PIOGA Press
(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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Reprinted with permission from the December 2025 issue of The PIOGA Press. All rights reserved.
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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.
Firm Alert
(by Gary Steinbauer, Gina Buchman and Christina Puhnaty)
In response to President Trump’s Executive Order 14179, “Removing Barriers to American Leadership in Artificial Intelligence (AI),” EPA announced this week a new EPA webpage dedicated to compiling agency resources related to the Clean Air Act requirements potentially applicable to the development of data centers and AI facilities across the United States. The webpage, Clean Air Act Resources for Data Centers, is intended to promote transparency by aiding developers and other interested parties in locating various agency resources, including Clean Air Act regulations, interpretative guidance, and technical tools, that may assist with Clean Air Act permitting and air quality modeling during project development.
In addition to linking to potentially applicable EPA regulations, the webpage provides in one place various historical EPA guidance documents relating to the federal New Source Review (“NSR”) and Title V permitting programs. These guidance documents include interpretation letters and memoranda related to calculating and limiting a source’s potential to emit, assessing whether multiple projects must be aggregated for purposes of determining major NSR applicability, and determining when an operator may initiate construction activities of a major NSR source prior to obtaining a construction permit. The webpage also includes a News and Updates section that houses recent EPA announcements relating to data center and AI facility development.
Notably, the webpage explains that in an effort to advance cooperative federalism, EPA’s Office of Air and Radiation (“OAR”) staff are “available to consult with permit reviewing authorities and individual sources on a case-by-case basis to identify existing data, models, and tools to demonstrate compliance and, as appropriate, exercise discretion and flexibilities in the permitting processes.” The webpage encourages both permitting authorities and permit applicants to contact their EPA Regional Offices and EPA’s Data Centers Team to engage OAR staff members on projects.
EPA notes it is continuing to advance rulemakings to streamline permitting and end burdensome requirements inhibiting the development of data centers and AI facilities. Babst Calland’s Environmental Practice attorneys are closely tracking these developments and are available to provide guidance on how these actions affect your business. For more information, please contact Gary Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com, Gina Buchman at (202) 853-3483 or gbuchman@babstcalland.com, Christina Puhnaty at (412) 394-6514 or cpuhnaty@babstcalland.com, or a member of Babst Calland’s Data Center Development team.
The Legal Intelligencer
(by Janet Meub)
When can an employee hold its employer liable for harassment by a third-party? For instance, can a concierge hold a hotel liable for the inappropriate conduct of a paying guest? The consensus in many circuit courts, heavily influenced by the Equal Employment Opportunity Commission’s (EEOCs) guidance and procedural regulations, is that negligence is enough to answer that question in the affirmative. If an employer knew or should have known of the third-party harassment and failed to take immediate action, the employer can be held liable. However, the Sixth Circuit recently strayed from the path of the negligence theory of liability, and in Bivens v. Zep, Inc., 147 F. 4th 635 (Aug 8, 2025), held that Title VII “imposes liability for non-employee harassment only where the employer intends for the harassment to occur.”
To establish a sex-based hostile work environment claim under Title VII, a plaintiff must establish that (1) she is a member of a protected class (2) who faced unwelcome harassment, which (3) was based on her sex and (4) created a work environment that reasonably interfered with her work performance, for which (5) her employer is responsible. Employers can be held directly liable for the actions of their agents, whether those of a supervisor who can bind the company or those of a lower-level employee whose intentional acts are within the scope of employment can result in vicarious liability for the employer. Because sexual harassment does not serve any business purpose, most circuit courts have interpreted Title VII to require a showing that the harasser was either “aided in accomplishing the tort by the existence of the agency relationship” or that the employer was negligent in letting the employee commit the tort. When a third-party harasses an employee, most courts invoke the same negligence theory to hold the employer liable. That is, until the Sixth Circuit tackled the issue in August.
Facts of Bivens
In Bivens, the plaintiff worked as a territory sale representative for a manufacturer and distributor of cleaning products. As part of her job, Bivens made sales calls to retail and commercial clients to sell products and maintain client relationships. Not long after she was hired, Bivens called on a motel client. During their meeting, the motel’s manager asked to speak to Bivens in his office. While Bivens was in the motel manager’s office, the manager locked the office door behind her and twice asked Bivens out on a date. Bivens declined the awkward invitation and explained that she was married. She then asked the manager to unlock the office door and ended the meeting.
