Firm Alert
(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.
Firm Alert
(by Ben Clapp, Alexandra Graf and Mackenzie Moyer)
The Trump administration issued several Executive Orders aimed at significantly altering American energy policy, which are summarized below.
Executive Order: Declaring a National Energy Emergency
Fundamental to President Trump’s efforts to stimulate American energy production is his Executive Order declaring a national energy emergency. This is the first time that a president has declared a national energy emergency, although regional energy emergencies were declared by President Jimmy Carter in the 1970s due to shortages of fossil fuels. By declaring a national energy emergency, President Trump is allowing federal agencies to use various emergency authorities to facilitate the “identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources.” The Order defines “energy” and “energy resources” to include “crude oil, natural gas, lease condensates, natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal heat, the kinetic movement of flowing water, and critical minerals.”
The Order represents the administration’s first step in promoting domestic energy production which, according to the Order, will lower energy prices, create jobs, and strengthen national security. In furtherance of these objectives, the Order directs federal agencies to identify and use all relevant lawful emergency and other authorities to expedite the completion of all authorized and appropriated infrastructure, energy, environmental, and natural resources projects.
Among the more significant provisions in the Order to the regulated community are directives to agencies to evaluate the use of emergency measures in environmental regulations to facilitate and streamline permitting and environmental reviews. Federal agencies must identify and report on planned or potential actions to facilitate energy supply that may be subject to emergency treatment under the regulations and nationwide permits promulgated by the Army Corps of Engineers, such as projects subject to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. The Order provides similar requirements for actions that may require agency consultations under the Endangered Species Act (ESA). Agencies must identify and report on planned or potential actions that may be subject to the ESA and provide a summary report of those actions. Agencies are directed to use, to the maximum extent permissible under applicable law, the ESA regulations on consultations in emergencies.
Additionally, the Secretary of the Interior, acting as Chairman of the Endangered Species Act Committee, must convene the committee not less than quarterly to review and consider applications submitted by any applicant for a permit or license who requests an exemption from the agency consultation obligations imposed by Section 7 of the ESA. To the extent practical, the Secretary of the Interior must ensure an initial determination is made on applications within 20 days of receipt and the submission must be resolved within 140 days of the initial determination.
Executive Order: Unleashing American Energy
President Trump’s declaration of an energy emergency dovetails with his Executive Order entitled Unleashing American Energy. The Order directs federal agency heads to review all existing agency actions and identify those that unduly burden domestic energy resources and, within 30 days, develop and begin implementing action plans to suspend, revise, or rescind all such actions. It calls for a particular focus on oil, natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy resources. The Order also directs agencies to notify the Attorney General of any actions taken to review or suspend, revise or rescind regulations so that (i) notice of the Order and such actions can be provided to any court with jurisdiction over pending litigation in which such actions may be relevant and (ii) a request can be made to the court stay or otherwise delay further litigation, or seek other appropriate relief consistent with the Order.
The Order also focuses on increasing permitting efficiency across agencies, in part by revoking President Carter’s 1977 Executive Order 11991 relating to protection and enhancement of environmental quality, which authorized the Council on Environmental Quality (CEQ) to issue mandatory regulations to implement the National Environmental Policy Act (NEPA). The Order requires CEQ to provide guidance on implementing NEPA and to issue a proposed rule rescinding CEQ’s current NEPA regulations. It also encourages agencies to eliminate permitting delays in their respective processes by utilizing general permits and permit by rule and authorizes the use of emergency authorities for any project an agency head has determined is essential to the nation’s economy or national security. The Director of the National Economic Council (NEC) and the Office of Legislative Affairs are also directed to jointly prepare recommendations to Congress to streamline judicial review of NEPA applications, facilitate permitting, and construct interstate energy transportation and infrastructure.
The Order requires the Environmental Protection Agency (EPA) to issue guidance to address abandoning the social cost of carbon calculations in decision making within 60 days of the Order, and within 30 days of the Order, EPA must submit recommendations on the legality and future applicability of the 2009 Endangerment Finding for greenhouse gases under the Clean Air Act.
Significantly, the Order directs all agencies to pause the disbursement of funds appropriated through the Inflation Reduction Act and the Infrastructure Investment and Jobs Act pending review, including funds for electric vehicle charging stations, and review agency processes, policies, and programs for issuing grants, loans, contracts, or any other financial disbursements of such appropriated funds.
The Order also contains provisions pertaining to liquified natural gas, which lifted a freeze on liquified natural gas exports put in place by President Biden in early 2024. The Order directs the Secretary of Energy to restart reviews of the applications for approvals of liquified natural gas export projects, and reconsider records of decision for proposed deepwater ports for the export of liquified natural gas.
Finally, the Order contains components on mineral dominance, which directs relevant agencies to identify and rescind all agency actions that unduly burden domestic mining and processing of non-fuel minerals. It also provides for geological mapping to focus on unknown mineral deposits, tapping into the potential of uranium, allocating federal funds for critical mineral projects, and requires that policy recommendations pertaining to enhancing mining competition in the United States be submitted by relevant agencies within 60 days of the Order.
Memorandum: Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects
The Trump administration’s efforts to promote the production of energy from traditional energy sources stand in contrast to President Trump’s Memorandum aimed at curtailing wind energy production by withdrawing the Outer Continental Shelf (OCS) from offshore wind leasing and reviewing all leasing and permitting practices for wind energy projects. The Memorandum temporarily prevents consideration of any area in the OCS for any new or renewed wind energy leasing for the purposes of generation of electricity or any other such use derived from the use of wind. It directs the Secretary of the Interior, in consultation with the Attorney General, to conduct a comprehensive review of the ecological, economic, and environmental necessity of terminating or amending any existing wind energy leases, identify any legal bases for such removal, and submit a report with recommendations to the President. Finally, it directs that no new or renewed approvals, rights of way, permits, leases, or loans for onshore or offshore wind projects be issued pending the completion of a comprehensive assessment and review of federal wind leasing and permitting practices.
