Articles, Alerts & Perspectives Archive

DEP Seeking Comments on Proposed Conditional State Water Quality Certification Under Draft PASPGP-7

FNREL Water Law Newsletter

(by Lisa Bruderly, Mackenzie Moyer and Ethan Johnson)

On September 6, 2025, the Pennsylvania Department of Environmental Protection (DEP) published the Proposed Conditional State Water Quality Certification for the PASPGP-7 (SWQC), 55 Pa. Bull. 6477 (Sept. 6, 2025). The proposed conditional SWQC is for applicants seeking coverage under PASPGP-7 (the U.S. Army Corps of Engineers (Corps) Pennsylvania State Programmatic General Permit) for projects that do not require a federal license or permit other than a section 404 permit under the Clean Water Act (CWA). Comments on the SWQC were due by October 6, 2025.

DEP offered four main conditions, summarized below, that, if fulfilled, would demonstrate that a proposed activity under PASPGP-7 would comply with state water quality standards and certain provisions of the CWA:

Prior to beginning any activity authorized by the Corps under PASPGP-7, the applicant must obtain all necessary environmental permits or approvals and submit all required environmental assessments and other information necessary to obtain the permits and approvals.
The applicant must comply with required environmental assessments and other regulatory requirements.
Fill material may not contain any type of waste as defined in 35 Pa. Stat. § 6018.103 of the Solid Waste Management Act.
Applicants and projects eligible for the PASPGP-7 must obtain all state permits or approvals, or both, necessary to ensure that the project meets the state’s applicable water quality standards, including a project-specific SWQC, if needed.

As background, PASPGP-7 allows applicants to obtain both Corps section 404 permits and coverage under DEP permits or other authorizations for water obstructions and encroachments submitted to the DEP and for projects requiring permits or authorizations in this Commonwealth. Section 401(a) of the CWA requires an applicant seeking coverage under PASPGP-7 to provide the Corps with certification from DEP that its discharge will comply with the applicable provisions of the CWA. This proposed conditional SWQC applies to activities that qualify for PASPGP-7 within the jurisdiction of section 404 and also structures or work in or affecting navigable waters of the United States under section 10 of the Federal Rivers and Harbors Appropriation Act of 1899.

The current PASPGP-6 expires on June 30, 2026, and, at present, the draft PASPGP-7 stands to take its place, with possible revisions from the proposed draft. The proposed changes in PASPGP-7 include the following:

Adds 0.03-acre area of permanent stream impact measurement in addition to the 250-linear-feet of permanent stream impact, whichever is less, for reporting (Corps review) threshold. A permanent loss of 0.03-acre area of stream may then require compensatory mitigation on a case-by-case basis.
Adds a reporting threshold of 1,000-linear-feet of permanent stream impacts for PASPGP-7 applications for DEP General Permit-1 (GP-1) (Fish Habitat Enhancement Structures).
Removes the table of waterways potentially occupied by federally listed, proposed, or candidate species of mussels or fishes from reporting activities, as they are to be included in the Pennsylvania Natural Diversity Inventory Environmental Review.
Adds that all regulated work within the Delaware Canal is a reporting activity to ensure compliance with the Wild and Scenic Rivers Act.
Adds the ability for the Corps to waive the eligibility threshold for emergency activities, as defined in PASPGP-7, on a case-by-case basis. The reporting threshold of 0.50-acre of permanent impact remains unchanged.
Adds a general or project-specific section 401 Water Quality Certificate as a type of state authorization to General Condition 29 (State Authorization).
Extends the General Condition 33 (Anadromous Fish Waters) time of year work restriction, from March 15–June 30 to March 1–June 30.

When a Facebook Post Becomes a Public Record Subject to the Right-to-Know Law

The Legal Intelligencer

(by Steve Korbel, Anna Hosack and Peter Zittel)

Social media has become the modern town square for many public officials. Whether it’s sharing a recap of a school board meeting, celebrating a community event, or commenting on local issues, platforms like Facebook and Instagram are now a routine part of how leaders connect with their constituents. But what happens when those online conversations intersect with Pennsylvania’s Right-to-Know Law, 65 P.S. § 67.101, et seq. (the “RTKL”)? The Pennsylvania Supreme Court considered this question recently in Penncrest School District v. Cagle, 341 A.3d 720 (Pa. 2025), a case that sheds new light on how personal social media use by public officials can blur into the purview of the RTKL.

In May 2021, controversy arose in the Penncrest School District (“Penncrest”) after a high school library display included several books addressing LGBTQ+ issues. A third-party contractor photographed the display and posted it to Facebook, where a school board member shared the image on his personal account, adding comments denouncing the display as “evil” and suggesting he would raise the issue at a future school board meeting. Another board member also shared the post without commentary. The incident drew local media coverage, and a resident, Thomas Cagle, filed a request under the RTKL seeking school board members’ emails and social media posts related to the incident. While Penncrest released some district emails, it denied the request for board members’ social media posts, arguing that such content came from personal accounts. Cagle appealed to the Pennsylvania Office of Open Records, which granted his request, reasoning that the board members’ posts directly related to district business, citing prior cases that emphasized substance over account ownership.

Penncrest petitioned for judicial review, arguing that personal Facebook posts fell outside the RTKL’s definition of “records.” The trial court disagreed, holding that posts by elected officials about school activities, even on personal accounts, could constitute public records because they involved district business. The trial court found that the board member’s comments about the library display were made in his official capacity and, therefore, subject to disclosure. Penncrest appealed, and in 2023, the Commonwealth Court, sitting en banc, vacated the trial court’s decision. While acknowledging that, under the RTKL, the analysis regarding the disclosure of social media posts as public records lacked clear precedent, the Commonwealth Court crafted a framework that considers factors such as whether the account bore the “trappings” of an official page and whether the posts evidenced agency activity. Concluding that the trial court’s analysis was too narrow, the Commonwealth Court remanded the case for further factual development. The Pennsylvania Supreme Court later granted review to decide whether the RTKL requires disclosure of school board members’ social media posts on private accounts about official school matters.

Writing for the majority, Justice Mundy reaffirmed that the RTKL provides a single, uniform definition of a “record” and established that courts must apply the statute’s two-part test to all forms of communication, including social media posts. Under Section 102 of the RTKL, a record is information that (i) “documents a transaction or activity of an agency” and (ii) is “created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.” The Court emphasized that the statute’s plain language is unambiguous: “[t]hese provisions, unambiguous on their face, provide for a two-part inquiry that applies equally to all forms of communication, including Facebook posts.” The central question in this case was whether Facebook posts made by Penncrest school board members about a controversial LGBTQ+ book display in a school library were records “of the agency” and thus subject to disclosure. While the trial court had found that they were, the Commonwealth Court remanded the case, holding that the trial court’s analysis was incomplete. The Supreme Court ultimately agreed that additional fact-finding was necessary.

Notably, the Court clarified that it was not adopting a new, social-media-specific test but rather requiring courts to apply the established RTKL framework in a context-sensitive manner. As the Court explained, whether something is “of an agency” is a “fact-specific inquiry” and must consider the substance and circumstances of the communication rather than its platform or location. Quoting earlier precedent, Grine v. County of Centre, 138 A.3d 88 (Pa. Cmwlth. 2016), the Court noted: “The location of the record or an agency’s possession does not guarantee that a record is accessible to the public; rather, the character of the record controls.” To make this determination, courts may consider several relevant factors, including whether the official was acting in an “official capacity,” whether the account had the “trappings” of an official agency account, whether the posts were created, received, or retained in connection with agency business, and whether the content “prove[s], support[s], or evidence[s]” agency activity.

The Court also invoked a vivid analogy from the U.S. Supreme Court’s decision in Lindke v. Freed, 601 U.S. 187 (2024): was the official speaking “at the meeting” or “at the backyard barbecue”? That framing highlights the key distinction between a personal viewpoint and agency business. In practice, when an official uses their account to recap votes, announce decisions, or provide role-related updates, they cross into the realm of public records subject to disclosure.

The Court stressed the importance of analyzing the context of social media posts, given that “many use social media for personal communication, official communication, or both—and the line between the two is often blurred.” Ultimately, the Court held that the Commonwealth Court properly remanded the case for further proceedings under the traditional two-part test, concluding: “Today, we reaffirm that this two-part inquiry is the only test to be utilized when determining whether disclosure of information, regardless of its form, is required under the statute.”