Bivens reported the incident to her supervisor, who reassigned the motel client to a different sales team, so that Bivens would not have to interact with the client again. Around this same time, in response to fluctuating business due to the COVID-19 pandemic, Bivens’ position with the company was eliminated as part of a reduction in force.
Bivens filed suit, alleging hostile work environment harassment, retaliation, and discrimination by claiming that she had been subjected to a hostile work environment and that she had been fired either because she complained about the client’s improper advances or because of her race. The District Court granted Zep’s motion for summary judgment on each of Bivens’ claims, prompting Bivens to appeal.
Sixth Circuit Says Liability for Third-Party Harassment Requires Employer Intent
In addressing the issue as to whether her employer could be liable for the motel manager’s actions, the Sixth Circuit examined the history and purpose of Title VII and the interpretations of Title VII by both its sister circuits and the EEOC. The Court noted that when Congress passed Title VII, it created a federal species of intentional tort, distinguishing Title VII from torts based on mere negligent action. “Consistent with that congressional design, the key ‘factual question’ in a Title VII disparate treatment claim is whether ‘the defendant intentionally discriminated against the plaintiff’.” The Court noted that Title VII’s definition of the term employer includes agents of the company. Because agency law presumes the company controls its agent, an agent’s wrongful intent may be imputed to an employer on whose behalf the agent acts. Thus, a company can be held liable for discriminatory conduct of its employee acting in the scope of their employment.
However, if the harasser is not an employee, there is no agency, no furthering of the employer’s business interests, and no imputed intent up the chain of command. As a result, the Court held that Zep was not liable for the motel manager’s actions because Zep did not intend for Bivens to be harassed. It reasoned that, to hold an employer liable for the acts of third parties, the employer must desire an unlawful consequence from its actions or is “’substantially certain’ that it will result.” It must be the “intentional decision of the employer to expose women to [discriminatory] working conditions.”
In its opinion, the Court also held that, while the EEOC is authorized to issue procedural regulations for pursuing Title VII, its substantive interpretive guidelines have no controlling effect. Thus, the EEOC’s negligence standard – i.e., that an employer knew or should have known of the third-party harassment – is not enough to impose liability because the EEOC’s interpretive guidelines have no controlling effect on the Sixth Circuit’s analysis of Title VII. Though many sister circuits similarly use the negligence standard to impose liability on the employer for non-employee harassment, the Sixth Circuit admitted that it does not “lose any sleep standing nearly alone” in its interpretation of Title VII, which is true to Congress’ design. In doing so, the Court acknowledged that other circuits applying the negligence standard would likely reach the same decision it reached in Bivens.
The Sixth Circuit may not go it alone for long in its adoption of the desired intent standard. In late October, the U.S. District Court for the Eastern District of Pennsylvania found the Bivens decision to be persuasive and commended its “careful review of agency law” in O’Neill v. Trustees of the University of Pennsylvania, 2025 WL 3047884 (Oct 31, 2025).
Facts of O’Neill
In O’Neill, the University of Pennsylvania (University) awarded Sophia O’Neill a master’s degree in Robotics and Autonomous Systems in 2022. Shortly thereafter, O’Neill began working for the University in two roles – as a full-time Lab Manager in the School of Design, and as a Teaching Assistant in the Robotics and Autonomous Systems program. In these roles, O’Neill was required to work in person in the lab and to help students with their assignments.
In the fall of 2022, eight students in the program made complaints about the aggressive conduct of a six foot four-inch, male student (“Student HR”) in the lab. On one occasion during the second semester, O’Neill experienced Student HR’s behavior when he blocked her from her desk in the lab and hovered over her desk, demanding answers to an assignment. On another occasion, Student HR waited outside the lab for O’Neill to arrive at work and then, later that day, he blocked her path when she was exiting a room, refusing to move until she asked him to do so.
