Public Sector Alert
(by Max Junker and Alex Giorgetti)
As Pennsylvania local governments are no doubt well aware, on June 30, 2021, the General Assembly enacted Act 65 of 2021, which amended the Pennsylvania Sunshine Act, 65 Pa.C.S. §§701-716, (Sunshine Act) to require that agencies make their meeting agendas available to the public, and set restrictions on taking official action on any item not listed on the published agenda. The Sunshine Act requires that agencies provide citizens with notice of, and access to, all meeting agendas at which official action and deliberations by a quorum will occur at least 24 hours in advance. The agenda must be posted at the municipal building and on the municipality’s website. There is a process to amend the posted agenda at the meeting, but the Commonwealth Court ruled that the Sunshine Act only permitted such revisions in limited circumstances for emergencies or actions which did not require the expenditure of funds or a contract. On November 24, 2025, the Supreme Court overruled that decision and reinstated the process for amending an agenda for any reason.
Four Exceptions to the Prohibition on Official Action Not Included on Posted Agenda
The legislature included four exceptions to the requirement that items be listed on the agenda before a board can take public action. First, Section 712.1(b) permits the agency to take official action on matters not included in the agenda if they relate to a real or potential emergency involving a clear and present danger to life or property.
Second, Section 712.1(c) permits official action on a matter brought to the attention of the agency within the 24-hour period prior to the meeting, provided the matter is de minimis in nature and does not involve the expenditure of funds or entering into any contract or agreement.
Third, Section 712.1(d) permits business raised by a resident or taxpayer at the meeting to be considered for the purposes of referring it to staff, researching it for inclusion at a later meeting, or for full consideration where it is de minimis and does not involve the expenditure of funds or entering into any contract or agreement.
The fourth and final exception in Section 712.1(e) allows an agency to amend the agenda at the meeting in question. Subsection (e) states that upon a majority vote of the individuals present and voting during the meeting, the agency may add a matter of agency business to the agenda. The agency must announce the reasons for changing the agenda before voting to make those changes. If the vote passes, the agency may then take official action on that matter. If an agency amends its agenda in this manner, it must post the amended agenda on its website no later than the following business day and include the details of the matter added, the vote, and the reasons for the addition in its meeting minutes. Meeting minutes are required to be kept by Section 706 of the Sunshine Act.
The Commonwealth Court Limits the Exceptions
After these four exceptions went into effect with the 2021 amendment, the Commonwealth Court held that Subsection (e) could not be used on its own to amend the agenda at the meeting in question. It could only be utilized in relation to a matter falling under one of the other three exceptions.
However, on November 24, 2025, the Pennsylvania Supreme Court overruled the Commonwealth Court in Coleman v. Parkland School District and found that Section 712.1 of the Sunshine Act unambiguously creates four freestanding exceptions to the general prohibition that an agency cannot take official action on items not listed on the meeting agenda pursuant to the 24-hour notice rule. This includes the majority vote exception as provided by the fourth and final exception in Section 712.1(e). The Supreme Court rejected the Commonwealth Court’s interpretation of Section 712.1(e) and held that “the Commonwealth Court essentially redrafted Section 712.1 to align it with a textually unsustainable view of the ostensible spirit of the Sunshine Act and its 2021 amendment.”
Impact and Considerations
The Pennsylvania Supreme Court’s ruling reinstates the majority vote exception and permits agencies, if they wish, to vote to add matters to the official meeting agenda and then take action on those newly-added agenda items at that public meeting. The ruling also reaffirms the validity of all four exceptions. The reinstatement of this exception in particular will allow for greater efficiency in municipal operations and save money and time on additional advertisements and meetings. However, agencies will need to comply with the specific requirements of Section 712.1 if and when voting to add items to the meeting agenda. And because the Sunshine Act requires an agency to provide an opportunity for public comment before official action is taken, an agency voting to add items to the meeting agenda should allow for public comment as part of the process.
If you have questions about the Sunshine Act, please contact Robert Max Junker at (412) 773-8722 or rjunker@babstcalland.com or Alexander O. Giorgetti at (412) 773-8718 or agiorgetti@babstcalland.com.
Environmental Alert
(by Lisa Bruderly and Ethan Johnson)
On November 17, 2025, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (the Corps) proposed a revised definition of “waters of the United States” (WOTUS) under the Clean Water Act (Proposed Rule). The Trump administration announced that the Proposed Rule would “provide greater regulatory certainty and increase Clean Water Act program predictability and consistency.”
The new definition is expected to reduce the number of streams and wetlands that are regulated under the Clean Water Act and will impact several federal regulatory programs, including Section 404 permitting of impacts to regulated waters. The agencies drafted the Proposed Rule to closely mirror the U.S. Supreme Court’s 2023 decision in Sackett v. EPA, which held that the Clean Water Act extends to “relatively permanent” bodies of water connected to traditional navigable waters and wetlands with a “continuous surface connection” to those waters.
The Proposed Rule adds definitions for several terms, including “relatively permanent,” “tributary,” “continuous surface connection,” “prior converted cropland,” and “ditch.”
The public comment period will begin when the Proposed Rule is published in the Federal Register. If finalized, it will replace the Biden administration’s 2023 definition of WOTUS. The definition of WOTUS has changed several times in the last decade. Each new definition has been challenged in the courts.
Babst Calland will stay up to date on WOTUS developments and the Clean Water Act, in general. If you have any questions or would like any additional information, please contact Lisa Bruderly at (412) 394-6495 or lbruderly@babstcalland.com, or Ethan Johnson at (202) 853-3465 or ejohnson@babstcalland.com.
PIOGA Press
(by Steve Silverman and Katerina Vassil)
There has been much talk within the oil and gas industry about the potential for lithium extraction from produced water, a waste byproduct produced during hydraulic fracturing and drilling. Is this only talk, or are we approaching another extraction revolution? The answer is that the revolution is knocking on the door, but there remain significant practical and legal hurdles to overcome. To become viable, lithium extraction must become both economically and environmentally sustainable. Thus far, these technologies have not proven to be economically scalable, nor could their environmental impacts be justified.
The legal hurdles involving lithium extraction can be summed up in one question: Who owns the lithium? Is it the surface owner, the mineral owner (where the two differ), or the operator? As seen below, the standard lawyer answer applies: it depends.
Incentives for overcoming these hurdles could not be higher. Whoever masters lithium extraction technology from produced water will be able to name their own price for licensing that technology. Just as importantly, the oil and gas industry will be a major contributor to solving the obstacles currently facing the U.S. in sourcing lithium. Current U.S. dependence on foreign suppliers of lithium, especially China, raises significant geo-political concerns that can be cured by sourcing lithium domestically. Current estimates are that 40% of the country’s lithium needs are contained within the Appalachian Basin alone.
Lithium in Context
A. Lithium as a Commodity
Produced water contains a variety of constituents – sediment, salts, hydrocarbons, minerals, and metals. Lithium is one of these constituents, and when extracted and processed, lithium has numerous uses and applications.
Lithium batteries are used to power the cell phone or computer that you’re reading this article on, the alarm system that keeps your home safe, and the electric vehicle that you drive. Lithium batteries power medical devices like pacemakers. If you’re a golfer, your golf cart is likely powered by lithium batteries. If you’re an avid photographer, that digital camera that you use to take photos is powered by lithium batteries. As technology develops and improves, lithium batteries will continue to become even more ubiquitous. In fact, lithium consumption is expected to more than quadruple in the next ten years alone.
B. Lithium: Then & Now
In the 1990’s, the United States was one of the largest producers of lithium. Today, less than 2% of the world’s lithium is produced here. In 2022, the U.S. government designated lithium as a critical mineral, recognizing lithium as essential to economic and national security. The U.S. government has directed that all lithium be produced domestically by 2030, an unrealistic goal. In reality, the U.S. cannot meet current domestic lithium needs and must rely heavily on top producing nations like China, Chile, and Australia.
China currently dominates the lithium market, with vast reserves of lithium and a monopoly over both lithium processing and production of lithium batteries. The U.S government is determined to prioritize critical mineral resource initiatives and has dedicated billions of dollars towards processing lithium and other critical minerals for battery production, with the ultimate goal of reducing dependence on China and other nations. Additional funding has been allocated towards direct lithium extraction initiatives and lithium-ion battery plants.
C. Lithium in the U.S.
Despite the U.S. sourcing the vast majority of its lithium needs from foreign nations, there are numerous lithium sources in our own backyard. Yet, the Albermarle Silver Peak Mine in Nevada is the only active lithium producing mine in the U.S. This site utilizes direct lithium extraction and produces most of the less than 2% of the world’s lithium that comes from the U.S.
In 2024, scientists discovered a massive lithium deposit in wastewater from Marcellus Shale wells in Pennsylvania, with potential for even more in West Virginia and Ohio. As noted above, these untapped Marcellus Shale sources could contain enough lithium to meet up to 40% of current domestic needs.
