Environmental Alert
(Christopher (Kip) Power, Robert Stonestreet and Joseph (Jed) Meadows)
Following up on a proposal published on June 16, 2025 (see Client Alert: “Federal Office of Surface Mining Proposes to Restore Coal Mine Regulatory Oversight Rules”), on February 19, 2026, the federal Office of Surface Mining Reclamation and Enforcement (OSM) finalized revisions to its oversight rules under the Surface Mining Control and Reclamation Act of 1977 (SMCRA), eliminating several aspects of the Biden-era version of the regulations (identified as “Ten-Day Notice and Corrective Action for State Regulatory Program Issues” rule, published in April 2024 (the 2024 Rule)). The new regulations largely return them to the 2020 version of the rule, “Clarification of Provisions Related to the Issuance of Ten-Day Notices to State Regulatory Authorities and Enhancement of Corrective Action for State Regulatory Program Issues,” (the 2020 Rule), adopted during the first Trump administration. Effective March 23, 2026, the new rule (the 2026 Rule) restores the 2020 Rule’s framework promoting states as the primary environmental regulatory authorities for coal mining operations. It does away with programmatic challenges in the guise of state-specific oversight and reinstates provisions requiring that the relevant State agency be given notice and an opportunity to correct any alleged violation brought to OSM’s attention. The new rule also makes some minor revisions to the 2020 Rule’s text to streamline coordination between agencies and to reduce duplicative actions.
States that have obtained OSM approval to administer their own coal mining regulatory program consistent with SMCRA (known as Primacy States) possess primary regulatory power within their borders. OSM retains oversight authority where (1) there is reason to believe SMCRA has been violated and (2) there is reason to believe that a Primacy State has failed to enforce its regulatory programs. Where there is reason to believe SMCRA has been violated, OSM is required to issue a Ten-Day Notice (TDN), giving a Primacy State ten days to respond with either remedial action or providing good cause for not taking remedial action. The 2020 Rule represented OSM’s attempt to (1) enhance the early identification of State regulatory program issues so that they could be corrected programmatically and (2) clarify and reduce duplication in the federal regulations related to OSM’s processing of citizen complaints and the issuance of TDNs to State regulatory authorities. The 2020 Rule largely maintained SMCRA’s deference to Primacy States and limited the scope of TDN issuance by OSM.
OSM re-examined the 2020 Rule under the Biden administration, leading to the 2024 Rule, published on April 9, 2024. Though purportedly meant to “increase efficiency and [] make it easier for citizens to report possible [SMCRA] violations” the 2024 Rule effectively “usurp[ed] SMCRA’s deference to States[.]” According to OSM, the 2020 Rule did so in at least two ways. First, the rule allowed citizens to report potential SMCRA violations directly to OSM without consulting Primacy States. Second the rule authorized OSM to issue TDNs based on programmatic (rather than site-specific) concerns. The introduction of the 2024 Rule led to large increases in both citizen complaints and the number of TDNs issued to Primacy States, representing additional paperwork for OSM and Primacy States “without any clear indication that [the 2024 Rule] improved enforcement or oversight of SMCRA.”
Returning to the 2020 Rule better aligns the federal regulatory scheme with SMCRA and facilitates more efficient coordination between OSM and Primacy States. According to OSM, this maintains cooperative federalism and deference to the States while achieving the goals of SMCRA. For example, OSM may once again rely on information from any source in determining whether a SMCRA violation exists. The 2026 Rule also restores a site-specific format for citizen reporting, by specifying that a citizen’s request for federal inspection “must allege a violation at a specific mine” instead of alleging violations generally. Despite largely returning to the 2020 Rule’s language, the 2026 Rule retains some administrative features of the 2024 Rule, such as granting OSM the ability to group “substantively similar possible violations” into a single TDN, allowing for increased efficiency.
Overall, the 2026 Rule represents a return to a state-focused regulatory scheme, ensuring that Primacy States retain their primary authority to regulate environmental aspects of coal mining operations within their borders. Challenges to the new rule must be filed within 60 days of its publication, in the U.S. District Court for the District of Columbia.
Consistent with the role of Primacy States under SMCRA, OSM also recently granted authority to the West Virginia Department of Environmental Protection (WVDEP) to regulate coal mining operations on federal lands within the state. On February 19, 2026, OSM and West Virginia signed an Amended Cooperative Agreement, giving the WVDEP primary authority to regulate mining of privately owned coal located under federal lands and federally owned coal leased by the U.S. government. See OSM’s announcement here.
For questions about the revised TDN rules or other issues arising under SMCRA and/or counterpart State regulatory programs, please contact Christopher B. (Kip) Power at (681) 265-1362 or cpower@babstcalland.com; Robert M. Stonestreet at (681) 265-1364 or rstonestreet@babstcalland.com; Joseph E. (Jed) Meadows at (681) 265-2111 or jmeadows@babstcalland.com; or your Babst Calland relationship attorney.
Environmental Alert
(by Sloane Wildman and Ethan Johnson)
On February 23, 2026, EPA announced its final rule adding sodium perfluorohexanesulfonate (PFHxS-Na) to the Toxics Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act. Businesses in covered industries must now track and report any use or release of PFHxS-Na above the reporting threshold of 100 lbs. The reporting period began January 1, 2026 and the first reports are due July 1, 2027.
PFHxS-Na is the latest PFAS chemical added to the TRI under the 2020 National Defense Authorization Act, which requires EPA to add new PFAS chemicals to the TRI each year. EPA added seven PFAS chemicals to the TRI in 2024 and nine PFAS chemicals in 2025. EPA first announced that PFHxS-Na would be listed on the TRI in October, 2025, after the agency finalized the chemical’s toxicity value. EPA maintains a complete list of PFAS added to the TRI here. Adding PFAS chemicals to the TRI is part of EPA’s broader PFAS action plan that we reported on in our April 30, 2025 Environmental Alert.
Babst Calland’s Environmental attorneys 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, Ethan Johnson at (202) 853-3465 or ejohnson@babstcalland.com, or your client relationship attorney at Babst Calland.
Firm Alert
(by David White, Marc Felezzola and Angela Harrod)
Given the sharp rise in AI usage, courts have begun wrestling with the extent to which usage of AI tools for assistance with legal issues is protected from disclosure in discovery or otherwise. Early court decisions demonstrate there is considerable risk that communications between a client and an AI platform may not be protected by the attorney-client privilege or work-product doctrine.
The attorney-client privilege generally protects communications between a lawyer and client from disclosure. Similarly, per Federal Rule of Civil Procedure 26(b)(3)(A), the work-product doctrine protects “documents and tangible things that are prepared in anticipation of litigation or for trial.”
Two courts recently released opinions that provide important insights into the risk of accidentally waiving attorney-client privilege or work-product doctrine when a client turns to AI tools. In United States v. Heppner, No. 1:25-cr-00503-JSR, ECF. 27 (S.D.N.Y. Feb. 17, 2026), the court ruled that an individual’s inputs and the resulting outputs generated by a non-enterprise AI tool (meaning a public tool that is generally available at a consumer-level) are not protected by the attorney-client privilege or the work-product doctrine even if the individual using the AI tool was involved in litigation and was seeking legal advice.
The Heppner court held that the attorney-client privilege does not extend to “communications” between an individual and an AI platform, only to communications between a client and its counsel. The court further noted that the AI tool used by the individual in Heppner included a disclaimer that user submissions were not confidential. As such, the court held that the use of the tool constituted a third-party disclosure, which is not protected by attorney-client privilege.
The Heppner court also held that the AI-generated materials were not protected as work product because they were (1) not created by or at the direction of counsel, and (2) were not generated to reflect a legal strategy, especially since counsel was not involved in the AI use. It is unclear if the court would have ruled differently if counsel had instructed its client to use the AI tool.
The court also determined that the use of the AI tool independent of counsel is not work product as the protection only applies to “attorney” work product. The court declined to extend the protection to the client’s own work product.
There have been other cases in which courts have extended the work-product doctrine to include what clients generate for themselves. For example, in the same jurisdiction as Heppner, the court in Felder v. Warner Bros. Discovery, No. 23-Cv-8487, 2025 WL 3628224 (S.D.N.Y. Dec. 15, 2025) specifically held that client-generated non-AI materials are protected as work product.
The court in Heppner did not address whether counsel’s use of an AI tool to inform case strategy would allow the application of attorney-client privilege and/or the work-product doctrine. However, another recent case addressed just that issue.
In Warner v. Gilbarco, No. 2:24-cv-12333, 2026 BL 43591 (E.D. Mich. Feb. 10, 2026), the court held that materials generated by AI tools in litigation preparation were not discoverable. Unlike in Heppner, where the court held that disclosure to a consumer AI tool constituted a disclosure to a “third-party,” thereby destroying the attorney-client privilege, the court in Warner held that generative AI is a tool and not a person, and therefore, disclosure to it did not destroy confidentiality.
The Warner court found no meaningful distinction between using AI tools to prepare case materials and other actions that are historically protected as work product, such as an attorney taking notes during interviews of fact witnesses. The court did not even require a privilege log to be issued specific to the AI-generated materials, ruling that the party could simply object on the basis of attorney-client privilege and/or work-product doctrine.