Executive Order: Unleashing Alaska’s Extraordinary Resource Potential
President Trump also issued an Executive Order entitled Unleashing Alaska’s Extraordinary Resource Potential. The Order’s more significant provisions include directing agencies to prioritize the development of Alaska’s LNG potential, including the permitting of all necessary pipeline and export infrastructure related to the Alaska LNG Project, and to issue permits, right-of-way permits, and easements necessary for the exploration, development, and production of oil and gas from leases within the Arctic National Wildlife Refuge.
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 this Alert or related matters, please contact Ben Clapp at (202) 853-3488 or bclapp@babstcalland.com, Mackenzie Moyer at (412) 394-6678 or mmoyer@babstcalland.com, Alexandra Graf at (412) 394-6438 or agraf@babstcalland.com, or your Babst Calland client relationship attorney.
To view other “Day One” Executive orders issued by the Trump administration affecting energy and environmental policy, please click here.
Firm Alert
(by Ben Clapp, Gary Steinbauer and Christina Puhnaty)
Among the flurry of executive orders that President Trump issued in the hours following his inauguration on January 20th was a memorandum titled Regulatory Freeze Pending Review (2025 Trump Regulatory Freeze Memorandum), which directs agencies to:
- Refrain from proposing or issuing any rule[1] in any manner until a President Trump-appointed agency head reviews and approves the rule;
- Immediately withdraw any rules that have been sent to the Office of Federal Register (OFR) but not published in the Federal Register so that they can be reviewed and approved by a President Trump-appointed agency head; and
- Consider[2] postponing for 60 days the effective date for 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.
This memorandum closely mirrors regulatory freeze memoranda issued by the first Trump administration in 2017 (2017 Trump Regulatory Freeze Memorandum) and the Biden administration in 2021, but the immediate impact of the memorandum will likely be different from what we have seen in the past. Six days after the Trump administration issued the 2017 Trump Regulatory Freeze Memorandum, EPA published in the Federal Register a final rule delaying the effective date of 30 final EPA regulations that the agency had published between October 28, 2016 and January 17, 2017. 82 Fed. Reg. 8499 (Jan. 26, 2017). These rules had original effective dates after January 20, 2017, the date that President Trump issued the 2017 Trump Regulatory Freeze Memorandum. Several agencies in the Biden administration, however, including EPA, appear to have been prepared for a regulatory freeze memorandum and avoided issuing final regulations at the end of 2024 that would go into effect after President Trump’s inauguration. For example, EPA’s rule implementing the requirements of the Waste Emissions Charge in the Clean Air Act’s Methane Emissions Reduction Program, enacted as part of the Inflation Reduction Act, went into effect on January 17, 2025. 89 Fed. Reg. 91094 (Nov. 18, 2024).
Nonetheless, some environmental and energy-related regulations may be affected by the freeze. For example, on January 21st, EPA’s final rule regarding Revisions to the Air Emission Reporting Requirements and proposed rule regarding Clean Water Act Effluent Limitations Guidelines and Standards for PFAS Manufacturers Under the Organic Chemicals, Plastics and Synthetic Fibers Point Source Category were both identified on the White House’s Office of Management and Budget’s (OMB) website as under review, but as of January 22nd are no longer identified as under OMB review and do not appear on OFR’s website. EPA may have withdrawn these rules from OMB’s consideration in accordance with the 2025 Trump Regulatory Freeze Memorandum, but their status remains unclear.
In addition, the Pipeline and Hazardous Materials Safety Administration (PHMSA) made available on its website pre-publication versions of proposed and final rules that have been submitted to the OFR but are not yet available for public inspection or published in the Federal Register. See Proposed Rule: Safety of Carbon Dioxide and Hazardous Liquid Pipelines; Final Rule: Gas Pipeline Leak Detection and Repair. These proposed and final rules are subject to the regulatory freeze in accordance with the memorandum’s directive that agencies “[i]mmediately withdraw any rules that have been sent to the [OFR] but not published in the Federal Register” so that they can be reviewed and approved by a President Trump-appointed agency head. Both of these rules appear to have been withdrawn from publication in the Federal Register. However, we also note that EPA published a proposed rule on January 22nd that was seemingly subject to the freeze. See National Emission Standards for Hazardous Air Pollutants: Chemical Manufacturing Area Sources Technology Review, 90 Fed. Reg. 7942 (Jan. 22, 2025). In sum, there appears to be some open questions on the status of certain rules not yet published in the Federal Register.
Lastly, final environmental regulations that have been published in the Federal Register as final but that have not yet gone into effect include the following EPA final rules:
- Review of the Secondary National Ambient Air Quality Standards for Oxides of Nitrogen, Oxides of Sulfur, and Particulate Matter, 89 Fed. Reg. 105692 (Dec. 27, 2024) (eff. Jan. 27, 2025);
- Integrating e-Manifest With Hazardous Waste Exports and Other Manifest-Related Reports, PCB Manifest Amendments, and Technical Corrections, 89 Fed. Reg. 60692 (Sept. 26, 2024) (eff. Jan. 22, 2025); and
- Hazardous Waste Generator Improvements Rule, the Hazardous Waste Pharmaceuticals Rule, and the Definition of Solid Waste Rule; Technical Corrections, 89 Fed. Reg. 99727 (Dec. 11, 2024) (eff. Feb. 10, 2025).