Another recent discovery in the Smackover Formation in Southwestern Arkansas contains potentially 19 million tons of lithium. There currently is a new pilot lithium extraction site in Northeast Pennsylvania operated by Canadian company Avonlea Lithium. According to Avonlea, a pilot test conducted at this site in June 2025 yielded extremely promising results, producing lithium phosphate solids from produced water with a purity of 94.2% and a lithium recovery rate of 69.3%.
Additional lithium extraction methods currently being developed and refined include Solar Evaporation Brine Extraction, Direct Lithium Extraction, Solar Transpiration-Powered Lithium Extraction and Storage, and Redox-Couple Electrodialysis. However, seemingly successful processes like the “Closed Loop” process used at Eureka Resources’ site in Williamsport, Pennsylvania have faced significant challenges. This method was initially successful, extracting 97% pure lithium carbonate from oil and natural gas brine with an up to 90% success rate. But the plant was subsequently closed in 2024 and cited for numerous permit and OSHA violations, workplace safety issues, and environmental violations. This illustrates how some promising lithium extraction methods face significant scalability, economic, and environmental issues that may impede their viability.
D. Lithium Ownership: Title and Lease Rights
The starting point as to who owns the produced water’s lithium requires determining whether there has been a severance of the mineral rights. In other words, has a prior owner of those mineral rights somewhere in a chain of title reserved or retained ownership of those minerals in the course of transferring ownership of their surface rights. As with any title examination, the specific language in the severance deed determines exactly what the surface owner retained: minerals, oil, gas or some combination of the three.
If there has been a severance of the mineral rights, then it is unlikely that the current surface owners own the lithium under their property. More importantly, the current surface owners likely have no legal authority to lease the lithium to an operator. Thus, the operator must lease that lithium from its true “severed” owner instead.
But even if an operator has a lease with the lithium owner, they still may not have the right to extract it unless the lease’s granting clause arguably includes lithium. Granting clauses can contain a variety of terminology to identify what rights the lessor is being given. These include “oil,” “gas,” “their constituents,” “hydrocarbons” and even the generic “minerals.”
Note, however, that a “mineral” can have different legal definitions in different states. For instance, in Texas “mineral” includes oil, gas, uranium and sulphur. In both West Virginia and California, the definition is even broader and includes sand and gravel. Oklahoma defines only hydrocarbons as a mineral. Ohio excludes coal but includes oil and gas within its definition of a mineral, while Pennsylvania excludes both of those from its definition.
While no court has yet to explicitly rule on whether lithium is a mineral, that is the most likely conclusion, particularly since lithium is a metal and certainly not a hydrocarbon. Thus, unless a lease’s granting clause explicitly identifies lithium, it should at least include “minerals” if the lessor is to claim rights to the lessee’s lithium.
E. Rights to the Produced Water
So, is an operator who doesn’t own lease rights to lithium out of luck? The answer is maybe not because that operator may still be able to argue ownership of the produced water within which the lithium resides.
As of this writing, only one case has specifically addressed who owns the produced water. In June of this year, in Cactus Water Services, LLC v. COG Operating, LLC, the Texas Supreme Court held that produced water is a waste byproduct of the oil and gas drilling process “product stream” and therefore owned by the operator.
The facts of the case are somewhat involved, but can be simplified as follows: The operator, COG, had an oil and gas lease with the severed mineral owner. Cactus Water, however, entered into a “produced water lease” with the surface owner for the same acreage to pay royalties for monetizing that produced water. In contrast, COG’s lease made no mention of the produced water, yet it still claimed ownership of that water. The Texas Supreme Court agreed with COG. Yet it also noted that COG’s lessor could have expressly reserved ownership of the produced water in its lease.
The case’s unique facts, combined with the Court’s strained rationale behind its decision, raise doubts as to whether Cactus Water’s decision will be adopted in less oil and gas friendly states.
Takeaways
The economic and political upsides to lithium extraction are simply far too great to ignore. Investors are showing an increasing willingness to dedicate the necessary resources to overcome economic scalability and environmental sustainability challenges.
The legal impediments surrounding lithium should be easier to overcome. Operators must perform their title analysis with an eye specifically geared to determining lithium ownership rights. New leases must contain language explicitly granting rights to lithium. Where operators lack defensible positions that their existing leases grant such rights, they should consider lease amendments explicitly doing so. Where lithium remains owned by surface owners not subject to oil and gas leases, operators should enter into separate leases with those surface owners to monetize their produced water. Finally, all of these agreements and leases should plainly state that royalties paid for extracting lithium, as well as other possibly valuable constituents from produced water, must be paid on a net basis so an operator can deduct its extraction expenses.
Thus, there can be no doubt that the lithium extraction revolution is coming. The ability to successfully extract lithium from produced water is not a question of “if,” but rather of “when.”
Steven B. Silverman is a shareholder in the Litigation and Energy and Natural Resources groups of law firm Babst, Calland, Clements, and Zomnir, P.C. His practice focuses on commercial litigation, with an emphasis on natural gas title and lease disputes and other energy-related cases. Steve is licensed to practice law in Pennsylvania and Ohio. Contact him at 412-253-8818 or ssilverman@babstcalland.com.
Katerina P. Vassil is an associate in the Litigation Group of law firm Babst, Calland, Clements, and Zomnir, P.C. She represents clients in a variety of litigation practice areas, including commercial, energy and natural resources, environmental, and employment and labor. Katerina is licensed to practice law in Pennsylvania and Ohio. Contact her at 412-394-6428 or kvassil@babstcalland.com.
To view the full article, click here.
Reprinted with permission from the November 2025 issue of The PIOGA Press. All rights reserved.
TEQ Hub
(by Steve Silverman)
Employers often cling to misconceptions about non-compete agreements that can prevent them from effectively using these powerful tools or render such agreements unenforceable. Here are the seven most common reasons why this happens.
- Failing To Understand What Non-Competes Are
In the common vernacular, a non-compete is an umbrella term for contractually prohibiting an employee (or independent contractor, buyer of a business, or even a vendor) from working for a competitor or otherwise restricting that employee’s subsequent employment. However, a non-compete is one of several tools available to impose restrictions on an employee leaving their employer called “restrictive covenants.” A non-compete, which is just one type of restrictive covenant, limits a former employee or independent contractor from working for a competitor for a particular time period in a specific geographic area. A non-solicit agreement is another type of restrictive covenant, which allows an ex-employee to work for any employer they want without any geographic restriction but prohibits them from seeking business from their former employer’s customers for a period of time. Another variation of a non-solicit prohibits that ex-employee from hiring away or encouraging their former colleagues to leave their employment with their former employer. These are sometimes known as anti-piracy provisions. The distinctions between these various types of restrictive covenants are important. For instance, courts are generally more willing to enforce non-solicitation provisions than non-competes. Employers have to decide which, if not all, of these restrictive covenants work best for their business.
- Assuming That Non-Competes Are Unenforceable
A significant number of employers, as well as employees, incorrectly believe that restrictive covenants such as non-competes are categorically unenforceable. While this can be true for certain classes of employees (as discussed below), this misconception cannot be further from the truth. This mistaken belief is often fueled by employees who see their employer’s refusal or unwillingness to enforce them when their colleagues subject to these agreements depart without consequence. Additionally, restrictive covenants over the last two years received a lot of publicity with the Federal Trade Commission’s efforts during the last administration to effectively outlaw them, but that effort has been abandoned. As a result, unless a state has passed a law prohibiting or significantly restricting the use of non-compete agreements, courts in most states continue to enforce non-competes and other restrictive covenants every day – provided that they are properly drafted and effectively prosecuted.
- Not Understanding the Need for A Well-Drafted Non-Compete Agreement
A restrictive covenant agreement must be drafted to meet the unique needs of each employer. Such an agreement must be the product of a collaborative effort with an experienced attorney who understands the employer’s business. There is no downloadable form from the internet that meets every employer’s requirements. For instance, if the employer has employees working in multiple states, multiple versions of the agreements may be needed to address each state’s unique restrictive covenant laws. As explained below, different agreements may be needed for new employees versus existing employees whom the employer seeks to restrict. An employer’s agreements must also be periodically updated to address developments in the law.
- Not Supporting Restrictive Covenants With Adequate Consideration
An enforceable restrictive covenant agreement must be supported by “adequate consideration.” Consideration is an exchange of value between two parties necessary to make a contract binding. It is the “price” each party pays in exchange for the other party’s promise. What constitutes “adequate” consideration for non-competes can vary by state. For instance, nearly all states recognize that new employment is sufficient consideration to support such agreements. In other words, the employee’s “price” for getting a new job is agreeing to the restrictive covenants. However, states take different views as to whether continued employment is adequate consideration. For instance, Ohio deems that an already existing employee signing a non-compete has been given sufficient consideration because that employee gets to keep their job. But Pennsylvania says that for an existing employee to sign an enforceable non-compete, mere continuation of employment is not sufficient consideration. Instead, that Pennsylvania employee must be given some type of additional consideration – like a one-time bonus or additional benefits they would not otherwise be entitled to, or even a promotion. That is why Pennsylvania employers may have to use two versions of their non-compete agreements – one for new hires and another for existing employees. To navigate this issue, employers should always consult with counsel.