Upon returning to her desk and opening her emails, O’Neill discovered that Student HR had sent her several messages, including a middle of the night call on the messaging platform Discord. The messages stated that Student HR was in the middle of a “depressive psychotic episode,” asked O’Neill to come stay with him, and told her “Love you so much babe” with heart and kissing face emojis. O’Neill immediately reported Student HR’s behavior to the University.
In response, the University developed a safety plan for O’Neill after speaking with her and with Student HR. As a result of this plan, Student HR would only be permitted to attend the lab when the male lab manager worked, and he was prohibited from contacting O’Neill outside of an academic setting. Student HR agreed to the plan, acknowledging that he would face disciplinary proceedings if he violated it. O’Neill, however, sought a guarantee that she would never interact with Student HR, including prohibiting Student HR from accessing the Robotics lab even when she was not present.
O’Neill did not return to work, though the University continued to pay her and provide her with benefits. The University gave O’Neill a deadline to either return to work or formally request a leave of absence. O’Neill confirmed that she would not return to work and filed a complaint against the University with the Philadelphia Commission on Human Relations for forcing her to interact with her accused harasser. O’Neill then sued the University in the Eastern District of Pennsylvania for “creating and fostering a sex-based hostile work environment, for constructive discharge, and for retaliation under both Title VII and the Philadelphia Fair Practices Act.
The District Court determined that O’Neill had not adduced evidence to show that the University or its employees knew Student HR had physically intimidated or confessed unreciprocated romantic feelings for her until she reported his behavior. In its opinion, the Court called the negligence standard and the Bivens standard “almost-identical” and indicated that both approaches would have reached the same conclusion. The Court predicted that the Third Circuit will align with the Sixth Circuit’s approach in Bivens.
Employers should be aware of the O’Neill case to determine which standard the Third Circuit applies in the event of an appeal. Will the Third Circuit adopt Bivens’ desired intent standard for imposing liability in the context of harassment by non-employees and prove the District Court in O’Neill prophetic? Stay tuned.
Janet Meub is senior counsel in the Litigation and Employment and Labor groups of Babst Calland. She routinely counsels corporate clients on employment matters including discrimination, accommodations, wage and hour, discipline and termination, severance agreements, non-compete/non-solicitation agreements, unemployment compensation, and employee handbook and corporate policy updates. Janet also conducts workplace investigations and performs corporate trainings on employment “hot topics.” She may be contacted at jmeub@babstcalland.com or 412-394-6506.
To view the full article, click here.
Reprinted with permission from the December 11, 2025 edition of The Legal Intelligencer© 2025 ALM Media Properties, LLC. All rights reserved.
The Drill Bit Magazine
(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
- 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.
- 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.
- 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.
- 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.
- 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 Ohio and Pennsylvania. 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 Ohio and Pennsylvania. Contact her at 412-394-6428 or kvassil@babstcalland.com.
To view the full article, click here.
Reprinted with permission from the Winter 2025 issue of The Drill Bit Magazine. All rights reserved.
The Legal Intelligencer
(by Casey Alan Coyle and Ryan McCann)
Pleadings are the opening act of litigation—setting the stage, defining the cast, and signaling the story to come. But Bernavage v. Green Ridge Healthcare Group, LLC, et al., No. 1576 MDA 2023 (Pa. Super. Ct.), which is pending on appeal before the en banc Superior Court, presents a plot twist: what happens when a plaintiff introduces an entirely new theory just as the curtain is about to fall and the house lights begin to rise? Specifically, the appeal poses the question of whether a plaintiff is permitted to amend her complaint in the middle of trial to add allegations of the defendants’ recklessness and request an award of punitive damages.
Standard to Amend Pleadings
Rule 1033 of the Pennsylvania Rules of Civil Procedure governs amended complaints. It states, in relevant part, that a party may amend a pleading—whether to “change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading”— “at any time” “either by filed consent of the adverse party or by leave of court.” Pa.R.Civ.P. 1033(a). On its face, Rule 1033 does not impose a time limit on when a pleading such as a complaint must be amended. Indeed, the Superior Court has held that a complaint may be amended “at the discretion of the trial court after pleadings are closed, while a motion for judgment on the pleadings is pending, at trial, after judgment, or after an award has been made and an appeal take therefrom.” Biglan v. Biglan, 479 A.2d 1021, 1025–1026 (Pa. Super. Ct. 1984); see, e.g., Wilson v. Howard Johnson Rest., 219 A.2d 676, 679 (Pa. 1966) (amendments to pleadings “should be liberally granted at any stage of the proceedings” (citation and quotation marks omitted)).