Per the 2025 Trump Regulatory Freeze Memorandum, EPA is to consider postponing for 60 days the effective date of these rules for the purpose of reviewing any questions of fact, law, and policy that the rules may raise.
How quickly agencies will be able to initiate review and approval of these regulations depends on the Trump administration’s immediate priorities and how quickly agency roles are filled with President Trump appointees.
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 this Alert 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, Christina Puhnaty at (412) 394-6514 or cpuhnaty@babstcalland.com, or your Babst Calland client relationship attorney.
To view other “Day One” Executive orders issued by the Trump administration affecting energy and environmental policy, please click here.
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[1] The 2025 Trump Regulatory Freeze Memorandum defines “rule” to include both final rules and “any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.”
[2] The use of the word “consider” is one notable difference between the 2017 and 2025 memoranda issued by the Trump administration. The postponement directive in the 2017 Trump Regulatory Freeze Memorandum was not optional.
Firm Alert
(by Ben Clapp and Gary Steinbauer)
President Trump’s first-day executive actions prioritize the development of a wide-range of domestic energy resources and take direct aim at the climate initiatives and environmental justice priorities of the Biden administration. With the declaration of a national energy emergency, President Trump has required the U.S. Environmental Protection Agency (EPA) and other federal agencies to review numerous agency actions and authorities with the goal of “unleashing American energy.” These first-day executive actions do not themselves implement the desired changes, but the environmental ripple effects and legal challenges stemming from these initial actions will unfold in the weeks, months, and years ahead and are likely to involve nearly every major federal environmental law. In this Alert, we summarize key federal environmental regulatory, permitting, and enforcement implications from President Trump’s initial executive actions.
- Review of Existing Regulations and Regulatory Freeze. EPA and other federal regulatory agencies are ordered to review and identify existing regulations and policies that unduly burden domestic energy resources and develop and begin implementing plans to expeditiously suspend, revise, or rescind the identified regulations and policies. The universe of agency actions that must be reviewed include those related to the production of oil, natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy resources.[1] Regulations and policies that unduly burden domestic mining and processing of non-fuel minerals are also covered by this mandate.[2] As is customary for a new administration, President Trump has issued a regulatory freeze designed to pause certain types of pending regulatory actions until new leadership at EPA and other agencies have an opportunity to review such actions.[3] More information regarding potential EPA rules that may be subject to the regulatory freeze can be found in this separate Alert.
- Environmental Regulatory Litigation and Enforcement Implications. President Trump directed EPA and other agencies to identify unduly burdensome agency actions that are the subject of pending litigation and notify the Attorney General of these actions so that the Attorney General can seek to stay or otherwise delay these lawsuits until challenged regulations can be suspended, revised, or rescinded as ordered.[4] President Trump also ordered EPA to review and identify existing settlements and consent orders that impose an undue burden on identification, development, and use of domestic energy resources. EPA will have 30 days to report any settlements and consent orders to the Office of Management and Budget (OMB).[5] Lastly, federal agencies are directed to assess whether enforcement discretion can be utilized to advance the Trump administration’s domestic energy policy.[6]
- Emergency Authorities and Streamlining Permitting for Domestic Energy Projects. President Trump has issued broad mandates to the EPA and other federal resource agencies to identify and use “lawful emergency authorities” to facilitate generation of non-wind domestic energy resources and related infrastructure, including emergency authorities under the Clean Water Act Section 404 permitting program and the Endangered Species Act.[7] President Trump revoked a 1970’s Executive Order giving the White House Council on Environmental Quality (CEQ) the authority to issue National Environmental Policy Act (NEPA) regulations and directed the CEQ to propose to rescind existing NEPA regulations to expedite and simplify permitting for energy projects.[8] EPA is directed to consider issuing emergency fuel waivers allowing for the year-round sale of E15 gasoline, and the review of applications for liquefied natural gas projects are to be restarted.[9]
- Climate-Related Regulatory Underpinnings and Considerations. President Trump revoked President Biden’s Executive Orders related to climate initiatives.[10] In addition to withdrawing from the Paris Climate Agreement,[11] President Trump directed EPA to abandon the consideration of the “social cost of carbon” in regulatory determinations and submit a recommendation on the fate of the 2009 finding under the Clean Air Act that greenhouse gases threaten public health and welfare, which serves as a necessary statutory prerequisite for EPA to implement greenhouse gas emission standards for motor vehicles and other sectors.[12] All federal agencies are directed to pause clean energy and climate-related funding under the Inflation Reduction Act and Infrastructure Investment and Jobs Act, and the Trump administration has pledged to “eliminate the ‘electric vehicle (EV) mandate.’”[13]
President Trump’s first-day executive actions set the stage for reshaping the federal environmental regulatory, permitting, and enforcement landscape. The actions EPA and other agencies take to implement these new directives will be closely watched and scrutinized.
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 this Alert 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 other “Day One” Executive orders issued by the Trump administration affecting energy and environmental policy, please click here.
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[1] Executive Order: Unleashing American Energy, Section 3 (Jan. 20, 2025).
[2] Executive Order: Unleashing American Energy, Section 9(a) (Jan. 20, 2025).
[3] Memorandum: Regulatory Freeze Pending Review (Jan. 20, 2025).
