Articles, Alerts & Perspectives Archive

PADEP Announces Use of PennEnviroScreen in Permit Review Processes

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)

On June 2, 2025, the Pennsylvania Department of Environmental Protection (PADEP) announced in its Environmental Justice Newsletter that its screening and mapping tool, PennEnviroScreen, is now fully integrated within PADEP permitting processes. The tool analyzes more than 30 environmental, health, and socioeconomic criteria to identify environmental justice communities, including location of pollution sources, air quality data, and poverty.

PADEP staff utilize the tool during the permit review process to determine where greater community engagement may be necessary. PADEP has also created a user guide for the public to assist use and understanding of the tool. See PADEP, “PennEnviroScreen At A Glance” (Sept. 2024). In September 2023, PADEP published its PennEnviroScreen Methodology Documentation to explain its rationale for the use of the tool to implement PADEP’s Environmental Justice Policy. PADEP intends to update the data source information used in PennEnviroScreen on an annual basis.

Commonwealth Court Finds Objectors May Have Standing to Intervene in Appeals of Zoning Enforcement Notices

The Legal Intelligencer

(by Blaine Lucas and Anna Jewart)

In accordance with Section 909.1 of the Pennsylvania Municipalities Planning Code (MPC), a municipal zoning hearing board (ZHB) possesses exclusive jurisdiction to hear and render final adjudications over a number of land use matters. Not only does a ZHB adjudicate applications for variances from, and special exceptions under, a zoning ordinance, it frequently operates in an appellate capacity as well. Among other matters, Section 909.1(3) vests a ZHB with exclusive jurisdiction over appeals “from the determination of the zoning officer” including “the issuance of any cease and desist order,” 53 P.S. §10909.1(3). In addition, the municipal zoning officer has the authority under Section 616.1 of the MPC, 53 P.S. §10616.1, to initiate enforcement proceedings against a person perceived to be in violation of the local zoning ordinance through issuance of an “enforcement notice.” Section 616.1(c)(5) requires that the “enforcement notice” include a statement of the right to appeal to the ZHB, and Section 616.1(d) articulates that in “any appeal of an enforcement notice to the zoning hearing board” the municipality shall have the responsibility of presenting its evidence first.

It is clear from a reading of both Sections 909.1 and 616.1 of the MPC that the ZHB has appellate jurisdiction over both an “enforcement notice” specifically, or any other “determination” of the zoning officer. However, the procedures and practice involved in the ZHB’s appellate review in these matters can be nuanced, and issues of interpretation of the relevant provisions of the MPC remain unsettled. A frequent issue is one of objector standing; i.e. who, beyond the appellant or applicant, is permitted to participate in a given case before a ZHB. In Heinzee, LLC v. Zoning Hearing Board of the Township of Pocono, 858 C.D. 2023, 2025 WL 2312938 (Pa. Cmwlth. Aug. 12, 2025)^[1], the Commonwealth Court recently considered whether parties other than the appellant are permitted to intervene in opposition to an appeal from a zoning enforcement notice before a ZHB.

Heinzee involved the alleged unpermitted expansion of a pre-existing non-conforming use. The landowner (Landowner) operated a shooting range that had been in operation prior to adoption of the Pocono Township (Township) Zoning Ordinance. It was alleged that the Landowner had expanded operations of the range without receipt of the necessary permits. The Township issued an enforcement notice under Section 616.1 of the MPC and the Landowner timely appealed to the Township Zoning Hearing Board (Board). At the beginning of the Board’s hearing on the appeal, a resident of the Township who resided within approximately 2,900 feet of the property (Neighbor) requested party status. The Board determined the Neighbor could hear gunshots from the property and that he may be affected by the Landowner’s appeal. The Board granted the Neighbor’s request for party status over objection of the Landowner. The Township utilized the Neighbor as its first witness in its case to uphold the enforcement notice. Ultimately, the Board voted to deny the appeal of the enforcement notice, and Landowner appealed to the Monroe County Court of Common Pleas (Lower Court). The Lower Court affirmed the Board’s determination that the Landowner had expanded and altered the non-conforming use. The Landowner appealed the Lower Court’s decision affirming the Board’s determination to the Commonwealth Court.

On appeal, the Landowner asserted that the Board erred in permitting the neighbor to intervene as a party to the appeal. The Commonwealth Court summarized the Landowner’s position on this issue to be that “because [the matter was] an enforcement action which the Township brought under its police powers, [the] dispute should only be between Landowner and the Township” and that “third parties should not be permitted to intervene in enforcement actions.” The Court rejected this argument, reasoning as follows:

“Section 908(3) of the MPC, however, which applies to all hearings before zoning hearing boards provides:

The Parties to [hearings before a zoning hearing board] shall be the municipality, any person affected by the application who has made timely appearance of record before the board, and any other person including civic or community organizations permitted to appear by the board…”

(emphasis and bracketed additions in original). The Court, relying in part on the Pennsylvania Supreme Court’s reasoning in its 2023 decision in Bethlehem Associates, L.P. v. Zoning Hearing Board of Bethlehem Township, 294 A.3d 441 (Pa. 2023), interpreted the “any other person” language in Section 908(3) to be “quite broad” and concluded that the Board did not err in granting the Neighbor party status in the appeal.

The Commonwealth Court’s discussion on this matter is sparse and does not address certain aspects of the MPC suggesting that the matter of objector-intervention in appellate matters before a ZHB may not be so simple. For example, the Court has previously looked to the differences between the use of “cease and desist order” in Section 909.1 versus “enforcement notice” in Section 616.1 of the MPC and found that they were not always synonymous. See Township of Robinson v. Esposito, 2010 A.3d 1146, 1150 n.7 (Pa. Cmwlth. 2019) (“a cease-and-desist letter may function as a Section 616.1 enforcement notice”) (emphasis added). Further, the Court did not address the use of the term “application” in Section 908(3), as opposed to the term “appeal” which is used in different contexts elsewhere in the MPC. See e.g. 53 P.S. §10908(3); (5). As of the date of writing, the landowner has not sought further appeal to the Pennsylvania Supreme Court, and these issues of statutory interpretation remain outstanding. It is advisable for any party seeking to intervene, or object to intervention in an appellate matter before a Pennsylvania ZHB, review the MPC and relevant jurisprudence closely as the issue remains a moving target.

Blaine A. Lucas is a Shareholder in the public sector, and energy and natural resources groups of Babst Calland. Contact him at 412-394-5657 or blucas@babstcalland.com. Anna S. Jewart is an associate in the public sector, and energy and natural resources groups of Babst Calland and focuses her practice on land use, zoning, and general municipal matters. Contact her at 412-253-8806 or ajewart@babstcalland.com.

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^[1]Reported opinion, official citation pending.

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Seven Babst Calland Attorneys Named as 2026 Best Lawyers® “Lawyer of the Year”, 47 Selected for Inclusion in the The Best Lawyers in America®, and Four Named to Best Lawyers: Ones to Watch® in America

Babst Calland is pleased to announce that seven lawyers were selected as 2026 Best Lawyers^® “Lawyer of the Year” in Pittsburgh, Pa. and Charleston, W. Va. (by BL Rankings). Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2026 Best Lawyers^®“Lawyer of the Year” include:

Joseph G. Bunn – Mining “Lawyer of the Year” in Charleston, W. Va.