That is not to say that the timeliness of a request to amend a pleading is wholly irrelevant. While the denial of a request to amend a pleading is an abuse of discretion when based on nothing more than unreasonable delay, see, e.g., Gutierrez v. Pa. Gas & Water Co., 507 A.2d 1230, 1233 (Pa. Super. Ct. 1986), the timeliness of the request is a proper consideration “insofar as it presents a question of prejudice to the opposing party.” Capobianchi v. BIC Corp., 666 A.2d 344, 347 (Pa. Super. Ct. 1995). The Pennsylvania Supreme Court has addressed prejudice in this context, writing:
If the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the Time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed[.]
Bata v. Central-Penn Nat’l Bank of Phila., 293 A.2d 343, 357 (Pa. 1972) (citation and quotation marks omitted).
Applying that standard, Pennsylvania courts traditionally have looked unfavorably upon the late introduction of new theories of recovery. See, e.g., W. Penn Power Co. v. Bethlehem Steel Corp., 384 A.2d 144 (Pa. Super. Ct. 1975); Newcomer v. Civil Serv. Comm’n of Fairchance Borough, 515 A.2d 108 (Pa. Commw. Ct. 1986); Smith v. Athens Twp. Auth., 685 A.2d 651 (Pa. Commw. Ct. 1996).
The Bernavage Decision
The Bernavage case arose from a fall sustained by an elderly woman while being transferred at a long-term care facility. The woman subsequently passed away from unrelated causes. Thereafter, her daughter filed a professional negligence claim against two healthcare providers on her mother’s behalf. Notably, the complaint did not include any allegations of recklessness or willful or wanton misconduct. The matter was eventually tried to verdict before two different juries. During the first trial, the daughter elicited testimony from two of the defendants’ employees that the defendants’ conduct was reckless. The daughter then moved for a directed verdict on the issues of negligence and recklessness based on the employees’ admissions. The daughter also made a request to file an amended complaint to conform with the evidence elicited at trial, specifically, to characterize the defendants’ mental state as reckless and to make a claim for punitive damages. The trial court denied the daughter’s request for a directed verdict but granted her request for leave to file an amended complaint. In doing so, the trial court severed the issues related to the factfinder’s consideration of whether punitive damages should be awarded.
The first jury was asked to consider whether the defendants’ conduct fell below the standard of care, and if so, whether their negligence was a factual cause of the mother’s harm. The jury answered both questions in the affirmative and awarded the daughter $300,000 in compensatory damages. The jury was also asked two verdict interrogatories as to whether the defendants acted with the requisite state of mind that would allow for the recovery of punitive damages. The jury answered those questions in the affirmative as well. Based on that verdict, the pleadings were reopened, and the parties proceeded to conduct punitive damages discovery. At the ensuing second trial, the trial court required the parties to proceed using transcripts of the trial testimony for all witnesses called in the first trial; the only new evidence introduced was the wealth of the defendants and their ability to pay a punitive damages award. The second jury ultimately awarded the daughter $2.7 million in punitive damages—nine times the compensatory damages award. The defendants moved for judgment notwithstanding the verdict on punitive damages and the jury’s finding of negligence. The defendants also moved for a new trial. The trial court denied both requests.
