Program, the agency admits that there is still uncertainty regarding its receipt of the disbursements. Despite the uncertainty, however, PADEP is moving forward with implementing the program.

U.S. EPA Approves Class VI Injection Well Primacy in West Virginia

Environmental Alert

(by James Curry, Christopher (Kip) Power, Gary Steinbauer, Gina Falaschi Buchman and Alexandra Graf)

On February 26, 2025, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register approving West Virginia’s application for Class VI injection well primary enforcement authority (primacy) pursuant to the Safe Drinking Water Act (SDWA) underground injection control (UIC) program. West Virginia is the first state in the Eastern U.S. to receive primacy. Primacy gives West Virginia the responsibility of overseeing and implementing a Class VI permitting program. Class VI wells are used to inject carbon dioxide into deep rock formations for permanent storage, known as carbon capture and sequestration (CCS), which is a tool used to reduce carbon dioxide emissions into the atmosphere. Point source emissions such as those from industrial facilities or power generation are common sources of carbon dioxide emissions and can be candidates for CCS. North Dakota, Wyoming, and Louisiana have already been granted Class VI primacy, and Alaska and Arizona currently have primacy applications pending with EPA. EPA has pledged to “fast-track” the agency’s review and approval of other Class VI well primacy applications.

The Class VI injection well permitting process generally starts with the applicant submitting an application, which undergoes a completeness review to ensure all required information is included. An applicant may receive a notice of deficiency or a request for additional information regarding their application. The application then undergoes a technical review to ensure the project does not pose a risk to drinking water. EPA indicates that it aims to complete its review of the permit application and issue Class VI permits “within approximately 24 months,” but states that have received Class VI permit primacy have completed the review process more quickly. Class VI well permit application requirements include site characterization, modeling to determine the impact of injection activities through the lifetime of the operation, well construction requirements, testing and monitoring throughout the life of the project, emergency and remedial response plans, operating requirements to prevent endangerment to human health or drinking water, and financial assurance mechanisms. If the application passes technical review, a draft permit is prepared and is made available for public comment period prior to the final permit being issued. Other requirements that apply to CCS projects in West Virginia are set forth in the West Virginia Underground Carbon Dioxide Sequestration and Storage Act, W.Va. Code § 22-11B-1, et seq.

CCS projects are eligible for the 45Q federal tax credit. The entity eligible to claim the tax credit is the owner of the capture equipment, and eligibility is determined based on the type of facility and its annual carbon capture thresholds. The eligibility thresholds are 1,000 metric tons of carbon dioxide for direct air capture facilities, 12,500 metric tons for industrial facilities, and 18,750 metric tons for electric generating units. Eligible projects that begin construction before January 1, 2033, can claim the tax credit for up to 12 years after being placed in service.

For more information on West Virginia’s Class VI injection well primacy, please contact any of the attorneys listed or your Babst Calland client relationship attorney.

PFAS: A New Four-Letter Word in Environmental Law? Updates from 2024 and Predictions for 2025

The Drill Bit Magazine

(by Sloane Wildman, Joseph Schaeffer and Jessica Deyoe)

The final year of the Biden administration saw several significant developments related to the regulation of per- and polyfluoroalkyl substances, more commonly known as PFAS. These developments included the U.S. Environmental Protection Agency’s designation of the two most common PFAS compounds as hazardous substances under federal cleanup laws and its limitation of six PFAS compounds under federal drinking water regulations, among others. The past year also saw a growing number of PFAS-related lawsuits, which are currently in various stages of litigation. What could happen to all these developments in 2025? Can the Trump administration change these rules and policies? What about the numerous PFAS related lawsuits that have been filed in the past year? This update takes a look at some of the more significant PFAS-related developments from the past year and considers what might happen in 2025 and beyond.

What are PFAS and what were the prior administration’s PFAS priorities?

The term “PFAS” encompasses thousands of manmade chemicals. PFAS compounds have been widely used for decades in various applications, including manufacturing water-, stain-, and heat-resistant consumer products, e.g., waterproof clothing and food packaging, and as ingredients in aqueous film forming foams (known as AFFF) used to extinguish certain kinds of chemical fires. There is research indicating that exposure to certain PFAS, which are prevalent and persistent in the environment, may cause various health-related impacts. In an effort to address the impacts related to PFAS, in 2021, the Biden administration published a “PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024” identifying a number of regulatory priorities that the administration planned to take during its four-year term. The Strategic Roadmap and annual progress reports are available here.

What were some of the most significant federal regulatory developments in 2024?

Two of EPA’s more significant regulatory actions in 2024 occurred almost back-to-back in April with its designation of two PFAS compounds as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and its rule imposing regulatory limits on six PFAS compounds under the Safe Drinking Water Act (SDWA). We reported on both of these developments in updates available here and here.

Specifically, in April 2024, the EPA published a final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and their salts and structural isomers, as “hazardous substances” under CERCLA, available here. As we reported previously, EPA’s designation of PFOA and PFOS as CERCLA hazardous substances was unprecedented and controversial because it was the first time the Agency used its statutory authority under CERCLA to designate a hazardous substance. Until that point, hazardous substances under CERCLA had only been defined by reference to other statutes (e.g., the Clean Water Act and the Resource Conservation and Recovery Act). Among other things, the rule requires parties to report unpermitted releases of PFOA and/or PFOS at or above the applicable “reportable quantity” (one pound or more within a 24-hour period) to federal, state, and local authorities. It also imposes certain obligations on federal agencies when selling and transferring federally owned real property. And most significantly, the rule provides the federal government with additional authority under CERCLA to address PFOA/PFOS contamination in the environment, allows private parties who conduct cleanups consistent with CERCLA’s National Contingency Plan to seek to recover PFAS cleanup costs from other potentially responsible parties (PRPs), and potentially affects closed sites with existing remedies. At the same time EPA published the final CERCLA rule, it issued a policy memorandum, “PFAS Enforcement Discretion and Settlement Policy Under CERCLA” summarizing the Agency’s intent to use its discretion to not “pursue entities where equitable factors do not support seeking response actions or costs under CERCLA . . . .” and generally focus on so-called “major PRPs” – parties who, in EPA’s view, “have played a significant role in releasing or exacerbating the spread of PFAS into the environment, such as those who have manufactured PFAS or used PFAS in the manufacturing process, and other industrial parties.” Some industries that would be protected under this Policy, including publicly owned treatment works and publicly owned/operated municipal solid waste landfills, expressed concern that the policy provides only discretionary rather than mandatory protection and that it does not prevent other PRPs from pursuing claims against them.