Because the Heppner court took special notice that the generative AI tools were used by a non-attorney and were not confidential, clients and their counsel must be mindful of what AI tools are being utilized and by whom. Under Heppner, use of consumer-level AI tools such as ChatGPT, even if used by an attorney, could destroy attorney-client privilege. Additionally, as Heppner suggests, there may be no work-product protection for the inputs or outputs from an AI tool used by a non-attorney, even if the user is turning to the tool for assistance in formulating litigation strategy. While Warner suggests some courts may be more protective of AI-generated information, the prudent approach to protecting AI inputs and outputs from disclosure requires using tools that are specifically designed to maintain confidentiality. Even then, the usage of AI tools should be by or, at the very least, at the direction of counsel.
For questions about using AI-generative tools in legal matters and their protection under the attorney-client privilege or work-product doctrine, please contact David White at (412) 394-5680 or dwhite@babstcalland.com; Marc Felezzola at (412) 773-8705 or mfelezzola@babstcalland.com; or Angela Harrod at (412) 394-5688 or aharrod@babstcalland.com.
Environmental Alert
(Christopher (Kip) Power and Robert Stonestreet)
A federal court has revived a dormant lawsuit challenging a fundamental procedure for implementation of the federal Endangered Species Act (ESA) for coal mining projects. The outcome of this lawsuit will likely have a substantial impact on the permitting and regulation of coal mining operations in the United States.
Section 7 of the ESA prohibits any federal agency from authorizing an action that is likely to “jeopardize the continued existence of” any endangered or threatened species, or cause “the destruction or modification of [designated critical habitat] of such species.” 16 U.S.C. § 1536(a). To ensure that their permitting or other actions will not violate this prohibition, federal agencies are required to consult with the U.S. Fish and Wildlife Service (Service) within the U.S. Department of the Interior. The Service is the primary federal agency responsible for enforcing the ESA. Somewhat related to the Section 7 prohibition, Section 9 of the ESA forbids any person from “taking” an endangered species, which includes actions that “harm” such species in any way (whether permitted under a separate regulatory program or not). 16 U.S.C. § 1538 (a)(1)(B).
The federal Surface Mining Control and Reclamation Act of 1977 (SMCRA) is a comprehensive, multi-media statute regulating the environmental aspects of coal mining. SMCRA created the Office of Surface Mining Reclamation and Enforcement (OSM), a sister agency to the Service within the Interior Department, to promulgate and administer rules for issuing mining permits and establishing environmental protection performance standards for permitted mining operations. SMCRA recognizes that, due to differences in geology and other environmental conditions among the States, governmental responsibility for implementing its requirements “should rest with the States.” SMCRA § 101(f). Therefore, SMCRA allows the Secretary of the Interior to delegate the primary authority for administering its requirements (known as “primacy”) to a State, upon approval of a detailed State regulatory program and subject to continued oversight by OSM.
To promote continued compliance with both statutes, OSM and the Service engaged in a programmatic ESA Section 7 consultation in 2017 with respect to all mining permits that may be issued under SMCRA, either by OSM or by a regulatory authority in a State that has been granted primacy (Primacy State). This consultation was intended to support the possible development of a new “Biological Opinion” for ESA compliance, which would replace one issued in 1996. This consultation was based upon (among other things) OSM’s existing regulations that mirror ESA’s Section 7 prohibition; OSM’s oversight rules for approved programs administered by Primacy States; a comprehensive 2020 Biological Assessment addressing the coal mining industry and possible impacts on endangered species and critical habitats; and a detailed “SMCRA Coordination Process” that was developed to build upon OSM regulations to ensure that ESA requirements are fulfilled prior to Primacy State issuance of mining permits.
The results of the 2017 – 2020 consultation are reflected in a “Final Programmatic Biological Opinion and Conference Opinion” between those agencies dated October 16, 2020 (the “2020 BiOp”). Under the 2020 BiOp, a Primacy State is required to engage in a detailed ESA-specific “technical assistance process” with the Service and applicants for mining permits, renewals of permits, and significant revisions. Assuming the steps outlined in the 2020 BiOp are followed, the Service determined that OSM and a Primacy State satisfies ESA Section 7 with respect to such permitting actions. In addition, the Service found that compliance with specific “Terms and Conditions” set forth in an accompanying “Incidental Take Statement” will exempt actions authorized by such permits from the “take” prohibitions of ESA Section 9.
On November 8, 2023, the Center for Biological Diversity and Appalachian Voices filed a complaint in the District Court for the District of Columbia against OSM and the Service, alleging that the named federal officials (and several Primacy States, who were not joined in the litigation) failed to comply with the 2020 BiOp. Therefore various mine permitting actions taken under the 2020 BiOp violated ESA Sections 7 and 9. Center for Biological Diversity, et al. v. OSM, et al., Civil Action No. 23-cv-3343 (D.D.C.) (OSM Litigation). Based on that claim, the challengers asked that the 2020 BiOp be set aside, which would make it unavailable for future use and would also likely invalidate any permits issued by those Primacy States under the 2020 BiOp, as well as ESA Section 9 protection for the permittees under those permits. In the alternative, the complaint in the OSM Litigation claims that even if there has been compliance with the 2020 BiOp, its provisions are inadequate to comply with the ESA. Thus, it should be vacated as part of an order requiring that OSM and the Service re-initiate the Section 7 consultation process.
Since the OSM Litigation involves a record-based challenge to the issuance of the 2020 BiOp, the case will be decided on cross-motions for summary judgment. Following various procedural disputes concerning the administrative record and other matters, the OSM Litigation was scheduled for summary judgment briefing to start in late June, 2025. However, on June 6, 2025, the challengers filed a motion to stay the case and defer briefing pending the outcome of another case pending in the U.S. Court of Appeals for the District of Columbia Circuit, Center for Biological Diversity v. Environmental Protection Agency, Appeal No. 24-5101 (D.C. Circuit) (EPA Appeal). The challengers asserted that the EPA Appeal involves similar issues arising under EPA’s delegation of the Clean Water Act’s Section 404 permitting program to the State of Florida that was deemed to satisfy the agencies’ ESA Section 7 requirements upon completion of a technical assistance process between the Service and Florida officials. Though OSM and the Service did not agree that the EPA Appeal is relevant to the OSM Litigation, they initially agreed not to oppose the stay motion, which was granted on June 13, 2025.
On February 11, 2026, the court lifted the stay and entered a new briefing schedule in the OSM Litigation at the request of the federal agencies and over the objection of the challengers. The challengers’ summary judgment motion is due on March 4, 2026; responses and cross-motions for summary judgment by the agencies are due March 25, 2026; replies and opposition briefs by the challengers are due April 8, 2026; and the agencies’ replies are due April 22, 2026. Although there is no deadline for when a decision must be made, a ruling is expected before the end of 2026.
Whichever way the court rules, it will be a very significant decision with respect to administration of ESA requirements in the context of SMCRA permitting, which will have important implications for the majority of coal mining projects in the United States. Anyone involved in coal mining or related activities should certainly stay tuned.
For questions about the OSM Litigation or other issues arising under SMCRA or the ESA, please contact Christopher B. (Kip) Power at (681) 265-1362 or cpower@babstcalland.com; Robert M. Stonestreet at (681) 265-1364 or rstonestreet@babstcalland.com; or your Babst Calland relationship attorney.
PIOGA Press
(by Gary Steinbauer, Gina Falaschi Buchman, and Christina Puhnaty)
In response to President Trump’s Executive Order 14179, “Removing Barriers to American Leadership in Artificial Intelligence (AI),” EPA announced this week a new EPA webpage dedicated to compiling agency resources related to the Clean Air Act requirements potentially applicable to the development of data centers and AI facilities across the United States. The webpage, Clean Air Act Resources for Data Centers, is intended to promote transparency by aiding developers and other interested parties in locating various agency resources, including Clean Air Act regulations, interpretative guidance, and technical tools, that may assist with Clean Air Act permitting and air quality modeling during project development.
In addition to linking to potentially applicable EPA regulations, the webpage provides in one place various historical EPA guidance documents relating to the federal New Source Review (“NSR”) and Title V permitting programs. These guidance documents include interpretation letters and memoranda related to calculating and limiting a source’s potential to emit, assessing whether multiple projects must be aggregated for purposes of determining major NSR applicability, and determining when an operator may initiate construction activities of a major NSR source prior to obtaining a construction permit. The webpage also includes a News and Updates section that houses recent EPA announcements relating to data center and AI facility development.
Notably, the webpage explains that in an effort to advance cooperative federalism, EPA’s Office of Air and Radiation (“OAR”) staff are “available to consult with permit reviewing authorities and individual sources on a case-by-case basis to identify existing data, models, and tools to demonstrate compliance and, as appropriate, exercise discretion and flexibilities in the permitting processes.” The webpage encourages both permitting authorities and permit applicants to contact their EPA Regional Offices and EPA’s Data Centers Team to engage OAR staff members on projects.
EPA notes it is continuing to advance rulemakings to streamline permitting and end burdensome requirements inhibiting the development of data centers and AI facilities. Babst Calland’s Environmental Practice attorneys are closely tracking these developments and are available to provide guidance on how these actions affect your business. For more information, please contact Gary Steinbauer at (412) 394-6590 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 a member of Babst Calland’s Data Center Development team.
To view the full article, click here.
Reprinted with permission from the February 2026 issue of The PIOGA Press. All rights reserved.