Kevin J. Garber – Natural Resources “Lawyer of the Year” in Pittsburgh, Pa.

Jennifer J. Hicks – Energy “Lawyer of the Year” in Charleston, W. Va.

Robert Max Junker – Municipal “Lawyer of the Year” in Pittsburgh, Pa.

Jean M. Mosites – Environmental “Lawyer of the Year” in Pittsburgh, Pa.

Mychal S. Schulz – Litigation – ERISA “Lawyer of the Year” in Charleston, W. Va.

Steven B. Silverman – Information Technology “Lawyer of the Year” in Pittsburgh, Pa.

View the award recipients here.

In addition, 47 Babst Calland lawyers were selected for inclusion in the 2026 edition of The Best Lawyers in America^®, the most respected peer-reviewed publications in the legal profession:

Chester R. Babst III – Environmental Law, Litigation – Environmental
Donald C. Bluedorn II – Environmental Law, Litigation – Environmental, Water Law
Lisa Bruderly – Energy Law
Joseph G. Bunn – Banking and Finance Law, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, Business Organizations (including LLCs and Partnerships), Commercial Transactions / UCC Law, Corporate Law, Mergers and Acquisitions Law, Mining Law, Securitization and Structured Finance Law
A. A. Moore Capito – Corporate Law and Energy Law
Matthew S. Casto – Commercial Litigation, Energy Law, Litigation – Environmental
Frank J. Clements – Corporate Law
Kathy K. Condo – Commercial Litigation, Energy Law
James V. Corbelli – Commercial Litigation, Energy Law, Litigation – Environmental, Litigation – Regulatory Enforcement (SEC, Telecom, Energy)
Casey A. Coyle – Administrative / Regulatory Law and Appellate Practice
James Curry – Energy Law, Oil and Gas Law
Mark K. Dausch – Commercial Litigation
Julie R. Domike – Environmental Law, Litigation – Environmental
Kevin K. Douglass – Commercial Litigation, Energy Law, Natural Resources Law
Christian A. Farmakis – Corporate Law, Mergers and Acquisitions Law, Real Estate Law
Marc J. Felezzola – Construction Law, Litigation – Construction
Kevin J. Garber – Energy Law, Environmental Law, Litigation – Environmental, Natural Resources Law, and Water Law
Alyssa Golfieri – Real Estate Law
Steven M. Green – Energy Law
Jennifer Hicks – Commercial Litigation, Energy Law, Litigation – Regulatory Enforcement (SEC, Telecom, Energy)
Lindsay P. Howard – Environmental Law, Litigation – Environmental
Robert Max Junker – Land Use and Zoning Law, Municipal Law
Justine Kasznica – Corporate Law
Sean R. Keegan – Litigation – Labor and Employment
Stephen L. Korbel – Litigation – Labor and Employment
Blaine A. Lucas – Energy Law, Land Use and Zoning Law, Litigation – Land Use and Zoning, and Municipal Law
Ramonda C. Marling – Oil and Gas Law
John A. McCreary Jr. – Labor Law – Management
Sean M. McGovern – Environmental Law
Timothy M. Miller – Bet-the-Company Litigation, Commercial Litigation, Energy Law, Litigation – Environmental, Oil and Gas Law
Matthew Moses – Corporate Law, Mergers and Acquisitions Law
Jean M. Mosites – Energy Law, Environmental Law
Christopher B. Power – Arbitration, Commercial Litigation, Energy Law, Environmental Law, Litigation – Environmental, Litigation – Land Use and Zoning, Litigation – Municipal, Litigation – Regulatory Enforcement (SEC, Telecom, Energy), Mining Law, Natural Resources Law, Oil and Gas Law
Joseph K. Reinhart – Energy Law, Environmental Law, Litigation – Environmental, Natural Resources Law
Bruce F. Rudoy – Corporate Law
Charles F.W. Saffer – Oil and Gas Law, Real Estate Law
Marnie S. Schock – Corporate Law, Real Estate Law
Mychal Sommer Schulz – Commercial Litigation, Litigation – ERISA, and Litigation – Labor and Employment
Mark D. Shepard – Bet-the-Company Litigation, Commercial Litigation, Litigation – Environmental, Mediation
Steven B. Silverman – Commercial Litigation, Information Technology Law
Gary E. Steinbauer – Litigation – Environmental
Laura Stone – Corporate Law
Harlan S. Stone – Municipal Law
Robert M. Stonestreet – Commercial Litigation, Energy Law, Environmental Law
David E. White – Construction Law, Litigation – Construction
Richard S. Wiedman – Energy Regulatory Law
Michael H. Winek – Environmental Law

View the award recipients here.

Four Babst Calland lawyers were also named to the 2026 Best Lawyers: Ones to Watch^® in America which recognizes associates and other lawyers who are earlier in their careers for their outstanding professional excellence in private practice in the United States:

Andrew C. DeGory – Commercial Litigation
Alexandra G. Farone – Commercial Litigation, Litigation – Labor and Employment
Kristen L. Petrina – Corporate Law, Technology Law
Christina M. Puhnaty – Environmental Law

View the award recipients here.

Best Lawyers undergoes an authentication process, and inclusion in The Best Lawyers in America® is based solely on peer review and is divided by geographic region and practice areas. The list has published for more than three decades, earning the respect of the profession, the media, and the public as the most reliable, unbiased source of legal referrals. Its first international list was published in 2006 and since then has grown to provide lists in over 65 countries.

Key Environmental and Energy Policies in the Second Trump Administration

PIOGA Press

(by Ben Clapp and Gary Steinbauer)

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

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

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

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

Executive orders 101

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

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

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

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

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

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

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

National Energy Policy Act (NEPA) law reform.

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

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

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

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

Emergency Permitting

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

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

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

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

Key deregulatory actions

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

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

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

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

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

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

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

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

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

Inevitable litigation

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

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

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

How the Trump administration is shaping EPA

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

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

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

Keeping pace with ongoing policy developments

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

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

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

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

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

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Federal Office of Surface Mining Proposes to Restore Coal Mine Regulatory Oversight Rules

Environmental Alert

(Christopher (Kip) Power and Robert Stonestreet)

Recognizing the “diversity in terrain, climate, biologic, chemical and other physical conditions” among the States in which coal is mined, the federal Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201, et seq. (“SMCRA”) specifies that governmental responsibility for regulating the coal industry “should rest with the States.” SMCRA § 101(f). To accomplish that, SMCRA provides for delegation of primary regulatory authority (or “primacy”) to a State if its regulatory program meets national standards. 30 U.S.C. § 1253. Residual oversight authority is vested in the Department of the Interior’s Office of Surface Mining Reclamation and Enforcement (“OSM”), which was created to ensure that primacy states adequately maintain and enforce their approved State programs and to inspect and possibly intervene where problems are reported at specific mine sites that the State regulatory authority (“SRA”) has failed to address.

The rules governing the exercise of OSM’s oversight authority with respect to primacy States under SMCRA may soon change. On June 16, 2025, OSM published a proposal to revise those regulations, essentially seeking to restore them to the form that existed prior to promulgation by the Biden administration of its own changes to those rules, entitled “Ten-Day Notices and Corrective Action for State Regulatory Program Issues” (89 Fed. Reg. 24714, April 9, 2024) (the “2024 TDN Rule”). The comment period on the proposed changes to unwind the 2024 TDN Rule closed on July 16, 2025. 90 Fed. Reg. 25174 (June 16, 2025).