Also in April 2024, EPA published a National Primary Drinking Water Regulation establishing the first-ever national enforceable drinking water standards for six PFAS under the Safe Drinking Water Act (SDWA), available here. The rule sets enforceable Maximum Contaminant Levels (MCLs) and non-enforceable health-based Maximum Contaminant Level Goals (MCLGs) for PFOA and PFOS, and four additional PFAS compounds – perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid and its ammonium salt (HFPO-DA, commonly known as GenX chemicals), and perfluorohexane sulfonic acid (PFHxS). EPA set MCLs (the maximum concentrations allowed in drinking water that can be delivered to the users of a public water system) at 4.0 parts per trillion (ppt) for PFOA and PFOS and 10 ppt for PFNA, PFHxS and HFPO-DA. In addition, EPA set MCLGs at 0 parts per ppt for PFOA and PFOS and at 10 ppt (same as the enforceable MCL) for PFNA, PFHxS and HFPO-DA. Under the rule, public water systems are given until 2027 to complete initial monitoring of each of the six PFAS, followed by ongoing compliance monitoring, and until 2029 to implement solutions to reduce PFAS where MCLs are exceeded. After those five years, public water systems that exceed one or more of the MCLs must take action to reduce PFAS levels and provide notice to the public of the violation.

In 2024, EPA proposed other rules related to PFAS that have not yet been finalized. For example, in February 2024, EPA published two proposed rules to address PFAS and other emerging contaminants under the authority of the Resource Conservation and Recovery Act (RCRA). First, EPA proposed to add nine PFAS (including their salts and structural isomers) to the list of “hazardous constituents” in Appendix VIII of 40 C.F.R. Part 261 that would need to be considered in facility assessments and, where necessary, considered in any further investigation and cleanup through the corrective action. Second, EPA also proposed to clarify, by regulation, that emerging contaminants – including PFAS – can be addressed under RCRA’s Corrective Action Program. For more information about the proposed RCRA rules, see our previous update, available here.

What were some of the major developments in PFAS litigation?

Regulatory developments directly influenced litigation developments. While the regulated community pushed back, plaintiffs’ attorneys relied on the new regulations to identify new targets for litigation and prove the elements of their cases. Overall, the prior year signaled three major developments in PFAS litigation.

First, a variety of stakeholders pushed back at the Biden administration’s efforts to regulate PFAS. In American Water Works Association v. U.S. Environmental Protection Agency, No. 24-1188 (D.C. Cir. 2024), a coalition of industry and major water utilities challenged the EPA’s regulation of PFAS under the SDWA. They argue that the Agency set MCLs for six PFAS beyond what are technologically and economically feasible and, further, adopted an unprecedented “hazard index” approach to regulating two additional PFAS. And in Chamber of Commerce v. U.S. Environmental Protection Agency, No. 24-1193 (D.C. Cir. 2024), industry challenged the EPA’s designation of two PFAS as hazardous substances under CERCLA. Emphasizing that the Agency has never before invoked its statutory authority to directly designate hazardous substances under CERCLA, they argue that the Agency conducted an improper “substantial danger” analysis and failed to properly consider the costs and consequences of its regulation. Barring deregulatory action from the Trump administration, both cases are expected to be decided in 2025 and will have major implications for whether and how the EPA may regulate PFAS going forward.

Second, PFAS manufacturers cemented a significant victory when the U.S. Court of Appeals for the Sixth Circuit declined to revisit its opinion in Hardwick v. 3M Co., where it ruled that the district court erred by allowing a “class comprising every person residing in the State of Ohio” to bring claims against ten manufacturers of PFAS for allegedly contaminating their blood with PFAS. Hardwick v. 3M Co., No. 22-3765, at *2 (6th Cir. Nov. 27, 2023). Holding that the lead plaintiff lacked standing, the Court noted that he “does not know what companies manufactured the particular chemicals in his blood stream; nor does he know, or indeed have much idea, whether those chemicals might someday make him sick; nor, as a result of those chemicals, does he have any sickness or symptoms now.” Id. at *1. Given the ubiquity of PFAS in the environment, and the numerous potential sources of exposure, Hardwick’s legacy may be to raise the bar for standing, causation, and harm in cases alleging PFAS exposure.

And, third, enterprising plaintiffs’ attorneys avoided the standing issues raised in Hardwick by bringing false advertising claims against manufacturers of products alleged to contain PFAS. Relying frequently on state consumer protection laws, the plaintiffs in these cases allege that product manufacturers misled consumers and delivered products that are worth less than they would have been if the presence of PFAS had been disclosed. In one such case filed in late 2024, for instance, the plaintiff alleges that Samsung Electronics failed to disclose the presence of PFAS in bands used with its smart watches, thereby “causing [plaintiff] to overpay for Products” and “enjoy[ing] an unfair competitive advantage, receiving millions of dollars from consumers in ill-gotten proceeds while putting the health and welfare of millions of consumers and their families at risk ….” Class Action Complaint at ¶ 8, Gonzalez v. Samsung Electronics Am., Inc., No. 2:24-cv-11234 (C.D. Cal. filed Dec. 31, 2024). Expect these lawsuits to proliferate as government reporting obligations and third-party investigations lead to the discovery of PFAS in products where it was previously unknown to have been used.

What can happen to these rules and cases under the new administration?

On the regulatory front, the Trump administration is expected to deregulate at the federal level and take a less active approach to PFAS than the Biden administration. One major tool that can be used to rescind regulations is the Congressional Review Act (CRA). The first Trump administration liberally used the CRA to rescind regulations issued in the final days of the then-outgoing Obama administration. A “lookback” provision in the CRA allows a new Congress to review and overturn regulations issued during the final sixty legislative days of the prior session – for purposes of the incoming Trump administration, the “lookback” period of the CRA is August 2024. The Biden administration intentionally finalized many regulations, including the PFAS MCLs and designation of PFOA and PFOS as hazardous substances under CERCLA, prior to August 2024 to stay out of reach of the CRA.