- Not Understanding What Protectible Interests Are
For a restrictive covenant agreement to be enforceable, an employer must have legitimate protectible interests. Essentially, this means that the law recognizes that certain employer property, both tangible and intangible, can be protected by restrictive covenants to prevent those interests from ending up in the hands of a competitor. This includes the company’s proprietary information, trade secrets and customer goodwill. However, the law says that only those employees who have access to those trade secrets or who are responsible for cultivating and maintaining that goodwill (such as sales people) can be subject to such agreements. That is why these agreements are not typically enforceable against receptionists, secretaries, mail clerks, or janitors. So, employers must be selective as to whom they require such agreements from and be able to justify how their protectible interests will be harmed by those employees failing to honor those agreements. This also requires employers to justify why their non-compete agreements need to extend for a particular length of time and geographic region without being overbroad, which courts dislike. Again, these are issues that employers must hash out with their counsel who draft these agreements.
- Failing to Incorporate Non-Competes into Employee On-Boarding and Off-Boarding
Employers must create a culture where their employees understand not only what their restrictive covenants are, but also that they must comply with them. Educating an employee about their post-employment obligations should start before that employee begins work. Employers should issue offer letters that clearly state that employment is contingent upon agreeing to the restrictive covenants. A copy of the non-compete agreement should be provided for the employee to sign prior to their first day of employment so that the employee cannot later argue that they did not know the type of post-employment restrictions they were agreeing to when they accepted their position. Simply put, no employee should start work before signing their agreement. Similarly, employees must be reminded of their post-employment obligations during their exit interviews upon giving notice and should be given a hard copy of the agreement at that time. Employers should also ask their departing employees point blank (a) who their new employer is; (b) what their duties will be; and (c) whether they have given their new employer a copy of the agreement. An employee refusing an exit interview or refusing to answer any of these questions should set off an alarm resulting in a consultation with counsel. If no exit interview is held, employers should still make clear in writing that they expect the employee to honor their agreement and also make sure to provide that employee with a copy, whether by mail, hand delivery, or email to a personal email address.
- Failing to Enforce A Non-Compete Through Litigation
While filing suit to enforce a non-compete can be both expensive and time consuming, failing to do so can be even worse in the long run. Those employers who do not enforce restrictive covenant agreements lose credibility among their employees and any deterrent effect that strong, enforceable agreements typically create. An employer who avoids the missteps above and places themselves in the best possible position to enforce these agreements protects their most valuable business interests. Likewise, an employer willing to enforce these agreements sends an unmistakable message to remaining employees that the employer expects them to honor their restrictive covenants and that they will pay a high price for not doing so. This often requires employers to make it abundantly clear that they are willing to do what is necessary to enforce their agreements. That message is often enough to dissuade the next departing employee from violating their post-employment obligations.
Dispelling these misconceptions is the first step in adopting and enforcing effective restrictive covenants to protect an employer’s most valuable assets.
For more than 30 years, Steve Silverman has built a career around this area of law—successfully enforcing non-compete agreements on behalf of his clients against former employees, while also defeating enforcement efforts on behalf of departing employees and their new employers.
If you have questions about the use of non-competes under existing state law or how to properly enforce them, please contact Steve at 412-253-8818 or ssilverman@babstcalland.com.
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Environmental Alert
(by Kevin Garber and Alex Graf)
On November 12, 2025, Governor Josh Shapiro signed House Bill 416, a Fiscal Code Bill and a segment of the Pennsylvania budget package for Fiscal Year 2025-26. The Fiscal Code has several important implications for industry regulation, including the abrogation of the Regional Greenhouse Gas Initiative regulations, permitting relief through expedited review schedules for certain air and water general permits, and provisions to ensure grid reliability.
The Fiscal Code abrogates the RGGI provisions contained in 25 Pa. Code Chapter 145, Subchapter E, known as the CO2 budget trading program. The RGGI regulations were promulgated in 2022 but have not yet been implemented in Pennsylvania because of ongoing legal challenges. In November 2023, the Pennsylvania Commonwealth Court ruled that RGGI is an unconstitutional, unenforceable tax. Governor Shapiro and many other parties appealed that ruling to the Pennsylvania Supreme Court, where the case was fully briefed and argued last May. Although the Court’s course of action remains uncertain now that RGGI has been abrogated, the Court could dismiss the appeal as moot and decline to issue an opinion.
The Fiscal Code also expedites permitting for certain air and water-related general permits. The Pennsylvania Department of Environmental Protection now must respond within 20 days of submission to an application under the Air Pollution Control Act for coverage under a general plan approval or general permit. If the applicant addresses the technical deficiencies within 25 days, DEP must issue a final determination on the application within 30 days thereafter. However, if DEP misses this deadline, the application is deemed to have been approved. DEP may seek a one-time, 5-day extension to respond if the applicant agrees.
The Fiscal Code contains similar provisions for NPDES general permits.[1] DEP must respond to an application to renew an NPDES general permit issued under 25 Pa. Code § 92a.54 within 40 days of submission, and if the applicant addresses each identified technical deficiency within 50 days, DEP must issue a final determination on the renewal application within 60 days thereafter. If DEP misses this deadline, the application is deemed to have been approved.
To improve transparency in the permitting process among DEP and other state agencies, the new law requires all state agencies to compile and maintain, by February 10, 2026, publicly available lists of all types of permits issued by that agency. State agencies must notify applicants within five days of receiving a permit application and direct them to the new tracking system to follow the status of their applications. This system must include the processing time for each permit application, the date of receipt of each application, the estimated time remaining to complete the application process, and the contact information for the relevant agency reviewer.
Finally, the new law requires the Pennsylvania Public Utility Commission to investigate and validate load forecasts submitted by Pennsylvania utility companies to PJM Interconnection, coordinate with PJM and other states so that system planning reflects accurate information, and obtain access to confidential materials that are necessary to perform this oversight. PJM relies on load forecasts submitted by Pennsylvania utility companies to plan system needs and set capacity requirements that affect costs to consumers. The Fiscal Code states that PUC oversight of load forecasts is necessary to provide information on projections for significant growth in electricity demand driven by data centers, vehicle and building electrification, and other large load additions.
For more information on the implications of the 2025 Fiscal Code or other related matters, please contact Kevin Garber at (412) 394-5404 or kgarber@babstcalland.com, or Alexandra Graf at (412) 394-6438 or agraf@babstcalland.com.
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[1] This section of the Fiscal Code applies to NPDES general permits issued for specific categories of point sources, including discharges of stormwater associated with industrial activities, discharges from small-flow treatment facilities, discharges from petroleum product contaminated groundwater remediation systems, and wet weather overflow discharges from combined sewer systems.
Environmental Alert
(by Sloane Wildman and Ethan Johnson)
On November 10, 2025, EPA announced a proposed revision to regulations issued under Toxic Substances Control Act (TSCA) Section 8(a)(7), which would reduce certain per and polyfluoroalkyl substance (PFAS) reporting requirements for manufacturers and importers. The regulation was promulgated in October 2023 under the prior Administration and requires manufacturers and importers of PFAS in any year between 2011–2022 to report data on exposure and detrimental effects to EPA. In proposing this revision, EPA noted its reliance on Executive Order 14219, entitled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative,” which directs each agency to review and rescind existing rules based on consistency with the agency’s best reading of the governing statute, Administration policy, and cost-benefit balancing principles. EPA Administrator Lee Zeldin estimated the existing rule would have cost American businesses $1 billion in total to comply.
Specifically, EPA’s proposed revision would exempt reporting on PFAS manufactured (including imported) in mixtures or products at concentrations of 0.1% or lower. It would also exempt imported articles, certain byproducts, impurities, research and development chemicals, and non-isolated intermediates from reporting. The revision also includes technical corrections that would clarify what must be reported in certain data fields and adjust the data submission period. Notably, however, the revision will not change the 2011–2022 reporting timeframe. The proposed rule has not yet been published in the Federal Register, but once published EPA will accept comments on the proposed changes for 45 days after publication.
Babst Calland’s Environmental Practice Group is closely tracking EPA’s PFAS actions, and our attorneys are available to provide strategic advice on how developing PFAS regulations may affect your business. For more information or answers to questions, please contact Sloane Wildman at (202) 853-3457 or swildman@babstcalland.com, Ethan Johnson at (202) 853-3465 or ejohnson@babstcalland.com, or your client service attorney at Babst Calland.