The Penncrest decision carries significant implications for transparency, governance, and the conduct of public officials in Pennsylvania. First, it confirms that the RTKL is flexible enough to adapt to evolving technologies without the need for judicial invention of new tests. The statute’s definition of “record” applies across all media, ensuring that public access does not depend on the platform used. Second, the opinion underscores the importance of context. Public officials can no longer assume that personal accounts are immune from disclosure simply because they are labeled “private.” If those accounts are used to announce, explain, or document agency action, their contents may be subject to public access under the RTKL. At the same time, purely personal posts, such as family photos, vacation updates, or unrelated commentary, remain outside the statute’s scope. Third, the case highlights the ongoing tension between transparency and privacy in the digital age. The Court’s refusal to create bright-line rules reflects an appreciation for that complexity. Instead, the decision leaves lower courts with discretion to make case-specific judgments, guided by the statutory test and informed by contextual factors. This approach ensures flexibility but may also generate continued litigation as courts and agencies apply the standard in varied circumstances. Finally, the decision places responsibility on public officials to exercise caution in their use of social media. The line between personal and official capacity can be blurred, and posts made casually can later become the subject of public records requests. Agencies may wish to adopt clearer policies for officials’ use of social media, both to protect transparency and to provide guidance to employees navigating these boundaries.

For Pennsylvania’s local municipalities, authorities, counties, and its elected and appointed officials, employees, and citizens, the message is clear: the principles of open government remain constant even as technology changes the way communication occurs with the public. In Justice Mundy’s words, “[t]hese statutory requirements are the touchstone,” and they will guide courts in ensuring that the public continues to have meaningful access to government records in the digital era.

Stephen L. Korbel is a shareholder in the Public Sector Services and Employment and Labor groups of Babst Calland Clements & Zomnir. Contact him at 412-394-5627 or skorbel@babstcalland.com.

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

Peter D. Zittel is an associate at the firm, focusing his practice primarily on municipal and land use law. Contact him at 412-773-8711 or pzittel@babstcalland.com.

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EU-U.S. Data Privacy Framework: Current State and Possible Future Legal Challenges

TEQ Hub

(by Kristen Petrina)

Due to the lack of a United States national data privacy law, the EU-U.S. have attempted to create a legal framework that permits a streamlined, regulated, and sufficient data transfer framework. Since 2015, three different data transfer agreements between the European Union and the United States were introduced. All three have faced challenges due to concerns the data transfer agreements did not provide adequate protections for EU citizens’ data from U.S. government surveillance.

The first data transfer agreement implemented but was found to be inadequate and invalidated in 2015 by the EU’s Court of Justice was the EU-U.S. Safe Harbor framework, which was deemed insufficient for protecting EU citizens’ personal data and fundamental rights, particularly in light of revelations about U.S. surveillance programs. The second data transfer agreement implemented but ultimately found to be inadequate and invalidated in 2020 by the EU’s Court of Justice was the EU-U.S. Privacy Shield framework, which was deemed to not offer the same level of protection as the GDPR. In particular, the framework did not adequately protect EU citizens’ data from U.S. government surveillance. The EU-U.S. Safe Harbor and EU-U.S. Privacy Shield frameworks were challenged by Maximiliam “Max” Schrems and his data privacy rights organization NOYB – European Center for Digital Rights (NOYB). The challenges are referenced as Schrems I and Schrems II cases, respectively.

The third data transfer agreement implemented was the Data Privacy Framework (DPF). The EU-U.S. DPF was challenged by Latombe citing, among other claims, the U.S. Data Protection Review Court lacked true independence and impartiality, established as a key redress pillar under the DPF, and the sufficiency of safeguards governing bulk data collection by U.S. surveillance and intelligence agencies without prior authorization from EU citizens and lacked adequate oversight. The concerns were consistent with those raised in the Schrems I and Schrems II cases. Nevertheless, the European General Court dismissed Latombe’s actions in its entirety, upholding the European Commission’s adequacy decision.

The Latombe judicial challenge against the EU-U.S. Data Privacy Framework has been stopped by the European General Court. The ruling on September 3, 2025, conflicted with previously attempted EU-U.S. data transfer frameworks. The court dismissed the challenge brought by Philippe Latombe, Member of French Parliament (Latombe) to annul the DPF and reinforced the DPF’s validity of the European Commission’s adequacy determination for the U.S.

Data Privacy Framework

The most recent data transfer agreement between the EU-U.S. is the Data Privacy Framework (DPF). The DPF includes three different frameworks: (i) EU-U.S. Data Privacy Framework (EU-U.S. DPF), (ii) the UK Extension to the EU-U.S. Data Privacy Framework (UK Extension to the EU-U.S. DPF), and (iii) the Swiss-U.S. Data Privacy Framework (Swiss-U.S. DPF). The DPF was developed to alleviate challenges faced by transatlantic commerce of U.S organizations. The DPF provides U.S. organizations with reliable mechanism that are consistent with EU, UK, and Swiss law for personal data transfers to the U.S. from the European EU (EU) and European Economic Area (EEA), the United Kingdom and Switzerland.

U.S. organizations participating in the EU-U.S. DPF may receive personal data from the EU/EEA in reliance on the EU-U.S. DPF after the European Commission issued the U.S. adequacy decision on July 10, 2023 ((EU) 2023/1795). The adequacy decision enables the transfer of EU personal data to participating organizations consistent with EU law. U.S. organizations participating in the UK Extension to the EU-U.S. DPF may receive personal data from the United Kingdom and Gibraltar in reliance on the UK Extension to the EU-U.S. DPF. The data bridge for the UK Extension to the EU-U.S. DPF enables the transfer of UK and Gibraltar personal data to participating organizations consistent with UK law. Lastly, U.S. organizations participating in the Swiss-U.S. DPF may receive personal data from Switzerland in reliance on the Swiss-U.S. DPF, due to Switzerland’s recognition of adequacy for the Swiss-U.S. DPF. The recognition of adequacy enables the transfer of Swiss personal data to participating organizations consistent with Swiss law.

U.S. organizations must self-certify to the International Trade Administration (ITA) within the U.S. Department of Commerce their compliance to each DPF framework. Organizations that only wish to self-certify and participate in the EU-U.S. DPF and/or the Swiss-U.S. DPF may do so; however, organizations that wish to participate in the UK Extension to the EU-U.S. DPF must participate in the EU-U.S. DPF. Once such an organization self-certifies to the ITA, the organization declares its commitment to the DPF Principles, that commitment is enforceable under U.S. law. Organizations participating in the DPF must annually re-certify. A U.S. organization’s failure to re-certify, voluntarily withdrawal or determination by the ITA failure to comply with DPF requirements will result in removal from the DPF and must immediately cease claim of DPF participation. Nevertheless, upon removal from the DPF, U.S. organization’s compliance with all DPF principles must continue for all personal information received while participating in the DPF for as long as it retains such information.

European General Court’s DPF Legal Reasoning

Independence of the DPRC

Latombe’s primary argument and the cornerstone of the case was the structural dependence of the Data Protection Review Court (DPRC). The General Court reviewed the structure and function of the DPRC in detail, noting the appointment process for DPRC judges has multiple steps and layers, term limitations, and dismissal only for cause. Citing those findings, the General Court determined the judges were insulated from improper influence.

The General Court further discussed the statutory obligations on both the Attorney General and intelligence agencies, explicitly prohibiting their interference with the DPRC’s work. Separately, the European Commission is required to continue to monitor the application of the DPF, and if necessary, suspect, amend or repeal the adequacy decision should changes in U.S. law or practice lessen the safeguards. These factors led the court to find that the DPRC met the EU standard of independent and impartial redress.

Bulk Collection and Proportionality

The General Court reiterated that Schrems II did not demand ex ante judicial authorization, instead, it requires any bulk collection be subject to the meaningful, ex post judicial oversight. Separately, the General Court found that under U.S. law, collection of personal data by U.S. intelligence agencies is restricted to what is “necessary and proportionate” for clearly defined national-security purposes.

Further, such activities as bulk collection is subject to review DPRC, which has the authority to order remedial measures in cases where violations are identified. With this continued oversight, the General Court determined that the safeguards in the U.S. satisfy the “essential equivalence” test established by the Court of Justice of the European Union (CJEU).

Future of the DPF and Potential Additional Challenges

While this decision creates immediate stability for the DPF and participating U.S. organizations, the stability is not final.

Latombe has not indicated whether to expect an appeal, but he has until November 3, 2025 to decide whether to appeal the General Court decision to the CJEU. Separately, Max Schrems and NOYB issued a statement immediately upon the Latombe decision. NOYB argues that “the lower court here massively departs from the case law of the CJEU…It may be that the General Court did not have sufficient evidence before it – or it wants to make a point to depart from the CJEU. We will have to analyse the ruling in more detail the next days.” NOYB is monitoring the Trump Administration Executive Orders, removal of ‘independent’ heads of organizations, indicating that the Latombe challenge as too narrow and a more expansive challenge may come. Therefore, it is unclear whether further judicial challenges will be raised, leaving the long term stability of the DPF in question.