Though these PFAS-related regulations are out of reach of the CRA “lookback period” for rescinding regulations, there are other tools for doing so. EPA can amend or overturn a rule through ordinary notice and comment rulemaking under the Administrative Procedure Act. The notice-and-comment rulemaking requires that EPA develop a legal record justifying the proposed change and undergo a lengthy public notice process on the proposed regulatory/deregulatory action. Although it would be time-consuming, the EPA can use this option to amend or overturn the designation of PFOA and PFOS as hazardous substances under CERCLA as well as the PFAS MCLs. Of course, the future of these rules could also be determined by the ongoing litigation discussed above.

Another tool that already has been used by the new Trump administration to direct regulatory action in numerous substantive areas is the issuance of executive orders (EOs). On the first day of his second term, President Trump signed several EOs affecting environmental policy established by the Biden administration, including an EO entitled “Initial Rescissions of Harmful Executive Orders and Actions,” which expressly rescinds a number of Biden administration EOs, including those addressing climate change and environmental justice. Proposed rules and guidance documents, such as the RCRA proposal discussed above, are now subject to President Trump’s EO entitled “Regulatory Freeze Pending Review” which requires that (1) no federal agency propose or issue any rule without review and approval of an agency head appointed or designated by President Trump, and (2) any rule submitted to the Federal Register that is not yet published must be withdrawn pending review. It is also possible that EOs will be issued to withdraw specific guidance documents inconsistent with the new administration’s goals and policies. For example, the EPA’s PFAS Strategic Roadmap could be shelved or rescinded.

These anticipated Trump administration regulatory actions could impact the trajectory of litigation challenging the Safe Drinking Water Act and CERCLA rules, especially if the EPA signals that it intends to withdraw or modify those actions. The private civil litigation, however, is expected to continue unabated.

As the new administration is expected to significantly alter the federal regulatory efforts to address PFAS across multiple program areas, potentially impacting both existing and yet-to-be-filed litigation, Babst Calland attorneys will track these developments and are available to assist you with these matters. For more information on the federal regulatory and litigation developments discussed in this update or related matters, please contact Sloane Wildman at (202) 853-3457 or swildman@babstcalland.com, Joseph Schaeffer at (412) 394-5499 or jschaeffer@babstcalland.com, Jessica Deyoe at (202) 853-3489 or jdeyoe@babstcalland.com or any of our other environmental attorneys. For additional resources and more information on other PFAS developments, please visit Babst Calland’s PFAS Perspectives page, here.

BOI is Back: Corporate Transparency Act Reporting Requirements Reinstated

Pittsburgh Technology Council

(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)

Amid a series of ongoing legal battles, the beneficial ownership information (BOI) reporting requirements under the Corporate Transparency Act (CTA) have been reinstated. In light of the U.S. Supreme Court’s January 23, 2025 order in McHenry v. Texas Top Cop Shop Inc., which granted the government’s request for a stay of a nationwide injunction in a separate case challenging the BOI reporting requirements, on February 17, 2025, the U.S. District Court for the Eastern District of Texas granted the government’s motion to stay the preliminary injunction issued in Smith v. United States Department of the Treasury. As a result, U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) is no longer prohibited from enforcing the CTA’s BOI reporting requirements, and reporting companies’ compliance obligations have resumed. This ruling is pending an appeal to the U.S. Court of Appeals for the Fifth Circuit.

FinCEN has announced a 30-day deadline extension for reporting companies. The new deadline for the majority of reporting companies to file an initial, updated, and/or corrected BOI report is March 21, 2025. FinCEN has also indicated that it will assess the need for further modifications to the reporting deadlines during this 30-day extension period, with a focus on lower-risk entities.

In parallel, BOI reporting requirements are receiving legislative attention. The Protect Small Business from Excessive Paperwork Act of 2025 unanimously passed the U.S. House of Representatives and a companion bill is awaiting action in the Senate. If enacted, reporting companies formed before January 1, 2025 will have until January 1, 2026 to comply with the BOI reporting requirements.

Reporting companies must ensure they are prepared to meet the March 21, 2025 filing deadline. While further adjustments may be forthcoming, companies are advised to remain proactive in their compliance efforts.

Babst Calland will continue to monitor regulatory and judicial updates. Please reach out to fincenassist@babstcalland.com or your Babst Calland contact if you would like Babst Calland to assist you with your company’s compliance obligations. Babst Calland will only provide advice related to BOI reporting compliance when explicitly requested to do so. We look forward to servicing your needs on this developing area of the law.

To read the full article, click here.

BOI is Back: Corporate Transparency Act Reporting Requirements Reinstated

Firm Alert

(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)

Employer Guidance for Workplace Interactions with ICE

PIOGA Press

(by Steve Antonelli and Alex Farone)

The new presidential 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 Alert 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 cooperation. Employers must strictly comply with judicial warrants, 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 noncitizens suspected of committing immigration violations. An administrative warrant is typically identified as a document issued by the “Department of Homeland Security” and is usually 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 steps are to immediately notify the facility supervisor, the on-site response coordinator(s), and 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 identity – The response coordinator should clarify whether the agents are police officers or ICE agents and request their names and badge numbers.

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. These notices give employers at least 3 business days to produce the requested I-9 Forms.^[4] 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 guidance 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, employers 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 the warrant.
  - If a judicial warrant is not 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 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.
  - Ask to be provided with a list of any items seized during the search.
- 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.”

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 or 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 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.
- Employers and employees alike have the right to record an encounter with ICE. Consider recording interactions with ICE agents to clearly document 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 – employers should call legal counsel immediately to discuss next steps. If the workplace is unionized, employers should notify the union 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 the leave that might be provided 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 employees with indefinite leaves 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.

To view the full article, 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 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] Employers are cautioned against voluntarily consenting to a search or seizure of the 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.

Trump Administration Day One Executive Orders: A Transformation of American Energy and Environmental Policies

PIOGA Press

(by Ben Clapp, Gary Steinbauer, Mackenzie Moyer, Christina Puhnaty and Alexandra Graf)

On January 20, 2025, the Trump administration issued a suite of Executive Orders and memoranda signaling a dramatic shift in American energy and environmental policy. Collectively these actions, among a historically large array of “Day One” orders issued by the administration, aim to stimulate domestic energy production (with a focus on oil, natural gas, coal, hydropower, biofuels, critical minerals, and nuclear energy resources), expand energy transmission infrastructure, enlarge refining capacity, and streamline environmental permitting and review requirements for energy production and infrastructure projects while canceling Biden-era domestic climate policies, disengaging from international climate agreements, and curtailing leasing and permitting for offshore and onshore wind energy projects.