Environmental Alert
(by Gina Buchman, Gary Steinbauer, Christina Puhnaty and Alex Graf)
On February 12, 2026, the U.S. EPA announced a rule finalizing EPA’s repeal of the Obama administration’s 2009 Endangerment Finding as well as all federal greenhouse gas emissions standards for vehicles and engines of model years 2012 and beyond (Final Rule). Administrator Zeldin originally announced the agency’s intent to do so in March of 2025 as part of the agency’s “31 Historic Actions to Power the Great American Comeback” announcement, and a proposed rule was issued in August of 2025. See 90 Fed. Reg. 36288 (Aug. 1, 2025). The Final Rule has not yet been published in the Federal Register, but a pre-publication version of the Final Rule is available on EPA’s website.
The “endangerment finding” refers to the finding EPA made in 2009 prior to setting emissions standards for new motor vehicles and engines pursuant to Section 202(a)(1) of the Clean Air Act, which requires EPA to regulate “the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which . . . cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” In 2009, EPA concluded that “the current and projected concentrations of the six key well-mixed greenhouse gases—carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride—in the atmosphere threaten the public health and welfare of current and future generations.” 74 Fed. Reg. 66496 (Dec. 15, 2009). EPA further concluded that the combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution that threatens public health and welfare. The 2009 Endangerment Finding was upheld by the U.S. Court of Appeals for the District of Columbia Circuit in 2012. See Coalition for Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012), rev’d on other grounds Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014).
Trump EPA’s Repeal
The Trump administration is now repealing the 2009 Endangerment Finding and subsequently promulgated vehicle and engine standards. The repeal relies on several Supreme Court decisions that EPA states “significantly clarified the scope of EPA’s authority under the [Clean Air Act] and made clear that the interpretive moves the Endangerment Finding used to launch an unprecedented course of regulation were unlawful,” including Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) (overturning Chevron deference), West Virginia v. EPA, 597 U.S. 697 (2022) (invoking the major questions doctrine), Michigan v. EPA, 576 U.S. 743 (2015) (requiring cost considerations in statutory interpretation), and Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) (rejecting the application of greenhouse gas emissions standards to Title I and Title V stationary sources). EPA’s Final Rule repeals the 2009 Endangerment Finding on two primary bases:
- Section 202(a) does not provide statutory authority for EPA to prescribe emission standards for the purpose of addressing global climate change.
- There is no requisite control technology for light-, medium-, or heavy-duty vehicles and engines that would meaningfully address the potential public health or welfare impacts of related greenhouse gas emissions. Even if the United States were to eliminate all greenhouse gas emissions from all vehicles, there would be no material impact on global climate indicators through 2100.
According to EPA, both conclusions independently give rise to the agency having exceeded its authority with the 2009 Endangerment Finding and the resulting regulations. Additional conclusions advanced by EPA in the Final Rule include:
- Section 202(a)(1) requires EPA to find that the specific air pollutant emissions from the class of new motor vehicles or engines at issue cause, or contribute to, the same air pollution that EPA finds endangers public health or welfare, without relying on international emissions. Under this interpretation, EPA concludes that the agency is precluded from issuing standalone endangerment and contribution findings.
- The policy response of the United States to global climate change concerns is a question for Congress, and Congress did not decide this policy response when promulgating Section 202(a)(1).
- EPA’s 2009 Endangerment Finding relied on a “profound misreading” of the Supreme Court’s Massachusetts v. EPA, which decision held that greenhouse gases are “air pollutants” under Section 302(g), but “did not require EPA to make an endangerment finding and did not address the logic or conclusions on which EPA would later base its 2009 Endangerment Finding.”
Immediate Impact: Vehicle and Engine Standards
Relying on the 2009 Endangerment Finding, beginning in 2010, EPA promulgated numerous vehicle and engine standards applicable to those vehicles and engines manufactured or imported into the United States, which created obligations for manufacturers to measure, control, and report greenhouse gas emissions for engines and vehicles. This includes the light-duty vehicle greenhouse gas standards for model years (MY) 2012-2016, MY 2017 and later, MY 2021-2026, and MY 2027 and later multi-pollutant standards. For medium- and heavy-duty vehicle and engine greenhouse gas standards, this includes the Phase 1, Phase 2, and Phase 3 standards.
Along with repealing the 2009 Endangerment Finding, the Final Rule also repeals all the aforementioned light-, medium-, and heavy-duty engine and vehicle greenhouse gas emission standards. Absent the 2009 Endangerment Finding, EPA stated that it lacks statutory authority to prescribe standards for greenhouse gas emissions under Section 202(a)(1). As a result, engine and vehicle manufacturers will no longer have an obligation to measure, control, and report greenhouse gas emissions, including for MYs manufactured prior to the effective date of the Final Rule.
The Final Rule also removes certification requirements and associated test procedures related to greenhouse gas emissions, as well as the averaging, banking, and trading provisions for the emissions credit program specific to greenhouse gas emissions. Mobile source regulations unaffected by the final rule are mobile source air toxics standards and vehicle fuel economy standards and labeling requirements (CAFE). The CAFE standards are administered by the National Highway Traffic Safety Administration (NHTSA) under separate statutory authority.
Long-Term Impact: Greenhouse Gas Regulation
EPA’s repeal of the 2009 Endangerment Finding does not affect existing stationary source greenhouse gas regulations but may call into question the underlying determinations made by EPA to regulate greenhouse gas emissions in those standards. EPA notes in the Final Rule preamble that the consequences of the agency’s former broad interpretation of its authority under Section 202(a) in the 2009 Endangerment Finding were not limited to mobile sources and that the agency has applied the 2009 Endangerment Finding’s analytical framework to various other rulemakings, including provisions governing existing vehicles, stationary sources, aircraft, and oil and gas operations. Although EPA does not regulate stationary sources pursuant to Section 202(a)(1) of the Clean Air Act, Section 111 similarly requires EPA to regulate emissions from stationary sources in source categories that “cause[], or contribute[] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Accordingly, in many post-2009 rulemakings, EPA has relied, at least in part, on the 2009 Endangerment Finding as a basis to regulate greenhouse gas emissions from stationary sources.
For example, in promulgating its 2016 40 C.F.R. Part 60, Subpart OOOOa rulemaking, EPA relied in part on the 2009 Endangerment Finding to establish a rational basis for establishing regulations to control methane, a greenhouse gas, from the oil and natural gas source category. See 81 Fed. Reg. 35824, 35833–37, 35877 (June 3, 2016). EPA’s position in 2016—which EPA reaffirmed in its 2024 methane rule promulgating Subpart OOOOb—was that it needed to only have a rational basis for determining which pollutants to regulate under Section 111(b)(1) and that it was not required to make pollutant-specific significant contribution findings when promulgating such standards. 81 Fed. Reg. at 35828; 89 Fed. Reg. 16820, 16854 (Mar. 8, 2024). Despite EPA’s partial reliance on the 2009 Endangerment Finding to establish this rational basis with respect to methane, the Final Rule does not immediately impact EPA’s OOOO/a/b/c rulemakings.
Expected Legal Challenges and Resulting Legal Uncertainty
States, environmental groups, and others have vowed to swiftly challenge EPA’s repeal. The expected legal challenges, which cannot be filed until EPA publishes the Final Rule in the Federal Register, could take years to run their course and may unfold over the remaining three years of this administration and perhaps longer. Federal courts, including the U.S. Supreme Court, may ultimately decide the fate of the Final Rule.
Furthermore, it is unclear whether the repeal will leave litigants involved in so-called climate change tort cases without CAA preemption defenses. States, entities, and individuals have brought tort actions against energy and other companies asserting common law claims for alleged climate change harms. Companies defending themselves in these actions often argue that such common law tort claims are preempted under the CAA. Although EPA states in the Response to Comments it issued with the Final Rule that the repeal of the 2009 Endangerment Finding that it believes that federal common laws claims are still preempted under the CAA, it is silent on state common law claims. Whether EPA’s repeal of the Endangerment Finding limits available defenses in these climate change tort actions likely will be decided in the courts.
Babst Calland’s Environmental practice attorneys are closely tracking these developments and are available to provide guidance on how these actions affect your business. For more information, please contact Gina Buchman at (202) 853-3483 or gbuchman@babstcalland.com, Gary Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com, Christina Puhnaty at (412) 394-6514 or cpuhnaty@babstcalland.com, or Alexandra Graf at (412) 394-6438 or agraf@babstcalland.com.
TEQ Hub
(by Jenn Malik and Peter Zittel)
Most companies would never allow an unknown third party to sit in on executive level strategy sessions, legal consultations, or sensitive personnel discussions. Yet AI meeting assistants now perform a functional equivalent of that role, often without formal approval, policy guidance, or executive awareness. What may at first appear to be a simple productivity tool can, in practice, create significant legal and financial exposure. These AI meeting assistants are increasingly transforming ordinary business conversations into permanent, searchable data sets, in turn raising issues of privilege waiver, regulatory compliance, and potential litigation cost that many organizations have not yet confronted.
For business leaders, this realization raises an uncomfortable reality: what was assumed to be a confidential internal discussion may now exist as a permanent data record outside the organization’s control.
In August 2025, similar circumstances gave rise to a nationwide class action lawsuit alleging that an AI meeting assistant unlawfully intercepted and recorded private video-conference meetings without obtaining consent from all participants. The plaintiffs in Brewer v. Otter.ai claim the AI tool joined meetings as an autonomous participant, transmitted conversations to third-party servers for transcription, recorded individuals who were not account holders, provided limited or unclear notice, and placed the burden of obtaining consent on meeting hosts. The lawsuit further alleges that recordings were retained indefinitely and used to train AI models, including the voices of individuals who were unaware they were being recorded. While the legal claims are still unfolding, the case underscores a broader and more immediate concern for business owners: AI meeting assistants can quietly convert everyday business conversations into legally consequential data assets, creating exposure well beyond what most organizations anticipate.
