GO-WV
(by Gary Steinbauer, Gina Falaschi Buchman and Christina Puhnaty)
On July 31, 2025, EPA published in the Federal Register its highly anticipated Interim Final Rule to extend several deadlines in 40 C.F.R. Part 60, Subparts OOOO, OOOOa, OOOOb and OOOOc that were promulgated in EPA’s 2024 Methane Rule. 90 Fed. Reg. 35966 (July 31, 2025). That same day, environmental groups filed a lawsuit challenging the Interim Final Rule. Envtl. Defense Fund v. U.S. EPA, Case #25-1164 (D.C. Cir.). Absent a stay by the court, which the environmental groups are currently not seeking, the Interim Final Rule and the various extended deadlines are effective.
Summary of Deadline Extensions
The Interim Final Rule extends numerous compliance deadlines for oil and gas air emission sources subject to the New Source Performance Standards in 40 C.F.R. Part 60 Subparts OOOO, OOOOa, OOOOb and OOOOc. The previous compliance deadlines were published in a March 2024 final rule. 89 Fed. Reg. 16820 (March 8, 2024). The Interim Final Rule, which became effective upon publication, extends many deadlines in OOOOb, the date that the requirements of the Super-Emitter Program apply with respect to OOOO, OOOOa, and OOOOb, and the date by which states must submit plans to EPA pursuant to the OOOOc emissions guidelines.
EPA extended the following OOOOb compliance deadlines to at least January 22, 2027:
- Process Controllers: The date by which process controller affected facilities are required to be zero-bleed devices. 40 CFR §§ 60.5370b(a)(5)(i), 60.5390b(a), 60.5415b(h)(1).
- Storage Vessels:
- The date by which receiving additional crude oil, condensate, intermediate hydrocarbons, or produced water throughput at tank batteries triggers a modification. 40 CFR § 60.5365b(e)(3)(ii)(C) and (D).
- The date by which a legally and practicably enforceable limit used to determine the potential VOC and methane emissions from a storage vessel must include the elements provided in paragraphs 40 CFR § 60.5365b(e)(2)(i)(A) through (F). 40 CFR § 60.5365b(e)(2)(i).
- The date by which the potential for VOC and methane emissions from storage vessels must be calculated using a generally accepted model or calculation methodology that accounts for flashing, working, and breathing losses, based on the maximum average daily throughput to the tank battery determined for a 30-day period of production. 40 CFR § 60.5365b(e)(2)(ii).
- Covers and Closed Vent Systems: The date by which a required closed vent system or cover must be designed and operated with no identifiable emissions and corresponding inspections must be performed. This new compliance deadline is 18 months after the date the Interim Final Rule is published in the Federal Register or upon startup, whichever is later. 40 CFR §§ 60.5411b(a)(3), § 60.5411b(b)(4), 60.5416b(a)–(b).
- Control Devices: The date by which you must install and operate a continuous burning pilot or combustion flame, as applicable, and the date by which an alert must be sent to the nearest control room whenever the pilot or combustion flame is unlit. 40 CFR §§ 60.5412b(a)(1)(viii) and (3)(viii), 60.5413b(e)(2), 60.5415b(f)(1)(vii)(A)(1), 60.5417b(d)(8)(i), 60.5417b(i)(6)(v).
EPA also gave regulated facilities until November 28, 2025, or 180 days after startup, whichever is later, to comply with continuous monitoring system requirements for enclosed combustors or flares. 40 CFR §§ 60.5370b(a)(9)(i) and (iii).
Regarding OOOOc, the EPA emission guidelines that States are required to use when regulating existing sources (i.e., regulated emission sources that commenced construction, modification, or reconstruction on or before December 6, 2022), EPA extended the deadline for States to submit their OOOOc plans to January 22, 2027. 40 CFR § 60.5362c(c). As indicated in our recent Alert, the Pennsylvania Department of Environmental Protection (“PADEP”) has issued public notice and provided an opportunity for comment for its proposed OOOOc plan. The comment period on PADEP’s proposed OOOOc plan closed on July 30, 2025. Several commenters urged PADEP to delay implementation of the OOOOc plan until EPA finalizes its reconsideration of OOOOc, and others raised concerns about PADEP’s analysis, or lack thereof, related to considering the “remaining useful life and other factors” when devising the proposed OOOOc plan requirements. PADEP’s proposed OOOOc plan noted the original March 2026 deadline for submission to EPA. It remains to be seen whether PADEP will continue moving forward with its plan given that it now has an additional 10 months to finalize and submit Pennsylvania’s OOOOc plan to EPA for approval.
EPA also extended deadlines in OOOOa and OOOOb associated with the so-called “super emitter program” created under the March 2024 Methane Rule. In the preamble for the Interim Final Rule, EPA notes that in implementing the “super emitter program,” which would allow EPA-approved third parties (using EPA-approved technologies) to provide EPA with data on super-emission events, “EPA has experienced unanticipated difficulties and concerns that require additional time for effective and lawful administration of various program procedures.” 90 Fed. Reg. at 35976. EPA is delaying implementation of the super-emitter program until after January 22, 2027, during which time EPA will not act on applications seeking approval for remote-detection technologies for use under the program. See 40 CFR §§ 60.5371a and 60.5371b.
The Interim Final Rule indicates that EPA may make additional, substantive revisions to the 2024 Methane Rule in a separate reconsideration action. EPA invites comments on the revisions in the Interim Final Rule by September 2, 2025, even though the rule became effective on July 31, 2025.
Environmental Groups’ Challenge
Ten environmental groups promptly filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit, challenging the Interim Final Rule. The Court has set initial filing deadlines, including a deadline to file any dispositive motions by September 18, 2025. A briefing schedule has not been established.
Press releases by the environmental groups suggest that they may attack the Interim Final Rule on both procedural and substantive groups. Procedurally, the grounds contend that EPA violated the law by offering no opportunity for public input. Substantively, the groups indicate that they plan to defend the 2024 Methane Rule requirements, including the original deadlines and requirements of that rule.
Babst Calland’s Environmental Practice Group is closely tracking these regulatory developments, and our attorneys are available to provide strategic advice on how these actions may affect your business. For more information or answers to questions, please contact Gary Steinbauer at (412) 494-6590 or gsteinbauer@babstcalland.com, Gina Buchman at (202) 853-3483 or gbuchman@babstcalland.com, Christina Puhnaty at (412) 394-6514 or cpuhnaty@babstcalland.com, or your Babst Calland relationship attorney.
Click here, to view the article online in the September issue of GO-WV News.
Contractor’s Compass
(by Marc Felezzola and Angela Harrod)
Maybe your construction business is growing, or maybe it has been a long-standing national competitor, but regardless of how established your business is on the national scene, there are certain things that you should always consider when reviewing a subcontract. This is especially true when your business is entering into a subcontract for a project in an unfamiliar jurisdiction. The following are just a few of the contract provisions that any subcontractor should give special consideration when undertaking a new project in an unfamiliar jurisdiction.
- Anti-Indemnity Legislation
Indemnity clauses are a popular and effective means for shifting financial risk. Owners utilize them to shift risk to general contractors; general contractors use them to shift that risk down further to their subcontractors; and so on. These clauses generally require one party to agree to legally defend another in disputes arising from the project, and to pay for any damages that are awarded to the party whom is owed the indemnity. Indemnity clauses can cover all types of risk, but among the most common are non-payment of another party (e.g., the subcontractor must indemnify the prime contractor from claims for payment by the subcontractor’s vendors and suppliers), intellectual property ownership or usage, missing project milestones, and injury to persons or property.While indemnification in construction contracts is commonplace, some states limit the circumstances under which indemnity provisions may be enforced. For example, states like West Virginia (W. Va. Code § 55-8-14), Michigan (MCLS § 691.991), and Georgia (O.C.G.A. § 13-8-2) prohibit broad, generalized indemnity provisions. In contrast, Texas prohibits one party requiring another to indemnify it against the other from that party’s own negligence. It is important to consult with legal counsel regarding the level of indemnification that is permitted in a given jurisdiction when negotiating a construction contract so that the level of risk for each party is understood and allocated in accordance with applicable law.
- Limits On Retainage
Just as state laws vary on the permissibility of indemnification provisions, retainage may also be regulated by state statute. Some states limit the amount of retainage an owner or contractor may withhold. For instance, retainage is not permitted on public projects in North Carolina that are valued under $100,000, and owners on private projects may not withhold more than 5% retainage through the first 50% of a project (N.C. Gen. Stat. § 143-134.1).Similarly, retainage may not exceed 10% on a public project in Pennsylvania, and when the contract is 50% complete, one-half of the retainage must be paid (62 Pa.C.S. § 3921). Furthermore, the Department of General Services in Pennsylvania specifically may not withhold more than 6% retainage for the first half of the project, and no more than 3% for the second half of the project (62 Pa.C.S. § 3921). However, retainage on private projects is regulated in Pennsylvania so there is no cap or limit. Certain states also permit a contractor or subcontractor to provide substitute security on private projects to avoid retainage altogether.Because of the jurisdictional differences, subcontractors should ensure they check whether there are any restrictions or regulations on retainage when taking on a project in a new state so that retainage is not withheld from them at a rate in excess of what is legally permitted in that jurisdiction.
- Conditional Payment Clauses (i.e, Pay-If-Paid Provisions)
Conditional payment clauses are one of the strongest risk-shifting provisions contractors include in agreements with subcontractors. Under such a clause, which is often referred to as a “pay-if-paid” clause, the contractor and subcontractor agree that the owner’s payment to the contractor is an express condition precedent to the contractor’s obligation to pay the subcontractor for its work. This means that the subcontractor takes on the risk of owner non-payment and will only get paid if the owner pays the contractor for the subcontractor’s work. Thus, if an owner encounters financial troubles and stops paying its contractor, the contractor is not obligated to pay the subcontractor.Once again, the enforceability of these provisions varies by state. Many states have case law that requires that the contract language clearly express the parties’ intent to shift the risk of owner nonpayment to the subcontractor for a conditional payment clause to be enforceable. For example, in Pennsylvania and Georgia, pay-if-paid provisions must state explicitly that the parties intend for payment to the contractor to be a condition precedent to payment for the subcontractor for a court to enforce them. Other states, including California (Cal. Civil Code § 8122), Virginia (Va. Stat. §§ 11-4.6 (private projects), 2.2-4354 (public projects)), and North Carolina (N.C. Gen. Stat. § 143-134.3), have statutes that make conditional payment clauses void and unenforceable as a matter of public policy. Understanding whether and to what extent contingent payment clauses are enforceable could be a very important piece of your risk management and subcontract negotiation strategy when considering whether to cross state lines into a new jurisdiction for a project.
- No Damages for Delay
Owners and contractors use “no damages for delay” provisions to limit or eliminate claims for damages due to delays on a project. These clauses generally state that in the event of a project delay, the sole and exclusive remedy available to the contractor/subcontractor is a no-cost extension of time to account for the delay. While the enforceability of “no damages for delay” provisions also varies by state, a common method for challenging the provisions is contesting whether the delay is within the scope of the “no damages for delay” clause.No damages for delay clauses are generally enforceable for private projects (but, see Wash. Rev. Code § 4.24.360), but are unenforceable for public projects in several jurisdictions. Moreover, even in states that have no regulations for no damages for delay clauses, there are generally court-created exceptions to the full enforcement of the provision under certain circumstances. Understanding whether and to what extent a no damages for delay clause will be enforced in a jurisdiction is crucial when negotiating a subcontract, and counsel familiar with the enforceability of these clauses and the exceptions thereto in the jurisdiction may be able to negotiate to limit or even eliminate the impact of no damages for delay clauses.