On appeal, a Superior Court panel affirmed the award of compensatory damages but vacated the award of punitive damages. With regard to the punitive damages award, the panel determined that this was not a case where a plaintiff simply sought an amendment to conform the complaint to the evidence adduced at trial. “Rather,” the panel continued, “it was an introduction of a new theory of recovery,” because the specific theory of recovery to support the daughter’s punitive damages claim was “substantively different from the theory she developed during discovery and alleged in her complaint.” Bernavage, slip op. at 20. The panel held that this amounted to unfair surprise because, among other reasons, the daughter “never introduced the concept of recklessness into the case” “[i]n the three years prior”; the daughter’s counsel “introduced the concept of recklessness at the latest possible time—during day one of presentation of liability evidence”; “[t]he witnesses used the word reckless at counsel’s prompting”; and the daughter’s counsel “asked questions at trial that he could have, but did not, ask two years prior at the witnesses’ depositions.” Id. at 19, 21. In the process, the panel established the rule that “unfair surprise exists . . . where a negligence plaintiff, without explanation, withholds the precise theory of recovery until the latest possible time.” Id. at 21. The panel concluded its opinion by writing: “And while we ascribe no motive to [the daughter], to reach a different conclusion than the one we reach would be to invite negligence plaintiffs to withhold their theory of recovery, be it negligence, gross negligence, or recklessness, until the last possible minute for the specific purpose of creating unfair surprise.” Id.
The daughter moved for reargument en banc, which the Superior Court granted—resulting in the panel’s opinion being vacated. Briefing is underway, and it is anticipated that oral argument will take place before the en banc Superior Court in the spring of 2026.
What’s Next?
Depending upon how the en banc Superior Court rules, the impact of Bernavage could be far-reaching. Affirming the trial court in its entirety would, in practice, reintroduce trial by ambush, which the Pennsylvania Rules of Civil Procedure “were intended to prevent.” Clark v. Hoerner, 525 A.2d 377, 384 (Pa. Super. Ct. 1987); see Gregury v. Greguras, 196 A.3d 619, 628 (Pa. Super. Ct. 2018) (en banc) (“One of the primary purposes of discovery is to prevent surprise and unfairness of a trial by ambush, in favor of a trial on the merits.”). Plaintiffs would be incentivized to withhold their theory of recovery (and withhold their intention to seek punitive damages or possibly other damages) until the last possible moment, as noted by the panel.
Such a regime undoubtedly would unleash a series of preemptive measures by defendants, including filing motions in limine as a matter of course to bar plaintiffs from introducing evidence or argument on undisclosed theories of recovery or damages at trial to guard against last-minute amendments—although query whether such measures would prove effective if a plaintiff is automatically allowed to amend her complaint, in the middle of trial, to seek damages based on a previously undisclosed theory. Regardless, affirming the trial court, in full, would appear to raise due process concerns for defendants, particularly when punitive damages are sought. Such damages already “pose an acute danger of arbitrary deprivation of property,” Honda Motor Co. v. Oberg, 512 U.S. 415, 432 (1994), and that danger seemingly would be exacerbated if punitive damages could be introduced for the first time at trial.
Accordingly, the en banc Superior Court must decide in Bernavage whether a last-minute amendment of this magnitude belongs in the final act—or whether it impermissibly rewrites the performance after the audience is already waiting for the final bow.
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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 a former law clerk to Chief Justice Emeritus Thomas G. Saylor of the Pennsylvania Supreme Court. Contact him at 267-939-5832 or ccoyle@babstcalland.com.
Ryan McCann is a litigation associate at the firm. He focuses his practice on complex commercial litigation, environmental litigation, and construction disputes. Contact him at 412-773-8710 or rmcann@babstcalland.com.
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Reprinted with permission from the December 4, 2025 edition of The Legal Intelligencer© 2025 ALM Media Properties, LLC. All rights reserved.
GO-WV
(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.
Click here, to view the article online in the December issue of GO-WV News.
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(by Joe Reinhart, Sean McGovern, Matt Wood and Ethan Johnson)
In response to supply shortfalls due to data center demand, the largest regional transmissional operation in the United States, PJM Interconnection (PJM), has submitted its Expedited Interconnection Track (EIT) proposal to allow new generators to bypass the traditional interconnection queue. PJM is a regional transmission organization that coordinates the movement of wholesale electricity in 13 states and the District of Columbia. The EIT proposal operates in parallel to the standard PJM Cycle Process. PJM estimates a 10-month timeframe for the new, expedited process, whereas the standard Cycle Process can take up to four years or longer. PJM modified the EIT proposal based on stakeholder feedback, with key modifications including enhanced demand-side participation, better load forecasting, and improvements to the interconnection process. Eligible projects may be of any fuel type, but must:
- have a capacity larger than 500MW;
- be sponsored by a state within the PJM coverage;
- request Capacity Interconnection Rights simultaneously;
- achieve commercial operations within three years of submitting their application;
- submit a large non-refundable study deposit (> $500,000) and readiness deposit ($10k/MW); and
- provide three full years of site control for 100% of generating site & interconnection facilities at time of application.