Babst Calland has been recognized in the 2026 edition of Best Law Firms®, ranked by Best Lawyers®, nationally in 8 practice areas and regionally in 41 practice areas:
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Environmental Alert
(by Polly Hampton, Gina Buchman and Jordan Brown)
On October 24, 2025, the Albany County Supreme Court (Court) issued a decision and order in Citizen Action of New York et al v. New York State Department of Environmental Conservation, Index No. 903160-25, NYSCEF Document No. 93. The Court directed the New York State Department of Environmental Conservation (DEC) to issue regulations to meet the emissions reduction mandates pursuant to the State’s 2019 Climate Leadership and Community Protection Act (CLCPA). The CLCPA amended the Environmental Conservation Law (ECL) to include Article 75, which sets forth the statewide greenhouse gas (GHG) limits and directs DEC to promulgate regulations to ensure compliance. Pursuant to that authority, ECL § 75-0109 required DEC to adopt rules “to ensure compliance with the statewide emissions reduction limits” established in § 75-0107. The Court’s order gives DEC until February 6, 2026, to finalize those implementing regulations.
Background
In 2019, then New York Governor Andrew Cuomo signed into law the CLCPA, which mandates two statewide GHG emissions targets: a 40 percent reduction from 1990 levels by 2030, and an 85 percent reduction by 2050. The statute directs the DEC to adopt regulations to achieve those goals, however, implementation has been economically challenging.
In early 2023, DEC and the New York State Energy Research and Development Authority (NYSERDA) initiated the rulemaking process to establish a New York Cap and Invest (NYCI) Program, engaging in significant outreach to gather input from stakeholders. In December 2023, DEC and NYSERDA published a pre-proposal outline describing the structure and major components of the forthcoming rulemaking. The outline previewed three parts: the Mandatory GHG Reporting Rule, the Cap-and-Invest Rule, and the Auction Rule.
The Mandatory GHG Reporting Rule establishes standardized methods for collecting and verifying GHG emissions data from covered sources across the State, including utilities, fuel suppliers, and large industrial facilities. Accurate reporting is essential to determine the statewide emissions baseline and to assign compliance obligations under the program.
The Cap-and-Invest Rule proposes a program that would set an annual cap on the amount of greenhouse gas permitted to be emitted in the State. DEC will allocate a corresponding number of tradable allowances to match that limit. Obligated entities must then purchase allowances at auction and surrender allowances to DEC equal to their greenhouse gas emissions for each compliance period. Proceeds from the sale of allowances would be invested into state decarbonization initiatives and distributed to New Yorkers to potentially offset program costs passed to consumers. Proposed obligated entities would include stationary sources that meet the annual GHG emissions threshold of 25,000 metric tons of CO₂e and fuel suppliers that sell 100,000 gallons of liquid fuel or 15,000,000 standard cubic feet of gaseous fuel to end users in New York based on emissions data reported through the State’s Mandatory GHG Reporting Rule. Emissions below these thresholds may still trigger obligations at the fuel supplier level, and electricity sector requirements remain under consideration.
The Auction Rule would govern the sale and distribution of emission allowances within the cap-and-invest system. The Rule would describe the operation of NYCI Allowance auctions and mechanisms to protect the overall integrity of the Allowance market, prevent market manipulation, and provide cost containment and program stability.
In January 2025, Governor Kathy Hochul’s administration paused development of the NYCI Program, stating in her annual State of the State Address briefing book the delay would “create[e] more space and time for public transparency and a robust investment planning process.” It is this tension between the Legislature’s ambitious mandates and the Executive branch’s measured approach that lies at the heart of Citizen Action of New York.
In March 2025, DEC released the GHG Reporting Rule for public comment, noting the feedback received would inform development of the remaining rules. The public comment period for the GHG Reporting Rule closed on July 1, 2025. As of the publication of this Alert, the DEC has yet to publish its responses to the comments received nor has it opened a public comment period for the remaining two Rules under the NYCI Program.
Shortly after the GHG Reporting Rule was published, on March 31, 2025, a coalition of environmental organizations filed a petition alleging that DEC had missed the January 1, 2024, deadline under ECL § 75-0109(1). Citizen Action of New York centered on the interpretation of ECL § 75-0109(1) which requires the DEC to adopt regulations “no later than four years after the effective date of this article,” or by January 1, 2024, following at least two public hearings to ensure compliance with the statewide emission limits. The petition sought a court order requiring DEC to issue the full set of regulations by February 6, 2026.
Impact of the Court’s Decision
On October 24, 2025, the Court granted the petition and ordered DEC to complete the full regulatory package consistent with the CLCPA by February 6, 2026. The Court rejected DEC’s argument that additional time was warranted to refine or phase in the regulatory framework, emphasizing that such discretion was not contemplated under the statute. The Court wrote, “whether DEC is right or wrong, making this judgment is beyond the scope of its authority under the CLCPA.” And while the Court granted DEC a brief window to complete the rulemaking process, it made clear that this freedom had its limitations. The Court warned DEC that “[r]espondent is cautioned that having afforded it with the time to both further develop its regulations and address its concerns to the political branches, the Court is highly unlikely to grant extensions of this deadline.”
DEC is unlikely to meet the Court’s February 6, 2026, deadline. Under the State Administrative Procedure Act § 202, any proposed regulation must undergo a public comment period of at least 60 days, after which DEC must review and respond to the public submissions before finalizing the rules. To afford DEC additional time to finalize regulations, DEC may appeal the decision and petition for an automatic stay of the lower court’s order. The legislature could also amend the statute prior to the end of the year to grant DEC greater flexibility or additional time to develop and implement the required regulations. Whether that occurs will depend on coordination between the Governor and Legislature, raising broader questions about the balance of power between the executive and legislative branches in shaping New York’s climate policy.
Going forward, the resolution of DEC’s compliance with the Court’s order, whether through expedited rulemaking or legislative action, will have significant implications for the State’s ability to meet its statutory climate targets.
If finalized, mandatory greenhouse gas reporting and compliance requirements under a cap-and-invest program would have significant compliance costs for obligated entities. Interested parties, particularly those that would have been considered “obligated entities” under the December 2023 pre-proposal outline, will have an opportunity to review the final proposed rule and comment on that proposal. Potentially regulated parties may want to comment on such issues as the anticipated financial impact of the program on businesses and consumers, administration of the program, reporting obligations, or interaction of the program with other regulatory schemes (such as the Regional Greenhouse Gas Initiative and federal GHG reporting obligations).
Babst Calland continues to track climate change legislation and litigation, as well as federal and state regulatory developments. For more information on this and other climate change-related matters, please contact Polly Hampton at (412) 773-8715 or phampton@babstcalland.com, Gina F. Buchman at (202) 853-3483 or gbuchman@babstcalland.com, Jordan N. Brown at (202) 853-3459 or jbrown@babstcalland.com or any of our other environmental attorneys.
Firm Alert
(by Steve Silverman)
Employers often cling to misconceptions about non-compete agreements that can prevent them from effectively using these powerful tools or render such agreements unenforceable. Here are the seven most common reasons why this happens.
- Failing To Understand What Non-Competes Are
In the common vernacular, a non-compete is an umbrella term for contractually prohibiting an employee (or independent contractor, buyer of a business, or even a vendor) from working for a competitor or otherwise restricting that employee’s subsequent employment. However, a non-compete is one of several tools available to impose restrictions on an employee leaving their employer called “restrictive covenants.” A non-compete, which is just one type of restrictive covenant, limits a former employee or independent contractor from working for a competitor for a particular time period in a specific geographic area. A non-solicit agreement is another type of restrictive covenant, which allows an ex-employee to work for any employer they want without any geographic restriction but prohibits them from seeking business from their former employer’s customers for a period of time. Another variation of a non-solicit prohibits that ex-employee from hiring away or encouraging their former colleagues to leave their employment with their former employer. These are sometimes known as anti-piracy provisions. The distinctions between these various types of restrictive covenants are important. For instance, courts are generally more willing to enforce non-solicitation provisions than non-competes. Employers have to decide which, if not all, of these restrictive covenants work best for their business.
- Assuming That Non-Competes Are Unenforceable
A significant number of employers, as well as employees, incorrectly believe that restrictive covenants such as non-competes are categorically unenforceable. While this can be true for certain classes of employees (as discussed below), this misconception cannot be further from the truth. This mistaken belief is often fueled by employees who see their employer’s refusal or unwillingness to enforce them when their colleagues subject to these agreements depart without consequence. Additionally, restrictive covenants over the last two years received a lot of publicity with the Federal Trade Commission’s efforts during the last administration to effectively outlaw them, but that effort has been abandoned. As a result, unless a state has passed a law prohibiting or significantly restricting the use of non-compete agreements, courts in most states continue to enforce non-competes and other restrictive covenants every day – provided that they are properly drafted and effectively prosecuted.