Separately, beyond a Latombe appeal or an NOYB challenge, the European Commission is required to continuously monitor the U.S. for any significant changes, whether legislative or U.S. agency changes. Any changes that could be found to significantly vary from the current framework, could result in a partial or complete suspension of the adequacy decision.

Conclusion

While the Latombe decision provides clarity and current certainty for U.S. organizations that require EU-U.S. data transfers, it is crucial that U.S. companies continue to monitor the annual European Commission reports, possible Latombe appeal and other legal challenges that may be brough before the General Court of the CJEU. The landscape of data transfers, domestically and internationally continues to be dynamic, requiring ongoing monitoring and U.S. companies should remain cautious and vigilant to every occurring changes. Additionally, while the Latombe judgement was a win for the DPF, it does not eliminate the need for transfer impact assessments when using alternative transfer mechanisms, such as Standard Contractual Clauses, especially for U.S. data recipients who have not self-certified under the DPF.

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EPA Will Retain PFOA and PFOS CERCLA Hazardous Substance Designation

PIOGA Press

(by Sloane Wildman and Alex Graf)

On September 17, 2025, EPA announced that it will retain the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substance designation for PFOA and PFOS, two PFAS compounds. The final rule designating PFOA and PFOS (and their salts and structural isomers) as hazardous substances under CERCLA became effective on July 8, 2024. Substances designated as hazardous under CERCLA are subject to release reporting requirements, specific spill rules, release tracking requirements, and additional reporting mandates under other environmental statutes. Further, EPA may require potentially responsible parties – PRPs – to clean up or pay for the cleanup of hazardous substances. In conjunction with EPA’s announcement, the U.S. Department of Justice submitted a filing in Chamber of Commerce of the United States of America v. EPA, No. 24-1193 (D.C. Cir.) (ongoing litigation, currently in abeyance, challenging the CERCLA designation of PFOA and PFOS), asking the court to lift the abeyance and propose an amended briefing schedule.

Prior to its 2024 PFOA and PFOS designation, EPA’s CERCLA hazardous substance list was comprised solely of substances designated under other environmental statutes (e.g., Clean Water Act, Clean Air Act, Resource Conservation and Recovery Act, and the Toxic Substances Control Act). EPA’s 2024 designation of PFOA and PFOS represented the first time the Agency used its authority under CERCLA Section 102(a) to list specific hazardous substances that were not designated under another environmental statute. In this week’s announcement, EPA stated its intention to initiate a rulemaking to “establish a uniform framework governing designation of hazardous substances under section 102(a) of CERCLA moving forward.” Such a “Framework Rule” would establish a uniform approach to guide future CERCLA hazardous substance designation, including EPA’s method for considering the costs of proposed designation.

EPA further stated that it will prioritize holding polluters accountable while still providing certainty for passive receivers (such as water utilities) that did not manufacture or generate PFOA or PFOS, and that it believes new statutory language will be necessary to fully address concerns regarding passive receiver liability. This statement is aligned with EPA’s PFAS strategy, issued on April 28, 2025, which expressly acknowledged the Agency’s intention to protect passive receivers of PFAS. EPA noted at the time that it intended to work with Congress and industry to establish a liability framework that operates on a “polluter pays” principle to provide greater certainty to passive receivers.

Babst Calland’s Environmental Practice Group is closely tracking EPA’s PFAS actions, and our attorneys are available to provide strategic advice on how developing PFAS regulations may affect your business. For more information or answers to questions, please contact Sloane Wildman at (202) 853-3457 or swildman@babstcalland.com or Alexandra Graf at (412) 394-6438 or agraf@babstcalland.com.

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Prove It: Department of Transportation’s DBE Program Ceases Presumption of Disadvantaged Status for Women- and Minority-Owned Businesses

Firm Alert

(By Alex Farone and Janet Meub)

The U.S. Department of Transportation (DOT) issued an Interim Final Rule (IFR) effective October 3, 2025, instituting an immediate and significant change for the qualification of women- and minority-owned businesses in the DOT’s Disadvantaged Business Enterprise (DBE) and Airport Concessions Disadvantaged Business Enterprise (ACDBE) Program. For purposes of the DBE/ACDBE program, women- and minority-owned businesses were historically presumed to be disadvantaged, automatically meeting one of the requirements for DBE status; this is no longer the case.

What is the DBE/ACDBE program? The purpose of this longstanding program is to level the playing field for small businesses in the highway construction, transit, and airport industries, owned by socially and economically disadvantaged individuals, seeking to participate in federally funded contracts. Congress enacted the first statutory DBE provision in 1983, setting a goal that at least 10% of project funds be issued to DBEs on highway and transit projects. In 1987, Congress expanded the program for airport projects and concessionaries. This legislatively-mandated program was intended to ensure nondiscrimination and remove barriers in the award of DOT-assisted contracts, and thus the DOT was entrusted with oversight of the program.

Specifically, the program requires state and local transportation agencies that receive DOT grants to develop their own aspirational DBE contracting goals based on the availability of DBEs in their local markets, to meet the program targets. Notably, grantees are generally prohibited from using quotas or set-aside contracts for DBEs. (49 CFR § 26.43). They have been required to use race- and gender-neutral means to meet their goals to the extent possible, without using criteria favoring DBEs over non-DBEs (49 CFR §§ 26.5, 26.51). Examples of such neutral means are unbundling of large contracts, informational programs on contracting opportunities, and offering business support services. Eligibility for DOT financial assistance depends on DOT approval of grantee DBE programs; however, as long as the program is administered in good faith, grantees cannot be penalized for noncompliance or failure to meet their set DBE contracting goals. (49 CFR §§ 26.21(c), 26.47).

To qualify as a DBE, an entity must be a for-profit small business that is at least 51% owned and controlled by socially and economically disadvantaged individuals who do not exceed certain net worth caps. To qualify as socially and economically disadvantaged, the owners must either demonstrate disadvantage by meeting specific conditions or be presumed disadvantaged. Since 1987, the DOT has presumed social and economic disadvantage for women- and minority-owned business owners. As of October 3, 2025, however, this presumption ceased; henceforth, these business owners must “prove it.”

What happens now? To remain in the program, all DBE/ACDBE certified businesses owners must be reevaluated for disadvantaged status. The IFR changes the definition of a “socially and economically disadvantaged individual,” to one “who a certifier finds to be socially and economically disadvantaged on a case-by-case basis. [This] determination … must not be based in whole or in part on race or sex.”

Business owners must submit both a Personal Narrative (PN) and a Personal Net Worth Statement to demonstrate eligibility. The PN should demonstrate the existence of a disadvantage based on individual proof of specific instances of economic hardship, systemic barriers, and denied opportunities that impeded the owner’s progress or success in education, employment, or business. The PN must state how and to what extent these impediments caused the owner economic harm, including a description of the type and magnitude, and must establish the owner is economically disadvantaged relative to similarly situated individuals. The business owner must also attach and submit a Personal Net Worth Statement, and any other financial information they consider relevant.

Those submitting commercial and financial business information normally considered proprietary or confidential are cautioned to designate those submissions as “PROPIN.” If one fails to mark the confidential business information as “PROPIN,” under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, the information is placed in the public docket for rulemaking purposes. To avoid public dissemination of confidential businesses information, entities should make sure that employees tasked with the submission of this documentation understand the need for designation.

The existing regulations require states to establish Unified Certification Programs (UCP) to handle state-wide DBE-firm certification, including making certification decisions on behalf of all DOT grant recipients in the state and maintaining a state directory of certified DBE firms. Now, each UCP is required to identify currently certified DBEs, provide them with the opportunity and instructions to submit documentation demonstrating eligibility under the new standards, and then issue a written decision indicating whether each business has been recertified or is decertified “as quickly as practicable.” The IFR does not require the UCP’s written decision to explain the specific basis for recertification or decertification. Individual UCPs are expected to create their own timelines for firm submissions of new PNs and Personal Net Worth Statements, but the DOT has expressly reserved the right to review a UCP’s reevaluation process.

Until the UCP reevaluations are complete, goal setting and other DBE/ACDBE program elements are suspended. The current federal government shutdown of indeterminate duration will likely further slow the reevaluation process.

What prompted this IFR? On February 24, 2025, President Trump issued Executive Order 14219, Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative, which ordered agencies to identify “unconstitutional regulations and regulations that raise serious constitutional difficulties” and to target them for repeal. On April 9, 2025, the President issued a presidential memorandum to the heads of all federal agencies, directing that this effort should prioritize regulations that conflict with certain U.S. Supreme Court decisions, including Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), a landmark 2023 ruling that consideration of race in college admissions violates the Equal Protection Clause of the Fourteenth Amendment, essentially ending affirmative action.