[4] Executive Order: Unleashing American Energy, Section 3(b)-(d) (Jan. 20, 2025); see also Executive Order: Ending the Weaponization of the Federal Government (Jan. 20, 2025), Sec. 3(a) (requiring the Attorney General and heads of all departments and agencies to review civil and criminal enforcement activities over the last 4 years to identify instances where such authority was used to target perceived political opponents).
[5] Executive Order: Unleashing American Energy, Section 3(b) (Jan. 20, 2025).
[6] Executive Order: Unleashing American Energy, Section 7(c) (Jan. 20, 2025).
[7] Executive Order: Declaring a National Emergency, Section 2 (Jan. 20, 2025).
[8] Executive Order: Unleashing American Energy, Section 5 (Jan. 20, 2025).
[9] Executive Order: Declaring a National Emergency, Section 2(b) (Jan. 20, 2025); Executive Order: Unleashing American Energy, Section 8 (Jan. 20, 2025).
[10] Executive Order: Unleashing American Energy, Section 5 (Jan. 20, 2025).
[11] Executive Order: Putting America First in International Environmental Agreements, Section 4.
[12] Executive Order: Unleashing American Energy, Section 6 (Jan. 20, 2025).
[13] Executive Order: Unleashing American Energy, Sections 2(e) and 7 (Jan. 20, 2025).
Environmental Alert
(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.
PIOGA eWeekly
(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)
In recent weeks, significant developments have unfolded regarding the implementation of the Corporate Transparency Act (CTA) and its beneficial ownership information (BOI) reporting requirements to the Financial Crimes Enforcement Network (FinCEN), which remain subject to a nationwide injunction.
As discussed in our previous Alert, on December 3, 2024, the U.S. District Court for the Eastern District of Texas granted a nationwide preliminary injunction in Texas Top Cop Shop, Inc., et al. v. Garland, et al., temporarily halting enforcement of the CTA and its BOI reporting requirements, including the January 1, 2025, filing deadline. The U.S. Department of Justice (DOJ) appealed, requesting a stay of the injunction or, alternatively, a narrowing of the injunction to apply only to the named plaintiffs and members of the National Federation of Independent Business.
In a flurry of year-end decisions, a panel of the Fifth Circuit Court of Appeals granted DOJ’s emergency motion on December 23, 2024, lifting the injunction. Three days later, a separate Fifth Circuit panel reversed the earlier decision, vacating the stay and reinstating the nationwide injunction. As a result, FinCEN again updated its guidance, stating that reporting companies may voluntarily submit BOI filings but are not required to do so during the pendency of the injunction.
On December 31, 2024, DOJ filed an emergency “Application for a Stay of the Injunction” with the U.S. Supreme Court, seeking to stay the injunction pending the Fifth Circuit’s review of the matter. Alternatively, DOJ invited the Court to “treat this application as a petition for a writ of certiorari before judgment presenting the question whether the district court erred in entering preliminary relief on a universal basis.”
The ongoing legal challenges have left the status of the BOI reporting requirement in flux. For the time being, unless the Supreme Court intervenes, the nationwide injunction is likely to remain in place through at least March 25, 2025, the scheduled date for oral arguments before the Fifth Circuit. Businesses that have not yet complied with the reporting requirements should remain alert to any changes. If the injunction is lifted, or if the Supreme Court grants a stay, reporting companies may be required to submit their beneficial ownership information promptly, subject to any deadline extensions provided by FinCEN. In the meantime, voluntary submissions of BOI reports to FinCEN are still accepted, but companies should be prepared to meet any new deadlines should the situation change. The next few months could prove critical for the future of the CTA and its enforcement.
Babst Calland will continue to closely monitor developments on this matter. Please reach out to fincenassist@babstcalland.com or your Babst Calland client relationship lawyer if you have any questions.
To view the full article, click here.
Reprinted with permission from the January 2025 issue of The PIOGA Press. All rights reserved.
Firm Alert
(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)
In recent weeks, significant developments have unfolded regarding the implementation of the Corporate Transparency Act (CTA) and its beneficial ownership information (BOI) reporting requirements to the Financial Crimes Enforcement Network (FinCEN), which remain subject to a nationwide injunction.
As discussed in our previous Alert, on December 3, 2024, the U.S. District Court for the Eastern District of Texas granted a nationwide preliminary injunction in Texas Top Cop Shop, Inc., et al. v. Garland, et al., temporarily halting enforcement of the CTA and its BOI reporting requirements, including the January 1, 2025, filing deadline. The U.S. Department of Justice (DOJ) appealed, requesting a stay of the injunction or, alternatively, a narrowing of the injunction to apply only to the named plaintiffs and members of the National Federation of Independent Business.
In a flurry of year-end decisions, a panel of the Fifth Circuit Court of Appeals granted DOJ’s emergency motion on December 23, 2024, lifting the injunction. Three days later, a separate Fifth Circuit panel reversed the earlier decision, vacating the stay and reinstating the nationwide injunction. As a result, FinCEN again updated its guidance, stating that reporting companies may voluntarily submit BOI filings but are not required to do so during the pendency of the injunction.
On December 31, 2024, DOJ filed an emergency “Application for a Stay of the Injunction” with the U.S. Supreme Court, seeking to stay the injunction pending the Fifth Circuit’s review of the matter. Alternatively, DOJ invited the Court to “treat this application as a petition for a writ of certiorari before judgment presenting the question whether the district court erred in entering preliminary relief on a universal basis.”