About the authors:
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.
Angela M. Harrod is an associate at Babst Calland. Ms. Harrod has a broad range of experience representing corporate clients in matters including breach of contract, unfair trade practices, and complex litigation. Ms. Harrod represents contractors, subcontractors, owners, developers, design professionals, and construction companies in a broad range of matters arising from complex construction and development projects. Contact her at 412-394-5688 or aharrod@babstcalland.com.
Reprinted with permission from the August 2025 issue of Contractor’s Compass.
To read the full article, click here.
The Foundation Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(by Joe Reinhart, Sean McGovern, Matt Wood and Gina Buchman)
On May 31, 2025, the Pennsylvania Department of Environmental Protection (PADEP) announced the availability of $8 million in grants offered through the Pennsylvania Grid Resilience Grants Program (Program), which is funded by the Infrastructure Investment and Jobs Act of 2021. See 55 Pa. Bull. 3809 (May 31, 2025). The Program’s funding is available to entities that own or operate electric power systems, such as electric grid operators, electricity storage operators, electricity generators, transmission owners or operators, distribution providers, and fuel suppliers, who are looking to implement measures intended to mitigate the impact of electric grid disruptions.
PADEP is specifically interested in projects that promote clean energy generation and workforce benefits. A minimum of 5% of the program funding is being reserved for entities that sell less than 4 million MWh of electricity annually (the “Small Utility Set Aside”). On its website, PADEP has identified several eligible project types, including weatherization technologies and equipment, fire resistant technologies and fire prevention systems, the undergrounding of electrical equipment, and utility pole management. The following types of projects are ineligible for the Program: construction of a new electric generating facility, construction of a new large-scale battery storage facility, and projects relating to cybersecurity. See PADEP, “Pennsylvania Grid Resilience Grant Program,” here.
Concept paper submissions were due on August 8, 2025, and PADEP was to provide feedback on concept papers by email by August 22, 2025. Full applications will be received any time after September 1, 2025, until November 1, 2025.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
The Foundation Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(by Joe Reinhart, Sean McGovern, Matt Wood and Gina Buchman)
On June 16, 2025, Bucks County, Pennsylvania filed a notice of appeal to the Superior Court of Pennsylvania challenging the court of common pleas’ dismissal of Bucks County’s climate change lawsuit against 14 energy companies and the industry’s largest trade association, the American Petroleum Institute (API).
The complaint alleged that the energy companies and the API should be held financially liable for climate change impacts. Specifically, Bucks County alleged that the defendants engaged in a decades-long disinformation campaign that was designed to discredit climate science, create doubt around the impact of burning fossil fuels, and delay the transition to a low carbon future. Bucks County also alleged that the campaign worsened emissions, accelerated global warming, and brought devastating climate impacts to the county. The lower court dismissed the complaint for a lack of subject matter jurisdiction due to federal preemption, concluding that our federal structure does not allow any state law to address the claims in the complaint. Bucks Cnty. v. BP P.L.C., No. 2024-01836 (Pa. Ct. Com. Pleas May 16, 2025).
Similar suits have been brought by cities and states around the country. Some courts have held that these cases properly belong in state court, but courts in Delaware, Maryland, New Jersey, and New York have made rulings similar to the court of common pleas in the Bucks County case. The superior court received the original record on August 12, 2025, and will proceed from there.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
The Foundation Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(by Joe Reinhart, Sean McGovern, Matt Wood and Gina Buchman)
The Pennsylvania Department of Environmental Protection (PADEP) released its Proposed State Plan for 40 C.F.R. Part 60, Subpart OOOOc Emissions Guidelines for Greenhouse Gas Emissions from Existing Crude Oil and Natural Gas Facilities (Proposed State Plan) for public comment on May 31, 2025. See 55 Pa. Bull. 3810 (May 31, 2025).
PADEP released its Proposed State Plan in response to the Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review published by the U.S. Environmental Protection Agency (EPA) in spring 2024. 89 Fed. Reg. 16,820 (Mar. 8, 2024). This rule established New Source Performance Standards Subpart OOOOb that regulates emissions for new facilities in the Crude Oil and Natural Gas source category. It also included Subpart OOOOc, establishing model emission guidelines to address emissions from existing sources in the same source category. When EPA publishes emissions guidelines as part of the New Source Performance Standard, PADEP is obligated under the federal Clean Air Act to propose a state plan that implements the federal model emission guidelines. States can choose to implement EPA’s model guidelines or develop regulatory provisions with standards that are as or more stringent than the federal provisions.
States may apply to EPA to implement less stringent standards than the model rule that take into account the remaining useful life and other factors (RULOF) of certain regulated facilities. RULOF demonstrations must show that a facility (or class thereof) cannot reasonably achieve the emission limitations in the model guidelines due to (1) unreasonable cost of control resulting from facility design, age, or location; (2) infeasibility of required control methodology; or (3) other conditions specific to the facility. 40 C.F.R. § 60.24a(e). The state must also show that EPA did not consider these types of facilities when setting standards in its model rule and that the standards are no less stringent than necessary. Id.
PADEP will implement the OOOOc emissions guidelines through General Plan Approval(s)/Operating Permit(s), but also requested input from commenters as to the applicability of RULOF to facilities in Pennsylvania. PADEP held multiple public hearings on the proposal and the public comment period closed on July 30, 2025.
When PADEP released the Proposed State Plan for comment, PADEP’s deadline to submit its state plan to EPA was March 9, 2026. On July 31, 2025, however, PEA published an interim final rule in the Federal Register extending many deadlines under the OOOOb and OOOOc regulations, including an extension to the deadline to submit state plans. 90 Fed. Reg. 35,966 (July 31, 2025). State plans are now due 540 days after the publication of the interim final rule in the Federal Register, which is January 22, 2027. While the interim final rule became effective upon publication in the Federal Register, EPA is accepting comments on the interim final rule until September 2, 2025.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
The Foundation Mineral and Energy Law Newsletter
Pennsylvania – Mining
(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)
On April 23, 2025, Pennsylvania lawmakers introduced six pieces of legislation intended to implement Governor John Shapiro’s “Lightning Plan” announced earlier this year. The Shapiro administration has called the plan a “commonsense energy plan” that will create jobs, lower costs for consumers, accelerate permitting, and promote energy generation in Pennsylvania. See Press Release, Gov’r Josh Shapiro, “Governor Shapiro’s ‘Lightning Plan’ Introduced in General Assembly” (Apr. 24, 2025). These six bills are currently making their way through the Pennsylvania House and Senate.
EDGE Tax Credit (House Bill 500, Senate Bill 500)
This proposal updates the 2022 Pennsylvania Economic Development for a Growing Economy (EDGE) Tax Credit. Since its creation in 2022, no entities have been eligible for the EDGE Tax Credit, leaving billions in potential economic development untapped. The proposed 2025 amendments to the EDGE Tax Credit propose a new Reliable Energy Investment Tax Credit and a new Sustainable Aviation Fuel Tax Credit. The amendments also propose to revise the Dairy Production Tax Credit, the Regional Clean Hydrogen Tax Credit, and the Semiconductor Manufacturing and Biomedical Manufacturing and Research Tax Credit.
Pennsylvania Reliable Energy Sustainability Standard (PRESS) (House Bill 501, Senate Bill 501)
PRESS is intended to increase the amount of electricity in Pennsylvania that comes from renewable energy sources like wind and solar power. According to the Shapiro administration, PRESS would modernize Pennsylvania’s energy standards by incentivizing innovation in renewable and nuclear energy to remain competitive with other states. PRESS would renew Pennsylvania’s prior renewable energy law, the Alternative Energy Portfolio Standard, and increase the existing requirements for wind and solar energy under AEPS to 35% by 2035.
Reliable Energy Siting and Electric Transition (RESET) Board (House Bill 502, Senate Bill 502)
This legislation would establish a RESET Board, which would be a “cohesive central authority” in the commonwealth to consider and approve applications for large reliable energy-generating facilities that provide more than 25 megawatts of power. Proponents of the bill intend that receiving RESET Board approval would lead to accelerated development timelines for a project by facilitating permit approvals. Submitting a project to the RESET Board for approval would be optional under the bill.
Pennsylvania Climate Emissions Reduction Act (PACER) (House Bill 503, Senate Bill 503)
PACER would replace Pennsylvania’s attempt to participate in the Regional Greenhouse Gas Initiative (RGGI) program with an alternative cap-and-invest model for reducing emissions from larger-scale electric generation. PACER is intended to protect and create energy jobs, lower electricity costs for Pennsylvanians, take tangible action to address climate change, and maintain Pennsylvania’s energy independence. PACER advocates report that 70% of the revenue generated from PACER would be returned to Pennsylvanians as rebates on electric bills.
Lowering Energy Costs for Rural Communities (House Bill 504, Senate Bill 504)
This proposed bill would allow Pennsylvania energy consumers to subscribe to a portion of a community energy facility, such as a biofuel or solar facility, and receive credit for this subscription on their energy bills. The bill is intended to benefit low- to moderate-income customers and their communities.
Rebates to Reduce Household Energy Costs (House Bill 505, Senate Bill 505)
This bill would amend Pennsylvania’s existing energy efficiency and conservation program for the first time in two decades to increase rebates for energy-efficient appliances to help reduce household energy costs.
Pennsylvania’s Supreme Court Hears Arguments in Pennsylvania RGGI Litigation
On May 13, 2025, the Pennsylvania Supreme Court heard oral arguments in the two cases pending before it involving Pennsylvania’s attempt to join the Regional Greenhouse Gas Initiative (RGGI), a regional carbon dioxide budget trading program applicable to fossil-fuel-fired electric generating units of over 25 megawatts. See Pa. Dep’t Env’t Prot. v. Pa. Legis. Ref. Bureau (No. 106 MAP 2023); Bowfin v. Pa. Dep’t Env’t Prot. (No. 107 MAP 2023). The Shapiro administration and four environmental groups appealed the Pennsylvania Commonwealth Court’s July 8, 2022, and November 1, 2023, decisions that (1) preliminarily enjoined the implementation and enforcement of Pennsylvania RGGI regulation, holding that the regulation imposed an unconstitutional tax; and (2) invalidated the regulation on the merits.
As reported in Vol. 41, No. 2 (2024) of this Newsletter, following these decisions, Governor Shapiro proposed two legislative efforts to replace the Commonwealth’s efforts to join a cap-and-trade program: the Pennsylvania Climate Emissions Reduction Act (PACER) and the Pennsylvania Reliable Energy Sustainability Standard (PRESS). Bills establishing both PACER and PRESS were introduced into the Pennsylvania House and Senate earlier this year, as discussed above.