If a project does not meet the eligibility criteria for the expedited track, an application may be submitted for the Cycle Process. Gas-fired generation made up 69% of the projects that PJM selected for interconnection review in May 2025. PJM forecasted that peak load across its footprint would grow 32 gigawatts (GW) from 2024 to 2030, with 30GW attributed to data centers. PJM also forecasts increased demand could lead to a 5% bill increase for rate payers by June 2026. PJM faces mounting pressure to curb rate increases. On November 5, 2025, Members of Congress representing the Mid-Atlantic region sent a letter to PJM urging more action to control increasing energy demand and electricity costs, primarily driven by data center growth.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(by Joe Reinhart, Sean McGovern, Matt Wood and Ethan Johnson)
On September 11, 2025, the Pennsylvania Public Utility Commission (PUC), stressing the need to address aging infrastructure, approved a final order that will speed up the process of identifying and replacing older, at-risk plastic pipe materials in natural gas systems. The final order builds on the PUC’s August 26, 2024, tentative order on the same subject. Under the order, natural gas utilities must catalog older materials identified by federal authorities as being prone to cracking and add mitigation and replacement of these older materials to their management plans. Beyond that, the PUC’s Bureau of Technical Utility Services will require utilities to provide detailed inventories of older plastic pipes and components and explain how they will differentiate the older pipe from the newer pipe.
The PUC’s action comes after several advisory bulletins, dating back to 1998, issued by the U.S. Department of Transportation on pre-1982 plastic pipe materials and a 2023 bipartisan bill introduced to Congress aimed at addressing older piping known to fail. The bill, H.R. 5638, or the Aldyl-A Hazard Reduction and Community Safety Act, was introduced in response to the deadly 2023 natural gas explosion at the R.M. Palmer Co. chocolate factory in West Reading, Pennsylvania. The National Transportation Safety Board, which released its investigation report in March 2025, confirmed that the point of failure was from a retired 1982 service tee made from DuPont Aldyl-A plastic.
The PUC emphasized that utilities that failed to respond to data requests on this issue in the past will be referred for enforcement action. Speaking on the final order in the PUC’s announcement, PUC Chairman Stephen M. DeFrank said that “[s]afety is the foundation of our work as regulators and today’s action underscores the Commission’s commitment to addressing risks wherever they may be found—including in older plastic materials that have been linked to failures across the country.” The PUC acknowledged competing priorities and the high cost of replacing infrastructure, but made clear that the enhanced replacement efforts were necessary to safeguard the public.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(by Joe Reinhart, Sean McGovern, Matt Wood and Ethan Johnson)
On September 9, 2025, the Pennsylvania Environmental Quality Board (EQB) elected to defer discussion on three pending rulemaking petitions pertaining to the oil and gas industry until its next meeting.
The first rulemaking petition, submitted by regional environmental groups the Clean Air Council and Environmental Integrity Project (Petitioners) in October 2024, asks the EQB to increase setback distances for new unconventional oil and gas wells. As previously reported in Vol. 42, No. 2 (2025) of this Newsletter, on April 8, 2025, the EQB tabled this petition for the stated reason of needing more time to review relevant materials. The proposed rulemaking would extend the existing 500-foot setback from buildings and personal-use water wells and 1,000-foot setback from water supply extraction points, both of which are waivable, to the following distances:
- 3,281 feet from any building or drinking water well;
- 5,280 feet from the property boundary of any building serving vulnerable populations, e.g., hospitals, schools, and daycare; and
- 750 feet from any surface water.