In conjunction with these Executive Orders and memoranda, the Trump administration carried out a sweeping revocation of Biden-era Executive Orders, including orders relating to energy policy and environmental regulation, climate initiatives, promoting electric vehicles, environmental justice, the withdrawal of areas of the Outer Continental Shelf from oil and gas leasing, and the implementation of the Inflation Reduction Act and Infrastructure Investment and Jobs Act.

President Trump also issued a Day One memorandum implementing a regulatory freeze requiring agencies to refrain from proposing or issuing any new rule and withdraw rules that have been finalized but not yet been published in the Federal Register, until those rules are approved by the new agency head. The memorandum also directs agency heads to consider postponing for 60 days the effective date of any rules that have been published or issued but have not taken effect, for the purpose of reviewing any questions of fact, law, and policy that the rules may raise. Some Biden-era rules relating to energy and the environment appear to be subject to this freeze, however, the overall impact of the freeze appears to be limited.

More detailed reviews of these actions are available at the links below.

Additional actions by President Trump on energy and environmental issues are expected, and legal challenges are practically certain as federal agencies take concrete steps to implement these directives. We are tracking these matters closely and will issue future Alerts as significant developments arise. As always, Babst Calland attorneys are available to provide guidance on how these actions affect your business. For more information on the actions discussed in these Alerts or related matters, please contact Ben Clapp at (202) 853-3488 or bclapp@babstcalland.com, Gary Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com, or your Babst Calland client relationship attorney.

To view the full article, click here.

Pennsylvania Right-to-Know Law Update: The Death of the Attorney-Client Privilege Log?

The Legal Intelligencer

(by Michael Korns and Anna Hosack)

In a recent case, the Pennsylvania Commonwealth Court found that the use of an attestation may negate the need for a full privilege log when responding to a Right-to-Know Law, 65 P.S. §§ 67.701 et seq., (“RTKL”) request where there are redacted privileged documents and an attestation providing context for the privilege. In Bergere v. Pennsylvania Department of Community and Economic Development, No. 269-CD-2024 (Pa. Cmwlth. Jan. 30, 2025) the Commonwealth Court reviewed an Office of Open Records (“OOR”) Final Determination relating to a RTKL request filed by the requester with the Department of Community and Economic Development (the “Department”) which sought records relating to communications and post decisional deliberations between board members and staff members regarding a Board of Property decision in favor of the applicant on April 24, 2023 and its subsequent vacation a day later on April 25, 2023.

The Department’s Open Records Officer (“ORO”) provided 163 pages of records in response to the request with a certification attesting that a good faith search has occurred in addition to the following language:

Certain emails included with the responsive records were redacted per the attorney-client privilege.
As to the claim of attorney-client privilege in the responsive records:
(a) the asserted holders of the attorney-client privilege, namely the Board of Property and its administrators, are clients of legal counsel, Thomas Blackburn, Esquire;
(b) the people to whom the referenced email communications were made are (1) Thomas Blackburn, Esquire, (2) the Board Members of the Board of Property; and (3) administrators of the Board of Property;
(c) the referenced email communications relate to facts of which legal counsel was informed by his client, without the presence of strangers, for the purpose of securing assistance in a legal matter (specifically, the drafting and finalization of an Order); and
(d) the attorney-client privilege has been claimed and not waived by the client.

Upon receipt of the records and certification, the requester appealed to the OOR seeking to have the redactions removed. The OOR’s final determination denied the requester’s appeal finding that the evidence was undisputed that Blackburn provides legal representation to the Board of Property, its members, and its administrators and that the communications in question “were for the purpose of obtaining legal advice and guidance concerning the drafting and finalization” of a Board adjudication. Furthermore, the requester offered no evidence that the emails were shared with third parties; that the legal advice was for the purpose of committing a crime or tort; or that the asserted attorney-client privilege had been waived. The OOR reviewed the subject matter lines in the redacted emails and the ORO’s certification and attestation, and inferred “that the redacted communications consist of discussions between legal counsel and Board members/administrators that, more likely than not, involve the solicitation and receipt of legal advice and guidance regarding the issuance of relevant Board of Property Orders.” The requester then petitioned the Commonwealth Court for review of the OOR’s final determination.

In his petition, the requester alleges that the Department’s invocation of the attorney-client privilege was deficient and that the OOR should have reviewed the redacted emails in camera or at the very least required a privilege log. In the requester’s brief, he argues that the certification and supplemental attestation merely recite the elements of the attorney-client privilege.

To establish the attorney-client privilege, the party claiming the privilege must demonstrate the following facts: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made is a member of the bar of a court, or his subordinate; (3) the communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort; and (4) the privilege has been claimed and is not waived by the client. Notably, the attorney-client privilege cannot be asserted as a single blanket assertion, rather it must be asserted with each redaction and with each document sought to be withheld. Generally, the privilege is asserted by providing a privilege log listing the date, record type, author, recipients, and a description of the withheld record can serve as sufficient evidence to establish an exemption, especially where the information in the log is bolstered with averments in an affidavit or attestation.

The ORO’s supplemental attestation contained the following additional information regarding the redacted emails:

The emails are communications between Board of Property Board Members (“Board”), Board of Property administrators (“administrators”), and Board of Property legal counsel, Thomas Blackburn, Esquire.
The emails consists of (a) Board and administrators supplying information to and seeking legal guidance from Mr. Blackburn in connection with the drafting and finalization of a Board of Property Order and (b) Mr. Blackburn responding to the Board and administrators’ information supplied and requests for legal guidance in connection with the drafting and finalization of a Board of Property Order.
The emails were not shared with individuals outside of the Board, Board administrators, and Mr. Blackburn.
The Board and Board administrators claim the attorney-client privilege in connection with the emails and do not waive such privilege.
To supply any further detail about the emails than what has been provided in this Attestation and in the Certification Affidavit would violate the attorney-client privilege being claimed by providing the substance of the legal advice sought and the legal advice supplied therein.