At oral argument, industry opposed to RGGI argued that the Pennsylvania Department of Environmental Protection (PADEP) overstepped its authority and violated the Pennsylvania Constitution by imposing an impermissible tax on electricity generators, while PADEP argued that lawmakers gave it broad authority to control air pollution and that requiring power producers to pay for allowances is within its authority. A supreme court opinion is not expected until early- to mid-2026. For a summary of Pennsylvania’s RGGI rule, see Vol. 39, No. 2 (2022) of this Newsletter. For a summary of the commonwealth court’s decisions, see Vol. 40, No. 4 (2023) of this Newsletter.
PADEP Announces Use of PennEnviroScreen in Permit Review Processes
On June 2, 2025, the Pennsylvania Department of Environmental Protection (PADEP) announced in its Environmental Justice Newsletter that its screening and mapping tool, PennEnviroScreen, is now fully integrated within PADEP permitting processes. The tool analyzes more than 30 environmental, health, and socioeconomic criteria to identify environmental justice communities, including location of pollution sources, air quality data, and poverty.
PADEP staff utilize the tool during the permit review process to determine where greater community engagement may be necessary. PADEP has also created a user guide for the public to assist use and understanding of the tool. See PADEP, “PennEnviroScreen At A Glance” (Sept. 2024). In September 2023, PADEP published its PennEnviroScreen Methodology Documentation to explain its rationale for the use of the tool to implement PADEP’s Environmental Justice Policy. PADEP intends to update the data source information used in PennEnviroScreen on an annual basis.
PADEP Rescinds Three Mining Technical Guidance Documents
On July 12, 2025, the Pennsylvania Department of Environmental Protection (PADEP) announced the rescission of three technical guidance documents relating to mining, because it is PADEP’s position that these documents are no longer needed. See 55 Pa. Bull. 4771 (July 12, 2025).
Municipal Mining Licenses, Permits and Bonds, 562-2100-704 (1997)
This document was intended to identify instances when municipalities and other government agencies could be exempt from the requirement of obtaining a noncoal license and permit. This document will be retained as background information.
Citizens’ Requests—Receiving, Tracking, Investigating, Appealing and Filing, 562-3900-402 (2008)
This document outlined the complaints tracking process of PADEP’s Bureaus of District Mining Operations and Mining Programs. It is PADEP’s opinion that its Complaints Tracking System instructions make this guidance document redundant and out of date. PADEP is currently developing an internal document for processing mining-related complaints.
Review of Accepted Coal Mining Activity Permit Applications, 563-2112-215 (1997)
This guidance established internal administrative procedures for PADEP when accepting and processing new permit applications. These directions have been replaced by a current standard operating procedure for mining applications in accordance with updated permit review timelines, SOP No. BMP-001 (2016).
The Legal Intelligencer
(by Blaine Lucas and Anna Jewart)
In accordance with Section 909.1 of the Pennsylvania Municipalities Planning Code (MPC), a municipal zoning hearing board (ZHB) possesses exclusive jurisdiction to hear and render final adjudications over a number of land use matters. Not only does a ZHB adjudicate applications for variances from, and special exceptions under, a zoning ordinance, it frequently operates in an appellate capacity as well. Among other matters, Section 909.1(3) vests a ZHB with exclusive jurisdiction over appeals “from the determination of the zoning officer” including “the issuance of any cease and desist order,” 53 P.S. §10909.1(3). In addition, the municipal zoning officer has the authority under Section 616.1 of the MPC, 53 P.S. §10616.1, to initiate enforcement proceedings against a person perceived to be in violation of the local zoning ordinance through issuance of an “enforcement notice.” Section 616.1(c)(5) requires that the “enforcement notice” include a statement of the right to appeal to the ZHB, and Section 616.1(d) articulates that in “any appeal of an enforcement notice to the zoning hearing board” the municipality shall have the responsibility of presenting its evidence first.
It is clear from a reading of both Sections 909.1 and 616.1 of the MPC that the ZHB has appellate jurisdiction over both an “enforcement notice” specifically, or any other “determination” of the zoning officer. However, the procedures and practice involved in the ZHB’s appellate review in these matters can be nuanced, and issues of interpretation of the relevant provisions of the MPC remain unsettled. A frequent issue is one of objector standing; i.e. who, beyond the appellant or applicant, is permitted to participate in a given case before a ZHB. In Heinzee, LLC v. Zoning Hearing Board of the Township of Pocono, 858 C.D. 2023, 2025 WL 2312938 (Pa. Cmwlth. Aug. 12, 2025)[1], the Commonwealth Court recently considered whether parties other than the appellant are permitted to intervene in opposition to an appeal from a zoning enforcement notice before a ZHB.
Heinzee involved the alleged unpermitted expansion of a pre-existing non-conforming use. The landowner (Landowner) operated a shooting range that had been in operation prior to adoption of the Pocono Township (Township) Zoning Ordinance. It was alleged that the Landowner had expanded operations of the range without receipt of the necessary permits. The Township issued an enforcement notice under Section 616.1 of the MPC and the Landowner timely appealed to the Township Zoning Hearing Board (Board). At the beginning of the Board’s hearing on the appeal, a resident of the Township who resided within approximately 2,900 feet of the property (Neighbor) requested party status. The Board determined the Neighbor could hear gunshots from the property and that he may be affected by the Landowner’s appeal. The Board granted the Neighbor’s request for party status over objection of the Landowner. The Township utilized the Neighbor as its first witness in its case to uphold the enforcement notice. Ultimately, the Board voted to deny the appeal of the enforcement notice, and Landowner appealed to the Monroe County Court of Common Pleas (Lower Court). The Lower Court affirmed the Board’s determination that the Landowner had expanded and altered the non-conforming use. The Landowner appealed the Lower Court’s decision affirming the Board’s determination to the Commonwealth Court.
On appeal, the Landowner asserted that the Board erred in permitting the neighbor to intervene as a party to the appeal. The Commonwealth Court summarized the Landowner’s position on this issue to be that “because [the matter was] an enforcement action which the Township brought under its police powers, [the] dispute should only be between Landowner and the Township” and that “third parties should not be permitted to intervene in enforcement actions.” The Court rejected this argument, reasoning as follows:
“Section 908(3) of the MPC, however, which applies to all hearings before zoning hearing boards provides:
The Parties to [hearings before a zoning hearing board] shall be the municipality, any person affected by the application who has made timely appearance of record before the board, and any other person including civic or community organizations permitted to appear by the board…”
(emphasis and bracketed additions in original). The Court, relying in part on the Pennsylvania Supreme Court’s reasoning in its 2023 decision in Bethlehem Associates, L.P. v. Zoning Hearing Board of Bethlehem Township, 294 A.3d 441 (Pa. 2023), interpreted the “any other person” language in Section 908(3) to be “quite broad” and concluded that the Board did not err in granting the Neighbor party status in the appeal.
The Commonwealth Court’s discussion on this matter is sparse and does not address certain aspects of the MPC suggesting that the matter of objector-intervention in appellate matters before a ZHB may not be so simple. For example, the Court has previously looked to the differences between the use of “cease and desist order” in Section 909.1 versus “enforcement notice” in Section 616.1 of the MPC and found that they were not always synonymous. See Township of Robinson v. Esposito, 2010 A.3d 1146, 1150 n.7 (Pa. Cmwlth. 2019) (“a cease-and-desist letter may function as a Section 616.1 enforcement notice”) (emphasis added). Further, the Court did not address the use of the term “application” in Section 908(3), as opposed to the term “appeal” which is used in different contexts elsewhere in the MPC. See e.g. 53 P.S. §10908(3); (5). As of the date of writing, the landowner has not sought further appeal to the Pennsylvania Supreme Court, and these issues of statutory interpretation remain outstanding. It is advisable for any party seeking to intervene, or object to intervention in an appellate matter before a Pennsylvania ZHB, review the MPC and relevant jurisprudence closely as the issue remains a moving target.
Blaine A. Lucas is a Shareholder in the public sector, and energy and natural resources groups of Babst Calland. Contact him at 412-394-5657 or blucas@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] Reported opinion, official citation pending.
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Reprinted with permission from the August 25, 2025 edition of The Legal Intelligencer© 2025 ALM Media Properties, LLC. All rights reserved.
Babst Calland is pleased to announce that seven lawyers were selected as 2026 Best Lawyers® “Lawyer of the Year” in Pittsburgh, Pa. and Charleston, W. Va. (by BL Rankings). Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.
Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2026 Best Lawyers® “Lawyer of the Year” include:
Joseph G. Bunn – Mining “Lawyer of the Year” in Charleston, W. Va.
Kevin J. Garber – Natural Resources “Lawyer of the Year” in Pittsburgh, Pa.
Jennifer J. Hicks – Energy “Lawyer of the Year” in Charleston, W. Va.
Robert Max Junker – Municipal “Lawyer of the Year” in Pittsburgh, Pa.
Jean M. Mosites – Environmental “Lawyer of the Year” in Pittsburgh, Pa.
Mychal S. Schulz – Litigation – ERISA “Lawyer of the Year” in Charleston, W. Va.
Steven B. Silverman – Information Technology “Lawyer of the Year” in Pittsburgh, Pa.
View the award recipients here.
In addition, 47 Babst Calland lawyers were selected for inclusion in the 2026 edition of The Best Lawyers in America®, the most respected peer-reviewed publications in the legal profession:
- Chester R. Babst III – Environmental Law, Litigation – Environmental
- Donald C. Bluedorn II – Environmental Law, Litigation – Environmental, Water Law
- Lisa Bruderly – Energy Law
- Joseph G. Bunn – Banking and Finance Law, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, Business Organizations (including LLCs and Partnerships), Commercial Transactions / UCC Law, Corporate Law, Mergers and Acquisitions Law, Mining Law, Securitization and Structured Finance Law
- A. A. Moore Capito – Corporate Law and Energy Law
- Matthew S. Casto – Commercial Litigation, Energy Law, Litigation – Environmental
- Frank J. Clements – Corporate Law
- Kathy K. Condo – Commercial Litigation, Energy Law
- James V. Corbelli – Commercial Litigation, Energy Law, Litigation – Environmental, Litigation – Regulatory Enforcement (SEC, Telecom, Energy)
- Casey A. Coyle – Administrative / Regulatory Law and Appellate Practice
- James Curry – Energy Law, Oil and Gas Law
- Mark K. Dausch – Commercial Litigation
- Julie R. Domike – Environmental Law, Litigation – Environmental
- Kevin K. Douglass – Commercial Litigation, Energy Law, Natural Resources Law
- Christian A. Farmakis – Corporate Law, Mergers and Acquisitions Law, Real Estate Law
- Marc J. Felezzola – Construction Law, Litigation – Construction
- Kevin J. Garber – Energy Law, Environmental Law, Litigation – Environmental, Natural Resources Law, and Water Law
- Alyssa Golfieri – Real Estate Law
- Steven M. Green – Energy Law
- Jennifer Hicks – Commercial Litigation, Energy Law, Litigation – Regulatory Enforcement (SEC, Telecom, Energy)
- Lindsay P. Howard – Environmental Law, Litigation – Environmental
- Robert Max Junker – Land Use and Zoning Law, Municipal Law
- Justine Kasznica – Corporate Law
- Sean R. Keegan – Litigation – Labor and Employment
- Stephen L. Korbel – Litigation – Labor and Employment
- Blaine A. Lucas – Energy Law, Land Use and Zoning Law, Litigation – Land Use and Zoning, and Municipal Law
- Ramonda C. Marling – Oil and Gas Law
- John A. McCreary Jr. – Labor Law – Management
- Sean M. McGovern – Environmental Law
- Timothy M. Miller – Bet-the-Company Litigation, Commercial Litigation, Energy Law, Litigation – Environmental, Oil and Gas Law
- Matthew Moses – Corporate Law, Mergers and Acquisitions Law
- Jean M. Mosites – Energy Law, Environmental Law
- Christopher B. Power – Arbitration, Commercial Litigation, Energy Law, Environmental Law, Litigation – Environmental, Litigation – Land Use and Zoning, Litigation – Municipal, Litigation – Regulatory Enforcement (SEC, Telecom, Energy), Mining Law, Natural Resources Law, Oil and Gas Law
- Joseph K. Reinhart – Energy Law, Environmental Law, Litigation – Environmental, Natural Resources Law
- Bruce F. Rudoy – Corporate Law
- Charles F.W. Saffer – Oil and Gas Law, Real Estate Law
- Marnie S. Schock – Corporate Law, Real Estate Law
- Mychal Sommer Schulz – Commercial Litigation, Litigation – ERISA, and Litigation – Labor and Employment
- Mark D. Shepard – Bet-the-Company Litigation, Commercial Litigation, Litigation – Environmental, Mediation
- Steven B. Silverman – Commercial Litigation, Information Technology Law
- Gary E. Steinbauer – Litigation – Environmental
- Laura Stone – Corporate Law
- Harlan S. Stone – Municipal Law
- Robert M. Stonestreet – Commercial Litigation, Energy Law, Environmental Law
- David E. White – Construction Law, Litigation – Construction
- Richard S. Wiedman – Energy Regulatory Law
- Michael H. Winek – Environmental Law
View the award recipients here.