Petitioners’ proposed rule relies on the 2020 43rd Statewide Investigating Grand Jury Report, conducted while current Pennsylvania Governor, Josh Shapiro, was the Attorney General, that investigated impacts on Pennsylvania from the unconventional oil and gas industry as well as the Pennsylvania Department of Environmental Protection’s (PADEP) oversight of the industry. That report made eight recommendations, including increasing setbacks between unconventional gas operations and homes from 500 to 2,500 feet and schools and hospitals from 500 to 5,000 feet, arguing existing setbacks. In their proposed rulemaking Petitioners allege the existing setbacks are not protective of human health and the environment.
The second rulemaking petition, from Marcellus Shale Coalition (MSC), an Appalachian Basin industry group, pertains to setting attainable bottom well depth during orphan well plugging. The proposed amendments aim to clarify how attainable bottom is determined and how plugging should proceed after such a determination. Specifically, MSC proposes amendments to 25 Pa. Code § 78.1/78a.1, and § 78.91(c)/78a.91(c). The proposed amendment to § 78.1/78a.1 would add the following language:
[a]n operator shall be presumed to have made a reasonable effort to achieve the attainable bottom if the operator has cleaned out the well to at least 200 feet below the coal protective casing (or coal seam if no coal protective casing is present) or surface casing, whichever is deeper, and an additional 100 feet of well bore cannot be cleaned out within one 8-hour work shift.
The proposed amendment to § 78.91(c)/78a.91(c) states that after an operator notifies the Pennsylvania Department of Environmental Protection (Department) inspector that a “reasonable effort” has been made, “[a] cement plug of at least 50 feet will be set at the attainment bottom of the well bore,” the depth and efficacy of which will be confirmed after a sufficient time has elapsed, followed by plugging the remaining well bore. MSC asserts the proposed amendments would facilitate a more efficient and effective process for the successful plugging of more orphan and abandoned wells.
The third rulemaking petition, also from MSC, pertains to on-site processing of production wastewater. The proposed amendments aim to encourage the efficient reuse of fluids and increase the flexibility of the Department’s regulation of on-site fluid processing. Specifically, MSC proposes to amend 25 Pa. Code § 78a.58 as follows:
Onsite pProcessing and Storage
(a) The operator may request approval by the Department to process fluids generated by the development, drilling, stimulation, alteration, operation or plugging of oil or gas wells or mine influenced water at the well site where the fluids were generated or at a the well site where all of the fluid is intended processed or stored to be beneficially used to develop, drill, or stimulate a well at that or other well sites. . . .
MSC contends the amendment will maintain all safeguards while decreasing the need for fresh water, truck traffic, and storage tanks.
EQB canceled its October and November meetings, meaning the earliest it could consider these proposed rulemakings would be at its December 9, 2025, meeting.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Mining
(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)
On August 15, 2025, the Federal Energy Regulatory Commission (FERC) approved a cost-allocation plan by which PJM Interconnection, L.L.C. (PJM), will allocate the costs incurred by Constellation Energy Generation, LLC (Constellation), to continue to operate dual-fuel Eddystone Units 3 and 4 (Eddystone Units) at its Eddystone, Pennsylvania, facility for 180 days beyond the units’ planned deactivation date, in compliance with emergency orders issued by the U.S. Department of Energy (DOE) under section 202(c) of the Federal Power Act. See PJM Interconnection, L.L.C., 192 FERC ¶ 61,157 (2025). During this continued operation, on July 23, 2025, the grid’s electricity load reached 160,560 megawatts, the highest load recorded since 2006. The Eddystone Units will now remain in operation until November 26, 2025.
DOE has issued similar emergency orders to power generation facilities in other states and will likely continue to do so as the Trump administration endeavors to address concerns about demand growth and power plant retirements. Environmental groups, including the Sierra Club, have advocated against cost-allocation plans such as the one created by PJM for the Constellation facility, arguing that prolonging the operation of these facilities will cause consumer energy prices to increase. PJM’s plan regarding the Constellation facility allows PJM to recover costs from consumers across PJM’s 13-state territory. FERC found PJM’s plan to be both just and reasonable. FERC’s decision approving the plan can be found here.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Mining
(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)
On July 14, 2025, the Pennsylvania Department of Environmental Protection (PADEP) announced that it had reduced its permit backlog by 98% since November 2023, from over 2,400 permit applications to fewer than 50. See News Release, PADEP, “Getting Permitting Done: DEP Reduces Permit Backlog by 98% and Has Reviewed Nearly 20,000 Permit Applications So Far This Year” (July 14, 2025). Three of the six PADEP regional offices (Southwest, South Central, and Southeast) have entirely eliminated their permit backlogs. Three specific initiatives launched by the Shapiro administration have allowed PADEP to reach this milestone:
- PADEP’s modernization of its permit review process by investing in new technologies, including the Permit Tracker (established January 2025) that allows applicants and residents to monitor the progress of permits as they move through the review process.