The ongoing legal challenges have left the status of the BOI reporting requirement in flux. For the time being, unless the Supreme Court intervenes, the nationwide injunction is likely to remain in place through at least March 25, 2025, the scheduled date for oral arguments before the Fifth Circuit. Businesses that have not yet complied with the reporting requirements should remain alert to any changes. If the injunction is lifted, or if the Supreme Court grants a stay, reporting companies may be required to submit their beneficial ownership information promptly, subject to any deadline extensions provided by FinCEN. In the meantime, voluntary submissions of BOI reports to FinCEN are still accepted, but companies should be prepared to meet any new deadlines should the situation change. The next few months could prove critical for the future of the CTA and its enforcement.
Babst Calland will continue to closely monitor developments on this matter. Please reach out to fincenassist@babstcalland.com or your Babst Calland client relationship lawyer if you have any questions.
GO-WV
(by Kip Power)
The federal Environmental Protection Agency (EPA) recently proposed to approve the application of the State of West Virginia (through its Department of Environmental Protection (WVDEP)) to obtain primary authority (a.k.a., “primacy”) over the issuance of permits for Class VI underground injection wells located within its borders. 89 Fed. Reg. 93538 (Nov. 27, 2024). The federal rulemaking proposal may be found here. Comments on the proposed approval are due on or before December 30, 2024. On the same day, EPA will hold a public hearing on the proposal at the Charleston Marriott Town Center, 200 Lee Street East, in Charleston, West Virginia. Details regarding public participation in the rulemaking may be found here.
Class VI underground injection control (UIC) wells are those wells used for injecting carbon dioxide for the purpose of permanent geologic storage or “sequestration.” WVDEP’s rules for such permits are largely modeled on EPA’s detailed “Class VI” UIC regulations promulgated under the federal Safe Drinking Water Act. If approved, West Virginia will be just the fourth state to receive primacy over the Class VI UIC permitting program (joining North Dakota, Wyoming and Louisiana).
Should it be granted primacy over Class VI well permitting, the WVDEP will be able to issue such permits without following the lengthy (and oftentimes litigated) procedures required under the federal National Environmental Policy Act that applies to EPA-issued UIC permits. The WVDEP would also be in a better position to coordinate the issuance of such Class VI UIC wells with other West Virginia regulatory requirements for carbon dioxide injection projects, including the West Virginia Underground Carbon Dioxide Sequestration and Storage Act (W.Va. Code § 22B-1-1, et seq.). This would help facilitate the development of such projects by a variety of applicants, including those seeking to use underground carbon dioxide sequestration as a part of the production of so-called “blue” hydrogen (reforming fossil fuels to separate hydrogen and capture CO2) and those hoping to comply with proposed EPA rules mandating the use of carbon capture and injection technologies by certain natural gas and coal-fired power plants.
For questions about EPA’s proposal to grant primacy to West Virginia over the issuance of Class VI UIC wells or related issues, please contact Christopher B. (Kip) Power at (681) 265-1362 or cpower@babstcalland.com.
Click here, to view the article online in the January issue of GO-WV News.
Pittsburgh Technology Council
(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)
As discussed in our previous Alert, the U.S. District Court for the Eastern District of Texas granted a nationwide preliminary injunction in Texas Top Cop Shop, Inc., et al. v. Garland, et al., temporarily halting enforcement of the Corporate Transparency Act (CTA) and its beneficial ownership information (BOI) reporting requirements, including the January 1, 2025, filing deadline. The ruling provided temporary relief to affected businesses, but a pending Department of Justice (DOJ) emergency motion to stay the injunction pending appeal has created further uncertainty.
On December 11 and December 13, 2024, the DOJ filed emergency motions with the District Court and the United States Court of Appeals for the Fifth Circuit respectively, requesting a stay of the District Court’s nationwide injunction. In its motion to the Court of Appeals, the government proposed an expedited briefing schedule, requesting “a ruling on this motion as soon as possible, but in any event no later than December 27, 2024, to ensure that regulated entities can be made aware of their obligation to comply before January 1, 2025.”
On December 17, 2024, the District Court denied the government’s motion, while the Court of Appeals decision remains pending and could be issued as early as December 20, 2024. If the Fifth Circuit grants the stay or narrows the scope of the injunction, the CTA’s reporting requirements, including the January 1, 2025 filing deadline, could be reinstated (unless the court or the Financial Crimes Enforcement Network (FinCEN) issues a deadline extension). FinCEN has already clarified that businesses are not required to file BOI reports while the injunction is in effect, but that they may voluntarily submit reports during this time.[1]
If the Fifth Circuit stays the injunction, reporting companies which have not already submitted their filings should be prepared to finalize their BOI reports and file them promptly to meet the reinstated deadline. FinCEN has not indicated whether it plans to offer reporting companies an extension if the injunction is stayed or narrowed by December 27, 2024. Approximately 8 million of the estimated 32.6 million reporting companies subject to filing requirements have filed so far. In the event the January 1, 2025 deadline remains in place, FinCEN’s website is likely to be overwhelmed with filing attempts, which could lead to delays and technical issues. In light of this uncertainty, reporting companies should consider gathering the required filing information to avoid a potential race against the clock at year-end, or if your business has a conservative mindset, you should file the report now and enjoy the holiday season. Either way, doing nothing does not appear to be an option.
Babst Calland will continue to closely monitor developments on this matter. Please reach out to fincenassist@babstcalland.com or your Babst Calland client relationship lawyer if you have any questions.
[1] https://fincen.gov/boi
To view the full article, click here.
Firm Alert
(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)
As discussed in our previous Alert, the U.S. District Court for the Eastern District of Texas granted a nationwide preliminary injunction in Texas Top Cop Shop, Inc., et al. v. Garland, et al., temporarily halting enforcement of the Corporate Transparency Act (CTA) and its beneficial ownership information (BOI) reporting requirements, including the January 1, 2025, filing deadline. The ruling provided temporary relief to affected businesses, but a pending Department of Justice (DOJ) emergency motion to stay the injunction pending appeal has created further uncertainty.