In a pending case in the Eastern District of Kentucky, non-DBE entities who had lost bids on DOT-funded projects filed suit against the DOT, claiming that they cannot compete for DOT contracts on an equal footing with entities owned by women or racial minorities because of their presumptive qualification as DBEs. In September of 2024, the court granted a preliminary injunction, determining that the disadvantage presumption of the DBE program likely violates the Equal Protection Clause. Mid-America Milling Co. v. U.S. Dep’t of Transp., No. 3:23-cv-00072, 2024 WL 4267183 (Sept. 23, 2024). The preliminary injunction prohibits the DOT from mandating use of the presumptions with respect to the contracts on which the plaintiff entities had bid.

Shortly following the President’s February Executive Order and April memorandum, both the DOT and Department of Justice (DOJ) evaluated the DBE/ACDBE program as directed by the administration.

In May of 2025, the parties asked the court to enter a consent order resolving the constitutional challenge to the DBE program, where the DOT (represented by the DOJ in court) stipulated and agreed that the DBE program’s presumptions violate the Equal Protection Clause. The proposed consent order asks the court to declare the use of DBE contract goals to be unconstitutional nationwide and to hold that DOT cannot approve any DOT-funded projects with DBE contract goals where any DBE in the jurisdiction was determined eligible based on race- or sex-based presumptions. Notably, the consent order remains pending.

On June 25, 2025, Solicitor General D. John Sauer of the DOJ advised Speaker of the House Mike Johnson that DOJ concluded the DBE program’s race- and sex-based presumptions are unconstitutional, and that DOJ would no longer defend those presumptions in court—consistent with the proposed consent order in the pending Mid-America Milling case. Soon thereafter, on October 3, 2025, DOT issued the present IFR.

How can the DOT issue an immediately-effective rule like this IFR? The Administrative Procedures Act (APA), 5 U.S.C. §§ 551-559, mandates that federal administrative agencies follow certain procedural steps before enacting a rule. Typically, an agency must publish notice of the proposed rule in the Federal Register, citing its authority to make the rule and including the proposed terms. Then, the public must be given the opportunity to comment on the proposed rule. After considering comments and making any revisions to the rule based thereon, the agency must provide a general statement of the basis and purpose of the rule and generally must publish the final rule no less than 30 days prior to the effective date. However, an agency may skip the aforementioned procedure and issue a rule without the notice, comment, and minimum 30-day effectiveness delay if it finds good cause that the process is “impracticable, unnecessary or contrary to public interest.” 5 U.S.C. § 553(b)(B). Here, the DOT determined that the presumption of disadvantage under the DBE/ACDBE program is unconstitutional, so enforcing those presumptions would be contrary to public interest and providing an advance notice-and-comment period would be impracticable and unnecessary. While this IFR is effective immediately, the public can currently comment on the IFR for a 30-day period, and the DOT may amend the rule pursuant to submitted comments.

We will follow further developments concerning this IFR and DBE program requirements and provide updates. For more information about how these requirements affect your business, drafting a PN for certification reevaluation, and how Babst Calland can assist you, please contact Alexandra G. Farone (412) 394-6521 or afarone@babstcalland.com or Janet K. Meub at (412) 394-6506 or jmeub@babstcalland.com.

EPA Proposes to Extend Certain Compliance Deadlines for Steam-Electric Power Generating Effluent Limitations Guidelines

Environmental Alert

(by Ben Clapp, Gary Steinbauer and Mackenzie Moyer)

On October 2, 2025, the Environmental Protection Agency (EPA) published a Proposed Rule and a companion Direct Final Rule to extend certain compliance deadlines for effluent limitations guidelines (ELGs) for the Steam-Electric Power Generating point source category in the Federal Register. 90 Fed. Reg. 47617; 90 Fed. Reg. 47693. EPA is “taking action to provide near-term compliance flexibility to coal-fired power plants by extending seven deadlines in the 2024 ELG rule and additional flexibilities for power generators to enhance the service life of critical energy infrastructure.” EPA states that the proposal seeks to advance the goals of the Trump administration’s Unleashing American Energy Executive Orders and provide reliable energy as demand increases due to the rise of AI and data centers.

Under the Clean Water Act (CWA), EPA is authorized to establish nationally applicable, technology-based ELGs for discharges from different categories of point sources. ELGs are based on technological feasibility, not water quality, and are based on the performance of specific treatment technologies, but do not require use of those specific control technologies.

In November 2015, EPA promulgated revisions to the steam-electric power generating point source category for the first time since 1982. The 2015 Rule set the first federal limitations on certain pollutants, such as toxic metals, discharged from a steam-electric power plant’s largest wastewater streams. As a result of legal challenges, EPA was required to reconsider certain limitations in the 2015 Rule. EPA reconsidered the ELGs for flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water and published a reconsideration rule in 2020 (the 2020 Rule). Environmental groups challenged the 2020 Rule, and that challenge has been held in abeyance since 2022. In 2024, EPA finalized the Steam Electric Supplemental Rule (the 2024 Rule), which established, among other things, zero-discharge limitations for three wastewater streams: (1) FGD wastewater; (2) BA transport water; and (3) managed combustion residual leachate (CRL). The 2024 Rule was also challenged, and the litigation is currently being held in abeyance while EPA reviews and reconsiders the Rule. See Southwestern Electric Power Co. v. EPA, No. 24-2123.

The current rulemaking package is intended to provide more flexibility for subject power plants by extending seven compliance deadlines in the 2024 Rule. First, EPA proposes providing six more years, until December 31, 2031, for existing power plants to submit a Notice of Planned Participation (NOPP) for electric generating units permanently ceasing coal combustion by December 31, 2034, a compliance option that power plants can select to avoid the zero-discharge limitations established for certain waste streams in the 2024 Rule. This deadline is also the subject of the Direct Final Rule, which becomes effective on December 1, 2025, 60 days after publication in the Federal Register, without further notice, unless EPA receives adverse comments during the comment period. If EPA receives adverse comments to the extension of the NOPP deadline for the 2034 subcategory, EPA will withdraw the Direct Final Rule. Second, EPA proposes to extend the compliance deadlines for the zero-discharge limitations for FGD wastewater, BA transport water, and CRL by five years to December 31, 2034. Third, EPA’s proposal makes changes to compliance deadlines related to certain zero-discharge limitations for indirect dischargers—dischargers that send wastewater to wastewater treatment plants instead of directly to a water of the United States. EPA’s proposal aligns the deadlines applicable to indirect dischargers with those of direct dischargers. The latter two proposed extensions were not included in the Direct Final Rule.

EPA is also proposing to expand the transfer flexibilities found in 40 C.F.R. § 423.13(o) by including new options for facilities wishing to transfer between requirements for zero-discharge and requirements applicable to facilities ceasing coal combustion by 2034. Lastly, EPA is proposing to provide permitting authorities with the authority to allow site-specific extensions for paperwork submission deadlines in both the 2020 and 2024 Rules when it is necessary to address unexpected circumstances, including those related to changes to regional capacity market prices or local electricity demands materially exceeding projections made in the most recent iterations of integrated resource plans or other planning documents.

While EPA is not proposing to change the technological bases for the ELGs at this time, EPA is soliciting feedback on whether it should consider a future rulemaking related to the technology-based limits themselves and is requesting information on the availability, economic achievability, resource adequacy, and reliability impacts of the current zero-discharge technologies.

The comment periods on Proposed Rule and Direct Final Rule close on November 3, 2025. Additionally, EPA is hosting a webinar on the rule package on October 14, 2025.

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

Pennsylvania Supreme Court’s Ruling in Tranter Clarifies Standard for Intrastate Venue Transfers

Litigation Alert

(by Joseph Schaeffer and Ryan McCann)

On September 25, 2025, the Pennsylvania Supreme Court clarified the standard governing motions to transfer venue under the doctrine of forum non conveniens and Rule 1006(d)(1) of the Pennsylvania Rules of Civil Procedure. The rule, together with its complementary doctrine, permits a party to seek transfer of venue—even when venue is otherwise proper—to another county “for the convenience of parties and witnesses.” Pa. R.C.P. 1006(d)(1).

In Tranter, et al. v. Z&D Tour, et al., Nos. 18 EAP 2024 to 32 EAP 2024 (Pa. 2025), a motorcoach bus carrying approximately five dozen passengers was involved in a deadly multi-vehicle collision in Westmoreland County, in western Pennsylvania. Plaintiffs, passengers on the coach bus, filed suit in Philadelphia County, in eastern Pennsylvania, for damages sustained from the accident. After conducting limited discovery on the issues of venue and forum non conveniens, defendants filed a motion to transfer venue to Westmoreland County, citing the overwhelming number of witnesses and evidence located in that area. The trial court balanced the plaintiffs’ interest in their chosen forum against the hardships asserted by defense witnesses. Considering the totality of the circumstances, and affidavits detailing the burdens of traveling across the state to testify, the trial court granted defendants’ motions to transfer venue.