Four Babst Calland lawyers were also named to the 2026 Best Lawyers: Ones to Watch® in America which recognizes associates and other lawyers who are earlier in their careers for their outstanding professional excellence in private practice in the United States:
- Andrew C. DeGory – Commercial Litigation
- Alexandra G. Farone – Commercial Litigation, Litigation – Labor and Employment
- Kristen L. Petrina – Corporate Law, Technology Law
- Christina M. Puhnaty – Environmental Law
View the award recipients here.
Best Lawyers undergoes an authentication process, and inclusion in The Best Lawyers in America® is based solely on peer review and is divided by geographic region and practice areas. The list has published for more than three decades, earning the respect of the profession, the media, and the public as the most reliable, unbiased source of legal referrals. Its first international list was published in 2006 and since then has grown to provide lists in over 65 countries.
PIOGA Press
(by Ben Clapp and Gary Steinbauer)
Announced through a record-breaking number of executive orders, memoranda and directives, new White House energy and environmental policy initiatives are resulting in a rapidly changing environmental regulatory climate affecting the business community.
To help clients keep pace with these new policy initiatives, and recent steps that EPA has taken to implement this broad deregulatory agenda, attorneys at the law firm Babst Calland offer advice on how businesses can adapt and thrive in a swiftly changing regulatory environment.
It will be some time before we get a clear picture on “this administration’s policy objectives and how they’re all going to unfold,” Gary Steinbauer, a shareholder working with the environmental law practice of Babst Calland’s Pittsburgh office, says.
One of the emerging energy policy themes is the Trump administration’s goal of “American energy dominance,” achieved through permitting reform and environmental deregulation in the energy sector. Other themes include de-emphasizing climate change-based regulatory initiatives, promoting domestic manufacturing and mineral extraction, and grid reliability.
Executive orders 101
An executive order is a written statement in which a president broadcasts a directive to implement a policy change.
Presidents have fairly broad authority in terms of the scope of what they can order, “provided that that order is consistent with the applicable laws,” Ben Clapp, shareholder and chair of the environmental section at Babst Calland’s Washington, D.C. office, says.
A president cannot, through executive order, revise a regulation or amend or revoke a law. However, a president can revoke a previous administration’s executive orders and use them to announce new policy initiatives. Sometimes, when undertaking specific activities that have been delegated to the executive branch by Congress or the Constitution, they can compel a specific, direct action through an executive order without further procedures. In other cases, such as when a president directs an agency to issue or rescind a regulation, the agency needs to comply with notice and comment rulemaking requirements under the Administrative Procedure Act before taking final action.
Of particular interest at present are a slate of executive orders directing agencies to undertake deregulatory and permitting reform regulatory actions in furtherance of the promotion of domestic energy production. Among the most noteworthy, the Unleashing American Energy order directs agencies to identify those regulations that serve as an impediment to the production of American energy (in the context of this order – fossil-based resources, uranium, biofuels, hydroelectric power, geothermal energy and critical minerals but not including solar and wind energy sources), and develop and implement action plans to suspend, revise or rescind such actions. This order dovetails with a contemporaneous order Declaring a National Energy Emergency, which directs certain agencies to use emergency authority to facilitate energy development, transportation, refining, and generation.
Other executive orders of note relating to enhancing domestic energy production include:
- Immediate Measures to Increase American Mineral Production, which, in part directs the DOI to identify areas on federal lands that can be “immediately implemented for mineral production.”
- Ensuring National Security Through 232 Actions on Processed Critical Minerals, ordering the initiation of an investigation to determine the effects on national security of imports of processed critical minerals and their derivative products.
- Unleashing America’s Offshore Critical Minerals and Resources, aimed at seabed mineral development by developing domestic capabilities through streamlined permitting, enhancing coordination amongst agencies.
- Reinvigoration of America’s Beautiful Clean Coal Industry, which classifies coal as a mineral of the same level of importance as critical minerals, uranium, and copper, prioritizes coal leases on federal lands, promotes coal technology, including data center support, and directs agencies to identify regulations impeding coal production and consider revising or rescinding them.
- A trio of executive orders aimed at enhancing the domestic production of nuclear power.
In addition, “the United States [issued executive orders] extracting itself from previous administrations’ climate change-based regulatory efforts, including removing itself from international climate agreements and rescinding executive orders that were in place to promote climate change-related regulation,” Clapp says.
National Energy Policy Act (NEPA) law reform.
Since 1970, NEPA has required that agencies closely examine the environmental impacts associated with major federal actions. In the context of emerging production, it’s important because the law’s environmental review requirements can be triggered:
- In connection with the issuance of leases on federal lands for domestic energy production.
- By the issuance of certain environmental permits, including those issued under Section 404 of the Clean Water Act, allowing the dredging and filling of wetlands.
- By certain federal funding initiatives supporting energy projects.
Given the lengthy environmental review periods involved in the NEPA process and the propensity for project opponents to employ legal challenges to the NEPA process in attempts to delay or block energy projects, NEPA is viewed by the Trump administration as an “impediment to energy production,” Clapp says. In furtherance of the Trump administration’s Unleashing American Energy Executive Order, in February 2025, the Council on Environmental Quality (CEQ), which is the agency tasked with overseeing the implementation of NEPA, issued a memorandum directing agencies to revise or establish their NEPA implementing procedures to expedite permitting approvals in accordance with NEPA statutory timeframes. The CEQ followed that up with an interim final rule issued in April 2025 rescinding its own NEPA regulations that had been binding on other federal agencies. The current outlook for NEPA reviews remains unclear while we wait for agencies to develop their own NEPA regulations and implement the EO directives to make the approval process more efficient. Under the statute, however, agencies still have up to two years to complete the most detailed form of environmental review.
We are beginning to see early examples of agencies expediting NEPA reviews pursuant to the mandates contained in the executive orders and the CEQ February 2025 memorandum. For example, the Bureau of Land Management recently announced that they were rescinding its notice of intent to prepare Environmental Impact Statements – the most comprehensive and lengthy form of NEPA review, often taking more than two years – for more than 3,200 oil and gas leases in Western states on the grounds that it conflicted with its mandate to reduce regulatory barriers for oil and gas companies and expediting domestic energy development.
Emergency Permitting
Agency efforts are also underway to implement the emergency permitting directive issued in the Declaring a National Energy Emergency Executive Order, which requires that federal agencies, including the Army Corps of Engineers and the Department of the Interior, to use their emergency permitting powers to fast track energy projects requiring permits under Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act, and the Endangered Species Act. The issuance of these permits trigger NEPA reviews, and therefore, the emergency permitting procedures are entwined with the administration’s efforts to expedite NEPA reviews.
In response to this directive, the Army Corps of Engineers is actively fast-tracking more than 600 energy projects. For example, in February, the Army Corps committed to issuing its Record of Decision, approving a pipeline underneath the Mackinac Straits in Michigan, in the fall of 2025 – a remarkably quick time frame for completing a NEPA review and issuing required permits.
in May, the DOI issued a memorandum stating they were going to conduct the permitting process for energy projects, using emergency permitting approvals, in no more than 28 days.
“That is an extraordinarily fast amount of time. It can only result in administrative records that are fairly thin,” Clapp says. “These projects are going to receive a lot of attention” from opponents of fossil fuel energy production. I think there’s a significant litigation risk there.”
Key deregulatory actions
In March 2025, the EPA announced a sweeping deregulatory initiative identifying 31 regulations and agency actions that will be reconsidered in response to the Trump administration’s executive orders. “The plan likely will take years to implement and execute,” Steinbauer says.
The EPA has begun implementing its deregulatory plan, with the issuance of two significant deregulatory actions that were published in the Federal Register on June 17.
The first proposal is to repeal the Biden administration’s greenhouse gas emission standards for the power sector based on a new statutory interpretation. “Here, the Trump administration is taking the position that to regulate greenhouse gas emissions, or any new pollutant under this Clean Air Act Section, EPA needs to find that that pollutant contributes significantly to dangerous air pollution,” Steinbauer says. The EPA is also proposing an alternative basis for repealing the Biden-era power sector greenhouse gas emission standards. This alternative proposal takes a “more surgical” approach to repeal by finding that carbon capture and sequestration technology is not “adequately demonstrated” and the co-firing of natural gas and low greenhouse gas hydrogen at certain coal fired power plants is an inefficient use of natural gas.
The EPA’s second proposal also affects the power generation sector and focuses on mercury emissions standards from coal-fired stations. The Trump EPA is proposing to repeal the Biden administration’s 2024 Mercury and Air Toxic Standards (MATS) rule that regulated mercury emissions from coal-fired power plants and set filterable particulate matter emission standards, requires continuous emission monitoring systems to demonstrate compliance, and includes first-time mercury emissions standards for lignite coal plants. The Trump administration now seeks an outright repeal of the 2024 MATS rule, contending that the costs to comply with the Biden administration’s MATS rule are too high, there are other means to demonstrate compliance, and there is too much variability in monitoring lignite coal plants to justify those standards.
The Trump administration “took very broad positions” aimed at striking down the Biden-era power sector greenhouse gas emission standards and the MATS rule “at their core and in their entirety,” Steinbauer says. This could be a sign that we may see more of “a chainsaw approach” when it comes to deregulation.
On the proposed repeal of the Biden administration’s power sector greenhouse gas emission standards, the EPA issued its proposed repeal in June and has pledged to finalize that rule, six months later, in December. “I don’t think a rulemaking of this significance has ever proceeded at that pace,” Steinbauer says. “Everyone will be watching carefully to see whether the administration follows through on that anticipated timeline.”