- The PAyback program (established November 2023), which assures a moneyback guarantee for permit applicants if an application is not acted on by PADEP in a set time frame. Between January 1, 2025, and October 21, 2025, PADEP decided on 32,690 applications.
- The Streamlining Permits for Economic Expansion and Development (SPEED) Program (established July 2024), which began accepting applications on June 30, 2025, allows applicants of select permits to use approved qualified contractors to conduct expedited initial application reviews. PADEP reviews recommendations from the qualified contractor and makes the final decision to approve or deny the permit or issue a technical deficiency letter to the applicant.
On August 20, 2025, PADEP announced the availability of SPEED program review for permit applications in four additional areas: (1) air quality, (2) dam safety, (3) oil and gas well pad construction, and (4) wetland encroachment. See News Release, PADEP, “Shapiro Administration Continues to Move at the Speed of Business by Launching Additional SPEED Permits” (Aug. 20, 2025). With these additions, SPEED reviews are now available for the following permit types:
- Chapter 127 Air Quality Plan Approvals (state only);
- Chapter 105 Waterway and Wetland Encroachment permits;
- Chapter 105 Dam Safety permits;
- Chapter 102 National Pollutant Discharge Elimination System (NPDES) general permits (PAG-01 and PAG-02) for stormwater discharges associated with construction activities;
- Chapter 102 Individual NPDES Permits (previously available);
- Chapter 102 Erosion and Sediment Control Permits; and
- Chapter 102 Erosion and Sediment Control General Permit (ESCGP) for earth disturbance associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities.
Reporting on prior milestones by PADEP in reducing permitting backlogs can be found in Vol. 42, No. 1 (2025) of this Newsletter.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Mining
(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)
On August 9, 2025, the Pennsylvania Department of Environmental Protection (PADEP) announced its intent to modify and reissue the National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Associated with Mining Activities (BMP GP-104). See 55 Pa. Bull. 5768 (Aug. 9, 2025). Under 25 Pa. Code § 92a.32, a mining operation is required to have an individual NPDES permit or coverage under a general NPDES permit if the site has expected or potential discharges associated with a mining operation that are composed entirely of stormwater. To be eligible for coverage under BMP GP-104, an operator must have a qualifying mining authorization (existing or pending), a mining license in good standing (or pending), and they must submit a complete notice of intent to PADEP’s local District Mining Office with a $250 fee. Mining authorization types eligible for BMP GP-104 coverage are coal and noncoal mining permits, small noncoal (and bluestone) permits, noncoal mining general permits, and coal and noncoal exploration activities.
PADEP’s current version of BMP GP-104 expires on March 27, 2026. PADEP plans to reissue BMP GP-104 with an effective date of March 28, 2026, and an expiration date of March 27, 2031. PADEP proposes only one substantive change to BMP GP-104: clarifying that certain permit types eligible for coverage under BMP GP-104 must meet the design standards in 25 Pa. Code ch. 102 (a two-year, 24-hour storm event) rather than the 10-year, 24-hour design storm event standard applicable to coal and large noncoal mines. This clarification applies to the following permits: Small noncoal; BMP GP-103 (Noncoal Short term construction); BMP GP-105 (Bluestone); BMP GP-106 (Reclamation of Forfeited Noncoal mines); and Government Financed Construction Contracts (GFCC). The comment period on the proposed permit closed on September 8, 2025.
Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
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.
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Reprinted with permission from the November 2025 issue of The PIOGA Press. All rights reserved.