The Superior Court reversed. Drawing on its own precedent, the Superior Court held that the trial court erred in granting the motions because the defendants had not shown that the proposed testimony would be “critical” to their defense. While the defendants established that the witnesses could offer relevant testimony, the defendants neither demonstrated—nor did the trial court explain—why that testimony was essential. Accordingly, the Superior Court concluded that the defendants had not met their burden to overcome the plaintiffs’ choice of forum, as there was no indication the witnesses were truly “key” to the defense.

The Pennsylvania Supreme Court granted allocatur to determine whether the Superior Court had misapplied the doctrine of forum non conveniens. On appeal, defendants argued that the Superior Court erred by elevating its own precedent over controlling Supreme Court authority, that its “key witness” requirement imposed an unreasonable and impractical burden, and that trial courts retain broad discretion in deciding transfer motions. Plaintiffs countered that significant deference is owed to a plaintiff’s choice of forum, that modern technology reduces the weight of witness-convenience arguments, and that defendants’ affidavits were deficient on multiple fronts.

The Supreme Court reversed, finding that its decisions in Cheeseman and Bratic controlled these issues.^[1] Addressing first the plaintiffs’ argument that their choice of venue is entitled to deference, the Supreme Court emphasized that such preference is “not unassailable.”^[2] Instead, a defendant may overcome it by showing “with detailed information on the record, that the plaintiff’s chosen forum is oppressive or vexatious to the defendant.”^[3] In practical terms, transfer is warranted where the plaintiff’s chosen forum is intended to burden or harass the defendant, or where the defendant demonstrates that another county would provide substantially easier access to witnesses or other sources of evidence.

Once the record is developed, the decision whether to grant a transfer lies within the trial court’s discretion. In Bratic, the Supreme Court underscored the “considerable discretion” afforded to trial courts in ruling on such motions. The Supreme Court reiterated that so long as a trial court does not rely on impermissible considerations—such as its own docket congestion or isolated factors like a witness’s residence or travel distance—its decision should not be disturbed on appeal.

The Supreme Court also explained that distance alone is not determinative: a venue is not automatically oppressive simply because witnesses must travel more than one hundred miles, nor is a shorter distance irrelevant. Nonetheless, as a general rule, the Supreme Court reaffirmed that one hundred miles serves as a reasonable guidepost in evaluating whether a chosen forum is oppressive.^[4]

The Supreme Court next rejected the plaintiffs’ argument—and the Superior Court’s conclusion—that the affidavits were insufficient, noting that Bratic reached the opposite result. It reiterated that a defendant petitioning for transfer of venue must place the grounds on the record, “but no ‘particular form of proof’ is required.”^[5]In fact, “there is no ‘affidavit requirement’ at all.”^[6]Thus, the Superior Court’s criticism of the defendants’ affidavits was an error because the defendants had established on the record the potential hardship, and that hardship need not be outlined in an affidavit.

Addressing the Superior Court’s use of a “key witness” requirement, the Supreme Court characterized it as a stark departure from Cheeseman and Bratic. The Supreme Court emphasized that those precedents control and clarified that, although a petitioner must identify burdened witnesses and provide a general description of their anticipated testimony, exacting detail is not required. Nor must petitioners characterize such testimony as “necessary,” “critical,” or uniquely beneficial to their defense.^[7]

Finally, the Supreme Court considered plaintiffs’ argument that distance poses no real burden in light of modern technology allowing remote testimony. The Supreme Court rejected this position, explaining that while virtual testimony may be useful when in-person proceedings are not feasible, it is not an adequate substitute in the ordinary course. To adopt such a rule, the Supreme Court cautioned, would effectively render the doctrine of forum non conveniens meaningless.

The Supreme Court’s ruling in Tranter is significant because it clarifies the standard for intrastate venue transfers. The Court confirmed that while a plaintiff’s forum choice carries weight, it may be overcome where the record shows that litigating elsewhere would ease witness or evidentiary burdens, without requiring defendants to prove that such witnesses are “key” or “critical.”

If you have questions about the Tranter decision, or its implications for your business, please contact Joseph V. Schaeffer at 412-394-5499 or jschaeffer@babstcalland.com or Ryan M. McCann at 412-773-8710 or rmccann@babstcalland.com.

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^[1] See generally Bratic v. Rubendall, 626 Pa. 550 (Pa. 2014); Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200 (Pa. 1997)
^[2]Tranter, slip op. at 23.
^[3]Id. at 27 citing Cheeseman, 701 A.2d at 162
^[4]Tranter, slip op at 32.
^[5]Id. citing Bratic, 99 A.3d at 9.
^[6]Id.
^[7] Tranter, slip op at 37.

FTC Withdraws Non-Compete Appeal, Previews a More Focused Approach

The Legal Intelligencer

(by Steve Antonelli and Alex Farone)

Recent activity from the Federal Trade Commission (FTC or Commission) indicates yet another shift in the Commission’s view on non-compete agreements, the latest in a turbulent 16-month period for this topic that began with the FTC’s May 2024 publication of a final rule banning most non-competes throughout the country.

The rule was set to take effect 120 days later, on September 4, 2024, and it would have banned the vast majority of new non-competes with employees, independent contractors, and volunteers nationwide, with the exception of those entered into pursuant to certain business sales. The ban was published based on the view of the Commission, which was controlled by a Democratic majority at the time, that non-competes are an unfair method of competition and therefore a violation of Section 5 of the FTC Act. In addition to the ban, the rule would have required employers to notify impacted workers of their agreements’ unenforceability.

Two weeks before its effective date, on August 20, 2024, the U.S. District Court for the Northern District of Texas invalidated the ban with its opinion in Ryan LLC, et al. v. Federal Trade Commission. The court ruled that the ban exceeded the FTC’s statutory authority. In doing so, it held that the creation of substantive rules stretched beyond the FTC’s power, and that the ban was unreasonably overbroad. The FTC appealed the court’s ruling to the U.S. Court of Appeals for the Fifth Circuit. The FTC filed its appellate brief in January 2025 but then sought a stay of the appeal in March 2025.

On September 5, 2025, one year and one day after the ban was originally set to take effect, the FTC formally withdrew its appeal of the Ryan decision as well as a similar appeal pending in the 11th Circuit. By withdrawing the appeal, the Commission (which is now entirely comprised of Republican appointees) essentially accepted the position of the Texas federal court in Ryan, which limits the FTC’s authority to creating rules of agency procedure rather than substantive rules regarding unfair methods of competition.

Although the FTC’s appeal withdrawal appears to be the final nail in the coffin of the non-compete ban, the day before it withdrew the appeal, the FTC issued a press release announcing an enforcement action to protect American workers from “harmful labor practices” by ordering Gateway Services, Inc., the nation’s largest pet cremation business, to stop enforcing restrictive covenants against nearly all of its workers. The FTC claimed that Gateway required almost every one of its 1,800 employees, regardless of their position or responsibilities (and regardless of the existence of a protectable interest), to sign a non-compete agreement that prohibited employees from working in the pet cremation service industry for one year after the end of their employment with Gateway. The FTC claimed that these agreements, which were even entered into with hourly employees and laborers, “unfairly alter the bargaining power” between Gateway and its employees, and they suppress competition by impeding the entry or expansion of similar businesses.

To resolve the matter, the FTC accepted a consent agreement containing a proposed consent order that, if finalized after a 30-day public comment period, would:

Prohibit Gateway from entering into, maintaining, or enforcing non-competes except in the context of the sale of a business by a person with pre-existing equity, or a non-compete of a director, officer, or senior employee signed in exchange for some kind of equity award;
Require Gateway to notify its employees that they are no longer subject to their non-compete; and
Prohibit Gateway from preventing employees from soliciting customers, except for those customers with whom the employee had direct contact during the last 12 months of their employment.

Though a final decision and order in this case would only be legally binding on Gateway, the case provides guidance on what circumstances might make a particular non-compete practice unlawful under Section 5 of the FTC Act in the Commission’s current view. It also raises the question of whether the FTC remains interested in challenging non-competes generally, or only in circumstances involving egregious violations like the case it alleged against Gateway. Either way, employers should continue to monitor the latest developments involving non-compete agreements.

If you have any questions about non-compete agreements or any developments concerning the FTC’s position on non-compete agreements, please contact Stephen A. Antonelli at 412-394-5668 or santonelli@babstcalland.com or Alexandra G. Farone at (412) 394-6521 or afarone@babstcalland.com.