AI meeting assistants promise real benefits. They allow participants to stay engaged rather than take notes, generate meeting summaries and action items, promote consistency across teams, and even identify speakers automatically. For busy executives and businesspeople, these tools can feel indispensable. What is less obvious is that AI meeting assistants introduce a third party into conversations that have historically been governed by expectations of privacy, confidentiality, and limited retention. That shift has significant implications for attorney–client privilege, compliance with wiretap and privacy laws, and litigation exposure. From a business perspective, the issue is not whether these tools are useful, but whether they are being deployed with appropriate governance and risk awareness.
Attorney-Client Privilege
Attorney–client privilege is among the most powerful legal protections available to businesses. It shields confidential communications between lawyers and clients made for the purpose of obtaining or providing legal advice. However, that protection depends on confidentiality, and it can be waived through voluntary disclosure to third parties. Attorney–client privilege, which is held by the client, rests on four requirements: (1) there must be a communication, (2) made in confidence, (3) between privileged persons (lawyers and clients), (4) for the purpose of obtaining or providing legal advice.
AI meeting assistants are operated by third-party vendors. These tools typically route audio and text through external servers, and vendor terms of service often reserve rights to retain, access, or process the data. Even if no human listens to the recordings, the presence of an outside platform can undermine the confidentiality required for privilege to attach.
For business owners, the risk is apparent. Board meetings, executive strategy sessions, HR investigations, compliance reviews, and legal consultations increasingly occur over video platforms. Introducing an AI transcription tool into those conversations can create a credible argument that privileged communications were disclosed to a third party, weakening or eliminating the ability to shield them from discovery later. In short, convenience-driven use of AI meeting assistants can unintentionally expose the most sensitive communications a business has.
Wiretap Laws
AI meeting assistants also create risk under state and federal wiretap statutes, which regulate when audio recordings are lawful. While some states permit recording with consent from only one participant, others require consent from all participants. The distinction is critical. Remote work amplifies this risk. Virtual meetings often include participants located in multiple states, and businesses may not know where every attendee is physically located at the time of a call. Because wiretap laws generally focus on the speaker’s location, the presence of even one participant in an all-party consent state can trigger heightened consent requirements for the entire meeting.
AI meeting assistants further complicate compliance because they do more than create a local recording. They transmit audio to third-party servers for processing, which may cause the AI provider itself to be treated as an intercepting party. Many platforms rely on vague or inconsistent disclosures that do not clearly explain who is recording, how the data will be used, or where it will be stored. Courts evaluating wiretap claims often require knowing and voluntary consent, and passive or unclear notice may not satisfy that standard.
For businesses, this means wiretap exposure can arise without bad intent, simply because an AI assistant was enabled by default or added to a call without affirmative consent from all participants.
Privacy Laws
Many AI meeting platforms acknowledge, often in dense privacy policies, that recorded conversations may be retained and used to train speech-recognition or generative AI models. What begins as a routine business meeting can therefore become part of a long-term dataset used for purposes unrelated to the original discussion. From a business perspective, the most underappreciated risk is loss of control. Voices, speech patterns, job titles, project references, and contextual details can make so-called “de-identified” data traceable back to individuals or organizations. Once recordings are incorporated into training pipelines, deletion may be difficult or impossible.
This practice raises serious concerns under a range of privacy regimes. Healthcare-related discussions may implicate HIPAA restrictions. International operations may trigger GDPR obligations related to purpose limitation, data minimization, and deletion rights. Even California’s privacy laws grant individuals enhanced rights to transparency and restrictions on secondary uses of their data, including undisclosed AI training.
Discovery Exposure
AI-generated transcripts also carry significant litigation risk. Unlike traditional handwritten notes or informal summaries, AI transcripts are permanent, detailed, searchable, and time-stamped. In litigation, these records can become prime discovery targets. Opposing counsel may seek years of internal meeting transcripts, searching for statements taken out of context or distorted by transcription errors. The existence of extensive AI-generated records can materially increase legal expenditures, expand discovery disputes, and weaken negotiating leverage, often regardless of the merits of the underlying claims. What begins as a productivity tool can, in practice, create a vast and expensive new category of discoverable material.
Conclusion
AI meeting assistants are not merely efficiency tools; they fundamentally alter how business conversations are captured, stored, and regulated. By converting human speech into portable and persistent data assets, these platforms can trigger privilege waivers, wiretap violations, privacy compliance obligations, and expanded discovery exposure, often without any deliberate decision by business leadership.
The lesson is not that businesses should abandon AI innovation. Rather, they must recognize that these tools require governance. Privileged legal communications should remain free from third-party transcription. Outside that context, organizations should implement clear policies governing when AI meeting assistants may be used, how consent is obtained, how data is retained or deleted, and which meetings are categorically off-limits.
Until legislatures and courts provide clearer guidance, the burden rests squarely on organizations to manage these risks. In some high-stakes settings, the most compliant option may remain the simplest one: keep AI out of the meeting entirely. Convenience may sell AI meeting assistants, but governance is what prevents convenience from becoming liability.
Jenn L. Malik is a shareholder in the firm’s Corporate and Commercial, Employment and Labor, and Public Sector groups, focusing her practice on healthcare benefits, data privacy, insurance coverage, and appellate law. Contact her at 412-394-5490 or jmalik@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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The Legal Intelligencer
(by Max Junker and Anna Jewart)
In general, Pennsylvania municipalities have broad discretion over land-use regulations. Typically, so long as a municipality acts within the parameters of the Pennsylvania Municipalities Planning Code, 53 P.S. §10101 et seq. (“MPC”), it is relatively free to regulate where any given land use can operate within its boundaries. At times, the courts may step in where a regulation is unreasonable, arbitrary, or confiscatory, but the legislature has been reluctant to interfere with local control over land use and development. One rare exception to the rule is farming, where the legislature has stepped in to protect “normal agricultural operations” from unreasonable local regulation. The Right to Farm Act, 3 P.S. §§ 951-958 (“RTFA”) was adopted to limit “the circumstances under which agricultural operations may be subject matter of nuisance suits and ordinances”. The RTFA works in tandem with the Agricultural Communities and Rural Environment Act (“ACRE”), 3 Pa.C.S. § 101 et seq. As described by the Pennsylvania Farm Bureau, ACRE provides a means for farmers burdened by ordinances that illegally inhibit farming practices to initiate a process to challenge and invalidate the ordinance.
Both ACRE and the RTFA only protect “normal agricultural operations”, a statutory definition under Section 2 of the RTFA which includes the “activities, practices, equipment and procedures that farmers adopt, use or engage in the production and preparation for market of poultry, livestock and their products and in the production, harvesting and preparation for market or use of agricultural, agronomic, horticultural, silvicultural and aquacultural crops and commodities. . .” 3 P.S. §952. The activity must not be less than 10 contiguous acres, or in the alternative, have a yearly gross income of at least $10,000. In addition, the definition expressly “includes new activities, practices, equipment and procedures consistent with technological development within the agricultural industry”.
ACRE, in relevant part, prohibits the adoption or enforcement of “unauthorized local ordinance [s]” which includes an ordinance that prohibits or limits a normal agricultural operation (unless otherwise allowed by law) or restricts or limits the ownership structure of a normal agricultural operation. See 3 Pa. C.S. §312. As the Pennsylvania Supreme Court has stated, the term “normal agricultural operation” is intended to be read expansively in order to take into account new developments in the farming industry. In certain instances, courts have read the RTFA as protecting (at the time) “new” farming practices over protest from neighbors. See e.g. Gilbert v. Synagro Cent., LLC, 131 A.3d 1 (Pa. 2015) (finding application of recycled biosolids to be a “normal agricultural operation”). As new technologies develop, and formerly cutting-edge practices become mainstream, the question arises as to whether and when they are entitled to the protections afforded to “normal agricultural operations”.
This question has come to the fore where agricultural production collides with energy production. Agrivoltaics, the practice of combining photovoltaic electric generation with agricultural production, dates back to the early 1980s. However, it has gained regional popularity in the past decade as Pennsylvania has scrambled to meet its renewable energy generation targets. To solar developers, farmland often offers the best physical characteristics for photovoltaic generation. It is generally vacant, already cleared of trees, and flat. To many farmland owners, the promotion of agrivoltaics offers potential for expanded economic opportunities not available in the traditional agricultural sector. Many see a solar lease as a financial lifeline for the family farm. More and more often, when use of agricultural land is proposed to be used for solar generation, the landowner maintains the right to continue to crop-farm (“agrovoltaics”), or to allow livestock grazing (“rangevoltaics”) on the property. In modern industrial spaces, solar and agriculture are often considered compatible uses. So, where agrivoltaics are proposed, could the solar component be entitled to protection under RTFA and ACRE?