Beyond the use of executive orders, the President is also using available statutory authorities to advance his goals. In April, President Trump gave roughly 50 coal-fired power plants a two-year compliance extension for the 2024 Mercury Air Toxic Standards using a never-before-used Clean Air Act provision. “Litigation has already been filed challenging this presidential compliance extension,” but it could be “a signal that the president is willing to be big and bold and utilize statutory authorities in ways that haven’t been contemplated or used [] before to advance his goals,” Steinbauer says.
Congress has also been involved in deregulation through its Congressional Review Act, a statute that allows Congress to nullify agency rules that were sent to it within the last 60 legislative days. Before 2017, the Congressional Review Act was only used once since it was enacted in 1996, Steinbauer says. In the first year of President Trump’s first term, “it was used 16 times by Congress,” Steinbauer says, and the act has been used more frequently since that time, by Congress during the Biden administration and now in President Trump’s second term.
Recently, Congress has used the act to strike down a Biden-era EPA regulation implementing the so-called methane tax regulation. Congress has also used the statute to eliminate Clean Air Act waivers that the Biden administration issued to California, relating to motor vehicle and engine emission requirements.
Inevitable litigation
Recent Supreme Court precedent likely will feature prominently in lawsuits challenging the Trump administration’s deregulatory actions. As an example, the Loper Bright case overturned the long-standing Chevron deference doctrine. Now, courts are obligated to exercise independent judgement in interpreting statutes, rather than deferring to an agency’s reasonable interpretation of a statute. The Trump administration is aware of Loper Bright and other recent Supreme Court decisions, as its deregulatory proposals are using language intended to address these changes.
Litigation is also being used as a “sword” to achieve the administration’s domestic energy policy initiatives, explains Steinbauer, referring to the executive order in which President Trump directed the Attorney General to challenge state laws addressing climate change and environmental justice, and those imposing carbon taxes or carbon penalties. The order singles out California, Vermont and New York, and there are now four pending lawsuits filed by the Attorney General against Hawaii, Michigan, New York and Vermont stemming from this executive order.
The EPA is also managing several pending challenges to Biden-era EPA regulations, many of which challenge regulations that the Trump administration has vowed to reconsider. In such cases, the EPA files motions “to hold those lawsuits in abeyance while it undertakes its review and evaluation of the rules that are being challenged,” Steinbauer says.
How the Trump administration is shaping EPA
The administration is also making structural changes at EPA, and through other efforts is seeking to change how agencies operate and optimize their workforce.
There are EPA workforce reorganizations occurring that could have lasting effects. For example, the EPA is proposing to eliminate its Office of Research and Development and to create a new Office of Applied Science and Environmental Solutions. The new office’s purpose is described as guiding the agency in using science in the regulatory context, and it will be housed in the EPA Administrator’s office.
Regarding EPA employees, the agency has incentivized multiple opportunities for deferred resignations or early retirements. There are reports that more than 3,000 EPA employees – or 20 percent of its workforce – took this offer in May. Reports suggest that 1,400 more EPA employees may have participated in this program in June. These workforce reduction efforts are significant because fewer EPA employees will be tasked with implementing the Trump administration’s ambitious deregulatory plan, Steinbauer says.
Keeping pace with ongoing policy developments
We are beginning to see concrete steps EPA is taking to advance its sweeping deregulatory plan. The business community needs to stay abreast of these new developments, and there will be opportunities for strategic advocacy when the agency asks for input from the regulated community or other stakeholders, explains Steinbauer.
“The success of those deregulatory efforts depends often on the legal footing and the factual footing,” he says. “The factual footing is based on the administrative record, and EPA only has access to certain data and information about a regulated industry.” Strategically engaging with the EPA on its deregulatory proposals, whether in support of or against the specific proposal, will be key for businesses navigating the rapidly changing legal landscape.
Despite the EPA’s deregulatory plans, many complex environmental regulations remain on the books, and maintaining compliance with those requirements is important. Steinbauer encourages the regulated community to perform audits to assess the strength of their compliance programs and consider using agency self-disclosure policies and laws to mitigate liability and civil penalty exposure.
Finally, Steinbauer says, be patient and adapt as necessary, as the next several years certainly will be eventful.
For more information on the actions discussed in this article or related matters, please contact Ben Clapp at bclapp@babstcalland.com or Gary Steinbauer at gsteinbauer@babstcalland.com.
To view the full article, click here.
Reprinted with permission from the August 2025 issue of The PIOGA Press. All rights reserved.
Environmental Alert
(Christopher (Kip) Power and Robert Stonestreet)
Recognizing the “diversity in terrain, climate, biologic, chemical and other physical conditions” among the States in which coal is mined, the federal Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201, et seq. (“SMCRA”) specifies that governmental responsibility for regulating the coal industry “should rest with the States.” SMCRA § 101(f). To accomplish that, SMCRA provides for delegation of primary regulatory authority (or “primacy”) to a State if its regulatory program meets national standards. 30 U.S.C. § 1253. Residual oversight authority is vested in the Department of the Interior’s Office of Surface Mining Reclamation and Enforcement (“OSM”), which was created to ensure that primacy states adequately maintain and enforce their approved State programs and to inspect and possibly intervene where problems are reported at specific mine sites that the State regulatory authority (“SRA”) has failed to address.
The rules governing the exercise of OSM’s oversight authority with respect to primacy States under SMCRA may soon change. On June 16, 2025, OSM published a proposal to revise those regulations, essentially seeking to restore them to the form that existed prior to promulgation by the Biden administration of its own changes to those rules, entitled “Ten-Day Notices and Corrective Action for State Regulatory Program Issues” (89 Fed. Reg. 24714, April 9, 2024) (the “2024 TDN Rule”). The comment period on the proposed changes to unwind the 2024 TDN Rule closed on July 16, 2025. 90 Fed. Reg. 25174 (June 16, 2025).
Under SMCRA, if OSM has reason to believe that there may be a violation of the approved State program at a particular mine site that has not been adequately addressed by the SRA, OSM is authorized to issue a ten-day notice (or “TDN”) to a SRA. The TDN describes the alleged violation and provides the SRA with ten days to investigate and either take appropriate action to cause any violation to be addressed, or to explain to OSM why no such action was determined to be necessary (e.g., because the alleged violation no longer exists or never did exist).
In contrast to SMCRA, the 2024 TDN Rule amended the federal regulations so that OSM may issue TDNs to SRAs based on programmatic (rather than site-specific) concerns. Moreover, for the first time it allows citizens to request that OSM issue TDNs without notifying the appropriate SRA of the matter and allowing the State to investigate and attempt to resolve it. Taken together, these regulations create a scenario in which OSM may issue a TDN on the basis of an alleged permit defect that has no connection to any asserted environmental problem at a specific mine site. In addition to allowing third parties to circumvent the permit appeal process available under State laws, TDNs issued on that basis generally take more time to investigate and resolve with OSM, diverting limited State resources away from permitting, inspection and enforcement.
These and other changes made by the 2024 TDN Rule are the subject of a pending legal challenge filed by 14 primacy States in the U.S. District Court for the District of Columbia (State of Indiana, et al. v. Burgum, Civ. Action No. 1:24-cv-01655 (RBW)). On June 12, 2025, Judge Reggie B. Walton issued an Order staying that litigation and vacating all deadlines for briefing in that case, on the basis of the defendants’ stated intent to publish what became the June 16, 2025 proposal. It is likely that once the current proposal is finalized, this civil action will be dismissed as moot. Of course, if OSM finalizes its pending changes and substantially reverts to the 2020 version of OSM’s oversight regulations, it is also reasonable to assume that those groups who intervened to defend the 2024 TDN Rule will challenge such a move. Judge Walton may wish to keep his docket open.
For questions about OSM’s proposal or other issues arising under SMCRA, OSM regulations 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; or your Babst Calland relationship attorney.
Environmental Alert
(by Gary Steinbauer, Gina Buchman and Christina Puhnaty)
On July 31, 2025, EPA published in the Federal Register its highly anticipated Interim Final Rule to extend several deadlines in 40 C.F.R. Part 60, Subparts OOOO, OOOOa, OOOOb and OOOOc that were promulgated in EPA’s 2024 Methane Rule. 90 Fed. Reg. 35966 (July 31, 2025). That same day, environmental groups filed a lawsuit challenging the Interim Final Rule. Envtl. Defense Fund v. U.S. EPA, Case #25-1164 (D.C. Cir.). Absent a stay by the court, which the environmental groups are currently not seeking, the Interim Final Rule and the various extended deadlines are effective.
Summary of Deadline Extensions
The Interim Final Rule extends numerous compliance deadlines for oil and gas air emission sources subject to the New Source Performance Standards in 40 C.F.R. Part 60 Subparts OOOO, OOOOa, OOOOb and OOOOc. The previous compliance deadlines were published in a March 2024 final rule. 89 Fed. Reg. 16820 (March 8, 2024). The Interim Final Rule, which became effective upon publication, extends many deadlines in OOOOb, the date that the requirements of the Super-Emitter Program apply with respect to OOOO, OOOOa, and OOOOb, and the date by which states must submit plans to EPA pursuant to the OOOOc emissions guidelines.
EPA extended the following OOOOb compliance deadlines to at least January 22, 2027:
- Process Controllers: The date by which process controller affected facilities are required to be zero-bleed devices. 40 CFR §§ 60.5370b(a)(5)(i), 60.5390b(a), 60.5415b(h)(1).
- Storage Vessels:
- The date by which receiving additional crude oil, condensate, intermediate hydrocarbons, or produced water throughput at tank batteries triggers a modification. 40 CFR § 60.5365b(e)(3)(ii)(C) and (D).
- The date by which a legally and practicably enforceable limit used to determine the potential VOC and methane emissions from a storage vessel must include the elements provided in paragraphs 40 CFR § 60.5365b(e)(2)(i)(A) through (F). 40 CFR § 60.5365b(e)(2)(i).
- The date by which the potential for VOC and methane emissions from storage vessels must be calculated using a generally accepted model or calculation methodology that accounts for flashing, working, and breathing losses, based on the maximum average daily throughput to the tank battery determined for a 30-day period of production. 40 CFR § 60.5365b(e)(2)(ii).
- Covers and Closed Vent Systems: The date by which a required closed vent system or cover must be designed and operated with no identifiable emissions and corresponding inspections must be performed. This new compliance deadline is 18 months after the date the Interim Final Rule is published in the Federal Register or upon startup, whichever is later. 40 CFR §§ 60.5411b(a)(3), § 60.5411b(b)(4), 60.5416b(a)–(b).
- Control Devices: The date by which you must install and operate a continuous burning pilot or combustion flame, as applicable, and the date by which an alert must be sent to the nearest control room whenever the pilot or combustion flame is unlit. 40 CFR §§ 60.5412b(a)(1)(viii) and (3)(viii), 60.5413b(e)(2), 60.5415b(f)(1)(vii)(A)(1), 60.5417b(d)(8)(i), 60.5417b(i)(6)(v).