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

Alexandra G. Farone is an associate in the Employment and Labor and Litigation groups of Babst Calland. Ms. Farone’s employment and labor practice involves representing Fortune 500 companies, startups, public sector organizations, family-owned businesses, health care providers, and the financial services industry on all facets of employment law, including comprehensive human resources counseling concerning restrictive covenants, discrimination and harassment, disability accommodation, grievances, personnel best practices, contract negotiations, wage and hour issues, and collective bargaining.

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EPA Will Retain PFOA and PFOS CERCLA Hazardous Substance Designation

Environmental Alert

(by Sloane Wildman and Alex Graf)

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

PIOGA Press

(by Gary Steinbauer, Gina Buchman, and Christina Puhnaty)

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

Summary of Deadline Extensions

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

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

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

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

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

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

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

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

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

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

Environmental Groups’ Challenge

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

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

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

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D.C. Circuit Reinstates Clean Air Act Affirmative Defense for Emergency Exceedances

Environmental Alert

(by Joseph Schaeffer, Gina Buchman and Ryan McCann)

On September 5, 2025, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) reinstated an affirmative defense under the Clean Air Act (CAA) for exceedances occurring as a result of an emergency, ruling that the Environmental Protection Agency’s (EPA) rescission of that defense was arbitrary and capricious. EPA had first established that affirmative defense for state-issued Title V permits in 1992, 57 Fed. Reg. 32250, 32306, and then expanded it to federally-issued Title V permits in 1996, 61 Fed. Reg. 34202, 34239. In doing so, it created a limited shield to liability for exceedances of emissions limitations if the operator could prove that the exceedance was due to “any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God ….” 40 C.F.R. § 70.6(g)(2). By 2016, however, EPA had concluded that the affirmative defense unlawfully encroached on the judiciary’s role to impose appropriate civil penalties for CAA violations or, alternatively, rendered applicable emissions limitations “non-continuous” in violation of 42 U.S.C. § 7602(k). EPA then rescinded the regulation affording the affirmative defense in 2023. 88 Fed. Reg. 47029, 47030–31

SSM Litigation Group (SSM), a coalition of interest groups representing Title V permit holders, petitioned the D.C. Circuit for review. After first disposing of EPA’s challenge to SSM’s standing, the Court turned to whether EPA’s elimination of the affirmative defense was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

EPA’s merits-based argument was two-pronged. The CAA allows any person to commence a civil action against another person or entity who is alleged to have violated an emission standard or limitation. 42 U.S.C. § 7604. Once such a suit has been brought, district courts have the authority to determine an appropriate civil penalty. Id. EPA maintained that the affirmative defense limits a district court’s authority to impose such civil penalties by allowing operators to escape liability. The Court, relying upon its own recent precedent, disagreed. Citing Florida Electric Power Coordinating Group, Inc. v. EPA, 94 F.4th 77 (D.C. Cir. 2024), the Court reiterated the distinction between a complete defense and a defense limited solely to remedies. Affirmative defenses that apply only to remedies exceed EPA’s authority, as they impermissibly constrain the discretion of district courts to impose civil penalties once enforcement proceedings have commenced. Conversely, establishing complete defenses does not run afoul of EPA’s authority because complete defenses relate to liability and not penalties. In other words, the district court’s authority to impose civil penalties is not hindered where the affirmative defense precludes any finding of liability.

EPA also maintained, though, that the affirmative defense violated the CAA’s continuity principle by authorizing deviations from applicable emissions limitations. See 42 U.S.C. § 7602(k). The Court found this logic to be flawed because affirmative defenses do not halt the applicable standards. Instead, the Title V defense simply prevents operators from incurring liability for non-compliance during emergencies. The underlying emissions standard continues to apply, and is therefore “continuous,” but the operator is not liable despite their failure to abide with the ongoing standards. To further clarify the breadth of this ruling, the Court stated that “a complete affirmative defense to liability does not render an emission limitation non-continuous.”

In sum, EPA’s rescission of the Title V defense was based on a legal interpretation of the CAA that the D.C. Circuit has since rejected, rendering the agency’s action arbitrary and capricious. As a result, the Title V affirmative defense for emergencies remains a liability shield for operators.

Babst Calland is closely tracking these regulatory developments, and our attorneys are available to provide strategic advice on how these actions may affect your business. For more information or answers to questions, please contact Joseph Schaeffer at (412) 394-5499 or jschaeffer@babstcalland.com, Gina Buchman at (202) 853-3483 or gbuchman@babstcalland.com, Ryan McCann at (412) 773-8710 or rmccann@babstcalland.com, or your Babst Calland relationship attorney.

White House Releases Sweeping AI Action Plan

TEQ Hub

(by Susanna Bagdasarova and Justine Kasznica)

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

Guiding Principles

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

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

Key Policy Initiatives

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

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

Strategic Takeaways

The Action Plan highlights the administration’s intent to make artificial intelligence a central pillar of national policy. It marks a significant change in the federal government’s approach to AI. In contrast to the Biden administration’s more cautious stance focusing on risk management, the Action Plan emphasizes innovation and acceleration through deregulation, rapid development, and establishing U.S. global influence in AI. For businesses, the framework provides new opportunities, incentives, and challenges, including:

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

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

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

President Trump also highlighted his administration’s AI strategy during his first major speech on AI at a White House AI summit on the same day the Action Plan was released afternoon and signed three AI-related executive orders which correlate with various Action Plan directives: Promoting The Export of the American AI Technology Stack[4], Accelerating Federal Permitting of Data Center Infrastructure,[5] and Preventing Woke AI in the Federal Government.[6]

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

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

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

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

[4] Full text available at Promoting The Export of the American AI Technology Stack.

[5] Full text available at Accelerating Federal Permitting of Data Center Infrastructure.

[6] Full text available at Preventing Woke AI in the Federal Government.

Former U.S. Department of Justice Environmental Enforcement Attorney Nicholas McDaniel Joins Law Firm Babst Calland’s Washington, D.C. Office

Babst Calland announced that Nicholas McDaniel has joined the firm as a shareholder in the firm’s Washington, D.C. office. With more than a decade of combined government and private practice experience, most recently as a senior enforcement attorney with the U.S. Department of Justice’s Environment and Natural Resources Division, Environmental Enforcement Section, McDaniel will be a member of the firm’s Litigation, Environmental, and Energy and Natural Resources groups. He will counsel companies on environmental compliance, enforcement, and litigation challenges.

At Babst Calland, McDaniel will focus his practice on complex environmental and commercial litigation for clients in the energy, natural resources, and manufacturing sectors. His work will include enforcement defense, citizen suits, and disputes involving environmental contamination. He also brings significant experience navigating bankruptcy proceedings involving environmental claims and negotiating settlements with regulators and citizen groups.

During his tenure at DOJ, McDaniel led major federal enforcement actions and complex negotiations that resulted in landmark environmental settlements. Notably, he secured the largest-ever civil penalty under the Clean Air Act, and is a three-time recipient of the prestigious Assistant Attorney General’s Award for Excellence – first for litigating and settling a cost recovery action under the Oil Pollution Act related to the longest-running oil spill in U.S. history, then for securing CERCLA cost recovery and natural resource damages on behalf of the United States, and later for his record Clean Air Act settlement. He also received numerous other honors, including the 2024 Arthur S. Flemming Award for legal achievement and recognition from the U.S. Department of Justice and the U.S. Environmental Protection Agency for exceptional service.

Earlier in his career, he litigated energy and rate-making cases before the Public Utilities Commission and in state courts with the Environmental Law & Policy Center.

“Nick is a highly skilled litigator with significant first-chair trial experience who has handled some of the toughest environmental enforcement cases in the country,” said Mark K. Dausch, shareholder in Babst Calland’s Litigation practice. “His government experience and proven ability to lead in the courtroom and deliver results in complex, high-stakes matters will be invaluable to our clients and a tremendous asset to our litigation team.”

“I am excited to join Babst Calland and to continue my practice alongside such a strong team of environmental and litigation attorneys,” said Nick McDaniel. “This firm has a well-earned reputation for excellence in environmental law and energy matters, and I look forward to helping clients address their most pressing challenges.”

“We are thrilled to welcome Nick to Babst Calland,” said Managing Shareholder Donald C. Bluedorn II. “His leadership role at DOJ in some of the most significant environmental enforcement cases in recent years, combined with his strong litigation background, brings exceptional perspective and capability to our clients as they navigate complex environmental challenges.”

McDaniel earned his J.D. cum laude from Harvard Law School in 2011 and his B.A. summa cum laude from Eastern Kentucky University in 2008. He is admitted to practice in the District of Columbia and Massachusetts.

Key Environmental and Energy Policies in the Second Trump Administration

Developing Pittsburgh

(by Ben Clapp and Gary Steinbauer)

Announced through a record-breaking number of executive orders, memoranda and directives, new White House energy and environmental policy initiatives are resulting in a rapidly changing environmental regulatory climate affecting the business community.