Under SMCRA, if OSM has reason to believe that there may be a violation of the approved State program at a particular mine site that has not been adequately addressed by the SRA, OSM is authorized to issue a ten-day notice (or “TDN”) to a SRA. The TDN describes the alleged violation and provides the SRA with ten days to investigate and either take appropriate action to cause any violation to be addressed, or to explain to OSM why no such action was determined to be necessary (e.g., because the alleged violation no longer exists or never did exist).

In contrast to SMCRA, the 2024 TDN Rule amended the federal regulations so that OSM may issue TDNs to SRAs based on programmatic (rather than site-specific) concerns. Moreover, for the first time it allows citizens to request that OSM issue TDNs without notifying the appropriate SRA of the matter and allowing the State to investigate and attempt to resolve it. Taken together, these regulations create a scenario in which OSM may issue a TDN on the basis of an alleged permit defect that has no connection to any asserted environmental problem at a specific mine site. In addition to allowing third parties to circumvent the permit appeal process available under State laws, TDNs issued on that basis generally take more time to investigate and resolve with OSM, diverting limited State resources away from permitting, inspection and enforcement.

These and other changes made by the 2024 TDN Rule are the subject of a pending legal challenge filed by 14 primacy States in the U.S. District Court for the District of Columbia (State of Indiana, et al. v. Burgum, Civ. Action No. 1:24-cv-01655 (RBW)). On June 12, 2025, Judge Reggie B. Walton issued an Order staying that litigation and vacating all deadlines for briefing in that case, on the basis of the defendants’ stated intent to publish what became the June 16, 2025 proposal. It is likely that once the current proposal is finalized, this civil action will be dismissed as moot. Of course, if OSM finalizes its pending changes and substantially reverts to the 2020 version of OSM’s oversight regulations, it is also reasonable to assume that those groups who intervened to defend the 2024 TDN Rule will challenge such a move. Judge Walton may wish to keep his docket open.

For questions about OSM’s proposal or other issues arising under SMCRA, OSM regulations or counterpart State regulatory programs, please contact Christopher B. (Kip) Power at (681) 265-1362 or cpower@babstcalland.com; Robert M. Stonestreet at (681) 265-1364 or rstonestreet@babstcalland.com; or your Babst Calland relationship attorney.

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

Environmental Alert

(by Gary Steinbauer, Gina Buchman and Christina Puhnaty)

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

Summary of Deadline Extensions

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

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

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

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

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

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

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

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

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

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

Environmental Groups’ Challenge

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

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

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

Key Environmental and Energy Policies in the Second Trump Administration

Pittsburgh Business Times

(by Ben Clapp and Gary Steinbauer)

Executive orders 101

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

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

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

National Energy Policy Act (NEPA) law reform.

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

Emergency Permitting

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

Key deregulatory actions

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

Inevitable litigation

How the Trump administration is shaping EPA

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

Keeping pace with ongoing policy developments

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

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

Business Insights is presented by Babst Calland and the Pittsburgh Business Times.

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Clearing the Air on Public Nuisance and Preemption: A Look at Climate-Change Litigation in Pa. and Beyond

The Legal Intelligencer

(by Casey Alan Coyle and Stefanie Pitcavage Mekilo)

According to the United Nations, climate change “is the defining issue of our time.” https://www.un.org/en/global-issues/climate-change (last visited July 28, 2025). Yet views diverge over precisely what the solutions to the issue should be—and who is authorized to pursue them. Over the years, efforts to address climate change have taken many forms, from international agreements to federal statutes to interstate compacts. As policies evolve, some state and local governments have begun exploring novel theories through existing doctrine—including the law of public nuisance—for a pathway to seek relief, through individual courts, for alleged climate‑related harms. Several recent decisions, however, reveal that the legal landscape remains in flux, with courts charting different courses through the crosswinds of federal law.

Federal Common Law and the Displacement Doctrine

Despite the proclaimed extinction of “federal general common law” in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal common law still exists today in certain areas of national concern. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 410–421 (2011). One such area is the general subject of environmental law and, specifically, ambient or interstate air and water pollution. Id. Thus, federal common law can apply to transboundary pollution suits, and they are often based on a theory of public nuisance. Under federal common law, a public nuisance is defined as “unreasonable interference with a right common to the general public.” Restatement (Second) of Torts § 821B(1) (1979).

The right to assert a federal common-law public nuisance claim is not without limits, however. Where Congress has addressed a particular federal issue by statute, “there is no gap for federal common law to fill,” and the federal common law—and any implied right of action arising thereunder—are displaced. Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 856 (9th Cir. 2012). The test for whether congressional legislation displaces federal common law is “whether the statute speak[s] directly to [the] question at issue.” Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978).

In American Electric Power Co. v. Connecticut (“AEP”), 564 U.S. 410 (2011), the U.S. Supreme Court applied these displacement principles in the climate-litigation context. The AEP Court held that the Clean Air Act (“CAA”), and the Environmental Protection Agency (“EPA”) action it authorizes, displace any federal-common law public nuisance abatement action involving greenhouse gas emissions, adding: “federal judges may [not] set limits on greenhouse gas emissions in [the] face of a law empowering [the] EPA to [do] the same.” Id. at 424, 429. Similarly, in Kivalina, the Ninth Circuit Court of Appeals held that the CAA displaces any federal common-law public nuisance damage action concerning greenhouse gas emissions on field preemption grounds. In doing so, the Ninth Circuit determined that displacement of federal common law does not turn on the nature of the remedy, but on the cause of action itself. Notably, however, neither decision addresses whether the CAA preempts state common-law public nuisance claims.

State-Law Climate Claims in the Shadow of Federal Preemption

In the wake of AEP, several state and local governments have filed suits against fossil-fuel companies under state tort law seeking damages for the effects of global climate change, including, among others, the State of California, People ex rel. Bonta v. ExxonMobil Corp., No. CGC-23-609134 (Cal. Super. Ct. S.F. Cnty.); the State of Delaware, State ex rel. Jennings v. BP Am. Inc., No. N20C-09-097 MMJ CCLD, 2024 WL 98888 (Del. Super. Ct.); the State of Rhode Island, State v. Chevron Corp., No. PC-2018-4716 (R.I. Super. Ct.); the City of Baltimore, Mayor & City Council of Balt. v. B.P. P.L.C., No. 24-C-18-004219 (Balt. Cir. Ct.); the City of New York, City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021); the City and County of Honolulu, City & County of Honolulu v. Sunoco LP, No. 1CCV-20-0000380-LWC (Haw. 1st Cir.); Boulder County, Colorado, Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., No. 2018CV30349 (Colo. Dist. Ct.); and the New Jersey Attorney General, Platkin v. ExxonMobil Corp., No. MER-L-001797-22 (N.J. Super. Ct.). Two distinct lines of authority have emerged from these efforts.

On one front are the courts that have rebuffed state-law tort claims as being preempted by federal law. In City of New York, the City instituted a state-law tort suit against five oil companies to recover damages caused by their production and sale of fossil fuels around the world. The Second Circuit Court of Appeals held that the CAA displaces the City’s claims, concluding that “[a]rtful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions,” and that “[s]uch a sprawling case is simply beyond the limits of state law.” 993 F.3d at 91, 92, 96.