The question remains outstanding, but a recent decision from the Commonwealth Court indicates that the Court, at least, is not ready to come to that conclusion. On January 15, 2026, the Court in West Lampeter Solar 1, LLC v. West Lampeter Township Zoning Hearing Board, 2026 WL 110932, No. 76 C.D. 2025 (Pa. Cmwth. Jan. 15, 2026)[1] rejected a developer’s assertion that its proposed “agrivoltaics solar farm” was an “agricultural use” for purposes of zoning approval. While the issue was not expressly before the Court, it opined that the “Department of agriculture specifically advises that a ‘commercial scale solar’ or ‘solar farm’ does not meet the definition of normal agricultural operation under the Right to Farm Act, . . . and therefore, it will not receive protection from local ordinances, otherwise given to agricultural operations.” West Lampeter Solar, supra. The Court noted that the applicant argued that agrivoltaics constituted a “technological development within the agricultural industry” an argument to which it responded “[w]e disagree.” The Court ended its analysis of the issue by stating the “Zoning Board’s conclusion that ‘agrivoltaics’ does not constitute an agricultural use [was] unassailable.” Id.
In its reasoning, the Court found it notable that the energy generated by the proposed solar panels would not be used to prepare or market any crop or livestock products and would not “advance the sheep grazing enterprise” contemplated. Looking to the definition of “agricultural operation” under the MPC as well, it stated that “there must be a connection between the technological advance and the preparation of agricultural products,” and found none. As noted above, the issue of whether or not agrivoltaics constituted a “normal agricultural operation” under the RTFA or ACRE was not before the Court, in West Lampeter Solar, but its treatment of the ordinance interpretation matter before it is illustrative. For now, it appears that, despite becoming increasingly common, agrivoltaics may not be “normal” enough to warrant statutory protection.
Robert Max Junker is a shareholder in the public sector, energy and natural resources, and employment and labor groups of Babst Calland. Robert Max Junker is a shareholder in the public sector, energy and natural resources, and employment and labor groups of Babst Calland. Contact him at 412-773-8722 or rjunker@babstcalland.com.
Anna S. Jewart is an associate at the firm and focuses her practice primarily on municipal and land use law with a subject matter focus in renewable energy. Contact her at 412-699-6118 or ajewart@babstcalland.com.
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[1] Opinion reported, citation pending.
To view the full article, click here.
Reprinted with permission from the February 12, 2026 edition of The Legal Intelligencer© 2026 ALM Media Properties, LLC. All rights reserved.
The Wildcatter
(by Nik Tysiak)
Just a few cases to report this time.
Property Tax Assessment and Pipeline Valuation
The West Virginia Intermediate Court of Appeals in Lemley v. MarkWest Liberty Midstream & Resources, LLC, — S.E.2d —-(2025) established significant precedent for oil and gas transportation infrastructure taxation. The court affirmed the Office of Tax Appeals’ application of a 35% reduction in assessed value for 20-inch natural gas liquid pipelines due to economic obsolescence. The court held that external market forces beyond an operator’s control, including COVID-19 pandemic impacts, can justify substantial economic obsolescence adjustments when pipelines operate significantly below design capacity.
The decision recognized that beginning in 2018, MarkWest installed 20-inch NGL lines anticipating increased production that never materialized due to market conditions that lessened demand for NGLs and led to scaling back of planned natural gas processing facilities. The court found that calculations showing pipeline utilization at only 28%, 36%, and 47% of design capacity demonstrated that economic obsolescence was necessary to fairly value the pipelines. This represents a significant shift in how underutilized oil and gas transportation infrastructure may be assessed for property tax purposes.
The court also confirmed important procedural changes affecting oil and gas operators challenging property tax assessments. Effective January 1, 2023, the West Virginia Legislature transferred jurisdiction over contested property tax matters from county commissions to the Office of Tax Appeals, establishing OTA as an independent quasi-judicial agency with de novo hearing authority. Most significantly, the Legislature reduced the burden of proof for taxpayers from “clear and convincing evidence” to a “preponderance of the evidence” standard, representing a substantial reduction in the evidentiary burden for oil and gas operators disputing tax assessments.
Compulsory Unitization and Good Faith Standards
In Haughtland Resources, LLC v. SWN Production Company, LLC, Not Reported in S.E. Rptr. (2025), the West Virginia Intermediate Court of Appeals addressed the application of the state’s compulsory unitization statute under West Virginia Code § 22C-9-7a. The court established important precedent regarding good faith requirements for operators seeking to force pool non-consenting mineral owners for horizontal drilling projects.
The court rejected the appellant’s argument for adopting specific good faith standards requiring offers based on prevailing lease terms with other unit owners, as found in Texas, Oklahoma, and Colorado. The court held that West Virginia Code § 22C-9-7a does not require offers to unitize to be based on other leases or that an applicant disclose its lease terms with other interest owners within a proposed unit. Instead, the court applied the general good faith standard defined by the West Virginia Supreme Court as “an intangible and abstract quality with no technical meaning or statutory definition” that “encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage”.
The decision also clarified important limitations on the Oil and Gas Conservation Commission’s authority. The court found that the Commission lacks authority to make legal determinations regarding the status of a lease as “leased” or “unleased” in compulsory unitization proceedings, noting that such disputes remain open matters not determined by the Commission in its orders. This limitation preserves contractual interpretation issues for courts with proper jurisdiction over such matters.
West Virginia Tax Sale Deed Authority
The West Virginia Intermediate Court of Appeals issued an important ruling in U.S. Bank Tr. Nat’l Ass’n v. Duncan Homes, LLC, decided November 13, 2025, establishing that “when tax sale deed is duly obtained and recorded by purchaser of tax sale lien, purchaser is vested with all interest and title to subject property.” The court held that parties holding interests in deeds of trust at the time of tax sale were entitled to notice and right of redemption, but once proper procedures were followed, the tax sale conveyed clear title to the purchaser.
Transportation Issues
East Ohio Gas Company v. Croce, 2026-Ohio-75, is an Ohio Supreme Court decision that established the Public Utilities Commission of Ohio’s (PUCO) exclusive jurisdiction over claims involving utility tariff interpretation and gas measurement reconciliation processes. The court held that natural gas producers’ tort claims against Dominion Energy for allegedly selling excess gas without compensation fell within PUCO’s exclusive regulatory authority, even when framed as common law conversion and unjust enrichment claims.
Factual Background and Procedural Posture
Three natural gas producers filed a class action lawsuit against East Ohio Gas Company d.b.a. Dominion Energy Ohio in Summit County Court of Common Pleas, alleging conversion and unjust enrichment claims. The producers participated in Ohio’s Energy Choice Program, which allows natural gas customers to purchase gas either from Dominion Energy directly or from independent choice suppliers. All gas from the producers’ wells flowed into Dominion Energy’s pipeline system regardless of the purchaser arrangement.
The producers alleged that choice suppliers only compensated them for estimated gas volumes communicated through a process called “nomination,” while Dominion Energy allegedly sold or benefited from excess gas volumes without proper compensation through the required reconciliation process outlined in Dominion Energy’s tariff. Judge Croce granted Dominion Energy’s motion to dismiss in part, dismissing the conversion claim under Civil Rule 12(B)(6) but denying the motion as to other claims, concluding that the common pleas court had jurisdiction.
After the Ninth District dismissed Dominion Energy’s appeal for lack of finality, Dominion Energy sought a writ of prohibition in the Ninth District against Judge Croce. The Ninth District granted the writ, ordering Judge Croce to cease exercising jurisdiction over the class action on grounds that PUCO had exclusive jurisdiction.
Legal Framework and Analysis
The Ohio Supreme Court applied the established Allstate two-part test to determine whether claims fall within PUCO’s exclusive. This test examines: (1) whether PUCO’s administrative expertise is required to resolve the dispute, and (2) whether the complained-of conduct constitutes a practice normally authorized by the utility. A negative answer to either question suggests the claim does not fall within PUCO’s exclusive jurisdiction.
Administrative Expertise Requirement
The court found that resolving the producers’ claims required determining whether Dominion Energy correctly carried out the reconciliation process set forth in Section 12 of its energy-choice pooling-service tariff. The court explained that the producers explicitly based their unjust enrichment, conversion, and other claims on Dominion Energy’s alleged failure to correctly reconcile the difference between gas volumes delivered into the pipeline system and the choice suppliers’ nominations.
The court characterized the gravamen of the complaint as an allegation that Dominion Energy’s measurement or reconciliation practices were “unreasonable, unjust, or insufficient” in connection with services it furnishes. This type of complaint falls directly within the scope of Ohio Revised Code Section 4905.26, which the legislature explicitly placed under PUCO’s jurisdiction. The court noted that questions regarding whether there was excess natural gas not covered by the tariff or whether Dominion Energy improperly retained and sold excess gas through incorrect reconciliation processes are matters requiring PUCO’s specialized regulatory expertise.
‘Normally Authorized Practice’ Analysis
The court determined that gas measurement, reconciliation processes, and natural gas sales constitute practices normally authorized by utilities. PUCO regulations specifically require utility tariffs to address nomination processes and measurement of delivered gas under Ohio Administrative Code 4901:1-13-14(A)(1) and (4). Additionally, PUCO’s approval of Dominion Energy’s energy-choice pooling-service tariff demonstrated that these practices fall within normal utility operations subject to regulatory oversight.
The court distinguished this case from property rights disputes involving easement interpretation, emphasizing that the underlying dispute concerned tariff interpretation rather than property rights enforcement. Unlike cases involving easement disputes, the disposition of these claims depended on interpreting a PUCO-regulated tariff governing utility operations.