EPA also gave regulated facilities until November 28, 2025, or 180 days after startup, whichever is later, to comply with continuous monitoring system requirements for enclosed combustors or flares. 40 CFR §§ 60.5370b(a)(9)(i) and (iii).
Regarding OOOOc, the EPA emission guidelines that States are required to use when regulating existing sources (i.e., regulated emission sources that commenced construction, modification, or reconstruction on or before December 6, 2022), EPA extended the deadline for States to submit their OOOOc plans to January 22, 2027. 40 CFR § 60.5362c(c). As indicated in our recent Alert, the Pennsylvania Department of Environmental Protection (“PADEP”) has issued public notice and provided an opportunity for comment for its proposed OOOOc plan. The comment period on PADEP’s proposed OOOOc plan closed on July 30, 2025. Several commenters urged PADEP to delay implementation of the OOOOc plan until EPA finalizes its reconsideration of OOOOc, and others raised concerns about PADEP’s analysis, or lack thereof, related to considering the “remaining useful life and other factors” when devising the proposed OOOOc plan requirements. PADEP’s proposed OOOOc plan noted the original March 2026 deadline for submission to EPA. It remains to be seen whether PADEP will continue moving forward with its plan given that it now has an additional 10 months to finalize and submit Pennsylvania’s OOOOc plan to EPA for approval.
EPA also extended deadlines in OOOOa and OOOOb associated with the so-called “super emitter program” created under the March 2024 Methane Rule. In the preamble for the Interim Final Rule, EPA notes that in implementing the “super emitter program,” which would allow EPA-approved third parties (using EPA-approved technologies) to provide EPA with data on super-emission events, “EPA has experienced unanticipated difficulties and concerns that require additional time for effective and lawful administration of various program procedures.” 90 Fed. Reg. at 35976. EPA is delaying implementation of the super-emitter program until after January 22, 2027, during which time EPA will not act on applications seeking approval for remote-detection technologies for use under the program. See 40 CFR §§ 60.5371a and 60.5371b.
The Interim Final Rule indicates that EPA may make additional, substantive revisions to the 2024 Methane Rule in a separate reconsideration action. EPA invites comments on the revisions in the Interim Final Rule by September 2, 2025, even though the rule became effective on July 31, 2025.
Environmental Groups’ Challenge
Ten environmental groups promptly filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit, challenging the Interim Final Rule. The Court has set initial filing deadlines, including a deadline to file any dispositive motions by September 18, 2025. A briefing schedule has not been established.
Press releases by the environmental groups suggest that they may attack the Interim Final Rule on both procedural and substantive groups. Procedurally, the grounds contend that EPA violated the law by offering no opportunity for public input. Substantively, the groups indicate that they plan to defend the 2024 Methane Rule requirements, including the original deadlines and requirements of that rule.
Babst Calland’s Environmental Practice Group is closely tracking these regulatory developments, and our attorneys are available to provide strategic advice on how these actions may affect your business. For more information or answers to questions, please contact Gary Steinbauer at (412) 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 your Babst Calland relationship attorney.
Pittsburgh Business Times
(by Ben Clapp and Gary Steinbauer)
Announced through a record-breaking number of executive orders, memoranda and directives, new White House energy and environmental policy initiatives are resulting in a rapidly changing environmental regulatory climate affecting the business community.
To help clients keep pace with these new policy initiatives, and recent steps that EPA has taken to implement this broad deregulatory agenda, attorneys at the law firm Babst Calland offer advice on how businesses can adapt and thrive in a swiftly changing regulatory environment.
It will be some time before we get a clear picture on “this administration’s policy objectives and how they’re all going to unfold,” Gary Steinbauer, a shareholder working with the environmental law practice of Babst Calland’s Pittsburgh office, says.
One of the emerging energy policy themes is the Trump administration’s goal of “American energy dominance,” achieved through permitting reform and environmental deregulation in the energy sector. Other themes include de-emphasizing climate change-based regulatory initiatives, promoting domestic manufacturing and mineral extraction, and grid reliability.
Executive orders 101
An executive order is a written statement in which a president broadcasts a directive to implement a policy change.
Presidents have fairly broad authority in terms of the scope of what they can order, “provided that that order is consistent with the applicable laws,” Ben Clapp, shareholder and chair of the environmental section at Babst Calland’s Washington, D.C. office, says.
A president cannot, through executive order, revise a regulation or amend or revoke a law. However, a president can revoke a previous administration’s executive orders and use them to announce new policy initiatives. Sometimes, when undertaking specific activities that have been delegated to the executive branch by Congress or the Constitution, they can compel a specific, direct action through an executive order without further procedures. In other cases, such as when a president directs an agency to issue or rescind a regulation, the agency needs to comply with notice and comment rulemaking requirements under the Administrative Procedure Act before taking final action.
Of particular interest at present are a slate of executive orders directing agencies to undertake deregulatory and permitting reform regulatory actions in furtherance of the promotion of domestic energy production. Among the most noteworthy, the Unleashing American Energy order directs agencies to identify those regulations that serve as an impediment to the production of American energy (in the context of this order – fossil-based resources, uranium, biofuels, hydroelectric power, geothermal energy and critical minerals but not including solar and wind energy sources), and develop and implement action plans to suspend, revise or rescind such actions. This order dovetails with a contemporaneous order Declaring a National Energy Emergency, which directs certain agencies to use emergency authority to facilitate energy development, transportation, refining, and generation.
Other executive orders of note relating to enhancing domestic energy production include:
- Immediate Measures to Increase American Mineral Production, which, in part directs the DOI to identify areas on federal lands that can be “immediately implemented for mineral production.”
- Ensuring National Security Through 232 Actions on Processed Critical Minerals, ordering the initiation of an investigation to determine the effects on national security of imports of processed critical minerals and their derivative products.
- Unleashing America’s Offshore Critical Minerals and Resources, aimed at seabed mineral development by developing domestic capabilities through streamlined permitting, enhancing coordination amongst agencies.
- Reinvigoration of America’s Beautiful Clean Coal Industry, which classifies coal as a mineral of the same level of importance as critical minerals, uranium, and copper, prioritizes coal leases on federal lands, promotes coal technology, including data center support, and directs agencies to identify regulations impeding coal production and consider revising or rescinding them.
- A trio of executive orders aimed at enhancing the domestic production of nuclear power.
In addition, “the United States [issued executive orders] extracting itself from previous administrations’ climate change-based regulatory efforts, including removing itself from international climate agreements and rescinding executive orders that were in place to promote climate change-related regulation,” Clapp says.
National Energy Policy Act (NEPA) law reform.
Since 1970, NEPA has required that agencies closely examine the environmental impacts associated with major federal actions. In the context of emerging production, it’s important because the law’s environmental review requirements can be triggered:
- In connection with the issuance of leases on federal lands for domestic energy production.
- By the issuance of certain environmental permits, including those issued under Section 404 of the Clean Water Act, allowing the dredging and filling of wetlands.
- By certain federal funding initiatives supporting energy projects.
Given the lengthy environmental review periods involved in the NEPA process and the propensity for project opponents to employ legal challenges to the NEPA process in attempts to delay or block energy projects, NEPA is viewed by the Trump administration as an “impediment to energy production,” Clapp says. In furtherance of the Trump administration’s Unleashing American Energy Executive Order, in February 2025, the Council on Environmental Quality (CEQ), which is the agency tasked with overseeing the implementation of NEPA, issued a memorandum directing agencies to revise or establish their NEPA implementing procedures to expedite permitting approvals in accordance with NEPA statutory timeframes. The CEQ followed that up with an interim final rule issued in April 2025 rescinding its own NEPA regulations that had been binding on other federal agencies. The current outlook for NEPA reviews remains unclear while we wait for agencies to develop their own NEPA regulations and implement the EO directives to make the approval process more efficient. Under the statute, however, agencies still have up to two years to complete the most detailed form of environmental review.
We are beginning to see early examples of agencies expediting NEPA reviews pursuant to the mandates contained in the executive orders and the CEQ February 2025 memorandum. For example, the Bureau of Land Management recently announced that they were rescinding its notice of intent to prepare Environmental Impact Statements – the most comprehensive and lengthy form of NEPA review, often taking more than two years – for more than 3,200 oil and gas leases in Western states on the grounds that it conflicted with its mandate to reduce regulatory barriers for oil and gas companies and expediting domestic energy development.
Emergency Permitting
Agency efforts are also underway to implement the emergency permitting directive issued in the Declaring a National Energy Emergency Executive Order, which requires that federal agencies, including the Army Corps of Engineers and the Department of the Interior, to use their emergency permitting powers to fast track energy projects requiring permits under Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act, and the Endangered Species Act. The issuance of these permits trigger NEPA reviews, and therefore, the emergency permitting procedures are entwined with the administration’s efforts to expedite NEPA reviews.
In response to this directive, the Army Corps of Engineers is actively fast-tracking more than 600 energy projects. For example, in February, the Army Corps committed to issuing its Record of Decision, approving a pipeline underneath the Mackinac Straits in Michigan, in the fall of 2025 – a remarkably quick time frame for completing a NEPA review and issuing required permits.
in May, the DOI issued a memorandum stating they were going to conduct the permitting process for energy projects, using emergency permitting approvals, in no more than 28 days.
“That is an extraordinarily fast amount of time. It can only result in administrative records that are fairly thin,” Clapp says. “These projects are going to receive a lot of attention” from opponents of fossil fuel energy production. I think there’s a significant litigation risk there.”
Key deregulatory actions
In March 2025, the EPA announced a sweeping deregulatory initiative identifying 31 regulations and agency actions that will be reconsidered in response to the Trump administration’s executive orders. “The plan likely will take years to implement and execute,” Steinbauer says.
The EPA has begun implementing its deregulatory plan, with the issuance of two significant deregulatory actions that were published in the Federal Register on June 17.
The first proposal is to repeal the Biden administration’s greenhouse gas emission standards for the power sector based on a new statutory interpretation. “Here, the Trump administration is taking the position that to regulate greenhouse gas emissions, or any new pollutant under this Clean Air Act Section, EPA needs to find that that pollutant contributes significantly to dangerous air pollution,” Steinbauer says. The EPA is also proposing an alternative basis for repealing the Biden-era power sector greenhouse gas emission standards. This alternative proposal takes a “more surgical” approach to repeal by finding that carbon capture and sequestration technology is not “adequately demonstrated” and the co-firing of natural gas and low greenhouse gas hydrogen at certain coal fired power plants is an inefficient use of natural gas.
The EPA’s second proposal also affects the power generation sector and focuses on mercury emissions standards from coal-fired stations. The Trump EPA is proposing to repeal the Biden administration’s 2024 Mercury and Air Toxic Standards (MATS) rule that regulated mercury emissions from coal-fired power plants and set filterable particulate matter emission standards, requires continuous emission monitoring systems to demonstrate compliance, and includes first-time mercury emissions standards for lignite coal plants. The Trump administration now seeks an outright repeal of the 2024 MATS rule, contending that the costs to comply with the Biden administration’s MATS rule are too high, there are other means to demonstrate compliance, and there is too much variability in monitoring lignite coal plants to justify those standards.
The Trump administration “took very broad positions” aimed at striking down the Biden-era power sector greenhouse gas emission standards and the MATS rule “at their core and in their entirety,” Steinbauer says. This could be a sign that we may see more of “a chainsaw approach” when it comes to deregulation.