Several state courts have reached the same result. In Jennings, for example, the State of Delaware filed a state-law tort action against several fossil-fuel companies seeking damages, due to out-of-state or global greenhouse emissions and interstate pollution. The Delaware Superior Court held that the claims were preempted by the CAA and thus “beyond the limits of Delaware law.” 2024 WL 98888, at *9. And in Mayor & City Council of Baltimore, the Circuit Court for Baltimore City rebuffed a similar suit against 25 national and international fossil-fuel companies, holding that “the Constitution’s federal structure does not allow the application of state law claims like those presented by Baltimore,” and that “[g]lobal pollution-based complaints were never intended by Congress to be handled by individual states.” Baltimore, No. 24-C-18-004219, Mem. Op. & Order, slip op. at 11, 12.

A second set of decisions follow a different path. In City & County of Honolulu v. Sunoco LP, 537 P.3d 1173 (Haw. 2023), for instance, the Hawaii Supreme Court concluded that while the CAA had displaced federal common law, it did not preempt state-law tort claims, so the plaintiffs’ public nuisance and other state-law tort claims against fossil-fuel producers could proceed. 537 P.3d at 1203, 1208. And just two months ago, the Colorado Supreme Court echoed that holding in allowing similar claims to proceed. Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy USA, Inc., No. 24SA206, ___ P.3d ___, 2025 WL 1363355, at *6–8 (Colo. May 12, 2025). In reaching their decisions, both courts rejected the defendants’ characterization of plaintiffs’ claims as targeting emissions-producing activities, instead agreeing with the plaintiffs that, at bottom, their claims concerned deceptive marketing and failure to warn.

Climate-Change Litigation in Pennsylvania

That current of climate-change litigation has now found its way to Pennsylvania. In 2024, Bucks County filed suit against several fossil-fuel companies and a trade association, asserting claims for public nuisance, among others. Bucks County alleged that the defendants engaged in a decades-long campaign to “discredit the scientific consensus on climate change; create doubt in the numbers of consumers, the media, teachers, and the public about the climate change impacts of burning fossil fuels; and delay the energy economy’s transition to a lower-carbon future.” Bucks County v. BP P.L.C., No. 2024-01836, Compl. ¶ 1 (Bucks Cnty. Ct. Com. Pl.). Per the complaint, this purported campaign “drove up greenhouse gas emissions, accelerated global warming, and brought about devastating climate change impacts to Bucks County.” Id. The defendants responded by filing preliminary objections on various grounds, including federal preemption.

The trial court sustained the preliminary objections, holding “today we join a growing chorus of state and federal courts across the United States, singing from the same hymnal, in concluding that the claims raised by Bucks County are not judiciable by any state court in Pennsylvania” and are “solely within the province of federal law.” Bucks County, No. 2024-0183, Decision & Order, slip op. at 11, 15. In reaching that conclusion, the court relied upon the holding in AEP, even though the Supreme Court had expressly acknowledged that none of the parties briefed preemption or otherwise addressed the availability of state-law nuisance claims. The trial court thus found that the CAA “preempts Pennsylvania State law in this case.” Id. at 13.

The trial court rejected Bucks County’s argument that its case “does not seek to regulate or abate [greenhouse gas] emissions” but instead involves “Defendants’ deceptive marketing campaign.” Bucks County, No. 2024-0183, Pl.’s Br. in Resp. to Defs.’ Joint Opening Br. at 1–2. The court noted that Bucks County’s complaint used the word “emissions” more than 100 times; its counsel conceded at oral argument that advertising, production, transportation, and sale of the defendants’ fossil fuel products did not harm the County; and according to its counsel, it is the combination of current emissions and emissions from many years ago that caused the alleged damages to Bucks County. Citing City of New York, the court reasoned that “artful pleading cannot transform [Bucks County’s] Complaint into anything other than a suit over global greenhouse gas emissions.” Bucks County, No. 2024-0183, Decision & Order, slip op. at 14.

The trial court concluded by writing: “[O]ur federal structure does not allow Pennsylvania law, or any State’s law, to address the claims raised in Bucks County’s Complaint. … Thus, this court lacks subject matter jurisdiction because the claims raised by Bucks County are preempted by federal law.” Id. at 16.

What’s Next?

Bucks County appealed to the Pennsylvania Superior Court on June 13, 2025. Although a briefing schedule has not yet been issued, it is anticipated that merits briefing will conclude before the end of the year, with oral argument to follow. However the Superior Court rules, its decision may help to clear the air on what role state law has to play—if any—in climate-related nuisance litigation.

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Casey Alan Coyle is a shareholder at Babst, Calland, Clements and Zomnir, P.C. He focuses his practice on appellate law and complex commercial litigation. Coyle is also a former law clerk to Chief Justice Emeritus Thomas G. Saylor of the Pennsylvania Supreme Court. Contact Coyle at 267-939-5832 or ccoyle@babstcalland.com.

Stefanie Pitcavage Mekilo is a litigation associate at the firm. She focuses her practice on complex commercial litigation, environmental litigation, and energy litigation, regularly representing businesses in high-stakes disputes in state and federal courts and administrative tribunals throughout the country. She is also a former law clerk to John E. Jones and Christopher C. Conner of the U.S. District for the Middle District of Pennsylvania. Contact her at 570-590-8781 or smekilo@babstcalland.com.

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A Glimpse Into the Future of Data Centers and Energy Innovation

OnRAMP Magazine

(by Jonathan Kersting featuring Moore Capito)

It’s no secret that data centers play a crucial role in our everyday lives. From managing the data behind our social media posts to controlling critical infrastructure, they have become integral to our existence. With the increasing demand for technology and computing power, there’s a surge in need for new, energy-hungry data centers. This demand is projected to outpace the entire power consumption of major cities, signaling a pressing challenge for our current energy infrastructure.

Recently, I had the opportunity to delve into a conversation with Moore Capito, a shareholder at Babst Calland, specializing in corporate, energy, and emerging technologies, about this very transformation.

With Capito’s hands-on energy sector experience and insights into emerging technologies, he focuses his corporate legal practice on leveraging fossil fuel resources with cutting-edge developments to effectively support critical infrastructure like data centers. Prior to Babst Calland, Moore served as in-house counsel for one of the largest oil and gas production companies in West Virginia, giving him deep firsthand knowledge of energy operations in the Appalachian Basin.

The Modern-Day Gold Rush

“Interestingly, the growth of data centers has been likened to a modern-day gold rush,” says Capito. He notes how developers, energy companies, and technology giants are racing to find strategic locations to build new centers, taking advantage of regions rich in fossil fuels. For the first time, we can take the data center to the power. And that’s where West Virginia and Western Pennsylvania have a great opportunity.”

With the availability of land, access to existing power infrastructure, and potential for expansion, Capito explains, West Virginia and Western Pennsylvania regions may become central hubs in the race to address the energy and infrastructure demands of burgeoning data centers near and far.

Capito says the demand for electricity is spurring technological advancements that could revolutionize how we produce, store, and distribute power. By removing subsidies and leveling the playing field for all energy producers, we are no longer picking winners and losers. This will foster innovation to meet the growing energy needs. An “all-of-the-above” approach means everyone should have a chance to compete for this market demand. This, according to Capito, involves leveraging existing fossil fuels while renewables continue to develop and exploring nuclear energy as viable pathways to sustainability.