Solar Power Generation Legal Developments
In re Application of South Branch Solar, L.L.C., — N.E.3d —- (2025), the Ohio Supreme Court established important precedent for solar facility siting requirements. The court affirmed the Ohio Power Siting Board’s approval of a certificate for a 130-megawatt solar facility in Hancock County, rejecting a neighbor’s challenge to the project approval.
The court applied the standard that it “will reverse, vacate, or modify an order of the board only when, upon consideration of the record, we conclude that the order was unlawful or unreasonable.” This deferential standard of review emphasizes judicial restraint in reviewing Power Siting Board decisions while maintaining oversight authority.
The decision addressed six key areas of solar facility regulation. First, regarding environmental impact assessment, the court held that sufficient evidence supported the Board’s determination of the project’s probable impact to wildlife and that the project represented minimum adverse environmental impact. Second, the court found that the Board properly required flood analysis for the facility’s project area as part of environmental impact determination. Third, the court approved setback requirements of 300 feet from nonparticipating residences, 150 feet from public roads, and 50 feet from nonparticipating property lines.
Fourth, the court held that sufficient evidence supported the Board’s finding that the facility served the public interest, convenience, and necessity, noting the Board identified specific benefits including “generation of zero emission energy, increases in local revenues, including the local school district, and enhancements to the state and local economy.” Fifth, regarding economic impact analysis, the court rejected arguments that applicants must provide analysis of specific negative impacts, finding that rules require only that applicants “provide an estimate of the economic impact on local commercial and industrial activities.” Finally, the court approved the Board’s acceptance of a joint stipulation between the applicant, board staff, county commissioners,
and farm bureau recommending certificate issuance.
To view the full article, click here.
To view the PDF, click here.
Reprinted with permission from the MLBC February 2026 issue of The Wildcatter. All rights reserved.
Renewables Alert
(by Morgan Madden and Anna Jewart)
While agrivoltaics, the practice of combining photovoltaic electric generation with agricultural production, dates back to the early 1980s, the use thereof has gained increasing popularity over the past 10-15 years.[1] To farmland owners and solar project developers alike, the promotion of agrivoltaics offers potential for expanded opportunities in both the solar industry and the agricultural sector. Often, when use of agricultural land is proposed to be used for solar generation, the landowner remains intent on continuing to crop-farm (agrovoltaics), or to allow livestock grazing (rangevoltaics) on the property and in modern industry spaces, solar and agriculture are often considered compatible uses. Despite that reality, zoning ordinances do not often contemplate a mixed use of that nature. Consequently, Babst Calland is often asked to analyze whether or not an agrivoltaic use can proceed as an “agriculture” or “farming” use under local zoning ordinances.
Due to the highly-localized nature of land use regulation in Pennsylvania, what “use” applies to a proposed solar project will depend first and foremost on the applicable local ordinance. However, recently, on January 15, 2026, the Pennsylvania Commonwealth Court in West Lampeter Solar 1, LLC v. West Lampeter Township Zoning Hearing Board, 2026 WL 110932, No. 76 C.D. 2025 (Pa. Cmwth. Jan. 15, 2026)[2] rejected a developer’s assertion that its proposed “agrivoltaics solar farm” was an “agricultural use” for purposes of zoning approval. In doing so, the Court appeared to reject the contention that energy generation could be considered agricultural in any instance, potentially throwing both literal and figurative shade on projects seeking to benefit from agrivoltaics processes.
In West Lampeter Solar, the solar developer applicant sought special exception approval from the West Lampeter, Lancaster County, Zoning Hearing Board as a use not provided for in an agricultural district. The applicant proposed a twenty-five (25) acre ground mounted solar array with sheep grazing between and beneath the panels. The local ordinance restricted nonagricultural uses to five acres in an agricultural district but did not define “agriculture”. The zoning hearing board was therefore tasked with determining whether or not the proposed use was “agricultural” or “nonagricultural” based on the dictionary definitions. The zoning hearing board adopted the definition of “agriculture” as “[t]he science, art, or practice of cultivating the soil, producing crops, and raising livestock and in varying degrees the preparation and marketing of the resulting products [.]” The zoning hearing board found the proposed use was “nonagricultural” and thus restricted to no more than five acres.
On appeal the Lancaster County Court of Common Pleas affirmed the zoning hearing board’s denial of the application and its finding that the use was “nonagricultural”. In doing so, it relied in part on testimony as to the treatment of agrivoltaics use by commonwealth agencies, such as the Clean and Green Program’s position that solar power generation is not agricultural use, and Pennsylvania Department of Agriculture guidance which discourages the placement of solar generating facilities on agricultural land, particularly where that land contains higher class soils. It also rejected the applicant’s assertion that agrivoltaics constituted a “dual use”.
On further appeal, the Commonwealth Court was asked, in part, to consider whether the lower court erred in failing to consider agrivoltaics as a form of agriculture. Despite the issue not being specifically raised on appeal, in its Opinion and Order affirming the lower court’s order, the Court opined that the “Department of agriculture specifically advises that a ‘commercial scale solar’ or ‘solar farm’ does not meet the definition of normal agricultural operation under the Right to Farm Act, . . . and therefore, it will not receive protection from local ordinances, otherwise given to agricultural operations.” West Lampeter Solar, supra at 11. The Court noted that the applicant argued that agrivoltaics constituted a “technological development within the agricultural industry” an argument to which it responded “[w]e disagree.” The Court ended its analysis of the issue by stating the “Zoning Board’s conclusion that ‘agrivoltaics’ does not constitute an agricultural use [was] unassailable.” Id. at 15.
Typically, land use cases involving issues of ordinance interpretation, such as West Lampeter Solar are highly fact-specific and have minimal precedential value. However, in this instance, the Commonwealth Court chose to stray beyond the text of the ordinance before it, and into issues of agricultural policy. The Court’s treatment of the applicant’s arguments in West Lampeter serves as a clear indicator as to how the Court may consider similar arguments in other zoning jurisdictions.
Morgan M. Madden is an associate in Babst Calland’s Public Sector, Energy and Natural Resources, and Employment and Labor Groups and focuses her practice on land use, zoning, planning, labor and employment advice, and litigation. Contact her at 717.868.8381 or mmadden@babstcalland.com. Anna S. Jewart is an associate in the public sector, and energy and natural resources groups of Babst Calland and focuses her practice on land use, zoning, and general municipal matters. Contact her at 412-253-8806 or ajewart@babstcalland.com.
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[1] Chloe Marie, Kole Zellers & Brook Duer, Agrivoltaics, Agricultural Law Fact Sheet, PennState Law Center for Agricultural and Shale Law, CASL Publication No. FS24-030 (May, 2024).
[2] Opinion reported, citation pending.
Environmental Alert
(by Sloane Wildman and Alex Graf)
After EPA announced that it would retain the CERCLA hazardous substance designations for PFOA and PFOS on September 17, 2025, it filed a motion to lift the abeyance from the ongoing litigation regarding the designations in the D.C. Circuit in Chamber of Commerce of the United States of America v. EPA, No. 24-1193 (D.C. Cir.). The case was initiated in June 2024 when the U.S. Chamber of Commerce and other industry groups challenged the Biden administration’s final rule designating PFOA and PFOS as CERCLA hazardous substances in the D.C. Circuit. In February 2025, after the Trump administration took office, EPA requested that the court hold the case in abeyance while it considered whether it would take a different position on the designation.
After briefing concluded, oral argument was held before a panel of three D.C. Circuit judges on January 20, 2026. Although the parties’ oral arguments largely focused on the cost-benefit analysis conducted by EPA in promulgating the final rule, the ultimate issue in the case is whether EPA properly exercised its authority under CERCLA Section 102(a) to list PFOA and PFOS as hazardous substances, since they were not already designated under another environmental statute. The court is likely to issue an opinion sometime later this year.
Please see Babst Calland’s September 19, 2025 Environmental Alert for more information on EPA’s retention of the PFOA and PFOS hazardous substance designations.
Babst Calland’s Environmental Practice Group is closely tracking EPA’s PFAS actions and related litigation, 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.
Employment and Labor Alert
(by Cella Iovino and Katerina Vassil)
Over half of the states in the U.S. have enacted legislation to prohibit hair-based discrimination, and Pennsylvania has now followed suit. The Creating a Respectful and Open World for Natural Hair (CROWN) Act, signed into law on November 25, 2025, goes into effect on January 24, 2026. This state-wide measure follows CROWN Act ordinances passed by the Allegheny County and Pittsburgh City Councils in 2020 offering local protections, but Pennsylvania’s new law has several unique nuances.
The purpose of the CROWN Act is to address longstanding biases where natural hair and protective styles were deemed to be unprofessional or inappropriate, resulting in racial or religious discrimination. To target this bias, the CROWN Act amends the Pennsylvania Human Relations Act (PHRA) to include protection against discrimination based on hair texture, type, and styles commonly or historically associated with one’s race or religion. Specifically, “race” under the PHRA is expanded to include “traits historically associated with the individual’s race, including hair texture and protective hairstyle.” The CROWN Act defines “protective hairstyle” under the PHRA to include locs, braids, twists, coils, Bantu knots, afros, and extensions, though it is not limited to these examples. The CROWN Act also adds to the PHRA’s definition of “religious creed” to now include “head coverings and hairstyles historically associated with religious creeds.”