On December 11 and December 13, 2024, the DOJ filed emergency motions with the District Court and the United States Court of Appeals for the Fifth Circuit respectively, requesting a stay of the District Court’s nationwide injunction. In its motion to the Court of Appeals, the government proposed an expedited briefing schedule, requesting “a ruling on this motion as soon as possible, but in any event no later than December 27, 2024, to ensure that regulated entities can be made aware of their obligation to comply before January 1, 2025.”
On December 17, 2024, the District Court denied the government’s motion, while the Court of Appeals decision remains pending and could be issued as early as December 20, 2024. If the Fifth Circuit grants the stay or narrows the scope of the injunction, the CTA’s reporting requirements, including the January 1, 2025 filing deadline, could be reinstated (unless the court or the Financial Crimes Enforcement Network (FinCEN) issues a deadline extension). FinCEN has already clarified that businesses are not required to file BOI reports while the injunction is in effect, but that they may voluntarily submit reports during this time.[1]
If the Fifth Circuit stays the injunction, reporting companies which have not already submitted their filings should be prepared to finalize their BOI reports and file them promptly to meet the reinstated deadline. FinCEN has not indicated whether it plans to offer reporting companies an extension if the injunction is stayed or narrowed by December 27, 2024. Approximately 8 million of the estimated 32.6 million reporting companies subject to filing requirements have filed so far. In the event the January 1, 2025 deadline remains in place, FinCEN’s website is likely to be overwhelmed with filing attempts, which could lead to delays and technical issues. In light of this uncertainty, reporting companies should consider gathering the required filing information to avoid a potential race against the clock at year-end, or if your business has a conservative mindset, you should file the report now and enjoy the holiday season. Either way, doing nothing does not appear to be an option.
Babst Calland will continue to closely monitor developments on this matter. Please reach out to fincenassist@babstcalland.com or your Babst Calland client relationship lawyer if you have any questions.
[1] https://fincen.gov/boi
PIOGA Press
(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)
On December 3, 2024, the U.S. District Court for the Eastern District of Texas granted a nationwide preliminary injunction temporarily halting enforcement of the Corporate Transparency Act (CTA). With less than a month to go before the January 1, 2025 compliance deadline for entities formed prior to 2024, this ruling blocks the U.S. Department of Treasury from enforcing the requirements of the Beneficial Ownership Information Reporting Rule (the “Rule”) issued by the Financial Crimes Enforcement Network (FinCEN).
The Court’s opinion in Texas Top Cop Shop, Inc., et al. v. Garland, et al. raises significant questions about the constitutionality of the CTA and its potential negative impact on small businesses. The CTA, part of broader anti-money laundering efforts, requires companies to disclose personal information about their “beneficial owners” (individuals who ultimately own or control a company) to a federal database maintained by FinCEN. In his Memorandum Opinion and Order, United States District Judge Amos L. Mazzant concluded that the CTA and Rule are likely unconstitutional as they exceed the scope of Congress’s power. The Court held that CTA does not regulate interstate commerce and that it is further not authorized by the Necessary and Proper clause of the Constitution.
The nationwide injunction affects most business entities in the U.S., as the CTA and Rule apply to approximately 32.6 million companies. Per the Court’s order, “reporting companies need not comply with the CTA’s January 1, 2025, BOI reporting deadline pending further order of the Court.”
While businesses are temporarily relieved of compliance obligations, the final resolution of the matter remains uncertain. Although no announcement has been made as of the time of this publication, the U.S. Department of Justice is likely to appeal the preliminary injunction to the U.S. Court of Appeals for the Fifth Circuit. Companies should stay informed and be prepared for potential changes to enforcement.
Babst Calland will continue to closely monitor developments on this matter. Please reach out to fincenassist@babstcalland.com or your Babst Calland client relationship lawyer if you have any questions.
To view the full article, click here.
Reprinted with permission from the December 2024 issue of The PIOGA Press. All rights reserved.
The Legal Intelligencer
(by Michael Korns and Anna Hosack)
In Crawford v. Commonwealth, No. 19-EAP-2022 (Pa. Nov. 20, 2024), the Pennsylvania Supreme Court unanimously upheld the constitutionality of state preemptive firearm laws that prohibit municipalities from passing local gun regulations. Advocates for stricter gun laws filed a petition for review under the Commonwealth Court’s original jurisdiction, asking the Court to declare as unconstitutional or otherwise unlawful two statutory provisions that prohibit the enactment of local legislation on the subject: (i) Section 6120 of the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.C.S. § 6120, and (ii) Section 2962(g) of the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. § 2962(g). Generally, these provisions prohibit local governments from enacting or enforcing ordinances that regulate the ownership, transportation, possession, or transfer of firearms.
Crawford was heard en banc at the Commonwealth Court, and ultimately the Court sustained preliminary objections in a plurality decision and dismissed the petition for failure to state claims upon which relief could be granted (demurrer). Petitioners filed an appeal seeking review of the Commonwealth Court’s decision from the Pennsylvania Supreme Court. The City of Pittsburgh, the City of Scranton, and several other Pennsylvania local governments and officials submitted amici curiae briefs in support of the appeal.
The Pennsylvania Supreme Court addressed not only the delineation of power between the legislative and judicial branches of the state government but also the interplay between state and municipal governance. First, the decision emphasized the basic fact that municipalities in Pennsylvania are creatures of the state, created by state legislation and having no inherent powers of their own not granted or delegated by the Commonwealth. The Court reiterated that the General Assembly’s authority over municipalities’ powers is “supreme” and accordingly, municipalities may do only those things which the legislature has expressly or by necessary implication placed within their power to do.