The Commonwealth Court acknowledged that it is often a challenge to provide an adjudicating body enough detail to establish the privilege without also disclosing the protected information. For that reason, the OOR, in some instances, has required in camera review of documents to confirm privilege. In Bergere, the Department’s ORO identified the specific legal controversy before the Board of Property and attested that the communications concerned the Board’s adjudication in that matter, no single document was withheld in its entirety as privileged, and the documents produced contained enough unredacted information to identify the privileged nature of the information that was redacted. The Court’s overall holding was that, in effect, the Department produced the functional equivalent of a privilege log. Because both the Court and the OOR were able to determine that the redactions were appropriate without a privilege log and in camera review, it was not necessary for the OOR to require an in camera review of the same.

Drafting a privilege log and annotating each individual instance of privilege can be a substantial task for an ORO where there are numerous responsive records including communications with the Solicitor. Allowing OROs to assert privilege via an attestation identifying the legal controversy provides a time-saving approach to an ORO’s response. While the Right-to-Know Law’s purpose and intent is to provide government transparency, it’s clear that the OOR is acknowledging the challenges that OROs are facing and open to finding creative solutions to assist OROs in their duties.

OROs should however be aware that the Court did not grant a blanket exemption stating that privilege logs are never required, nor did it say that a bare-bones attestation that simply stated that documents were redacted due to privilege would satisfy the ORO’s obligations under the RTKL. In addition, the Court implies that if documents had been withheld in their entirety, it would have been much more difficult to establish the privilege and that this would have led to higher scrutiny for the Department. In Bergere, the Department met its burden by providing an attestation that, in conjunction with the unredacted information on the documents in question, allowed both the OOR and the Commonwealth Court to find that the privilege had been properly applied.

Furthermore, OROs should also be cautious about withholding documents in their entirety. The attorney-client privilege exemption applies only to the information that is specifically privileged itself, not the entire document. While there may be cases where an entire document is privileged, this is uncommon, and more often, basic information such as the author, recipient, and date of the document are not privileged. As this case demonstrates, even the subject matter or title of a document is often not privileged, as the mere fact that a municipal entity received guidance from an attorney on a specific issue is generally not privileged itself, though there are exceptions to this general rule. By not withholding entire documents and appropriately redacting documents provided, an ORO can provide the OOR enough information to concretely establish the privilege without being required to undergo a laborious privileged log process. Consult your Solicitor for guidance on how to best create a strong attestation.

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 and land use law. Contact her at 412-394-5406 or ahosack@babstcalland.com.

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Legislative & Regulatory Update

The Wildcatter

(by Nikolas Tysiak)

Our update is West Virginia heavy this time. Here are the cases since our last update:

Kaess v. BB Land, LLC, —S.E.2d—, 2024 WL 4784609 (November 14, 2024). Certified question to Supreme Court from U.S. District Court for Northern District of West Virginia, inquiring whether the deduction of certain costs from the delivery of royalties were allowable under West Virginia law when the lease calls for “in kind” royalty delivery After extensive analysis, the Supreme Court likened an “in kind” royalty provision as being similar to a “flat” royalty provision, and ultimately held that lessor under a lease with an in kind royalty provision where the lessor elects NOT to take oil and gas in kind is not subject to the deduction of post-production costs as a matter of West Virginia law.

Venable Royalty Ltd. v. EQT Production Company, 908 S.E.2d 501 (W. Va. I. C., 2024). The Intermediate Court was presented with the problem of determining whether non-participating royalty interests (“NPRIs”) should be classified as “real estate” or “personal property” as a matter of West Virginia law. The NPRI at issue was conveyed by a tax deed following a delinquent tax sale concerning the interest. One side argued that the tax deed was void because an NPRI is personal property. The other side claimed that the tax deed was successful because an NPRI is assessable as real estate, rendering the tax deed effective as to the reserved NPRI. After reviewing the available authorities, the Intermediate Court determined that NPRIs should be classified as real estate interests because they are vested real property.

Romeo v. Antero Resources Corporation, —S.E.2d—, 2024 WL 4784706 (November 14, 2024). Another certified question from the U.S. District Court for the Northern District of West Virginia concerning post production costs. The Court adopted a “point of sale” rule, which indicates that the lessee must bear all costs incurred in exploring for, producing, marketing and transportation the product to the point of sale. The Court expressed concern that adopting a different rule would make the marketability of produced gas a question of fact to be determined by courts or other judicial proceedings, instead of a question of law. Acknowledging that their ruling put West Virginia in a minority of one regarding the deductibility of post-production costs, the Court nevertheless found that the deduction of such costs could only be taken if specifically stated in a lease, and further found that the same rulings extended to NGLs derived from produced natural gas.

West v. Armstrong, 2024 WL 4709943 (W. Va. I.C.A., November 7, 2024). In 1905, landowners conveyed ½ oil and gas interest under 30 acres, described as “one half part of the royalty and rents reserved under such lease while the same remains in force . . . ” and then includes additional language that the parties argued over whether it limited the conveyance generally or only if only certain terms of the conveyance were limited. The Supreme Court found that the limiting language contained in the oil and gas conveyance only applied to certain provisions of the deed, and not the conveyance as a whole.

Bleigh v. Dominion Energy Transmission, Inc., 2024 WL 5201003 (W. Va. I.C.A., December 23, 2024). This case involves the determination of the rights and duties under a 1909 oil and gas lease and subsequent 1952 lease modification. The modification gave the operator the right to inject and store oil and gas into the Berea Sand. A storage well was subsequently completed on the property. After the deep rights under the lease became vested in DETI and HG Energy, successors to those rights, the landowner, Bleigh, alleged that these operators did not take proper steps to develop the oil and gas under the prudent operator standard. The Court found that the modification agreement overrode the implied covenant to prudently operate and develop the oil and gas, resulting in the storage lease being sufficient to hold the lease so long as the lease continues to be used for storage.

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Trump’s “Day One” Executive Orders transform industry policies

GO-WV

(by Ben Clapp, Gary Steinbauer, Mackenzie Moyer, Christina Puhnaty and Alexandra Graf)

More detailed reviews of these actions are available at the links below.

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

Is the Collateral Order Doctrine About to Have a “Brat Summer”?