Unlike the Allegheny County and Pittsburgh ordinances, the Pennsylvania CROWN Act includes a strict four-part test that employers must meet in order to adopt rules, policies, or grooming standards that impact traits, hairstyles, and head coverings historically associated with one’s race or religion as a “justified bona fide occupational requirement.” To comply with the law, an employer’s policy that impacts such hair textures or protective hairstyles must be: (1) necessary to protect the health or safety of an employee or other materially protected person; (2) adopted for non-discriminatory reasons; (3) specifically tailored to the applicable position and activity; and (4) applied equally to individuals whose positions fall under that position and category.
The CROWN Act applies to employers, labor organizations, and employment agencies with four or more employees in Pennsylvania. Employers should review policies and procedures related to dress code, grooming, and appearance prior to the CROWN Act’s effective date, and update these policies and procedures as necessary to be compliant. Similarly, employers should review and update anti-harassment policies to reflect that discrimination based on natural hair, protective hairstyles, or religious head coverings is prohibited under the PHRA. Employers should ensure that managers and supervisors understand the scope of CROWN Act protections, and all policy changes should be shared with managers, supervisors, and employees alike.
If you have any questions about the CROWN Act, please contact Francesca C. Iovino at (412) 394-6460 or fiovino@babstcalland.com or Katerina P. Vassil at (412) 394-6428 or kvassil@babstcalland.com.
TEQ Hub
(featuring Justine Kasznica)
The rapid growth of data centers – driven by cloud computing, artificial intelligence, and the need for low-latency digital infrastructure – has transformed what were once primarily real estate projects into some of the most complex developments in the energy and infrastructure sectors in our region.
At the core of modern data center development is power. Securing sufficient, reliable, and resilient electricity has become one of the defining challenges for developers, particularly as grid congestion, interconnection delays, and regulatory scrutiny increase. Many projects now require sophisticated power purchase agreements (PPAs), power generation agreements (PGAs), and on-site or co-located generation solutions to meet capacity and uptime requirements.
Today’s data center projects sit at the intersection of power generation, environmental regulation, land use, construction, and technology governance, requiring coordinated legal strategies across multiple disciplines. Babst Calland’s legal team has become increasingly involved from the earliest stages of development on projects – advising on site acquisition and control, evaluating water and energy access, and assessing regulatory and permitting risks across state and federal jurisdictions, and land use and zoning approvals, including variances and conditional use permits, often require public hearings and coordination with local governments, which often add another layer of complexity and potential delay.
Behind-the-Meter Power and Islanded Systems Gain Momentum
Grounded in active, large-scale work, Babst Calland is currently guiding the development of well over 3,000 megawatts of new power generation capacity tied to data center projects across Pennsylvania and West Virginia. These projects range from hyperscale campuses to smaller modular facilities encompassing the design, permitting, interconnection, and financing of both behind-the-meter generation assets, such as natural gas turbines and solar paired with battery storage, as well as fully islanded power systems.
These islanded systems are designed to provide baseload power, redundancy, and resiliency, supporting mission-critical workloads that cannot tolerate downtime. By considering both conventional and emerging energy solutions, companies are now navigating the technical and legal complexities of meeting power demand while maintaining operational flexibility.
Attorney Justine Kasznica, team leader of Babst Calland’s data center development practice, outlined the various near-term challenges and opportunities facing the industry.
Site Selection & Development
Data Center companies look for large-scale sites with an emphasis on water and energy access, infrastructure alignment, regulatory compliance, and risk analysis on co-located energy infrastructure, including gas pipelines, electric transmission, solar generation, and battery energy storage systems (BESS). Companies also need to be concerned about land use and zoning matters, variances, conditional use approvals, and public hearings when developing new or expanded facilities.
Contracts Drive Risk Allocation and Performance
Contracting has become a central risk-management tool in data center development. Engineering, Procurement and Construction (EPC), design-build, and modular construction contracts must address accelerated schedules, supply-chain constraints, and performance guarantees tied to uptime and efficiency. On the operational side, agreements governing power supply, cooling systems, and maintenance increasingly focus on redundancy, preventative maintenance, and vendor accountability.
Leasing and colocation agreements must also address power allocation, connectivity, shared infrastructure, and scalability. For operators and tenants alike, service-level agreements (SLAs) and enterprise technology contracts—covering SaaS, IaaS, and software licensing—are critical to ensuring performance standards are met as infrastructure becomes more virtualized and cloud-based.
Energy-related contracting continues to evolve as well. Solar PPAs, BESS service agreements, and SREC contracts now routinely include detailed provisions governing pricing mechanisms, dispatch rights, performance guarantees, and risk allocation among developers, operators, utilities, and investors.
Permitting, Regulatory Compliance, and Workforce Considerations
Beyond construction and power, data center development raises broader compliance issues. Environmental permitting at the federal, state, and local levels remains a key consideration, particularly for projects involving on-site generation or significant land disturbance. At the same time, operators must navigate data privacy, cybersecurity, and cross-border compliance requirements – especially when structuring public, private, or hybrid cloud environments.
Workforce issues are also gaining attention. Skilled labor shortages, safety compliance, and employment regulations affect both construction and long-term operations, making workforce planning an increasingly important component of development strategy.
When disputes arise, they often span multiple areas of law, including commercial contracts, zoning and environmental compliance, and cybersecurity or data-privacy incidents – underscoring the interconnected nature of today’s data center projects.
A Rapidly Evolving Sector
As data centers grow in scale and strategic importance, development has become less about standalone facilities and more about integrated infrastructure ecosystems. Power generation, land use, technology, and regulatory compliance are no longer parallel tracks – they are deeply interdependent.
The result is a shift toward multidisciplinary legal and advisory models that mirror the complexity of the projects themselves. For developers, investors, and operators, success increasingly depends on addressing these issues holistically, from site selection and power strategy through long-term operation and eventual decommissioning.
Guiding hyperscale and modular projects across Pennsylvania and West Virginia, Babst Calland is helping shape the power-secure future of this mission-critical infrastructure.
To view the full article, click here.
Firm Alert
(by Justine Kasznica, Mackenzie Moyer and Jeff Immel)
On December 9, 2025, the Federal Aviation Administration (FAA) published a Notice of Availability and Request for Comment on the Draft Programmatic Environmental Assessment (PEA) for Drone Package Delivery Operations in the United States.[1] The PEA was issued pursuant to the FAA Reauthorization Act of 2024’s requirement that FAA examine and integrate programmatic-level approaches to the requirements of the National Environmental Policy Act (NEPA) for Unmanned Aircraft Systems (UAS) package delivery. The stated purpose of the PEA, and the hope of both FAA and industry, is to “streamline the NEPA process for multiple repetitive actions by broadly analyzing reasonably foreseeable direct and indirect impacts that may occur as a result of Part 135 approvals for drone operators throughout the U.S.”[2]
Streamlining the NEPA process is a worthy goal. Since 2019 when the FAA began issuing air carrier certificates to drone operators in accordance with 14 C.F.R. Part 119 for operations under 14 C.F.R. Part 135, FAA has conducted environmental reviews, and has issued Environmental Assessments (EA), for 23 individual drone package delivery proposals.[3]
Each EA resulted in a Finding of No Significant Impact (FONSI), meaning that FAA determined that significant environmental impacts as a result of the operation were unlikely. Each environmental review was time consuming, resource intensive, and was often a gating factor in beginning operations. NEPA, however, permits agencies to conduct a broader environmental review on a site- or project-specific level, known as programmatic NEPA review. Agencies may then create a PEA or a Programmatic Environmental Impact Statement (PEIS) and make informed decisions based on a tiered NEPA review. In other words, if the proposed action “fits” in the confines of the PEA or PEIS, the action will likely be approved without further review, but if the action falls outside of the PEA or PEIS, a separate, individual NEPA review may be necessary. In this case, if an operator’s proposal and its potential impacts fall within the scope of the PEA, the request will be approved; if it falls outside the scope of the PEA, the FAA will conduct further NEPA review.[4]
Still, while tiered, programmatic NEPA analyses such as PEA can improve agency efficiency and streamline the decision-making process, PEAs rely heavily on broad assumptions that may not translate into real-world impacts or fully capture operational realities. Drone technologies and operations may also change and grow over time and as the industry continues to grow and technologies develop, more individual projects may have to undergo individual NEPA reviews which would only lengthen the review period. Additionally, certain operations by their nature may not fall within the PEA, requiring those operators to undergo individualized supplemental environmental review for all of their operations, potentially placing them at a commercial disadvantage compared to those operators who conform with the assumptions of the PEA. Thus, in a very real sense, the PEA may have the effect of not only streamlining the approval process but shaping the industry itself. The PEA’s assumptions and established measures must be carefully considered with industry input.
Moreover, by attempting to streamline the NEPA process, the PEA has the practical effect of introducing a new level of FAA review. Under the PEA, FAA must first determine as a threshold matter whether a proposed operation complies with the established measures in the PEA. If FAA determines it does not, the portions of the proposal that do not comply will be “tiered off” and subject to additional environmental reviews. Although FAA expects this to “streamline the environmental review process,”[5] without a clear understanding as to what falls outside of the PEA’s measures and, perhaps more importantly, an accepted process for severing the effects of the tiered-operations from those that fall within the PEA, there is a danger the expected benefits of these tiered reviews will not be realized.
The comment period on the draft PEA was extended from its original deadline of January 8, 2026, and now closes on January 23, 2026.