On the proposed repeal of the Biden administration’s power sector greenhouse gas emission standards, the EPA issued its proposed repeal in June and has pledged to finalize that rule, six months later, in December. “I don’t think a rulemaking of this significance has ever proceeded at that pace,” Steinbauer says. “Everyone will be watching carefully to see whether the administration follows through on that anticipated timeline.”
Beyond the use of executive orders, the President is also using available statutory authorities to advance his goals. In April, President Trump gave roughly 50 coal-fired power plants a two-year compliance extension for the 2024 Mercury Air Toxic Standards using a never-before-used Clean Air Act provision. “Litigation has already been filed challenging this presidential compliance extension,” but it could be “a signal that the president is willing to be big and bold and utilize statutory authorities in ways that haven’t been contemplated or used [] before to advance his goals,” Steinbauer says.
Congress has also been involved in deregulation through its Congressional Review Act, a statute that allows Congress to nullify agency rules that were sent to it within the last 60 legislative days. Before 2017, the Congressional Review Act was only used once since it was enacted in 1996, Steinbauer says. In the first year of President Trump’s first term, “it was used 16 times by Congress,” Steinbauer says, and the act has been used more frequently since that time, by Congress during the Biden administration and now in President Trump’s second term.
Recently, Congress has used the act to strike down a Biden-era EPA regulation implementing the so-called methane tax regulation. Congress has also used the statute to eliminate Clean Air Act waivers that the Biden administration issued to California, relating to motor vehicle and engine emission requirements.
Inevitable litigation
Recent Supreme Court precedent likely will feature prominently in lawsuits challenging the Trump administration’s deregulatory actions. As an example, the Loper Bright case overturned the long-standing Chevron deference doctrine. Now, courts are obligated to exercise independent judgement in interpreting statutes, rather than deferring to an agency’s reasonable interpretation of a statute. The Trump administration is aware of Loper Bright and other recent Supreme Court decisions, as its deregulatory proposals are using language intended to address these changes.
Litigation is also being used as a “sword” to achieve the administration’s domestic energy policy initiatives, explains Steinbauer, referring to the executive order in which President Trump directed the Attorney General to challenge state laws addressing climate change and environmental justice, and those imposing carbon taxes or carbon penalties. The order singles out California, Vermont and New York, and there are now four pending lawsuits filed by the Attorney General against Hawaii, Michigan, New York and Vermont stemming from this executive order.
The EPA is also managing several pending challenges to Biden-era EPA regulations, many of which challenge regulations that the Trump administration has vowed to reconsider. In such cases, the EPA files motions “to hold those lawsuits in abeyance while it undertakes its review and evaluation of the rules that are being challenged,” Steinbauer says.
How the Trump administration is shaping EPA
The administration is also making structural changes at EPA, and through other efforts is seeking to change how agencies operate and optimize their workforce.
There are EPA workforce reorganizations occurring that could have lasting effects. For example, the EPA is proposing to eliminate its Office of Research and Development and to create a new Office of Applied Science and Environmental Solutions. The new office’s purpose is described as guiding the agency in using science in the regulatory context, and it will be housed in the EPA Administrator’s office.
Regarding EPA employees, the agency has incentivized multiple opportunities for deferred resignations or early retirements. There are reports that more than 3,000 EPA employees – or 20 percent of its workforce – took this offer in May. Reports suggest that 1,400 more EPA employees may have participated in this program in June. These workforce reduction efforts are significant because fewer EPA employees will be tasked with implementing the Trump administration’s ambitious deregulatory plan, Steinbauer says.
Keeping pace with ongoing policy developments
We are beginning to see concrete steps EPA is taking to advance its sweeping deregulatory plan. The business community needs to stay abreast of these new developments, and there will be opportunities for strategic advocacy when the agency asks for input from the regulated community or other stakeholders, explains Steinbauer.
“The success of those deregulatory efforts depends often on the legal footing and the factual footing,” he says. “The factual footing is based on the administrative record, and EPA only has access to certain data and information about a regulated industry.” Strategically engaging with the EPA on its deregulatory proposals, whether in support of or against the specific proposal, will be key for businesses navigating the rapidly changing legal landscape.
Despite the EPA’s deregulatory plans, many complex environmental regulations remain on the books, and maintaining compliance with those requirements is important. Steinbauer encourages the regulated community to perform audits to assess the strength of their compliance programs and consider using agency self-disclosure policies and laws to mitigate liability and civil penalty exposure.
Finally, Steinbauer says, be patient and adapt as necessary, as the next several years certainly will be eventful.
For more information on the actions discussed in this article or related matters, please contact Ben Clapp at bclapp@babstcalland.com or Gary Steinbauer at gsteinbauer@babstcalland.com.
Business Insights is presented by Babst Calland and the Pittsburgh Business Times.
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The Legal Intelligencer
(by Casey Alan Coyle and Stefanie Pitcavage Mekilo)
According to the United Nations, climate change “is the defining issue of our time.” https://www.un.org/en/global-issues/climate-change (last visited July 28, 2025). Yet views diverge over precisely what the solutions to the issue should be—and who is authorized to pursue them. Over the years, efforts to address climate change have taken many forms, from international agreements to federal statutes to interstate compacts. As policies evolve, some state and local governments have begun exploring novel theories through existing doctrine—including the law of public nuisance—for a pathway to seek relief, through individual courts, for alleged climate‑related harms. Several recent decisions, however, reveal that the legal landscape remains in flux, with courts charting different courses through the crosswinds of federal law.
Federal Common Law and the Displacement Doctrine
Despite the proclaimed extinction of “federal general common law” in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal common law still exists today in certain areas of national concern. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 410–421 (2011). One such area is the general subject of environmental law and, specifically, ambient or interstate air and water pollution. Id. Thus, federal common law can apply to transboundary pollution suits, and they are often based on a theory of public nuisance. Under federal common law, a public nuisance is defined as “unreasonable interference with a right common to the general public.” Restatement (Second) of Torts § 821B(1) (1979).
The right to assert a federal common-law public nuisance claim is not without limits, however. Where Congress has addressed a particular federal issue by statute, “there is no gap for federal common law to fill,” and the federal common law—and any implied right of action arising thereunder—are displaced. Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 856 (9th Cir. 2012). The test for whether congressional legislation displaces federal common law is “whether the statute speak[s] directly to [the] question at issue.” Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978).
In American Electric Power Co. v. Connecticut (“AEP”), 564 U.S. 410 (2011), the U.S. Supreme Court applied these displacement principles in the climate-litigation context. The AEP Court held that the Clean Air Act (“CAA”), and the Environmental Protection Agency (“EPA”) action it authorizes, displace any federal-common law public nuisance abatement action involving greenhouse gas emissions, adding: “federal judges may [not] set limits on greenhouse gas emissions in [the] face of a law empowering [the] EPA to [do] the same.” Id. at 424, 429. Similarly, in Kivalina, the Ninth Circuit Court of Appeals held that the CAA displaces any federal common-law public nuisance damage action concerning greenhouse gas emissions on field preemption grounds. In doing so, the Ninth Circuit determined that displacement of federal common law does not turn on the nature of the remedy, but on the cause of action itself. Notably, however, neither decision addresses whether the CAA preempts state common-law public nuisance claims.
State-Law Climate Claims in the Shadow of Federal Preemption
In the wake of AEP, several state and local governments have filed suits against fossil-fuel companies under state tort law seeking damages for the effects of global climate change, including, among others, the State of California, People ex rel. Bonta v. ExxonMobil Corp., No. CGC-23-609134 (Cal. Super. Ct. S.F. Cnty.); the State of Delaware, State ex rel. Jennings v. BP Am. Inc., No. N20C-09-097 MMJ CCLD, 2024 WL 98888 (Del. Super. Ct.); the State of Rhode Island, State v. Chevron Corp., No. PC-2018-4716 (R.I. Super. Ct.); the City of Baltimore, Mayor & City Council of Balt. v. B.P. P.L.C., No. 24-C-18-004219 (Balt. Cir. Ct.); the City of New York, City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021); the City and County of Honolulu, City & County of Honolulu v. Sunoco LP, No. 1CCV-20-0000380-LWC (Haw. 1st Cir.); Boulder County, Colorado, Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., No. 2018CV30349 (Colo. Dist. Ct.); and the New Jersey Attorney General, Platkin v. ExxonMobil Corp., No. MER-L-001797-22 (N.J. Super. Ct.). Two distinct lines of authority have emerged from these efforts.
On one front are the courts that have rebuffed state-law tort claims as being preempted by federal law. In City of New York, the City instituted a state-law tort suit against five oil companies to recover damages caused by their production and sale of fossil fuels around the world. The Second Circuit Court of Appeals held that the CAA displaces the City’s claims, concluding that “[a]rtful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions,” and that “[s]uch a sprawling case is simply beyond the limits of state law.” 993 F.3d at 91, 92, 96.
Several state courts have reached the same result. In Jennings, for example, the State of Delaware filed a state-law tort action against several fossil-fuel companies seeking damages, due to out-of-state or global greenhouse emissions and interstate pollution. The Delaware Superior Court held that the claims were preempted by the CAA and thus “beyond the limits of Delaware law.” 2024 WL 98888, at *9. And in Mayor & City Council of Baltimore, the Circuit Court for Baltimore City rebuffed a similar suit against 25 national and international fossil-fuel companies, holding that “the Constitution’s federal structure does not allow the application of state law claims like those presented by Baltimore,” and that “[g]lobal pollution-based complaints were never intended by Congress to be handled by individual states.” Baltimore, No. 24-C-18-004219, Mem. Op. & Order, slip op. at 11, 12.
A second set of decisions follow a different path. In City & County of Honolulu v. Sunoco LP, 537 P.3d 1173 (Haw. 2023), for instance, the Hawaii Supreme Court concluded that while the CAA had displaced federal common law, it did not preempt state-law tort claims, so the plaintiffs’ public nuisance and other state-law tort claims against fossil-fuel producers could proceed. 537 P.3d at 1203, 1208. And just two months ago, the Colorado Supreme Court echoed that holding in allowing similar claims to proceed. Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy USA, Inc., No. 24SA206, ___ P.3d ___, 2025 WL 1363355, at *6–8 (Colo. May 12, 2025). In reaching their decisions, both courts rejected the defendants’ characterization of plaintiffs’ claims as targeting emissions-producing activities, instead agreeing with the plaintiffs that, at bottom, their claims concerned deceptive marketing and failure to warn.
Climate-Change Litigation in Pennsylvania
That current of climate-change litigation has now found its way to Pennsylvania. In 2024, Bucks County filed suit against several fossil-fuel companies and a trade association, asserting claims for public nuisance, among others. Bucks County alleged that the defendants engaged in a decades-long campaign to “discredit the scientific consensus on climate change; create doubt in the numbers of consumers, the media, teachers, and the public about the climate change impacts of burning fossil fuels; and delay the energy economy’s transition to a lower-carbon future.” Bucks County v. BP P.L.C., No. 2024-01836, Compl. ¶ 1 (Bucks Cnty. Ct. Com. Pl.). Per the complaint, this purported campaign “drove up greenhouse gas emissions, accelerated global warming, and brought about devastating climate change impacts to Bucks County.” Id. The defendants responded by filing preliminary objections on various grounds, including federal preemption.