“With all of these demands that we have right now [for energy], we’re going to see great innovation because we didn’t have the baseload needs to create and innovate and expand like we do now,” says Capito. “There’s a real opportunity for any industry in that, ‘all of the above’ category to really show their chops and innovate. Because at the end of the day, we need all the energy we can get.”

Tackling Regulatory Hurdles

The expansion of data centers and evolution of energy infrastructures cannot occur in a vacuum. Capito says regulatory frameworks must evolve to keep pace with the speed of development. Addressing permitting efficiency is crucial to ensuring that new projects move forward swiftly and effectively.

“There’s a consensus that both state and federal governments need to align their regulatory processes to foster timely data center expansion,” he says. “But again, this is all going to be determined by speed. And we know that private industry and business are going to want to go to the place where they can do something the most efficiently and effectively.”

Capito notes that among the various energy solutions, nuclear energy stands out as a promising contender. Despite its historical stigma, advancements in micro and small modular reactors could offer a safe and efficient means to generate power. However, significant hurdles, particularly in the permitting and regulatory domains, need to be overcome for nuclear energy to realize its full potential, he said.

Capito’s conversation about data centers and energy infrastructure highlights not just the challenges but also the incredible opportunities that lie ahead. To capitalize on this digital gold rush, Capito says it is critical to leverage our fossil fuel advantage, harness innovation, streamline regulatory processes, and capitalize on regional strengths.

As we look to the future, one sentiment rings clear: we need energy any way we can get it.

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Navigating Local Permitting Roadblocks to Renewable Energy Deployment in Pennsylvania

Allegheny County Bar Association- Lawyers Journal

(By Anna Jewart)

Over the past several years, developers have targeted the vast rural and undeveloped lands of Pennsylvania for renewable energy development. Yet, Pennsylvania lags behind the rest of the country in terms of renewable energy deployment. Beyond well-reported issues involving grid-interconnection and permitting backlogs, those seeking to develop renewable energy in the Keystone State often experience deal-killing roadblocks early on during local land use permitting.

Pennsylvania law recognizes that effective use of zoning power typically requires expertise and knowledge of local conditions, making it uniquely suited to local regulation. Outside the broad framework established by the Pennsylvania Municipalities Planning Code, 53 P.S. §10101, et seq., (“MPC”) and rare statutory exceptions, the two-thousand-plus municipalities in Pennsylvania are each free to determine if and how to regulate land use matters within their borders. This means that unlike most areas of the law, the rules may change entirely the moment you cross a municipal line.

This decentralized legal framework creates challenges for renewable development, which has faced significant NIMBY-ism over the past several years. In response, many municipalities have sought to make renewable development untenable or even impossible through adoption of onerous land use regulations. While many states have expressly limited municipal discretion in renewables siting through adoption of state-wide permitting or statutory protections, Pennsylvania has not.

However, generally applicable land use jurisprudence does help protect against unreasonable local regulation. First, municipalities cannot expressly prohibit renewable energy uses. Ordinances that attempt to do so are de jure exclusionary, and unconstitutional. Second, an ordinance that appears to permit a use, but under conditions that it cannot in fact be accomplished may be found to be de facto exclusionary. Ordinances often attempt to make renewable development impossible through the imposition of high setbacks, minimum lot sizes, or lot coverage restrictions. Others restrict renewables to zoning districts unsuitable for these uses or impose prohibitions on the use of prime agricultural soils or steep slopes, further limiting the land available. Exclusionary zoning ordinances may be challenged through a “substantive validity” challenge brought before the municipal governing body or zoning hearing board pursuant to the MPC, or one may petition the municipality for a voluntary amendment.

A third manner in which municipalities may seek to restrict renewable development is through the imposition of onerous application requirements. These may include the submission of environmental studies, interconnection studies, or detailed plans and designs not readily available at the early phase of development during which local land use approval processes occur. Others require third-party permitting prior to approval, which might not be practical or legally possible. Ordinances that attempt to duplicate or supplant county, state, or federal regulations may be challenged under a preemption theory, and established land use jurisprudence directs that a lack of third-party permitting is not grounds for denial but should be imposed as a condition of approval. Challenges to these types of provisions can generally be brought in the same manner as a challenge to an exclusionary ordinance.

An increasingly popular fourth way in which municipalities try to limit, or profit from, renewable energy development is through the imposition of high “application”, “impact”, or “host benefit” fees. Municipalities increasingly attempt to impose five or even six figure “application” fees for solar and wind applications. Others have sought to have developers pay a yearly fee per megawatt hours generated. Municipal fees are required to be reasonably related to the administrative costs associated with them. Excessive fees may be challenged. While other states have implemented authorization for renewable energy “community benefit agreements” or “impact fees” payable to the host municipality, Pennsylvania has not. As creatures of statute, municipalities lack the authority to exceed the powers granted to them by the General Assembly and cannot, as the law stands today, require a developer to pay out a yearly fee.

The fifth most common way in which municipalities attempt to limit or restrict renewable development applies to those that have not adopted a local zoning ordinance. Many municipalities without a zoning ordinance adopted pursuant to the MPC have adopted “standalone” ordinances with zoning-type restrictions on renewables. These ordinances often purport to be adopted pursuant to the municipal enabling act under which the municipality was created, such as the Second Class Township Code, 53 P.S. §65101-§70105. Pennsylvania courts have long held that the regulation of land use must be done within the guardrails of the MPC, and case law further indicates that statutes like the Second Class Township Code do not on their own authorize the regulation of uses not expressly addressed therein. As they fall outside the parameters of the MPC, standalone ordinances may be challenged as either procedurally or substantively defective in the local court of common pleas.

As it stands today, successful renewables deployment in Pennsylvania depends in part on developers’ ability to weave through a wide array of local regulations intended to dissuade development. While this is an uphill battle, it can be won with proper planning and coordination. Review of local regulations should occur prior to execution of any lease or lease option agreement and should be monitored closely for changes as development progresses. Often, adverse ordinance provisions are reactionary or adopted in response to political pressure and fears, which can be calmed through positive engagement and education. Therefore, public engagement is key, and permitting risks can be mitigated by early outreach to local stakeholders, including municipal officials, solicitors, and neighboring property owners.

Anna S. Jewart is an associate in the public sector and energy and natural resources groups of Babst Calland and focuses her practice on land use, zoning, and general municipal matters with a particular focus on solar energy development.

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Reprinted with permission from the July 25, 2025 Allegheny County Bar Association’s Lawyers Journal.

EPA Extends CCRMU Compliance Deadlines and Clarifies Free Liquids Guidance

Environmental Alert

(by Ben Clapp, Gary Steinbauer and Mackenzie Moyer)

On July 22, 2025, the U.S. Environmental Protection Agency (EPA) published a Direct Final Rule and a Companion Proposal in the Federal Register to extend certain compliance deadlines for coal combustion residual (CCR) management units (CCRMUs) regulated under EPA’s May 2024 Legacy CCR Rule, under which certain inactive CCR surface impoundments and landfills became subject to federal regulation under existing EPA CCR rules. The Direct Final Rule is effective on January 22, 2026, unless EPA receives adverse comments by August 21, 2025. Comments are also due on the Companion Proposal by August 21, 2025.