Babst Calland and Immel Law continue to track these developments and are available to assist with FAA compliance and NEPA-related matters. For more information on this development and other similar issues, please contact Justine Kasznica at (412) 394-6466 or jkasznica@babstcalland.com, Mackenzie Moyer at (412) 394-6578 or mmoyer@babstcalland.com, or Jeff Immel at (412) 556-0090 or jimmel@immellawfirm.com.
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[1] 90 Fed. Reg. 57126 (Dec. 9, 2025).
[2] PEA, at 4.
[3] Because an operator must apply for an amendment to its Operational Specifications (OpSpecs) to conduct each type and number of operation, FAA has determined that the grant of such an amendments is a final Federal action and must undergo environmental review to comply with NEPA. See PEA, at 4.
[4] In 2024, FAA issued a Programmatic EA for Drone Package Delivery in North Carolina which uses much the same approach as outlined in the PEA. See Final Programmatic Environmental Assessment, Mitigated Finding of No Significant Impact, and Record of Decision for Drone Package Delivery in North Carolina (July 2024) at https://www.faa.gov/uas/advanced_operations/nepa_and_drones/FONSI_ROD_Final_PEA_for_Drone_Package_Delivery_in_NC.pdf.
[5] PEA, at 20.
Breaking Ground
(by Marc Felezzola and Ryan McCann)
I. Blueprints for Disaster: Foundational Failures of a Different Kind
In construction, the biggest threat isn’t a faulty foundation, it’s a compromised inbox. Courts nationwide have seen a surge in cases involving fraudulent wire-transfer instructions due to bad actors inserting themselves into legitimate transactions and siphoning funds before anyone notices. Because progress payments routinely travel by wire and project timelines depend on fast, clean transfers, the construction industry is becoming an increasingly attractive target. Understanding how these schemes work, how to guard against them, and what remedies remain once the money disappears is now essential for every member of the industry.
II. How Wire-Fraud Schemes Operate
In 2024 and 2025, wire transfers were the payment method most frequently targeted by business email compromise scams. These schemes often unfold quietly: a hacker slips into a company’s email system, studies the back-and-forth between parties negotiating a payment, and waits until transfer of funds is imminent. Then the hacker intervenes—diverting legitimate emails, impersonating one party by using a near-identical address, and sending counterfeit wire instructions in the hope that the recipient won’t spot the subtle switch. Most businesses usually do not become aware of the fraud until it is too late. Additionally, scammers have found success through sending deceptive emails that appear to come from a trusted source to trick recipients into providing sensitive information. Similarly, hackers have also begun sending fake invoices that closely resemble legitimate ones from real suppliers leading companies to wire money directly into the scammer’s account.
III. Why the Construction Industry is Uniquely Vulnerable
Despite the availability of safeguards, many construction companies operate without them, making the industry uniquely susceptible to the very risks these practices are designed to prevent. Few industries move money with the frequency, speed, and decentralization of construction. On any given project, payments may flow from owners to prime contractors, primes to subcontractors, subcontractors to suppliers, and all parties to equipment rental companies or specialty vendors. To further add to the problem, construction is perpetual, with new projects starting every day, and owners and contractors are continuously answering emails and making decisions while on the move. This creates an environment with several points of entry for fraud. In short, construction companies face a perfect storm: lots of money moving quickly, through lots of hands, via communication channels designed for convenience—not security.
IV. Prevention: Practical Safeguards for Construction Companies
Preventing these schemes takes more than luck—it requires clear processes and vigilance. Employees, especially those handling payments, should be trained to spot suspicious emails, and wire instructions should be verified by phone or require dual approvals. A review of recent decisions contains numerous cases where saving millions of dollars in fraud losses was just one phone call away. Strong email security, including multi-factor authentication and regular monitoring, is critical, as are written policies, segregation of duties, and escalation protocols to prevent any one employee from having unchecked control over wire transfers. But even if all these actions are undertaken, wire fraud may still occur. That’s why it is crucial to understand the potential remedies in the unfortunate event that a construction company falls subject to these schemes.
V. Remedies: Laying the Foundation for Recovery
Remedies for wire fraud depend on whether the claim is asserted against the banks that sent or received the wire, or against a separate entity whose compromised systems set the fraud in motion.
Remedies against the banks are typically covered by the Uniform Commercial Code (UCC). Prior to the enactment of the UCC, every state had its own laws governing commercial transactions. This created significant confusion and complexity for businesses operating across state lines. Thus, the UCC was enacted to harmonize commercial laws nationwide and establish a uniform legal framework across the United States. Coincidentally, Pennsylvania was the first state to adopt the UCC in 1953. There are nine separate articles in the UCC ranging from the sale of goods, bulk sales and auctions, warehouse and shipping transactions, secured transactions and most importantly for this issue: funds transfers.
When initiating a cause of action against a bank, parties should look first and foremost to Article 4-A for guidance in bringing and resolving their claims. Article 4A was added to the UCC in large part due to the drastic increase in wire transfers between financial institutions and other commercial entities in the latter stages of the 20th century. Because it was specifically added to the UCC for the purpose of combatting jurisdictional disputes and a lack of judicial authority, it is intended to be the exclusive means of determining the rights, duties and liabilities of the affected parties. However, this does not mean that it is the only remedy afforded to wire fraud victims. Instead, the analysis is simple: if a provision in Article 4 of the UCC squarely applies to the issue, any other remedies are preempted by the UCC, and Article 4 of the UCC provides the exclusive remedy. However, if the alleged action is not addressed by the UCC, then a plaintiff may seek remedies at common law.
Because Article 4A’s scope is both technical and specific, and its application is largely decided on a case-by-case basis, its boundaries cannot be explored comprehensively in a single article. At a high level, Article 4A governs conduct occurring between the moment a payment order is initiated, and the moment the beneficiary’s bank accepts that order. Within this window, the UCC governs disputes involving, among other things: (1) payment orders issued to nonexistent or unidentifiable beneficiaries; (2) situations where a beneficiary’s bank executes a transfer based on an account number that does not match the named beneficiary; (3) whether a payment order was authorized by the originator; (4) payment orders fraudulently issued in the name of a legitimate customer; and (5) customer-initiated orders that were intercepted and altered by a fraudster prior to acceptance.
By contrast, claims that are based on alleged conduct occurring before or after the funds transfer are not governed by the UCC and therefore are not preempted. Instead, those actions would be governed by common law remedies such as negligence, breach of contract, aiding and abetting fraud, and the like. Thus, the UCC does not apply to: (1) failures to properly verify the identity of an individual opening an account under a false name; (2) failures to adopt reasonable safeguards before allowing withdrawals from an account; or (3) post-transfer actions, such as lifting a freeze on a fraudulent account, permitting the withdrawal of already-misappropriated funds, or a failure of a bank to attempt to retrieve funds after the fraudulent wire has been completed. These common-law claims are viable but not without obstacles. Nevertheless, they remain essential avenues when Article 4A does not apply.
Additionally, there is a separate analysis when bringing claims against another entity that was hacked. For instance, suppose Contractor regularly buys construction materials from Supplier. Contractor sends a purchase order to Supplier and the parties engage in negotiations over price via email. During the negotiations, Supplier is hacked and a person purporting to be Supplier sends Contractor fraudulent wire instructions. The parties agree upon the price, and Contractor pays the invoice, but Supplier never receives the payment. Supplier alleges that Contractor breached the contract because Supplier delivered the goods but was never sent payment. In response, Contractor argues that it met its contractual obligations by paying money according to the instructions it received and that it had no independent obligation to ensure that the instructions were accurate. Thus, according to Contractor, it should be able to keep the goods without further payment. Who is correct?
In this scenario, courts have routinely held that the answer depends on which party was best able to avoid the fraud. In the example above, Contractor would argue that Supplier should have employed better security measures to prevent it from becoming hacked. Conversely, Supplier would argue that Contractor should have taken additional measures to ensure the transaction was valid, such as calling Supplier to confirm the transaction and the wire instructions. In short, whoever was in the best position to prevent the fraud will be held liable. This is ultimately a factual question which will be determined by looking at the totality of the circumstances on a case-by-case basis.
VI. Reinforcing the Foundation: Staying Ahead of Wire Fraud
Whether a company can recover after being victim to wire transfer fraud is a difficult and fact intensive inquiry. The ideal solution is one that mirrors good practice in the construction industry: be diligent, proactive not reactive, and make sure it is correct the first time around. However, anyone familiar with the construction practice knows that mistakes happen. With the fast-paced environment surrounding the construction industry, it is only a matter of time before construction companies are subject to more direct and clever attacks. Thus, while it may be impossible to eliminate fraud entirely, remaining vigilant and ensuring you are employing best practices should help ensure that if fraud does occur, you will not be the party who bears the financial consequences of it.
Mark J. Felezzola is a shareholder at Babst Calland. He focuses his practice on complex construction-related and environmental matters. Felezzola serves as outside general counsel for owners, developers, design professionals, and construction companies, and frequently represents them in a variety of commercial and construction-related disputes including construction bid protests, construction defect claims, differing site condition claims, delay and inefficiency claims, payment and performance bond claims, mechanics’ lien claims, as well as all other types of payment and contract performance disputes. Contact Mark at 412-773-8705 or mfelezzola@babstcalland.com.
Ryan McCann is a litigation associate at the firm. He focuses his practice on complex commercial litigation, environmental litigation, and construction disputes. Contact Ryan at 412-773-8710 or rmcann@babstcalland.com.
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