February 7, 2025

The Legal Intelligencer

(by Casey Alan Coyle)

Inspired by the Charli XCX album, the “brat summer” trend took the country by storm in the summer of 2024. From the radio to fashion to TikTok to even Vice President Harris’s campaign, “brat” was everywhere. The Collins Dictionary even declared “brat” its 2024 word of the year, defining it as “characterized by a confident, independent, and hedonistic attitude.” This spring, the Pennsylvania Supreme Court is poised to hear oral argument in Chilutti v. Uber, 58 EAP 2024. The case concerns, among other things, whether an order staying a case pending arbitration is immediately appealable as a collateral order—a question that asks the Court to not only disregard the text of the Pennsylvania Rules of Appellate Procedure but also upend four decades of contrary precedent. With the argument fast approaching, everyone is asking the same question: Is the collateral order doctrine about to have a “brat summer”?

Collateral Order Doctrine

Generally, an appellate court’s jurisdiction extends only to review of final orders. Final orders are those that dispose of all claims and all parties, are explicitly defined as final orders by statute, or are certified as final orders by the trial court or other reviewing body. Pa.R.A.P. 341. There are, however, limited exceptions to the final order rule—specifically, interlocutory appeals as of right (Pa.R.A.P. 311); interlocutory appeals by permission (Pa.R.A.P. 312); and collateral orders (Pa.R.A.P. 313). The collateral order doctrine is derived from U.S. Supreme Court case law and codified in Pennsylvania Rule of Appellate Procedure 313. It is the narrowest of the three exceptions because the rules already allow a party to seek permission to appeal an interlocutory order not enumerated in Rule 311 and that discretionary process would be undermined by an overly permissive interpretation of Rule 313’s limited grant of collateral appeals as of right. The classic example of a collateral order is one compelling the disclosure of putatively privileged material because, once that material is disclosed, “the bell has been rung, and cannot be unrung by a later appeal.” Commonwealth v. Harris, 32 A.3d 243, 249 (Pa. 2011).

To qualify as a collateral order, (1) the order must be “separable from and collateral to the main cause of action,” (2) the right involved must be “too important to be denied review,” and (3) “the question presented [must be] such that if review is postponed until final judgment in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b). With regard to the first prong, an order is separable from the main cause of action if it is entirely distinct from the underlying issue in the case and if it can be resolved without an analysis of the merits of the underlying dispute. As for the second prong, a right is important if the interests that would go unprotected without immediate appeal are significant relative to the efficiency interests served by the final order rule. The third prong requires that the matter at issue must effectively be unreviewable on appeal from final judgment. Stated differently, the claim must be of such nature that it would be lost forever if appellate review is delayed until final judgment. Unless the order satisfies all three requirements, the appellate court lacks jurisdiction.

Chilutti

The Chilutti case arises out of a car accident. A woman was injured while riding in an Uber; she and her husband then 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.

It has long been the rule in Pennsylvania that an order compelling arbitration is not immediately appealable. Indeed, courts of this Commonwealth have reaffirmed this principle again and again over the past 40 years. Nonetheless, the Superior Court panel in Chilutti held that an order compelling arbitration constitutes an appealable collateral order. Chilutti v. Uber Techs., Inc., No. 1023 EDA 2021, 2022 WL 6886984, at *5 (Pa. Super. Ct. Oct. 12, 2022). The Superior Court subsequently granted reargument and withdrew the panel’s opinion. But instead of disavowing the panel’s holding, a divided, en banc Superior Court effectively adopted it. Chilutti v. Uber Techs., Inc., 300 A.3d 430 (Pa. Super. Ct. 2023) (en banc).

The majority initially—and correctly—stated that the third prong of the collateral order doctrine involves an assessment of whether the question presented is such that “if review is postponed until final judgment, the claimed right will be irreparably lost.” Id. at 437 (emphasis added). But later in the opinion, the majority declared that the relevant inquiry is whether “postponing review until final judgment in the case may result in the irreparable loss of [the plaintiffs’] claims.” Id. at 439 (emphasis added). Applying the latter (and more relaxed) standard, the majority hypothesized:

[T]here are times when a party is forced out of court because the arbitration provision either failed to meet basic contract principles or violated a party’s constitutional right to a jury trial—which does not qualify as a “fraud, misconduct, corruption, or other irregularity”—and where the arbitration award is deemed fair, and therefore unreviewable, even if there was no agreement to arbitrate between the parties, which would result in the irreparable loss to the party.

Id.

Based on this new formulation of the doctrine, the majority held that an order compelling arbitration is immediately appealable as a collateral order. The majority reasoned that, because “the standard of review for common law arbitration is very limited” and “there is always a possibility that a court may find a subsequent arbitration award was fair—meaning it was not unjust, inequitable, or unconscionable—even if there was no agreement to arbitrate between the parties; resultingly, the award would remain binding on the parties. In that scenario, a party would be denied their constitutional right to a jury trial.” Id. at 438. The majority then turned to the merits of the appeal, inventing a new, stricter standard for enforcing online arbitration agreements and holding that, based on that new test, there was no valid agreement to arbitrate between the parties. Id. at 499–450. The majority thus held that the trial court erred in granting the defendants’ petition to compel arbitration. Id. at 451.

The Pennsylvania Supreme Court subsequently accepted review of the case. Briefing is now complete, and it is anticipated that oral argument will take place this spring.

Impact

If affirmed, the en banc Superior Court’s decision could have far-reaching consequences with regard to appellate jurisdiction. Courts historically have construed the collateral order doctrine narrowly to avoid undue corrosion of the final order rule and to prevent delay resulting from piecemeal review of trial court decisions. For instance, the U.S. Supreme Court has stated that: “[T]he narrow exception should stay that way and never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of [trial] court error at any stage of the litigation may be ventilated.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (cleaned up). The Pennsylvania Supreme Court has similarly noted that “it is more important to prevent the chaos inherent in bifurcated, trifurcated, and multifurcated appeals than it is to correct each mistake of a trial court the moment it occurs.” Shearer v. Hafer, 177 A.3d 850, 858 (Pa. 2018) (cleaned up).