The trial court sustained the preliminary objections, holding “today we join a growing chorus of state and federal courts across the United States, singing from the same hymnal, in concluding that the claims raised by Bucks County are not judiciable by any state court in Pennsylvania” and are “solely within the province of federal law.” Bucks County, No. 2024-0183, Decision & Order, slip op. at 11, 15. In reaching that conclusion, the court relied upon the holding in AEP, even though the Supreme Court had expressly acknowledged that none of the parties briefed preemption or otherwise addressed the availability of state-law nuisance claims. The trial court thus found that the CAA “preempts Pennsylvania State law in this case.” Id. at 13.
The trial court rejected Bucks County’s argument that its case “does not seek to regulate or abate [greenhouse gas] emissions” but instead involves “Defendants’ deceptive marketing campaign.” Bucks County, No. 2024-0183, Pl.’s Br. in Resp. to Defs.’ Joint Opening Br. at 1–2. The court noted that Bucks County’s complaint used the word “emissions” more than 100 times; its counsel conceded at oral argument that advertising, production, transportation, and sale of the defendants’ fossil fuel products did not harm the County; and according to its counsel, it is the combination of current emissions and emissions from many years ago that caused the alleged damages to Bucks County. Citing City of New York, the court reasoned that “artful pleading cannot transform [Bucks County’s] Complaint into anything other than a suit over global greenhouse gas emissions.” Bucks County, No. 2024-0183, Decision & Order, slip op. at 14.
The trial court concluded by writing: “[O]ur federal structure does not allow Pennsylvania law, or any State’s law, to address the claims raised in Bucks County’s Complaint. … Thus, this court lacks subject matter jurisdiction because the claims raised by Bucks County are preempted by federal law.” Id. at 16.
What’s Next?
Bucks County appealed to the Pennsylvania Superior Court on June 13, 2025. Although a briefing schedule has not yet been issued, it is anticipated that merits briefing will conclude before the end of the year, with oral argument to follow. However the Superior Court rules, its decision may help to clear the air on what role state law has to play—if any—in climate-related nuisance litigation.
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Casey Alan Coyle is a shareholder at Babst, Calland, Clements and Zomnir, P.C. He focuses his practice on appellate law and complex commercial litigation. Coyle is also a former law clerk to Chief Justice Emeritus Thomas G. Saylor of the Pennsylvania Supreme Court. Contact Coyle at 267-939-5832 or ccoyle@babstcalland.com.
Stefanie Pitcavage Mekilo is a litigation associate at the firm. She focuses her practice on complex commercial litigation, environmental litigation, and energy litigation, regularly representing businesses in high-stakes disputes in state and federal courts and administrative tribunals throughout the country. She is also a former law clerk to John E. Jones and Christopher C. Conner of the U.S. District for the Middle District of Pennsylvania. Contact her at 570-590-8781 or smekilo@babstcalland.com.
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Reprinted with permission from the August 1, 2025 edition of The Legal Intelligencer© 2025 ALM Media Properties, LLC. All rights reserved.
OnRAMP Magazine
(by Jonathan Kersting featuring Moore Capito)
It’s no secret that data centers play a crucial role in our everyday lives. From managing the data behind our social media posts to controlling critical infrastructure, they have become integral to our existence. With the increasing demand for technology and computing power, there’s a surge in need for new, energy-hungry data centers. This demand is projected to outpace the entire power consumption of major cities, signaling a pressing challenge for our current energy infrastructure.
Recently, I had the opportunity to delve into a conversation with Moore Capito, a shareholder at Babst Calland, specializing in corporate, energy, and emerging technologies, about this very transformation.
With Capito’s hands-on energy sector experience and insights into emerging technologies, he focuses his corporate legal practice on leveraging fossil fuel resources with cutting-edge developments to effectively support critical infrastructure like data centers. Prior to Babst Calland, Moore served as in-house counsel for one of the largest oil and gas production companies in West Virginia, giving him deep firsthand knowledge of energy operations in the Appalachian Basin.
The Modern-Day Gold Rush
“Interestingly, the growth of data centers has been likened to a modern-day gold rush,” says Capito. He notes how developers, energy companies, and technology giants are racing to find strategic locations to build new centers, taking advantage of regions rich in fossil fuels. For the first time, we can take the data center to the power. And that’s where West Virginia and Western Pennsylvania have a great opportunity.”
With the availability of land, access to existing power infrastructure, and potential for expansion, Capito explains, West Virginia and Western Pennsylvania regions may become central hubs in the race to address the energy and infrastructure demands of burgeoning data centers near and far.
Capito says the demand for electricity is spurring technological advancements that could revolutionize how we produce, store, and distribute power. By removing subsidies and leveling the playing field for all energy producers, we are no longer picking winners and losers. This will foster innovation to meet the growing energy needs. An “all-of-the-above” approach means everyone should have a chance to compete for this market demand. This, according to Capito, involves leveraging existing fossil fuels while renewables continue to develop and exploring nuclear energy as viable pathways to sustainability.
“With all of these demands that we have right now [for energy], we’re going to see great innovation because we didn’t have the baseload needs to create and innovate and expand like we do now,” says Capito. “There’s a real opportunity for any industry in that, ‘all of the above’ category to really show their chops and innovate. Because at the end of the day, we need all the energy we can get.”
Tackling Regulatory Hurdles
The expansion of data centers and evolution of energy infrastructures cannot occur in a vacuum. Capito says regulatory frameworks must evolve to keep pace with the speed of development. Addressing permitting efficiency is crucial to ensuring that new projects move forward swiftly and effectively.
“There’s a consensus that both state and federal governments need to align their regulatory processes to foster timely data center expansion,” he says. “But again, this is all going to be determined by speed. And we know that private industry and business are going to want to go to the place where they can do something the most efficiently and effectively.”
Capito notes that among the various energy solutions, nuclear energy stands out as a promising contender. Despite its historical stigma, advancements in micro and small modular reactors could offer a safe and efficient means to generate power. However, significant hurdles, particularly in the permitting and regulatory domains, need to be overcome for nuclear energy to realize its full potential, he said.
Capito’s conversation about data centers and energy infrastructure highlights not just the challenges but also the incredible opportunities that lie ahead. To capitalize on this digital gold rush, Capito says it is critical to leverage our fossil fuel advantage, harness innovation, streamline regulatory processes, and capitalize on regional strengths.
As we look to the future, one sentiment rings clear: we need energy any way we can get it.
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Allegheny County Bar Association- Lawyers Journal
(By Anna Jewart)
Over the past several years, developers have targeted the vast rural and undeveloped lands of Pennsylvania for renewable energy development. Yet, Pennsylvania lags behind the rest of the country in terms of renewable energy deployment. Beyond well-reported issues involving grid-interconnection and permitting backlogs, those seeking to develop renewable energy in the Keystone State often experience deal-killing roadblocks early on during local land use permitting.
Pennsylvania law recognizes that effective use of zoning power typically requires expertise and knowledge of local conditions, making it uniquely suited to local regulation. Outside the broad framework established by the Pennsylvania Municipalities Planning Code, 53 P.S. §10101, et seq., (“MPC”) and rare statutory exceptions, the two-thousand-plus municipalities in Pennsylvania are each free to determine if and how to regulate land use matters within their borders. This means that unlike most areas of the law, the rules may change entirely the moment you cross a municipal line.
This decentralized legal framework creates challenges for renewable development, which has faced significant NIMBY-ism over the past several years. In response, many municipalities have sought to make renewable development untenable or even impossible through adoption of onerous land use regulations. While many states have expressly limited municipal discretion in renewables siting through adoption of state-wide permitting or statutory protections, Pennsylvania has not.
However, generally applicable land use jurisprudence does help protect against unreasonable local regulation. First, municipalities cannot expressly prohibit renewable energy uses. Ordinances that attempt to do so are de jure exclusionary, and unconstitutional. Second, an ordinance that appears to permit a use, but under conditions that it cannot in fact be accomplished may be found to be de facto exclusionary. Ordinances often attempt to make renewable development impossible through the imposition of high setbacks, minimum lot sizes, or lot coverage restrictions. Others restrict renewables to zoning districts unsuitable for these uses or impose prohibitions on the use of prime agricultural soils or steep slopes, further limiting the land available. Exclusionary zoning ordinances may be challenged through a “substantive validity” challenge brought before the municipal governing body or zoning hearing board pursuant to the MPC, or one may petition the municipality for a voluntary amendment.
A third manner in which municipalities may seek to restrict renewable development is through the imposition of onerous application requirements. These may include the submission of environmental studies, interconnection studies, or detailed plans and designs not readily available at the early phase of development during which local land use approval processes occur. Others require third-party permitting prior to approval, which might not be practical or legally possible. Ordinances that attempt to duplicate or supplant county, state, or federal regulations may be challenged under a preemption theory, and established land use jurisprudence directs that a lack of third-party permitting is not grounds for denial but should be imposed as a condition of approval. Challenges to these types of provisions can generally be brought in the same manner as a challenge to an exclusionary ordinance.
An increasingly popular fourth way in which municipalities try to limit, or profit from, renewable energy development is through the imposition of high “application”, “impact”, or “host benefit” fees. Municipalities increasingly attempt to impose five or even six figure “application” fees for solar and wind applications. Others have sought to have developers pay a yearly fee per megawatt hours generated. Municipal fees are required to be reasonably related to the administrative costs associated with them. Excessive fees may be challenged. While other states have implemented authorization for renewable energy “community benefit agreements” or “impact fees” payable to the host municipality, Pennsylvania has not. As creatures of statute, municipalities lack the authority to exceed the powers granted to them by the General Assembly and cannot, as the law stands today, require a developer to pay out a yearly fee.
The fifth most common way in which municipalities attempt to limit or restrict renewable development applies to those that have not adopted a local zoning ordinance. Many municipalities without a zoning ordinance adopted pursuant to the MPC have adopted “standalone” ordinances with zoning-type restrictions on renewables. These ordinances often purport to be adopted pursuant to the municipal enabling act under which the municipality was created, such as the Second Class Township Code, 53 P.S. §65101-§70105. Pennsylvania courts have long held that the regulation of land use must be done within the guardrails of the MPC, and case law further indicates that statutes like the Second Class Township Code do not on their own authorize the regulation of uses not expressly addressed therein. As they fall outside the parameters of the MPC, standalone ordinances may be challenged as either procedurally or substantively defective in the local court of common pleas.
As it stands today, successful renewables deployment in Pennsylvania depends in part on developers’ ability to weave through a wide array of local regulations intended to dissuade development. While this is an uphill battle, it can be won with proper planning and coordination. Review of local regulations should occur prior to execution of any lease or lease option agreement and should be monitored closely for changes as development progresses. Often, adverse ordinance provisions are reactionary or adopted in response to political pressure and fears, which can be calmed through positive engagement and education. Therefore, public engagement is key, and permitting risks can be mitigated by early outreach to local stakeholders, including municipal officials, solicitors, and neighboring property owners.
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 with a particular focus on solar energy development.
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Reprinted with permission from the July 25, 2025 Allegheny County Bar Association’s Lawyers Journal.