The first law challenged by the Appellants was Section 2962(g) of the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. § 2962(g). Most municipalities are governed by one of four codes promulgated by the general assembly, the First and Second Class Township Codes, the Borough Code, and the Third Class City Code. However, Article IX, Section 2 of the Pennsylvania Constitution, “Home Rule” allows a municipality to “legislate concerning municipal governance without express statutory warrant for each new ordinance; [a municipality’s] ability to exercise municipal functions is limited only by its home rule charter, the Pennsylvania Constitution, and the General Assembly.” Generally speaking, this means that home rule communities can exercise any power that the General Assembly has not forbidden.
The Home Rule Law was enacted in 1996 and regulates the process for creating a home rule municipality, as well as setting boundaries on the powers that the municipality can exercise. It applies to all municipalities other than Philadelphia. In relevant part, Section 2962(c)(2) of the Home Rule Law provides that “[a] municipality shall not … exercise powers contrary to or in limitation or enlargement of powers granted by statutes which are applicable in every part of this Commonwealth.” The Appellants challenged the constitutionality of Section 2962(g) which specifically states that “[a] municipality shall not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms.” Pennsylvania courts have consistently held that the General Assembly may negate ordinances enacted by home rule municipalities when the General Assembly has enacted a conflicting statute concerning “substantive matters of substantive concern” including those involving “the health, safety, security and general welfare of all the inhabitants of the State” as opposed to matters of purely local concern which are of no concern to citizens elsewhere. The Supreme Court simply applied this long line of cases to this current challenge.
The second statute challenged, the Uniform Firearm Act, was originally enacted in 1972, and the General Assembly has subsequently demonstrated its state lawmaking power in the realm of firearm regulations through its numerous amendments to the Act over the course of decades. The stated intent of these amendments was to balance the right of Pennsylvania citizens to bear arms with the need for crime prevention and control. At dispute in this case, Section 6120 creates the general rule “no county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth.”
Appellants advanced three arguments in support of their case. First, the Appellants alleged that the State has violated their substantive due process rights to enjoy and defend life and liberty under Article 1, Section 1 including their right “to collectively enact measures that safeguard against gun violence” because the firearm protection laws do not provide due process rights. The Court found this argument failed because the substantive due rights given under Article 1, Section 1 of the Pennsylvania Constitution provides those rights to individuals, not a “collective” right of citizens or municipal corporation rights. A lawfully enacted prohibition on municipal power has no impact on individual due process rights.
Appellants second argument sought relief under the state-created danger doctrine. The “state-created danger” doctrine is a concept borne out of federal substantive due process principles that permits a plaintiff to obtain relief against a state actor for conduct that creates or increases a private danger that causes injury to a plaintiff. Neither the U.S. Supreme Court nor the Pennsylvania Supreme Court has endorsed the doctrine. This cause of action fails because even if endorsed, the doctrine only allows for individual claims based on injuries suffered due to state actions or failures to act. It has not been, and cannot be, invoked to render a statute unconstitutional on broad collective grounds.
Finally, the third argument was brought on behalf of Philadelphia alone, assets that the state through its absence of adequate statewide firearm regulations has improperly interfered with the public health responsibilities that the Commonwealth had delegated to political subdivisions under the Local Health Administration Law and Disease Prevention and Control Law of 1955. The Commonwealth Court plurality held that this claim failed because the term “public health” does not encompass the epidemic of gun violence and its attendant impacts. After applying the Statutory Construction Act, 1 Pa.C.S. §§ 1501-1991, the Pennsylvania Supreme Court held that the more specific firearm protection laws enacted later in time signal that Philadelphia has no delegated authority under the aforementioned laws to regulate firearms.
While these questions were highly contested in the Commonwealth Court, with a strongly worded dissent that would have found that the Appellants had stated a legally sufficient claim with respect to all three counts of the Petition, the Pennsylvania Supreme Court’s unanimous decision to dismiss the petition with prejudice appears to be a decisive answer to any further attempts to enact traditional firearm regulations by municipalities in the Commonwealth. The Court has stated with no ambiguity that regulations on ownership, sale, transfer, transportation or use are preempted by the State. However, there are currently lawsuits in various stages in the Pennsylvania Courts, asking the Pennsylvania Supreme Court to rule on several stalled local gun laws, including an assault rifle ban. In addition, there are additional pending lawsuits specifically challenging the limits of the preemption law in applicability to regulating the sale of “ghost gun” parts and the reporting of lost/stolen guns. Following Crawford, any future litigation over gun regulations would seem to be limited to questions regarding the reach of state Preemption laws, not whether they are in themselves unconstitutional. It is possible that some forms of regulation on ancillary issues may be possible, however, given the unanimous decision of the Court, it seems highly likely that gun regulation in Pennsylvania is an exclusively state issue, and further attempts at local regulations appear dubious, at best, given this decision. The Babst Calland Public Sector group will continue to monitor similar cases for further issues that may impact municipalities.
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.
To view the full article, click here.
Reprinted with permission from the December 13, 2024 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved.
Environmental Alert
(by Kip Power)
The federal Environmental Protection Agency (EPA) recently proposed to approve the application of the State of West Virginia (through its Department of Environmental Protection (WVDEP)) to obtain primary authority (a.k.a., “primacy”) over the issuance of permits for Class VI underground injection wells located within its borders. 89 Fed. Reg. 93538 (Nov. 27, 2024). The federal rulemaking proposal may be found here. Comments on the proposed approval are due on or before December 30, 2024. On the same day, EPA will hold a public hearing on the proposal at the Charleston Marriott Town Center, 200 Lee Street East, in Charleston, West Virginia. Details regarding public participation in the rulemaking may be found here.