As described in detail in an earlier Babst Calland Environmental Alert, CCRMUs are inactive CCR landfills and other land-based disposal areas that had previously not been regulated under EPA’s CCR rules. Under the Legacy CCR Rule, facilities covered under the rule are required to conduct an extensive, two-part investigation known as a Facility Evaluation Report (FER) to determine whether CCRMUs are present and therefore subject to the groundwater monitoring, corrective action, closure, and post-closure care requirements in EPA’s CCR rules.

The Direct Final Rule allows facilities to submit both sections of the FER at the same time, provided that both reports are submitted no later than February 8, 2027. Facilities were initially required by the Legacy CCR Rule to submit Part 1 of the FER by February 9, 2026, and Part 2 of the FER by February 8, 2027. EPA is also extending the deadline for groundwater monitoring requirements (groundwater monitoring system installation, development of sampling program, and initiation of monitoring) for CCRMUs until August 8, 2029, from the original deadline of May 8, 2028, on the grounds that the original deadline did not provide sufficient time to come into compliance. Consistent with that extension, EPA has also revised the deadline for completing the initial groundwater monitoring and corrective action report to January 31, 2030, from January 31, 2029, extended the deadlines for preparing closure and post-closure care plans to February 8, 2030, from November 8, 2028, and extended the deadline for initiating closure to August 8, 2030, from May 8, 2029.

Along with the Direct Final Rule, EPA also published a Companion Proposed Rule which would serve as the Proposed Rule to adopt the provisions in the Direct Final Rule if adverse comments are received. In the Companion Proposed Rule, EPA is seeking comment on an alternative to extend the deadline to prepare Part 2 of the FER by 12 months and whether to extend the other compliance deadlines in the Legacy CCR Rule.

Additionally, on July 10, 2025, EPA published a memorandum providing important clarifications on its previously released memorandum entitled Considerations for the Identification and Elimination of Free Liquids in Coal Combustion Residuals (CCR) Surface Impoundments and Landfills (40 CFR Part 257, Subpart D) (“Free Liquids Memo”). The Free Liquids Memo was published by EPA in the docket for the final Legacy CCR Rule.

The presence or absence of free liquids in a CCR disposal unit is critical to determining the threshold question of whether the unit is a legacy surface impoundment subject to the Legacy CCR Rule, and to whether a legacy impoundment may be closed with CCR remaining in place. The Free Liquids Memo provided regulated entities with information on EPA’s views regarding available methods for determining whether free liquids are present in CCR units, as required by the CCR regulations. In the July 10^thclarifying memorandum, EPA acknowledges that the Free Liquids Memo caused confusion, including among the regulated community. EPA’s July 10^th memorandum provides that the Free Liquids Memo “does not impose legally binding requirements on the EPA, states, or the regulated community. It is not a regulation, nor does it augment or modify the existing regulations.” Importantly, EPA states that the Free Liquids Memo should not be relied upon or used by EPA personnel when implementing the regulatory requirements in the CCR rules. EPA also intends to provide further clarification on the “free liquids” issue at another time.

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

White House Releases Sweeping AI Action Plan

Firm Alert

(by Susanna Bagdasarova and Justine Kasznica)

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

Guiding Principles

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

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

Key Policy Initiatives

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

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

Strategic Takeaways

The Action Plan highlights the administration’s intent to make artificial intelligence a central pillar of national policy. For businesses, the framework provides new opportunities, incentives, and challenges, including:

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

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

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

President Trump also highlighted his administration’s AI strategy during his first major speech on AI at a White House AI summit on Wednesday afternoon and signed three AI-related executive orders which correlate with various Action Plan directives.

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

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

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

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

The Environmental Quality Board Evaluates Petition that Proposes Further Setbacks for Unconventional Oil and Gas Operators

The Legal Intelligencer

(By Alex Graf and Morgan Madden)

On October 22, 2024, the Clean Air Council (CAC) and Environmental Integrity Project (EIP) (collectively, “Petitioners”) filed a rulemaking petition with the Pennsylvania Environmental Quality Board (EQB) to increase minimum setback distances from unconventional oil and gas wells. The EQB is a 20-member independent board chaired by the Secretary of the Pennsylvania Department of Environmental Protection (PADEP) and is the body responsible for adoption of all PADEP regulations. Petitioners assert in their submission that alleged health impacts, in addition to alleged groundwater and surface water pollution, associated with unconventional oil and gas wells require the EQB to take action to increase minimum setback distances.

At present, Section 3215 of the 2012 Oil and Gas Act, 58 Pa.C.S.A. § 3215, establishes the setbacks from unconventional oil and gas wells, measured horizontally from the vertical well bore, at 500 feet from buildings and 1,000 feet from water supply extraction points, water wells, surface water intakes, and/or reservoirs. Petitioners seek to expand the current setbacks to require that any unconventional oil or gas well be at least 3,281 feet from any building and/or drinking water well, 5,280 feet from any building serving vulnerable populations, and 750 feet from any surface water of the Commonwealth. While the rulemaking petition does not explicitly define what constitutes “surface water,” it generally contends that the EQB’s authority to protect Pennsylvania’s water extends broadly over waters of the Commonwealth.

More specifically, the Petitioners have requested that the EQB promulgate regulations under Title 25 of the Pennsylvania Code, 25 Pa. Code §§ 78a.1, et seq., to increase the minimum setback distances, arguing that the EQB has broad authority under the Oil and Gas Act to promulgate regulations governing the development of oil and gas resources in Pennsylvania. Indeed, Section 3274 of the Oil and Gas Act is one sentence in length and simply states that, “[t]he Environmental Quality Board shall promulgate regulations to implement this chapter.” 58 Pa.C.S.A. § 3274. Several industry interest groups submitted comments to the EQB on the rulemaking petition on this point, arguing that the EQB lacks statutory authority under the Oil and Gas Act to expand, contract, or alter the statutory setback requirements.

The rulemaking petition submitted by Petitioners heavily relies on the 2020 43rd Statewide Investigating Grand Jury Report (Grand Jury Report), issued following an omnibus investigation overseen by then-Attorney General, now Governor, Josh Shapiro. The Grand Jury Report detailed the investigation into PADEP’s regulatory oversight of the fracking industry over a two-year period and analyzed findings that government agencies failed to exercise proper oversight of the unconventional oil and gas industry. As a result, the Grand Jury Report outlined eight recommendations for legislative, executive, and administrative action by the Commonwealth, the first of which was to “take action to expand the no-drill zone between fracking and homes from 500 to 2,500 feet and to adopt a more protective no-drill zone of 5,000 feet for schools and hospitals.” It is worth noting that in PADEP’s rebuttal to the Grand Jury Report, it highlighted that there were no findings of wronging on PADEP’s part and stated that it failed as a “meaningful tool for improving the regulation of the unconventional gas industry” because the report was not informed by the applicable law or facts.

Before the EQB (or any government regulatory agency) can promulgate rules, there are several significant regulatory review steps petitions must work their way through before an agency can promulgate a rule that amends an existing regulation. Generally, the EQB has the authority to refuse to accept a rulemaking petition for review for a number of reasons, which include (1) whether the EQB has considered the issue within the previous two years; (2) whether the action requested by the petition is currently in litigation; (3) whether the action requested is inappropriate for EQB review due to policy or regulatory considerations; or (4) whether the petition involves an issue previously considered by the EQB and the petition does not contain new information to warrant reconsideration. 25 Pa. Code § 23.5. As discussed below, the rulemaking petition submitted by Petitioners could potentially implicate one of the enumerated refusal bases, but it has yet to be seen how the EQB will move forward on the petition.