- Not Understanding the Need for A Well-Drafted Non-Compete Agreement
A restrictive covenant agreement must be drafted to meet the unique needs of each employer. Such an agreement must be the product of a collaborative effort with an experienced attorney who understands the employer’s business. There is no downloadable form from the internet that meets every employer’s requirements. For instance, if the employer has employees working in multiple states, multiple versions of the agreements may be needed to address each state’s unique restrictive covenant laws. As explained below, different agreements may be needed for new employees versus existing employees whom the employer seeks to restrict. An employer’s agreements must also be periodically updated to address developments in the law.
- Not Supporting Restrictive Covenants With Adequate Consideration
An enforceable restrictive covenant agreement must be supported by “adequate consideration.” Consideration is an exchange of value between two parties necessary to make a contract binding. It is the “price” each party pays in exchange for the other party’s promise. What constitutes “adequate” consideration for non-competes can vary by state. For instance, nearly all states recognize that new employment is sufficient consideration to support such agreements. In other words, the employee’s “price” for getting a new job is agreeing to the restrictive covenants. However, states take different views as to whether continued employment is adequate consideration. For instance, Ohio deems that an already existing employee signing a non-compete has been given sufficient consideration because that employee gets to keep their job. But Pennsylvania says that for an existing employee to sign an enforceable non-compete, mere continuation of employment is not sufficient consideration. Instead, that Pennsylvania employee must be given some type of additional consideration – like a one-time bonus or additional benefits they would not otherwise be entitled to, or even a promotion. That is why Pennsylvania employers may have to use two versions of their non-compete agreements – one for new hires and another for existing employees. To navigate this issue, employers should always consult with counsel.
- Not Understanding What Protectible Interests Are
For a restrictive covenant agreement to be enforceable, an employer must have legitimate protectible interests. Essentially, this means that the law recognizes that certain employer property, both tangible and intangible, can be protected by restrictive covenants to prevent those interests from ending up in the hands of a competitor. This includes the company’s proprietary information, trade secrets and customer goodwill. However, the law says that only those employees who have access to those trade secrets or who are responsible for cultivating and maintaining that goodwill (such as sales people) can be subject to such agreements. That is why these agreements are not typically enforceable against receptionists, secretaries, mail clerks, or janitors. So, employers must be selective as to whom they require such agreements from and be able to justify how their protectible interests will be harmed by those employees failing to honor those agreements. This also requires employers to justify why their non-compete agreements need to extend for a particular length of time and geographic region without being overbroad, which courts dislike. Again, these are issues that employers must hash out with their counsel who draft these agreements.
- Failing to Incorporate Non-Competes into Employee On-Boarding and Off-Boarding
Employers must create a culture where their employees understand not only what their restrictive covenants are, but also that they must comply with them. Educating an employee about their post-employment obligations should start before that employee begins work. Employers should issue offer letters that clearly state that employment is contingent upon agreeing to the restrictive covenants. A copy of the non-compete agreement should be provided for the employee to sign prior to their first day of employment so that the employee cannot later argue that they did not know the type of post-employment restrictions they were agreeing to when they accepted their position. Simply put, no employee should start work before signing their agreement. Similarly, employees must be reminded of their post-employment obligations during their exit interviews upon giving notice and should be given a hard copy of the agreement at that time. Employers should also ask their departing employees point blank (a) who their new employer is; (b) what their duties will be; and (c) whether they have given their new employer a copy of the agreement. An employee refusing an exit interview or refusing to answer any of these questions should set off an alarm resulting in a consultation with counsel. If no exit interview is held, employers should still make clear in writing that they expect the employee to honor their agreement and also make sure to provide that employee with a copy, whether by mail, hand delivery, or email to a personal email address.
- Failing to Enforce A Non-Compete Through Litigation
While filing suit to enforce a non-compete can be both expensive and time consuming, failing to do so can be even worse in the long run. Those employers who do not enforce restrictive covenant agreements lose credibility among their employees and any deterrent effect that strong, enforceable agreements typically create. An employer who avoids the missteps above and places themselves in the best possible position to enforce these agreements protects their most valuable business interests. Likewise, an employer willing to enforce these agreements sends an unmistakable message to remaining employees that the employer expects them to honor their restrictive covenants and that they will pay a high price for not doing so. This often requires employers to make it abundantly clear that they are willing to do what is necessary to enforce their agreements. That message is often enough to dissuade the next departing employee from violating their post-employment obligations.
Dispelling these misconceptions is the first step in adopting and enforcing effective restrictive covenants to protect an employer’s most valuable assets.
For more than 30 years, Steve Silverman has built a career around this area of law—successfully enforcing non-compete agreements on behalf of his clients against former employees, while also defeating enforcement efforts on behalf of departing employees and their new employers.
If you have questions about the use of non-competes under existing state law or how to properly enforce them, please contact Steve at 412-253-8818 or ssilverman@babstcalland.com.
FNREL Water Law Newsletter
(by Lisa Bruderly, Mackenzie Moyer and Ethan Johnson)
On August 21, 2025, the Pennsylvania Department of Environmental Protection (DEP) announced that companies may now request expedited permit application reviews under the Streamlining Permits for Economic Expansion and Development (SPEED) program. DEP likened the new program to an amusement park “fast pass.” Eligible permit types for the SPEED program include:
- Air Quality plan approvals (state only) (Chapter 127)
- Earth Disturbance permits (Chapter 102)
- Individual NPDES Permit
- General NPDES Permit for Discharges of Stormwater Associated with Small Construction Activities (PAG-01)
- General NPDES Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02)
- Erosion and Sediment Control Permit
- Erosion and Sediment Control General Permit for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing or Treatment Operations or Transmission Lines (ESCGP-4)
- Individual Water Obstruction and Encroachment permits for project impacts eligible for coverage under the federal/state programmatic permit (PASPGP-6 or its successor) (Chapter 105)
- Dam Safety Permits (Chapter 105)
After submitting a SPEED intake form, the appropriate office will schedule and hold an intake meeting with the applicant within two to three business days.
The applicant will then have the opportunity to select a DEP-approved qualified professional to conduct the expedited review of the application. Among other qualifications, the professional must have at least five years of relevant permitting experience in Pennsylvania. The applicant must pay the qualified professional the review fee up front. The qualified professional must complete the initial review within 20% of the total review timeframe in the project work order, or another agreed upon timeframe.
DEP will conduct a final review of the permit based on the recommendations of the qualified professional and issue a permit decision. More information, including a flow chart of the full process under the SPEED program, is available on DEP’s website here.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Water Law Newsletter
(by Lisa Bruderly, Mackenzie Moyer and Ethan Johnson)
On September 6, 2025, the Pennsylvania Department of Environmental Protection (DEP) published the Proposed Conditional State Water Quality Certification for the PASPGP-7 (SWQC), 55 Pa. Bull. 6477 (Sept. 6, 2025). The proposed conditional SWQC is for applicants seeking coverage under PASPGP-7 (the U.S. Army Corps of Engineers (Corps) Pennsylvania State Programmatic General Permit) for projects that do not require a federal license or permit other than a section 404 permit under the Clean Water Act (CWA). Comments on the SWQC were due by October 6, 2025.
DEP offered four main conditions, summarized below, that, if fulfilled, would demonstrate that a proposed activity under PASPGP-7 would comply with state water quality standards and certain provisions of the CWA:
- Prior to beginning any activity authorized by the Corps under PASPGP-7, the applicant must obtain all necessary environmental permits or approvals and submit all required environmental assessments and other information necessary to obtain the permits and approvals.
- The applicant must comply with required environmental assessments and other regulatory requirements.
- Fill material may not contain any type of waste as defined in 35 Pa. Stat. § 6018.103 of the Solid Waste Management Act.
- Applicants and projects eligible for the PASPGP-7 must obtain all state permits or approvals, or both, necessary to ensure that the project meets the state’s applicable water quality standards, including a project-specific SWQC, if needed.
As background, PASPGP-7 allows applicants to obtain both Corps section 404 permits and coverage under DEP permits or other authorizations for water obstructions and encroachments submitted to the DEP and for projects requiring permits or authorizations in this Commonwealth. Section 401(a) of the CWA requires an applicant seeking coverage under PASPGP-7 to provide the Corps with certification from DEP that its discharge will comply with the applicable provisions of the CWA. This proposed conditional SWQC applies to activities that qualify for PASPGP-7 within the jurisdiction of section 404 and also structures or work in or affecting navigable waters of the United States under section 10 of the Federal Rivers and Harbors Appropriation Act of 1899.
The current PASPGP-6 expires on June 30, 2026, and, at present, the draft PASPGP-7 stands to take its place, with possible revisions from the proposed draft. The proposed changes in PASPGP-7 include the following:
- Adds 0.03-acre area of permanent stream impact measurement in addition to the 250-linear-feet of permanent stream impact, whichever is less, for reporting (Corps review) threshold. A permanent loss of 0.03-acre area of stream may then require compensatory mitigation on a case-by-case basis.