Class VI underground injection control (UIC) wells are those wells used for injecting carbon dioxide for the purpose of permanent geologic storage or “sequestration.” WVDEP’s rules for such permits are largely modeled on EPA’s detailed “Class VI” UIC regulations promulgated under the federal Safe Drinking Water Act. If approved, West Virginia will be just the fourth state to receive primacy over the Class VI UIC permitting program (joining North Dakota, Wyoming and Louisiana).
Should it be granted primacy over Class VI well permitting, the WVDEP will be able to issue such permits without following the lengthy (and oftentimes litigated) procedures required under the federal National Environmental Policy Act that applies to EPA-issued UIC permits. The WVDEP would also be in a better position to coordinate the issuance of such Class VI UIC wells with other West Virginia regulatory requirements for carbon dioxide injection projects, including the West Virginia Underground Carbon Dioxide Sequestration and Storage Act (W.Va. Code § 22B-1-1, et seq.). This would help facilitate the development of such projects by a variety of applicants, including those seeking to use underground carbon dioxide sequestration as a part of the production of so-called “blue” hydrogen (reforming fossil fuels to separate hydrogen and capture CO2) and those hoping to comply with proposed EPA rules mandating the use of carbon capture and injection technologies by certain natural gas and coal-fired power plants.
For questions about EPA’s proposal to grant primacy to West Virginia over the issuance of Class VI UIC wells or related issues, please contact Christopher B. (Kip) Power at (681) 265-1362 or cpower@babstcalland.com.
Pittsburgh Technology Council
(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)
On December 3, 2024, the U.S. District Court for the Eastern District of Texas granted a nationwide preliminary injunction temporarily halting enforcement of the Corporate Transparency Act (CTA). With less than a month to go before the January 1, 2025 compliance deadline for entities formed prior to 2024, this ruling blocks the U.S. Department of Treasury from enforcing the requirements of the Beneficial Ownership Information Reporting Rule (the “Rule”) issued by the Financial Crimes Enforcement Network (FinCEN).
The Court’s opinion in Texas Top Cop Shop, Inc., et al. v. Garland, et al. raises significant questions about the constitutionality of the CTA and its potential negative impact on small businesses. The CTA, part of broader anti-money laundering efforts, requires companies to disclose personal information about their “beneficial owners” (individuals who ultimately own or control a company) to a federal database maintained by FinCEN. In his Memorandum Opinion and Order, United States District Judge Amos L. Mazzant concluded that the CTA and Rule are likely unconstitutional as they exceed the scope of Congress’s power. The Court held that CTA does not regulate interstate commerce and that it is further not authorized by the Necessary and Proper clause of the Constitution.
The nationwide injunction affects most business entities in the U.S., as the CTA and Rule apply to approximately 32.6 million companies. Per the Court’s order, “reporting companies need not comply with the CTA’s January 1, 2025, BOI reporting deadline pending further order of the Court.”
While businesses are temporarily relieved of compliance obligations, the final resolution of the matter remains uncertain. Although no announcement has been made as of the time of this publication, the U.S. Department of Justice is likely to appeal the preliminary injunction to the U.S. Court of Appeals for the Fifth Circuit. Companies should stay informed and be prepared for potential changes to enforcement. Babst Calland will continue to closely monitor developments on this matter. Please reach out to fincenassist@babstcalland.com or your Babst Calland client relationship lawyer if you have any questions.
To view the full article, click here.
Firm Alert
(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)
On December 3, 2024, the U.S. District Court for the Eastern District of Texas granted a nationwide preliminary injunction temporarily halting enforcement of the Corporate Transparency Act (CTA). With less than a month to go before the January 1, 2025 compliance deadline for entities formed prior to 2024, this ruling blocks the U.S. Department of Treasury from enforcing the requirements of the Beneficial Ownership Information Reporting Rule (the “Rule”) issued by the Financial Crimes Enforcement Network (FinCEN).
The Court’s opinion in Texas Top Cop Shop, Inc., et al. v. Garland, et al. raises significant questions about the constitutionality of the CTA and its potential negative impact on small businesses. The CTA, part of broader anti-money laundering efforts, requires companies to disclose personal information about their “beneficial owners” (individuals who ultimately own or control a company) to a federal database maintained by FinCEN. In his Memorandum Opinion and Order, United States District Judge Amos L. Mazzant concluded that the CTA and Rule are likely unconstitutional as they exceed the scope of Congress’s power. The Court held that CTA does not regulate interstate commerce and that it is further not authorized by the Necessary and Proper clause of the Constitution.
The nationwide injunction affects most business entities in the U.S., as the CTA and Rule apply to approximately 32.6 million companies. Per the Court’s order, “reporting companies need not comply with the CTA’s January 1, 2025, BOI reporting deadline pending further order of the Court.”
While businesses are temporarily relieved of compliance obligations, the final resolution of the matter remains uncertain. Although no announcement has been made as of the time of this publication, the U.S. Department of Justice is likely to appeal the preliminary injunction to the U.S. Court of Appeals for the Fifth Circuit. Companies should stay informed and be prepared for potential changes to enforcement. Babst Calland will continue to closely monitor developments on this matter. Please reach out to fincenassist@babstcalland.com or your Babst Calland client relationship lawyer if you have any questions.