But by lowering the threshold to qualify for the collateral order doctrine from one in which the claim must be irreparably lost if immediate review is denied to one where the claim hypothetically could be irreparably lost absent such review, the Superior Court majority expanded the doctrine to potentially limitless ends and allowed the once-narrow exception to swallow the general rule against the appealability of non-final orders. Indeed, it is difficult to conceive of a scenario in which there would not be at least some theoretical possibility, however remote, that “postponing review until final judgment in the case may result in the irreparable loss of [the plaintiffs’] claims.” Chilutti, Inc., 300 A.3d at 439. As a result, virtually every interlocutory order would now qualify as a collateral order in Pennsylvania, ushering in a new, chaotic era of bifurcated, trifurcated, and even multifurcated appeals. By creating a right of appeal to an entire class of interlocutory orders that did not previously exist, the majority opened the door to hundreds, if not thousands, of additional appeals per year that invariably will overburden an already overtaxed appellate court system in Pennsylvania.

Conclusion

While traditionally limited to a narrow set of orders, Chilutti may extend the reach of the collateral order doctrine to unknown limits, brushing aside the text of Rule 313 itself and the 40 years of interpretive precedent standing in its way. That may leave some Pennsylvania lawyers saying, “That’s so brat.”

——————–

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

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Help the Clerk to Help Your Case: Writing Insights from a Federal Career Clerk Turned Litigator

Federal Lawyer

(by Stefanie Pitcavage Mekilo)

In modern litigation, written submissions are not just a lawyer’s first opportunity to make an impression with the court; they’re also often our last. Cases increasingly are won or lost on the papers, and trials, for better or worse, are largely a thing of the past. These trends exhibit no signs of reverting. To be effective litigators, we must learn to embrace them.

A crucial component of effective written advocacy is knowing your audience. Judges, obviously, are our ultimate audience. But most often, the first person to read a pleading, motion, brief, or letter filed with the court will be the judge’s law clerk. Though their roles and degree of influence vary from one judge to the next, law clerks usually are the front line in chambers—studying briefs and the record, conducting research, and relaying initial impressions on the outcome to the judge.

During my dozen years as a federal judicial clerk, I consumed tens of thousands of pages of legal writing—some exceptional, some decidedly less so, most falling somewhere in between. In this article, I’ll share writing insights and practical tips gleaned during my time in chambers to help you get and keep the judge’s law clerk on your side.

Start with a plan. The real work of good writing occurs before any actual writing happens at all. After you’ve done your research but before you start drafting, think about which issues to raise and the order in which to raise them. Always start with your strongest argument. The lone exception would be if you have a jurisdictional argument, even if novel or only moderately compelling, because the court must satisfy itself that it has jurisdiction before turning to the merits. Organize arguments logically and efficiently—address threshold issues or elements common to all claims first, before moving into individual claims and disputed elements. Think carefully, too, about whether an issue is worth raising. Ask yourself if your argument has plausible merit and, if it’s a close call, whether the potential “payout” is worth it; the answer may still be yes, but be mindful that kitchen-sink approaches and unsupported arguments waste the court’s time and burn credibility.

Make a strong first impression. The introduction to your pleading, motion, brief, or letter is your first opportunity to begin persuading. Punchy style and a touch of color are great for getting the reader engaged, but if that doesn’t come naturally to you, don’t sweat it; just get the job done. Distill your submission to its essence—the “who, when, where, and how” of the dispute, “what” you would like the court to do, and “why” you are right. Form introductions identifying the “what” without context ( e.g. , “Defendant moves to dismiss Plaintiff ’s Complaint for the reasons stated herein.”) are unhelpful.

Keep in mind that while you have been immersed in your case for months or even years, the court does not have your level of familiarity. Your dispute is important to the court, too, but courts are busy, with some judges managing thousands of cases at once. With the exception of career clerks, law clerks usually are transient, rotating through chambers in one- or two-year intervals, meaning the clerk who assisted the judge on your motion to dismiss may not be the same clerk assigned at summary judgment or trial. Take advantage of this opportunity to acquaint (or reacquaint) the court with your case—but keep it short, sweet, and tailored to its purpose.

Write with your ideal decision in mind. The best briefs we received in chambers were those that were well-organized and well-supported—and therefore easily adapted into an opinion or order if the judge agreed with them. There are a few things lawyers can do to fall into that category:

Write directly to the assigned judge. Take some time to filter your research results down to your assigned judge. Even if they have not addressed your precise issue, having a sense of the judge’s style allows you to structure your analysis to track their preferred framework. If the judge has written on your issue, remind them with a citation. If the case is helpful, great. If not, try to distinguish it on the facts or intervening case law. Even if you can’t distinguish the case effectively, engaging with it will score credibility points; the judge knows the decision exists
because they wrote it, so you might as well get in front of it. You might still lose the issue, but the court will be more inclined to buy what you are selling elsewhere.
Cite accurately and often. Make it easy for the judge to adopt your argument by providing every citation they would need to support a decision in your favor. Apart from roadmaps, transitions, and conclusions, a citation should follow virtually every sentence. Point the court to the exact page of the case that creates the exception you’re invoking, or the specific “page:line” of a deposition containing what you believe to be a key admission. This is especially critical for big assertions, like concessions. Too often I encountered a proposition like “Defendants concede that prison officials were aware of deficiencies in the prison’s policy,” with a citation to the policy but not the claimed concession.
Do not make unsupported arguments. The consensus among clerks I’ve spoken to is that the single most frustrating part of the job is digging for case law to substantiate unsupported arguments. An increasing number of judges have amended their practice orders to warn that unsubstantiated arguments will be summarily rejected because courts simply don’t have time to do litigants’ work for them. (This is not to say courts won’t do that work; many clerks still take a deep dive into the case law because they want to reach the right result. But they won’t be happy about it.) In addition to doing justice, the primary concern of most district judges is avoiding reversal. Writing to that concern by thoroughly supporting your argument will go a long way toward making even uncharted positions or novel exceptions more palatable.
Confront bad authority. Lawyers often hide bad authority in footnotes or wait to address it in a reply. But the court will need to get past that authority to reach your preferred result, so the earlier you provide a workaround, the better for your client. It also conveys confidence in your position and shows the court you can be trusted.
Don’t forget the “why.” This is the “A” in your law school “IRAC” formulation—the analysis section where you “show your work” and bridge the law you’ve summarized to the result you seek. Countless briefs included comprehensive rule statements and plenty of examples, followed by a conclusory statement like: “Accordingly, Plaintiff qualifies as a disabled individual under the ADA.” It is the court’s job to determine whether the law and facts align to support your position, but you’re doing yourself a disservice if you don’t spend a paragraph (or more) making that link clear.