- Adds a reporting threshold of 1,000-linear-feet of permanent stream impacts for PASPGP-7 applications for DEP General Permit-1 (GP-1) (Fish Habitat Enhancement Structures).
- Removes the table of waterways potentially occupied by federally listed, proposed, or candidate species of mussels or fishes from reporting activities, as they are to be included in the Pennsylvania Natural Diversity Inventory Environmental Review.
- Adds that all regulated work within the Delaware Canal is a reporting activity to ensure compliance with the Wild and Scenic Rivers Act.
- Adds the ability for the Corps to waive the eligibility threshold for emergency activities, as defined in PASPGP-7, on a case-by-case basis. The reporting threshold of 0.50-acre of permanent impact remains unchanged.
- Adds a general or project-specific section 401 Water Quality Certificate as a type of state authorization to General Condition 29 (State Authorization).
- Extends the General Condition 33 (Anadromous Fish Waters) time of year work restriction, from March 15–June 30 to March 1–June 30.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
The Legal Intelligencer
(by Steve Korbel, Anna Hosack and Peter Zittel)
Social media has become the modern town square for many public officials. Whether it’s sharing a recap of a school board meeting, celebrating a community event, or commenting on local issues, platforms like Facebook and Instagram are now a routine part of how leaders connect with their constituents. But what happens when those online conversations intersect with Pennsylvania’s Right-to-Know Law, 65 P.S. § 67.101, et seq. (the “RTKL”)? The Pennsylvania Supreme Court considered this question recently in Penncrest School District v. Cagle, 341 A.3d 720 (Pa. 2025), a case that sheds new light on how personal social media use by public officials can blur into the purview of the RTKL.
In May 2021, controversy arose in the Penncrest School District (“Penncrest”) after a high school library display included several books addressing LGBTQ+ issues. A third-party contractor photographed the display and posted it to Facebook, where a school board member shared the image on his personal account, adding comments denouncing the display as “evil” and suggesting he would raise the issue at a future school board meeting. Another board member also shared the post without commentary. The incident drew local media coverage, and a resident, Thomas Cagle, filed a request under the RTKL seeking school board members’ emails and social media posts related to the incident. While Penncrest released some district emails, it denied the request for board members’ social media posts, arguing that such content came from personal accounts. Cagle appealed to the Pennsylvania Office of Open Records, which granted his request, reasoning that the board members’ posts directly related to district business, citing prior cases that emphasized substance over account ownership.
Penncrest petitioned for judicial review, arguing that personal Facebook posts fell outside the RTKL’s definition of “records.” The trial court disagreed, holding that posts by elected officials about school activities, even on personal accounts, could constitute public records because they involved district business. The trial court found that the board member’s comments about the library display were made in his official capacity and, therefore, subject to disclosure. Penncrest appealed, and in 2023, the Commonwealth Court, sitting en banc, vacated the trial court’s decision. While acknowledging that, under the RTKL, the analysis regarding the disclosure of social media posts as public records lacked clear precedent, the Commonwealth Court crafted a framework that considers factors such as whether the account bore the “trappings” of an official page and whether the posts evidenced agency activity. Concluding that the trial court’s analysis was too narrow, the Commonwealth Court remanded the case for further factual development. The Pennsylvania Supreme Court later granted review to decide whether the RTKL requires disclosure of school board members’ social media posts on private accounts about official school matters.
Writing for the majority, Justice Mundy reaffirmed that the RTKL provides a single, uniform definition of a “record” and established that courts must apply the statute’s two-part test to all forms of communication, including social media posts. Under Section 102 of the RTKL, a record is information that (i) “documents a transaction or activity of an agency” and (ii) is “created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.” The Court emphasized that the statute’s plain language is unambiguous: “[t]hese provisions, unambiguous on their face, provide for a two-part inquiry that applies equally to all forms of communication, including Facebook posts.” The central question in this case was whether Facebook posts made by Penncrest school board members about a controversial LGBTQ+ book display in a school library were records “of the agency” and thus subject to disclosure. While the trial court had found that they were, the Commonwealth Court remanded the case, holding that the trial court’s analysis was incomplete. The Supreme Court ultimately agreed that additional fact-finding was necessary.
Notably, the Court clarified that it was not adopting a new, social-media-specific test but rather requiring courts to apply the established RTKL framework in a context-sensitive manner. As the Court explained, whether something is “of an agency” is a “fact-specific inquiry” and must consider the substance and circumstances of the communication rather than its platform or location. Quoting earlier precedent, Grine v. County of Centre, 138 A.3d 88 (Pa. Cmwlth. 2016), the Court noted: “The location of the record or an agency’s possession does not guarantee that a record is accessible to the public; rather, the character of the record controls.” To make this determination, courts may consider several relevant factors, including whether the official was acting in an “official capacity,” whether the account had the “trappings” of an official agency account, whether the posts were created, received, or retained in connection with agency business, and whether the content “prove[s], support[s], or evidence[s]” agency activity.
The Court also invoked a vivid analogy from the U.S. Supreme Court’s decision in Lindke v. Freed, 601 U.S. 187 (2024): was the official speaking “at the meeting” or “at the backyard barbecue”? That framing highlights the key distinction between a personal viewpoint and agency business. In practice, when an official uses their account to recap votes, announce decisions, or provide role-related updates, they cross into the realm of public records subject to disclosure.
The Court stressed the importance of analyzing the context of social media posts, given that “many use social media for personal communication, official communication, or both—and the line between the two is often blurred.” Ultimately, the Court held that the Commonwealth Court properly remanded the case for further proceedings under the traditional two-part test, concluding: “Today, we reaffirm that this two-part inquiry is the only test to be utilized when determining whether disclosure of information, regardless of its form, is required under the statute.”
The Penncrest decision carries significant implications for transparency, governance, and the conduct of public officials in Pennsylvania. First, it confirms that the RTKL is flexible enough to adapt to evolving technologies without the need for judicial invention of new tests. The statute’s definition of “record” applies across all media, ensuring that public access does not depend on the platform used. Second, the opinion underscores the importance of context. Public officials can no longer assume that personal accounts are immune from disclosure simply because they are labeled “private.” If those accounts are used to announce, explain, or document agency action, their contents may be subject to public access under the RTKL. At the same time, purely personal posts, such as family photos, vacation updates, or unrelated commentary, remain outside the statute’s scope. Third, the case highlights the ongoing tension between transparency and privacy in the digital age. The Court’s refusal to create bright-line rules reflects an appreciation for that complexity. Instead, the decision leaves lower courts with discretion to make case-specific judgments, guided by the statutory test and informed by contextual factors. This approach ensures flexibility but may also generate continued litigation as courts and agencies apply the standard in varied circumstances. Finally, the decision places responsibility on public officials to exercise caution in their use of social media. The line between personal and official capacity can be blurred, and posts made casually can later become the subject of public records requests. Agencies may wish to adopt clearer policies for officials’ use of social media, both to protect transparency and to provide guidance to employees navigating these boundaries.
For Pennsylvania’s local municipalities, authorities, counties, and its elected and appointed officials, employees, and citizens, the message is clear: the principles of open government remain constant even as technology changes the way communication occurs with the public. In Justice Mundy’s words, “[t]hese statutory requirements are the touchstone,” and they will guide courts in ensuring that the public continues to have meaningful access to government records in the digital era.
Stephen L. Korbel is a shareholder in the Public Sector Services and Employment and Labor groups of Babst Calland Clements & Zomnir. Contact him at 412-394-5627 or skorbel@babstcalland.com.
Anna R. Hosack is an associate at the firm, focusing her practice primarily on real estate, municipal, and land use law. Contact her at 412-394-5406 or ahosack@babstcalland.com.
Peter D. Zittel is an associate at the firm, focusing his practice primarily on municipal and land use law. Contact him at 412-773-8711 or pzittel@babstcalland.com.
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Reprinted with permission from the October 20, 2025 edition of The Legal Intelligencer© 2025 ALM Media Properties, LLC. All rights reserved.
TEQ Hub
(by Kristen Petrina)
Due to the lack of a United States national data privacy law, the EU-U.S. have attempted to create a legal framework that permits a streamlined, regulated, and sufficient data transfer framework. Since 2015, three different data transfer agreements between the European Union and the United States were introduced. All three have faced challenges due to concerns the data transfer agreements did not provide adequate protections for EU citizens’ data from U.S. government surveillance.
The first data transfer agreement implemented but was found to be inadequate and invalidated in 2015 by the EU’s Court of Justice was the EU-U.S. Safe Harbor framework, which was deemed insufficient for protecting EU citizens’ personal data and fundamental rights, particularly in light of revelations about U.S. surveillance programs. The second data transfer agreement implemented but ultimately found to be inadequate and invalidated in 2020 by the EU’s Court of Justice was the EU-U.S. Privacy Shield framework, which was deemed to not offer the same level of protection as the GDPR. In particular, the framework did not adequately protect EU citizens’ data from U.S. government surveillance. The EU-U.S. Safe Harbor and EU-U.S. Privacy Shield frameworks were challenged by Maximiliam “Max” Schrems and his data privacy rights organization NOYB – European Center for Digital Rights (NOYB). The challenges are referenced as Schrems I and Schrems II cases, respectively.