To help clients keep pace with these new policy initiatives, and recent steps that EPA has taken to implement this broad deregulatory agenda, attorneys at the law firm Babst Calland offer advice on how businesses can adapt and thrive in a swiftly changing regulatory environment.

It will be some time before we get a clear picture on “this administration’s policy objectives and how they’re all going to unfold,” Gary Steinbauer, a shareholder working with the environmental law practice of Babst Calland’s Pittsburgh office, says.

One of the emerging energy policy themes is the Trump administration’s goal of “American energy dominance,” achieved through permitting reform and environmental deregulation in the energy sector. Other themes include de-emphasizing climate change-based regulatory initiatives, promoting domestic manufacturing and mineral extraction, and grid reliability.

Executive orders 101

An executive order is a written statement in which a president broadcasts a directive to implement a policy change.

Presidents have fairly broad authority in terms of the scope of what they can order, “provided that that order is consistent with the applicable laws,” Ben Clapp, shareholder and chair of the environmental section at Babst Calland’s Washington, D.C. office, says.

A president cannot, through executive order, revise a regulation or amend or revoke a law. However, a president can revoke a previous administration’s executive orders and use them to announce new policy initiatives. Sometimes, when undertaking specific activities that have been delegated to the executive branch by Congress or the Constitution, they can compel a specific, direct action through an executive order without further procedures. In other cases, such as when a president directs an agency to issue or rescind a regulation, the agency needs to comply with notice and comment rulemaking requirements under the Administrative Procedure Act before taking final action.

Of particular interest at present are a slate of executive orders directing agencies to undertake deregulatory and permitting reform regulatory actions in furtherance of the promotion of domestic energy production. Among the most noteworthy, the Unleashing American Energy order directs agencies to identify those regulations that serve as an impediment to the production of American energy (in the context of this order – fossil-based resources, uranium, biofuels, hydroelectric power, geothermal energy and critical minerals but not including solar and wind energy sources), and develop and implement action plans to suspend, revise or rescind such actions. This order dovetails with a contemporaneous order Declaring a National Energy Emergency, which directs certain agencies to use emergency authority to facilitate energy development, transportation, refining, and generation.

Other executive orders of note relating to enhancing domestic energy production include:

Immediate Measures to Increase American Mineral Production, which, in part directs the DOI to identify areas on federal lands that can be “immediately implemented for mineral production.”
Ensuring National Security Through 232 Actions on Processed Critical Minerals, ordering the initiation of an investigation to determine the effects on national security of imports of processed critical minerals and their derivative products.
Unleashing America’s Offshore Critical Minerals and Resources, aimed at seabed mineral development by developing domestic capabilities through streamlined permitting, enhancing coordination amongst agencies.
Reinvigoration of America’s Beautiful Clean Coal Industry, which classifies coal as a mineral of the same level of importance as critical minerals, uranium, and copper, prioritizes coal leases on federal lands, promotes coal technology, including data center support, and directs agencies to identify regulations impeding coal production and consider revising or rescinding them.
A trio of executive orders aimed at enhancing the domestic production of nuclear power.

In addition, “the United States [issued executive orders] extracting itself from previous administrations’ climate change-based regulatory efforts, including removing itself from international climate agreements and rescinding executive orders that were in place to promote climate change-related regulation,” Clapp says.

National Energy Policy Act (NEPA) law reform.

Since 1970, NEPA has required that agencies closely examine the environmental impacts associated with major federal actions. In the context of emerging production, it’s important because the law’s environmental review requirements can be triggered:

In connection with the issuance of leases on federal lands for domestic energy production.
By the issuance of certain environmental permits, including those issued under Section 404 of the Clean Water Act, allowing the dredging and filling of wetlands.
By certain federal funding initiatives supporting energy projects.

Given the lengthy environmental review periods involved in the NEPA process and the propensity for project opponents to employ legal challenges to the NEPA process in attempts to delay or block energy projects, NEPA is viewed by the Trump administration as an “impediment to energy production,” Clapp says. In furtherance of the Trump administration’s Unleashing American Energy Executive Order, in February 2025, the Council on Environmental Quality (CEQ), which is the agency tasked with overseeing the implementation of NEPA, issued a memorandum directing agencies to revise or establish their NEPA implementing procedures to expedite permitting approvals in accordance with NEPA statutory timeframes. The CEQ followed that up with an interim final rule issued in April 2025 rescinding its own NEPA regulations that had been binding on other federal agencies. The current outlook for NEPA reviews remains unclear while we wait for agencies to develop their own NEPA regulations and implement the EO directives to make the approval process more efficient. Under the statute, however, agencies still have up to two years to complete the most detailed form of environmental review.

We are beginning to see early examples of agencies expediting NEPA reviews pursuant to the mandates contained in the executive orders and the CEQ February 2025 memorandum. For example, the Bureau of Land Management recently announced that they were rescinding its notice of intent to prepare Environmental Impact Statements – the most comprehensive and lengthy form of NEPA review, often taking more than two years – for more than 3,200 oil and gas leases in Western states on the grounds that it conflicted with its mandate to reduce regulatory barriers for oil and gas companies and expediting domestic energy development.

Emergency Permitting

Agency efforts are also underway to implement the emergency permitting directive issued in the Declaring a National Energy Emergency Executive Order, which requires that federal agencies, including the Army Corps of Engineers and the Department of the Interior, to use their emergency permitting powers to fast track energy projects requiring permits under Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act, and the Endangered Species Act. The issuance of these permits trigger NEPA reviews, and therefore, the emergency permitting procedures are entwined with the administration’s efforts to expedite NEPA reviews.

In response to this directive, the Army Corps of Engineers is actively fast-tracking more than 600 energy projects. For example, in February, the Army Corps committed to issuing its Record of Decision, approving a pipeline underneath the Mackinac Straits in Michigan, in the fall of 2025 – a remarkably quick time frame for completing a NEPA review and issuing required permits.

in May, the DOI issued a memorandum stating they were going to conduct the permitting process for energy projects, using emergency permitting approvals, in no more than 28 days.

“That is an extraordinarily fast amount of time. It can only result in administrative records that are fairly thin,” Clapp says. “These projects are going to receive a lot of attention” from opponents of fossil fuel energy production. I think there’s a significant litigation risk there.”

Key deregulatory actions

In March 2025, the EPA announced a sweeping deregulatory initiative identifying 31 regulations and agency actions that will be reconsidered in response to the Trump administration’s executive orders. “The plan likely will take years to implement and execute,” Steinbauer says.

The EPA has begun implementing its deregulatory plan, with the issuance of two significant deregulatory actions that were published in the Federal Register on June 17.

The first proposal is to repeal the Biden administration’s greenhouse gas emission standards for the power sector based on a new statutory interpretation. “Here, the Trump administration is taking the position that to regulate greenhouse gas emissions, or any new pollutant under this Clean Air Act Section, EPA needs to find that that pollutant contributes significantly to dangerous air pollution,” Steinbauer says. The EPA is also proposing an alternative basis for repealing the Biden-era power sector greenhouse gas emission standards. This alternative proposal takes a “more surgical” approach to repeal by finding that carbon capture and sequestration technology is not “adequately demonstrated” and the co-firing of natural gas and low greenhouse gas hydrogen at certain coal fired power plants is an inefficient use of natural gas.

The EPA’s second proposal also affects the power generation sector and focuses on mercury emissions standards from coal-fired stations. The Trump EPA is proposing to repeal the Biden administration’s 2024 Mercury and Air Toxic Standards (MATS) rule that regulated mercury emissions from coal-fired power plants and set filterable particulate matter emission standards, requires continuous emission monitoring systems to demonstrate compliance, and includes first-time mercury emissions standards for lignite coal plants. The Trump administration now seeks an outright repeal of the 2024 MATS rule, contending that the costs to comply with the Biden administration’s MATS rule are too high, there are other means to demonstrate compliance, and there is too much variability in monitoring lignite coal plants to justify those standards.

The Trump administration “took very broad positions” aimed at striking down the Biden-era power sector greenhouse gas emission standards and the MATS rule “at their core and in their entirety,” Steinbauer says. This could be a sign that we may see more of “a chainsaw approach” when it comes to deregulation.

On the proposed repeal of the Biden administration’s power sector greenhouse gas emission standards, the EPA issued its proposed repeal in June and has pledged to finalize that rule, six months later, in December. “I don’t think a rulemaking of this significance has ever proceeded at that pace,” Steinbauer says. “Everyone will be watching carefully to see whether the administration follows through on that anticipated timeline.”