On November 21, 2024, PADEP made the administrative determination that the rulemaking petition itself complied with the EQB petition policy. That policy addresses administrative aspects of petitions including (1) that all rulemaking petitions to be heard by the EQB are complete, (2) that the petition requests an action to be taken that falls within the purview of the EQB, and (3) that the requested action does not conflict with federal law. 25 Pa. Code § 23.2. The determination on the part of PADEP that Petitioners rulemaking petition complied with the petition policy does not mean, however, that the EQB has accepted the rulemaking petition for review.

After PADEP determined that the petition was compliant, it recommended to the EQB that the EQB accept the petition for further study at the April 8, 2025 meeting of the EQB. At that meeting, Petitioners were given the opportunity to present to the EQB their reasons for why the EQB should accept their rulemaking petition. During their presentation, Petitioners heavily focused on the alleged adverse health and environmental consequences of unconventional oil and gas development. Despite the presentation, Public Utility Commission (PUC) Commissioner Kathryn Zerfuss, a member of the EQB, moved to table the Petition, reasoning that she wished to give the EQB additional time to consider the petition given the complexity of the issues at stake.

To move the petition forward again, the rules of order prescribe that a member of the EQB will have to move to un-table the petition to advance the petition for consideration at the next regularly scheduled EQB meeting. The EQB meeting scheduled for July 8, 2025, has been cancelled, and the next meeting is scheduled to take place on August 12, 2025.

If the EQB ultimately accepts the petition for review at the August EQB meeting, notice of acceptance will be published in the Pennsylvania Bulletin within 30 days of that decision. 25 Pa. Code § 23.6. Within 60 days of the EQB decision, PADEP will be required to prepare a formal report evaluating the petition and including a recommendation on whether the EQB should approve the action requested in the petition. Id. In the event PADEP needs additional time to prepare its report, it may take that time; however, PADEP would have to report to the EQB at its next regularly scheduled meeting how much additional time it will require to complete the report. Id. If the recommendation is to amend the regulation, the report shall specify the anticipated date the EQB would consider a proposed rulemaking. Id.

If issued, a copy of the PADEP final report will be sent to Petitioners, and the Petitioners may opt to submit a written response to the report for the EQB’s consideration within 30 days. 25 Pa. Code § 23.7. If PADEP’s report recommends regulatory amendments, it will prepare a proposed rulemaking within six months of sending the report to the Petitioners. 25 Pa. Code § 23.8. If no regulatory amendments are recommended, PADEP will present its report at the next EQB meeting that occurs at least 45 days after it mailed its report to the Petitioners. Id.

Thus, the timeline for complete review and decision making on the rulemaking petition is somewhat uncertain given the EQB’s tabling of the issue and subsequent meeting cancellations. EQB action on the rulemaking petition has been largely administrative up to this point, so its substantive position on the rulemaking petition in the context of current setbacks from unconventional oil and gas wells remains to be seen.

Alexandra N. Graf is an associate in Babst Calland’s Environmental Practice Group and focuses her practice on federal and state permitting, regulatory compliance, environmental due diligence, and environmental litigation. Contact her at 412-394-6438 or agraf@babstcalland.com.

Morgan M. Madden is an associate in Babst Calland’s Public Sector, Energy and Natural Resources, and Employment and Labor groups and focuses her practice on land use, zoning, planning, labor and employment advice, and litigation. Contact her at 717-868-8381 or mmadden@babstcalland.com.

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Employer Guidance for Workplace Interactions with ICE

Contractor’s Compass

(by Steve Antonelli and Alex Farone)

The Trump administration’s efforts to prioritize immigration law enforcement has resulted in increased activity by U.S. Immigration and Customs Enforcement (“ICE”) and an uptick of questions from employers about how to handle ICE investigations. This article provides guidance to employers for potential interactions with or inspections by ICE at the workplace, including preliminary actions, suggested steps during an ICE visit (whether announced or unannounced), and follow-up recommendations.

There is a common misconception that only employers that specifically seek or intentionally hire unauthorized workers are at risk of a visit from ICE. However, there are multiple avenues by which a generally law-abiding employer may find itself unknowingly employing an unauthorized worker. For example, an individual may have presented the employer with fraudulent documentation for the Form I-9 employment eligibility verification, and the employer may not have realized the document was inauthentic. Or an employer may have lawfully hired a noncitizen with proper employment paperwork but later may forget to reverify the worker’s Form I-9; in this instance, the individual’s work authorization could lapse or expire without the employer noticing.

To the extent an employer’s office or work facility is private property, employers have certain legal rights when faced with an ICE arrival. Employers should become familiar with their rights and best practices in the event of an ICE visit to minimize the risk of inordinate disruption to the workforce or operations, or the unauthorized seizure of company property and information. Employers should seek to balance (1) lawful compliance and cooperation with (2) private property rights and a general duty of care for employees.

Babst Calland recognizes that the topics of immigration enforcement and undocumented persons have been politicized. We therefore offer this guidance objectively, without advocating for any particular position beyond what is legally required.

Recommended Precautionary Actions Before ICE Arrives

Designate Public and Private Spaces

ICE agents can only be present in areas open to the public (such as parking lots, reception areas, lobbies, etc.) without a judicial warrant or specific employer consent. Therefore, employers should clearly identify the boundaries of non-public areas with signs such as “Private” or “Non-Public Area” to avoid ambiguity. Once signs are posted, management should explain these “new” boundaries or designations to the workforce, with special emphasis on its explanation to security guards, receptionists, and other public-facing employees.

Understand the Types of Documents ICE Could Present

With a few exceptions, ICE generally cannot lawfully search persons or private spaces, or seize persons or private property, without certain documentation.[1] As explained below, employers should ensure that key personnel are trained to identify and/or differentiate these documents.

A judicial warrant provides the broadest search and/or seizure rights. A judicial warrant can be either a search warrant or an arrest warrant. A judicial warrant must be signed and dated by a judge or magistrate, and it must describe with particularity the place to be searched and/or the person or items to be seized. A judicial warrant will have the name of a court at the top of the document. Only a valid judicial warrant permits an ICE agent to enter private/non-public spaces at the workplace, and only a valid judicial warrant requires the employer’s cooperation. An employer must strictly comply with a judicial warrant, but it is not required to take any action to assist ICE beyond what is reasonably required by the judicial warrant. For example, an employer can be required to move an employee identified in the warrant into a contained area for questioning, but it cannot be required to sort employees into groups by citizenship status or nationality for an inspection by ICE.

An administrative warrant is much more limited than a judicial warrant. An administrative warrant is signed by an immigration officer, and it allows ICE to arrest a non-citizen suspected of committing immigration violations. An administrative warrant is usually identified as a document “issued by the Department of Homeland Security” and is typically on a Form I-200 or I-205. Notably, an administrative warrant does not give an ICE agent the right to enter private/non-public spaces at the facility unless the employer consents.[2] Additionally, when faced with an administrative warrant, an employer is not required to tell ICE whether the employee named in the warrant is currently working or to bring the employee to the agent (or vice versa).