The third data transfer agreement implemented was the Data Privacy Framework (DPF). The EU-U.S. DPF was challenged by Latombe citing, among other claims, the U.S. Data Protection Review Court lacked true independence and impartiality, established as a key redress pillar under the DPF, and the sufficiency of safeguards governing bulk data collection by U.S. surveillance and intelligence agencies without prior authorization from EU citizens and lacked adequate oversight. The concerns were consistent with those raised in the Schrems I and Schrems II cases. Nevertheless, the European General Court dismissed Latombe’s actions in its entirety, upholding the European Commission’s adequacy decision.
The Latombe judicial challenge against the EU-U.S. Data Privacy Framework has been stopped by the European General Court. The ruling on September 3, 2025, conflicted with previously attempted EU-U.S. data transfer frameworks. The court dismissed the challenge brought by Philippe Latombe, Member of French Parliament (Latombe) to annul the DPF and reinforced the DPF’s validity of the European Commission’s adequacy determination for the U.S.
Data Privacy Framework
The most recent data transfer agreement between the EU-U.S. is the Data Privacy Framework (DPF). The DPF includes three different frameworks: (i) EU-U.S. Data Privacy Framework (EU-U.S. DPF), (ii) the UK Extension to the EU-U.S. Data Privacy Framework (UK Extension to the EU-U.S. DPF), and (iii) the Swiss-U.S. Data Privacy Framework (Swiss-U.S. DPF). The DPF was developed to alleviate challenges faced by transatlantic commerce of U.S organizations. The DPF provides U.S. organizations with reliable mechanism that are consistent with EU, UK, and Swiss law for personal data transfers to the U.S. from the European EU (EU) and European Economic Area (EEA), the United Kingdom and Switzerland.
U.S. organizations participating in the EU-U.S. DPF may receive personal data from the EU/EEA in reliance on the EU-U.S. DPF after the European Commission issued the U.S. adequacy decision on July 10, 2023 ((EU) 2023/1795). The adequacy decision enables the transfer of EU personal data to participating organizations consistent with EU law. U.S. organizations participating in the UK Extension to the EU-U.S. DPF may receive personal data from the United Kingdom and Gibraltar in reliance on the UK Extension to the EU-U.S. DPF. The data bridge for the UK Extension to the EU-U.S. DPF enables the transfer of UK and Gibraltar personal data to participating organizations consistent with UK law. Lastly, U.S. organizations participating in the Swiss-U.S. DPF may receive personal data from Switzerland in reliance on the Swiss-U.S. DPF, due to Switzerland’s recognition of adequacy for the Swiss-U.S. DPF. The recognition of adequacy enables the transfer of Swiss personal data to participating organizations consistent with Swiss law.
U.S. organizations must self-certify to the International Trade Administration (ITA) within the U.S. Department of Commerce their compliance to each DPF framework. Organizations that only wish to self-certify and participate in the EU-U.S. DPF and/or the Swiss-U.S. DPF may do so; however, organizations that wish to participate in the UK Extension to the EU-U.S. DPF must participate in the EU-U.S. DPF. Once such an organization self-certifies to the ITA, the organization declares its commitment to the DPF Principles, that commitment is enforceable under U.S. law. Organizations participating in the DPF must annually re-certify. A U.S. organization’s failure to re-certify, voluntarily withdrawal or determination by the ITA failure to comply with DPF requirements will result in removal from the DPF and must immediately cease claim of DPF participation. Nevertheless, upon removal from the DPF, U.S. organization’s compliance with all DPF principles must continue for all personal information received while participating in the DPF for as long as it retains such information.
European General Court’s DPF Legal Reasoning
Latombe’s primary argument and the cornerstone of the case was the structural dependence of the Data Protection Review Court (DPRC). The General Court reviewed the structure and function of the DPRC in detail, noting the appointment process for DPRC judges has multiple steps and layers, term limitations, and dismissal only for cause. Citing those findings, the General Court determined the judges were insulated from improper influence.
The General Court further discussed the statutory obligations on both the Attorney General and intelligence agencies, explicitly prohibiting their interference with the DPRC’s work. Separately, the European Commission is required to continue to monitor the application of the DPF, and if necessary, suspect, amend or repeal the adequacy decision should changes in U.S. law or practice lessen the safeguards. These factors led the court to find that the DPRC met the EU standard of independent and impartial redress.
- Bulk Collection and Proportionality
The General Court reiterated that Schrems II did not demand ex ante judicial authorization, instead, it requires any bulk collection be subject to the meaningful, ex post judicial oversight. Separately, the General Court found that under U.S. law, collection of personal data by U.S. intelligence agencies is restricted to what is “necessary and proportionate” for clearly defined national-security purposes.
Further, such activities as bulk collection is subject to review DPRC, which has the authority to order remedial measures in cases where violations are identified. With this continued oversight, the General Court determined that the safeguards in the U.S. satisfy the “essential equivalence” test established by the Court of Justice of the European Union (CJEU).
Future of the DPF and Potential Additional Challenges
While this decision creates immediate stability for the DPF and participating U.S. organizations, the stability is not final.
Latombe has not indicated whether to expect an appeal, but he has until November 3, 2025 to decide whether to appeal the General Court decision to the CJEU. Separately, Max Schrems and NOYB issued a statement immediately upon the Latombe decision. NOYB argues that “the lower court here massively departs from the case law of the CJEU…It may be that the General Court did not have sufficient evidence before it – or it wants to make a point to depart from the CJEU. We will have to analyse the ruling in more detail the next days.” NOYB is monitoring the Trump Administration Executive Orders, removal of ‘independent’ heads of organizations, indicating that the Latombe challenge as too narrow and a more expansive challenge may come. Therefore, it is unclear whether further judicial challenges will be raised, leaving the long term stability of the DPF in question.
Separately, beyond a Latombe appeal or an NOYB challenge, the European Commission is required to continuously monitor the U.S. for any significant changes, whether legislative or U.S. agency changes. Any changes that could be found to significantly vary from the current framework, could result in a partial or complete suspension of the adequacy decision.
Conclusion
While the Latombe decision provides clarity and current certainty for U.S. organizations that require EU-U.S. data transfers, it is crucial that U.S. companies continue to monitor the annual European Commission reports, possible Latombe appeal and other legal challenges that may be brough before the General Court of the CJEU. The landscape of data transfers, domestically and internationally continues to be dynamic, requiring ongoing monitoring and U.S. companies should remain cautious and vigilant to every occurring changes. Additionally, while the Latombe judgement was a win for the DPF, it does not eliminate the need for transfer impact assessments when using alternative transfer mechanisms, such as Standard Contractual Clauses, especially for U.S. data recipients who have not self-certified under the DPF.
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PIOGA Press
(by Sloane Wildman and Alex Graf)
On September 17, 2025, EPA announced that it will retain the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substance designation for PFOA and PFOS, two PFAS compounds. The final rule designating PFOA and PFOS (and their salts and structural isomers) as hazardous substances under CERCLA became effective on July 8, 2024. Substances designated as hazardous under CERCLA are subject to release reporting requirements, specific spill rules, release tracking requirements, and additional reporting mandates under other environmental statutes. Further, EPA may require potentially responsible parties – PRPs – to clean up or pay for the cleanup of hazardous substances. In conjunction with EPA’s announcement, the U.S. Department of Justice submitted a filing in Chamber of Commerce of the United States of America v. EPA, No. 24-1193 (D.C. Cir.) (ongoing litigation, currently in abeyance, challenging the CERCLA designation of PFOA and PFOS), asking the court to lift the abeyance and propose an amended briefing schedule.
Prior to its 2024 PFOA and PFOS designation, EPA’s CERCLA hazardous substance list was comprised solely of substances designated under other environmental statutes (e.g., Clean Water Act, Clean Air Act, Resource Conservation and Recovery Act, and the Toxic Substances Control Act). EPA’s 2024 designation of PFOA and PFOS represented the first time the Agency used its authority under CERCLA Section 102(a) to list specific hazardous substances that were not designated under another environmental statute. In this week’s announcement, EPA stated its intention to initiate a rulemaking to “establish a uniform framework governing designation of hazardous substances under section 102(a) of CERCLA moving forward.” Such a “Framework Rule” would establish a uniform approach to guide future CERCLA hazardous substance designation, including EPA’s method for considering the costs of proposed designation.
EPA further stated that it will prioritize holding polluters accountable while still providing certainty for passive receivers (such as water utilities) that did not manufacture or generate PFOA or PFOS, and that it believes new statutory language will be necessary to fully address concerns regarding passive receiver liability. This statement is aligned with EPA’s PFAS strategy, issued on April 28, 2025, which expressly acknowledged the Agency’s intention to protect passive receivers of PFAS. EPA noted at the time that it intended to work with Congress and industry to establish a liability framework that operates on a “polluter pays” principle to provide greater certainty to passive receivers.