Beyond the use of executive orders, the President is also using available statutory authorities to advance his goals. In April, President Trump gave roughly 50 coal-fired power plants a two-year compliance extension for the 2024 Mercury Air Toxic Standards using a never-before-used Clean Air Act provision. “Litigation has already been filed challenging this presidential compliance extension,” but it could be “a signal that the president is willing to be big and bold and utilize statutory authorities in ways that haven’t been contemplated or used [] before to advance his goals,” Steinbauer says.

Congress has also been involved in deregulation through its Congressional Review Act, a statute that allows Congress to nullify agency rules that were sent to it within the last 60 legislative days. Before 2017, the Congressional Review Act was only used once since it was enacted in 1996, Steinbauer says. In the first year of President Trump’s first term, “it was used 16 times by Congress,” Steinbauer says, and the act has been used more frequently since that time, by Congress during the Biden administration and now in President Trump’s second term.

Recently, Congress has used the act to strike down a Biden-era EPA regulation implementing the so-called methane tax regulation. Congress has also used the statute to eliminate Clean Air Act waivers that the Biden administration issued to California, relating to motor vehicle and engine emission requirements.

Inevitable litigation

Recent Supreme Court precedent likely will feature prominently in lawsuits challenging the Trump administration’s deregulatory actions. As an example, the Loper Bright case overturned the long-standing Chevron deference doctrine. Now, courts are obligated to exercise independent judgement in interpreting statutes, rather than deferring to an agency’s reasonable interpretation of a statute. The Trump administration is aware of Loper Bright and other recent Supreme Court decisions, as its deregulatory proposals are using language intended to address these changes.

Litigation is also being used as a “sword” to achieve the administration’s domestic energy policy initiatives, explains Steinbauer, referring to the executive order in which President Trump directed the Attorney General to challenge state laws addressing climate change and environmental justice, and those imposing carbon taxes or carbon penalties. The order singles out California, Vermont and New York, and there are now four pending lawsuits filed by the Attorney General against Hawaii, Michigan, New York and Vermont stemming from this executive order.

The EPA is also managing several pending challenges to Biden-era EPA regulations, many of which challenge regulations that the Trump administration has vowed to reconsider. In such cases, the EPA files motions “to hold those lawsuits in abeyance while it undertakes its review and evaluation of the rules that are being challenged,” Steinbauer says.

How the Trump administration is shaping EPA

The administration is also making structural changes at EPA, and through other efforts is seeking to change how agencies operate and optimize their workforce.

There are EPA workforce reorganizations occurring that could have lasting effects. For example, the EPA is proposing to eliminate its Office of Research and Development and to create a new Office of Applied Science and Environmental Solutions. The new office’s purpose is described as guiding the agency in using science in the regulatory context, and it will be housed in the EPA Administrator’s office.

Regarding EPA employees, the agency has incentivized multiple opportunities for deferred resignations or early retirements. There are reports that more than 3,000 EPA employees – or 20 percent of its workforce – took this offer in May. Reports suggest that 1,400 more EPA employees may have participated in this program in June. These workforce reduction efforts are significant because fewer EPA employees will be tasked with implementing the Trump administration’s ambitious deregulatory plan, Steinbauer says.

Keeping pace with ongoing policy developments

We are beginning to see concrete steps EPA is taking to advance its sweeping deregulatory plan. The business community needs to stay abreast of these new developments, and there will be opportunities for strategic advocacy when the agency asks for input from the regulated community or other stakeholders, explains Steinbauer.

“The success of those deregulatory efforts depends often on the legal footing and the factual footing,” he says. “The factual footing is based on the administrative record, and EPA only has access to certain data and information about a regulated industry.” Strategically engaging with the EPA on its deregulatory proposals, whether in support of or against the specific proposal, will be key for businesses navigating the rapidly changing legal landscape.

Despite the EPA’s deregulatory plans, many complex environmental regulations remain on the books, and maintaining compliance with those requirements is important. Steinbauer encourages the regulated community to perform audits to assess the strength of their compliance programs and consider using agency self-disclosure policies and laws to mitigate liability and civil penalty exposure.

Finally, Steinbauer says, be patient and adapt as necessary, as the next several years certainly will be eventful.

For more information on the actions discussed in this article or related matters, please contact Ben Clapp at bclapp@babstcalland.com or Gary Steinbauer at gsteinbauer@babstcalland.com.

To view the full article, click here.

To view the PDF, click here.

WVDEP Proposes Clean Water Act Section 401 Certification for New Corps of Engineers Expedited Permitting Mechanisms for Energy-Related Projects

Environmental Alert

(by Kip Power and Mackenzie Moyer)

On August 21, 2025, the West Virginia Department of Environmental Protection (WVDEP) published its proposed Clean Water Act (CWA) Section 401 Water Quality Certification package with respect to two separate expedited permitting mechanisms recently proposed by the U.S. Army Corps of Engineers (Corps). The proposed 401 Certification would approve the use of the Corps’ proposed Regional General Permit (RGP) and Letter of Permission (LOP) for energy projects in West Virginia, each of which was published by the Corps on June 4, 2025. The Corps proposed the RGP and LOP to expedite permitting of energy related projects under Section 404 of the CWA and (as to the RGP) Section 10 of the Rivers and Harbors Act of 1899 (RHA), as a means of implementing several Executive Orders issued by President Trump aimed at expediting regulatory approval of such projects. In finalizing its decision on the proposed Certifications, the WVDEP will consider the impact of activities that would be authorized using these mechanisms on water resources, fish and wildlife, recreation, critical habitats, wetlands, and other natural resources. WVDEP is accepting public comment on its proposed Certification package until September 23, 2025.

Section 401 Water Quality Certifications are required for permits or licenses issued by federal agencies to ensure that such projects do not violate a state’s water quality standards or adversely affect designated uses of specific streams. Under applicable federal regulations and the terms of the Corps’ proposals, the WVDEP is required to act upon the Corps’ request for CWA Section 401 Certification of both the RGP and LOP within 60 days after they were received by the WVDEP, and a failure to meet that deadline would be deemed to be a waiver of the WVDEP’s certification authority. The public comment deadline of September 23, 2025 regarding the WVDEP’s proposed Certifications is presumably geared towards allowing WVDEP to meet the 60-day response deadline established by the Corps.

The Corps’ proposed RGP, if finalized, would be available for energy or energy resource-related activities that would permanently impact one acre or less of federal jurisdictional waters and are considered to have no more than minimal individual and cumulative adverse environmental impacts. The RGP defines “energy or energy resources” as “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, as defined by 30 U.S.C. 1606(a)(3).” Further, “critical mineral” does not include “fuel minerals; water, ice, or snow; or common varieties of sand, gravel, stone, pumice, cinders, and clay.” Any applicant seeking coverage under the RGP would have to file a Pre-Construction Notification (PCN) with the Corps (containing detailed information pertaining to the project) as part of its application.

The proposed LOP would be available for energy or energy resource-related projects in West Virginia that impact no more than two acres of federal jurisdictional waters, are likely to have “minimal” effects on the human environment and are viewed as involving “minor” work. 30 C.F.R. 325.2(e)(1). Any application for coverage under the LOP must include detailed information regarding the proposed project, be coordinated with federal and state fish and wildlife authorities, and be subject to a public interest evaluation. However, issuance of a LOP would not require submission of a PCN to the Corps or publication of individual public notice of the application.

WVDEP’s proposed Certification package includes its own proposed “Standard Conditions” and “Special Conditions” to the Corps’ RGP and LOP (which are substantively identical). If finalized, West Virginia’s 401 Certifications for the RGP and LOP (including all such conditions) will be incorporated by reference into each of these permitting mechanisms. For example, Standard Condition 14 would require that any applicant proposing to conduct horizontal directional drilling beneath a Section 10 (i.e. RHA) water must prepare and submit an Inadvertent Return Contingency Plan, a Groundwater Protection Plan, and an Operations Contingency Plan to WVDEP for review and approval. If finalized as proposed, the Special Conditions would require, among other things, prior written notification to WVDEP for any proposed work in streams identified in Standard Condition 10 and in RHA Section 10 rivers within West Virginia. Notification must be provided at least 60 days prior to construction, describing the project purpose, location, and impacts. WVDEP reserves the right to require individual Section 401 Water Quality Certifications for any activities resulting in greater than 200 linear feet of cumulative impact to any stream listed in Standard Condition 10 or to any Section 10 river. See Special Condition 2.

Babst Calland attorneys continue to track these developments and are available to assist with CWA-related matters, such as project-related permitting, in West Virginia and other states. For more information on this development and other water issues, please contact Christopher B. (Kip) Power at (681) 265-1362 or cpower@babstcalland.com, Mackenzie Moyer at (412) 394-6578 or mmoyer@babstcalland.com, or any of our other environmental attorneys.

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