Aim for “one-read” writing. Clerks will come back to good briefs multiple times as a reference throughout their research and writing process, but your goal should be initial comprehension after just one pass through your argument. You do not want a clerk or judge rereading a paragraph multiple times to understand your point. Some tips for how to achieve this goal follow:

Provide context before detail. Your introduction section will provide the court with broad context for your argument. But the context-first principle applies throughout the whole document. In the factual background section, it is often helpful to introduce key players, documents, and concepts at the outset. Likewise, when summarizing the applicable law, consider whether a short opening paragraph situating the court within the statutory framework or legal principle is necessary. Probably not for civil rights statutes that federal judges engage with regularly, but less routine claims (say, for example, civil RICO) may warrant a short abstract.
Use Plain English. Legal writing has earned a reputation for being overly technical and verbose. But draping complex ideas in even more complex language does not advance your cause. “Plain English” writing rejects these conventions, abandoning jargon, archaism, and Latin in favor of clear, direct prose. Plain English should not be confused with informality. It simply means using the most straightforward way of expressing an idea. Some Plain English techniques include:
- Eliminating unnecessary passive voice
- Using strong, precise verbs
- Keeping subjects close to verbs, and verbs close to objects
- Avoiding nominalizations ( i.e. , “argue” instead of “make the argument”)
- Shortening multiword phrases ( i.e. , “in the event that” becomes “if “)
- Varying sentence length and structure
- Targeting an average sentence length of 15 to 20 words
Connect the dots. Linking techniques are crucial to helping your reader follow your argument. Use roadmaps and narrative-style headings to tell the court where you are going and how a given discussion fits into your broader argument. Start each paragraph with a clear topic sentence and ensure all material in the paragraph relates to and follows naturally from that sentence. (Pro tip: To test flow, pull the topic sentences from each paragraph into a separate document. Does it make sense? If not, reorganize.) Even simple matters of word choice matter here. For example, the best writers keep references to key terms simple and consistent ( i.e. , “Defendant” or “ABC Company” or “Company,” not all three).
Keep it concise. Page limitations exist for two reasons. Courts are busy, and limitation is necessary for efficiency’s sake. But constraints also force lawyers to write with clarity and precision and to think hard about what information matters. Together, these limitations benefit everyone: lawyers’ writing is clearer and more compelling, and judges receive less paper. Remember that the longest brief is not always (nor often) the best one, and page-limit extensions, while frequently requested, are rarely warranted. Note, too, that, all other priority metrics being equal, a clerk is more likely to turn to the motion with the shortest stack of briefs first.

Mind your manners. Lawyers have an obligation to advocate zealously on behalf of their clients, but too often the noise of advocacy becomes the narrative itself. If opposing counsel has misrepresented a case or fact to the court, it is appropriate to point that out. But consider first whether it is actually an error—are they objectively wrong, or do you simply disagree with them? Even if counsel did err, jabs and charged language will not sway the court. Briefly noting (and proving) the error and then refocusing on the issues goes much further in showing confidence in your position. Likewise, while it is fair and sometimes appropriate to seek reconsideration on a given issue, remain objective and respectful. (It’s been a decade, but I still recall—not fondly—the attorney who suggested our standing analysis was “so bad and so wrong” as to compel an appeal if left unaltered.)

Edit, Edit, and then Proofread. Robert Graves once wrote, “There is no such thing as good writing; only good rewriting.” Too many lawyers get everything on paper, proofread, and file, skipping the intermediate step of editing. When you edit, you improve the overall quality of the writing, in relation to substance, organization, and style. Proofreading, by contrast, is mostly superficial—targeting objective grammar, spelling, citation, and other errors. Failing to edit first misses a prime opportunity to polish and refine your work; to ensure your argument flows logically and your theme carries throughout; and to smooth out rough edges.

Only then should you turn to proofreading. Most people proofread more effectively on paper than on a screen. But if you are stuck with a screen or prefer to save paper, other techniques can help. Changing font size or color can trick your eyes into seeing the document anew. Reading your draft aloud, too, is highly effective; after spending many hours in your draft, your ears will catch awkward phrasing and repetition more readily than your eyes. You can also use an app to read drafts aloud, so you are hearing the words in someone else’s voice. Keep a checklist of your most common errors, and run through it as a final step before submitting any filing.

Finally, do not underestimate the importance of clean work product. Every minute dedicated to proofreading is time well spent. It goes without saying that a clear, concise, and well-edited brief improves the effectiveness of your argument. But a typo-ridden brief is also a surefire way to lose credibility; if you were careless in your writing, perhaps you were careless in your research and analysis too. And if that is not incentive enough, judges are not unwilling to sanction counsel or slash fees for slipshod submissions that make their work more difficult.¹

Keep learning. The institutions that train lawyers continue to undervalue legal writing relative to doctrinal courses.² Legal writing faculty nonetheless are keenly aware of the shift toward motions-based litigation, and they work hard to develop curricula designed to introduce law students to the fundamentals. But a lawyer’s duty to develop as a writer does not end in law school, and the best lawyers remain committed to sharpening this crucial skill set throughout their careers. The writing advice I give most often is to seek out good writing and study it. Take notes of structural, stylistic, and other characteristics you find effective. You will be a better writer, and a better advocate, for the effort.

Endnotes
¹See, e.g., McKenna v. City of Philadelphia, No. 07-110, 2008 WL 4435939 (E.D. Pa. Sept. 30, 2008) (reducing fee by 85 percent—$154,161.25—based on drafting errors in prevailing counsel’s filings).

²Amy H. Soled, Legal Writing Professors, Salary Disparities, and the Impossibility of “Improved Status,” 24 J. OF LEGAL WRITING 47, 48–49 (2020) (comparing average salaries among doctrinal professors, tenure-track legal-writing professors, and non-tenure-track legal-writing professors).

Stefanie Pitcavage Mekilo is a litigation associate at Babst, Calland, Clements and Zomnir, P.C. She focuses her practice on complex commercial and environmental litigation, with a particular emphasis on federal trial work. Before entering private practice, Stefanie served for two years as a term law clerk to Hon. John E. Jones III and then for 10 years as career law clerk to Hon. Christopher C. Conner, both in the U.S. District Court for the Middle District of Pennsylvania. Contact Stefanie at 570-590-8781 or smekilo@babstcalland.com.

© 2025. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the Federal Bar Association.

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