Babst Calland’s Environmental Practice Group is closely tracking EPA’s PFAS actions, and our attorneys are available to provide strategic advice on how developing PFAS regulations may affect your business. For more information or answers to questions, please contact Sloane Wildman at (202) 853-3457 or swildman@babstcalland.com or Alexandra Graf at (412) 394-6438 or agraf@babstcalland.com.
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Reprinted with permission from the October 2025 issue of The PIOGA Press. All rights reserved.
Firm Alert
(By Alex Farone and Janet Meub)
The U.S. Department of Transportation (DOT) issued an Interim Final Rule (IFR) effective October 3, 2025, instituting an immediate and significant change for the qualification of women- and minority-owned businesses in the DOT’s Disadvantaged Business Enterprise (DBE) and Airport Concessions Disadvantaged Business Enterprise (ACDBE) Program. For purposes of the DBE/ACDBE program, women- and minority-owned businesses were historically presumed to be disadvantaged, automatically meeting one of the requirements for DBE status; this is no longer the case.
What is the DBE/ACDBE program? The purpose of this longstanding program is to level the playing field for small businesses in the highway construction, transit, and airport industries, owned by socially and economically disadvantaged individuals, seeking to participate in federally funded contracts. Congress enacted the first statutory DBE provision in 1983, setting a goal that at least 10% of project funds be issued to DBEs on highway and transit projects. In 1987, Congress expanded the program for airport projects and concessionaries. This legislatively-mandated program was intended to ensure nondiscrimination and remove barriers in the award of DOT-assisted contracts, and thus the DOT was entrusted with oversight of the program.
Specifically, the program requires state and local transportation agencies that receive DOT grants to develop their own aspirational DBE contracting goals based on the availability of DBEs in their local markets, to meet the program targets. Notably, grantees are generally prohibited from using quotas or set-aside contracts for DBEs. (49 CFR § 26.43). They have been required to use race- and gender-neutral means to meet their goals to the extent possible, without using criteria favoring DBEs over non-DBEs (49 CFR §§ 26.5, 26.51). Examples of such neutral means are unbundling of large contracts, informational programs on contracting opportunities, and offering business support services. Eligibility for DOT financial assistance depends on DOT approval of grantee DBE programs; however, as long as the program is administered in good faith, grantees cannot be penalized for noncompliance or failure to meet their set DBE contracting goals. (49 CFR §§ 26.21(c), 26.47).
To qualify as a DBE, an entity must be a for-profit small business that is at least 51% owned and controlled by socially and economically disadvantaged individuals who do not exceed certain net worth caps. To qualify as socially and economically disadvantaged, the owners must either demonstrate disadvantage by meeting specific conditions or be presumed disadvantaged. Since 1987, the DOT has presumed social and economic disadvantage for women- and minority-owned business owners. As of October 3, 2025, however, this presumption ceased; henceforth, these business owners must “prove it.”
What happens now? To remain in the program, all DBE/ACDBE certified businesses owners must be reevaluated for disadvantaged status. The IFR changes the definition of a “socially and economically disadvantaged individual,” to one “who a certifier finds to be socially and economically disadvantaged on a case-by-case basis. [This] determination … must not be based in whole or in part on race or sex.”
Business owners must submit both a Personal Narrative (PN) and a Personal Net Worth Statement to demonstrate eligibility. The PN should demonstrate the existence of a disadvantage based on individual proof of specific instances of economic hardship, systemic barriers, and denied opportunities that impeded the owner’s progress or success in education, employment, or business. The PN must state how and to what extent these impediments caused the owner economic harm, including a description of the type and magnitude, and must establish the owner is economically disadvantaged relative to similarly situated individuals. The business owner must also attach and submit a Personal Net Worth Statement, and any other financial information they consider relevant.
Those submitting commercial and financial business information normally considered proprietary or confidential are cautioned to designate those submissions as “PROPIN.” If one fails to mark the confidential business information as “PROPIN,” under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, the information is placed in the public docket for rulemaking purposes. To avoid public dissemination of confidential businesses information, entities should make sure that employees tasked with the submission of this documentation understand the need for designation.
The existing regulations require states to establish Unified Certification Programs (UCP) to handle state-wide DBE-firm certification, including making certification decisions on behalf of all DOT grant recipients in the state and maintaining a state directory of certified DBE firms. Now, each UCP is required to identify currently certified DBEs, provide them with the opportunity and instructions to submit documentation demonstrating eligibility under the new standards, and then issue a written decision indicating whether each business has been recertified or is decertified “as quickly as practicable.” The IFR does not require the UCP’s written decision to explain the specific basis for recertification or decertification. Individual UCPs are expected to create their own timelines for firm submissions of new PNs and Personal Net Worth Statements, but the DOT has expressly reserved the right to review a UCP’s reevaluation process.
Until the UCP reevaluations are complete, goal setting and other DBE/ACDBE program elements are suspended. The current federal government shutdown of indeterminate duration will likely further slow the reevaluation process.
What prompted this IFR? On February 24, 2025, President Trump issued Executive Order 14219, Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative, which ordered agencies to identify “unconstitutional regulations and regulations that raise serious constitutional difficulties” and to target them for repeal. On April 9, 2025, the President issued a presidential memorandum to the heads of all federal agencies, directing that this effort should prioritize regulations that conflict with certain U.S. Supreme Court decisions, including Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), a landmark 2023 ruling that consideration of race in college admissions violates the Equal Protection Clause of the Fourteenth Amendment, essentially ending affirmative action.
In a pending case in the Eastern District of Kentucky, non-DBE entities who had lost bids on DOT-funded projects filed suit against the DOT, claiming that they cannot compete for DOT contracts on an equal footing with entities owned by women or racial minorities because of their presumptive qualification as DBEs. In September of 2024, the court granted a preliminary injunction, determining that the disadvantage presumption of the DBE program likely violates the Equal Protection Clause. Mid-America Milling Co. v. U.S. Dep’t of Transp., No. 3:23-cv-00072, 2024 WL 4267183 (Sept. 23, 2024). The preliminary injunction prohibits the DOT from mandating use of the presumptions with respect to the contracts on which the plaintiff entities had bid.
Shortly following the President’s February Executive Order and April memorandum, both the DOT and Department of Justice (DOJ) evaluated the DBE/ACDBE program as directed by the administration.
In May of 2025, the parties asked the court to enter a consent order resolving the constitutional challenge to the DBE program, where the DOT (represented by the DOJ in court) stipulated and agreed that the DBE program’s presumptions violate the Equal Protection Clause. The proposed consent order asks the court to declare the use of DBE contract goals to be unconstitutional nationwide and to hold that DOT cannot approve any DOT-funded projects with DBE contract goals where any DBE in the jurisdiction was determined eligible based on race- or sex-based presumptions. Notably, the consent order remains pending.
On June 25, 2025, Solicitor General D. John Sauer of the DOJ advised Speaker of the House Mike Johnson that DOJ concluded the DBE program’s race- and sex-based presumptions are unconstitutional, and that DOJ would no longer defend those presumptions in court—consistent with the proposed consent order in the pending Mid-America Milling case. Soon thereafter, on October 3, 2025, DOT issued the present IFR.
How can the DOT issue an immediately-effective rule like this IFR? The Administrative Procedures Act (APA), 5 U.S.C. §§ 551-559, mandates that federal administrative agencies follow certain procedural steps before enacting a rule. Typically, an agency must publish notice of the proposed rule in the Federal Register, citing its authority to make the rule and including the proposed terms. Then, the public must be given the opportunity to comment on the proposed rule. After considering comments and making any revisions to the rule based thereon, the agency must provide a general statement of the basis and purpose of the rule and generally must publish the final rule no less than 30 days prior to the effective date. However, an agency may skip the aforementioned procedure and issue a rule without the notice, comment, and minimum 30-day effectiveness delay if it finds good cause that the process is “impracticable, unnecessary or contrary to public interest.” 5 U.S.C. § 553(b)(B). Here, the DOT determined that the presumption of disadvantage under the DBE/ACDBE program is unconstitutional, so enforcing those presumptions would be contrary to public interest and providing an advance notice-and-comment period would be impracticable and unnecessary. While this IFR is effective immediately, the public can currently comment on the IFR for a 30-day period, and the DOT may amend the rule pursuant to submitted comments.
We will follow further developments concerning this IFR and DBE program requirements and provide updates. For more information about how these requirements affect your business, drafting a PN for certification reevaluation, and how Babst Calland can assist you, please contact Alexandra G. Farone (412) 394-6521 or afarone@babstcalland.com or Janet K. Meub at (412) 394-6506 or jmeub@babstcalland.com.