Alternatively, ICE could present an employer with a subpoena, a notice of inspection, or a notice to appear. A subpoena is a written request for information or documents that provides a certain time limit to respond and does not require immediate compliance. Like a subpoena, a notice of inspection is a document informing an employer that it must produce employees’ I-9 Forms for an audit[3] within 3 business days. A notice to appear is a document directed to an individual instructing them to appear before an immigration judge.

Assign An On-Site Response Coordinator

Employers should assign a particular managerial or supervisory employee at each facility to be the on-site response coordinator who can serve as a single point of contact with ICE in the event that ICE arrives, as well as a back-up coordinator if the designated worker is absent or unavailable. These personnel should be trained to differentiate between the above-described documents, and to understand and be aligned with the employer’s policy for lawful compliance with visits from ICE.

Review Applicable Collective Bargaining Agreements

For any locations that have a unionized workforce, employers should review the applicable collective bargaining agreements (CBAs) proactively to determine whether they require any additional conduct by the employer in the event of an ICE visit. For example, some CBAs might include provisions that give the union the right to be present during any ICE inspections or on-site employee interviews, or require that the employer notify all union employees when ICE agents arrive. Any additional CBA requirements should be implemented with the below recommended actions for facilities with unionized employees.

Recommended Actions If ICE Arrives

*All recommended actions below should be conducted in a calm, professional, and polite manner to prevent escalation of the interaction.*

Notify key personnel – The first step is to immediately notify the facility supervisor, the on-site response coordinator(s), and the employer’s legal counsel. Ask the agents to wait in a specific space or designated location until either a supervisor, on-site response coordinator, or legal counsel arrives to prevent disruption.

Verify agent identify – The response coordinator should clarify whether the agents are police officers or ICE agents and request their names and badge numbers.

Department of Homeland Security (DHS) regulations require ICE agents to, at the time of an arrest, identify themselves as immigration officers with arresting authority if it is “practical and safe to do so.” However, agents are not currently required to provide their name or badge number.
Recently, there has been an increase in reported instances of ICE agents concealing their faces, wearing plainclothes, and/or arriving in unmarked vehicles when making arrests. The DHS Assistant Secretary for Public Affairs has stated to news outlets that ICE agents are utilizing masks and face coverings to protect themselves from increasing threats and online doxing. Employers should be aware of this trend and train the on-site response coordinator to anticipate this possibility.

Verify agent purpose – The response coordinator should ask the agents about the nature of their visit. Common purposes include:

Initiation of Form I-9 Audit – If ICE intends to audit a company’s Form I-9 compliance, ICE must first provide the employer with a Notice of Inspection. This notice document gives the employer at least 3 business days to produce the requested I-9 Forms.[5] Additional productions and procedures will ensue if ICE determines that there are any Form I-9 errors, suspicious documents, or discrepancies, and employers should consult with an immigration attorney for further guidance if this occurs.
Facility Search or “Raid” – ICE can arrive without warning to investigate an employer.
Detention of specific person(s) – ICE can arrive without warning to detain specific person(s).
Fraud Detection and National Security (FDNS) visit – this is an unannounced visit related to an employer’s recent immigration petition(s) where ICE agents conduct compliance reviews to ensure the employer is complying with the terms and conditions of the petition(s). This article does not address such visits, as FDNS visits are only relevant for employers who have had an H-1B or L-1 intracompany transfer petition(s) adjudicated.

Verify documentation – The response coordinator should ask to see a warrant.

If a judicial warrant is provided, the employer should analyze it to determine its scope and ask for a copy of it. Employers are not required to provide access to any area not specified in a judicial warrant.
- If there is an issue with the judicial warrant (i.e. it is not signed, not dated, is missing the correct workplace address, or does not sufficiently describe the premises to be searched or items to be searched for), an employer can accept the warrant but should note its objection so that counsel can challenge the search or seizure later if sufficient grounds exist. To be clear, in this instance, the search or seizure will still occur.
If an administrative warrant is provided, the response coordinator can (but is not required to) state: “I’m sorry, but this is private property. It is company policy not to provide consent or permission to enter private or non-public areas of the facility or to access our information or records without a valid warrant signed by a judge.”
If no warrant of any kind is provided, the response coordinator can (but is not required to) make the same statement.

Use independent judgment if considering voluntary consent.

Employers can decide to voluntarily consent to a search or seizure of employer property by ICE without a sufficient warrant. Moreover, ICE agents are permitted to make statements intended to encourage voluntary consent or to imply that giving consent is required even in circumstances where it is not (such as when the agents do not possess a judicial warrant).
If considering consenting to a search or seizure without a sufficient warrant, employers should use independent judgment to evaluate the totality of the circumstances in addition to any statements made by the agents.
Please note that non-management and non-supervisory employees do not have the authority to act on behalf of an employer to give such consent.

Be respectful, but clear, if exercising the company’s rights.

Never attempt to block an ICE agent’s movements. If an employer believes ICE is exceeding its authority, the response coordinator can voice the employer’s objection and state that the company does not consent, but they should not argue and never physically interfere with the agent’s actions.
If a search is to occur (whether pursuant to a valid warrant, voluntary consent, or over the employer’s objections in the absence of both), ask to be provided with a list of any items seized.
If agents attempt to seize something that is critical to company operations (such as a computer, proprietary information, or an important file), explain why the item is critical to the company’s operations, request a more limited or targeted seizure, and/or ask to make a copy of the information before it is seized.
Employers can notify employees that they have the right to remain silent, but employers cannot instruct employees not to respond to questions. Company representatives should not be confrontational, obstructive, or evasive.
Though ICE agents are not currently required to wear body cameras, employers and employees alike have the right to record an encounter with ICE. Consider recording interactions with ICE agents to clearly document all statements and actions. Efforts to record an encounter should never interfere with the agents’ activities.

Recommended Actions After ICE Visit

Document as much as possible – The response coordinator should interview employees and make a record of the details of the event in an incident report. The report should include details such as the number of agents, a description of what they were wearing, whether the agents kept anyone from moving around the workplace freely, a detailed list of the locations of any search (including smaller spaces such as closed drawers), a detailed description of any property seized, a detailed list of statements made by the employer declining consent or asserting legal rights, and any statements made by the agents.

Follow-up notifications – The employer should call its legal counsel immediately to discuss next steps. If the workplace is unionized, the employer should notify the union steward that ICE visited the workplace.
Engage and encourage open communication with and among the workforce – Employers should be open and honest with the workforce about what occurred. In addition to individual instances of absenteeism, fear of action by ICE may lead to employees discussing their concerns or voicing disagreement with the employer’s response (or potential response) to ICE. Employers must be aware that certain employee collective action (discussions, protests, other concerted activity, etc.) may be protected under the National Labor Relations Act if it relates to the terms and conditions of employment, even for non-union workers or those who may not be authorized to work in the U.S.

Provide reasonable leave – If ICE detains a worker, consider providing the worker with an unpaid leave of absence during and in the immediate aftermath of the detention. While not legally required, an employer could consider handling the matter in a manner similar to how it might provide or allow leave in the event of a sudden medical issue or other unexpected absence. Failure to provide such comparable leave could give rise to a claim for national origin discrimination. Employers are never, however, required to provide an indefinite leave of absence.

If you have any questions about additional employer guidance concerning workplace investigations by ICE or any other federal or state agency, please contact Alexandra G. Farone at (412) 394-6521 or afarone@babstcalland.com or Stephen A. Antonelli at (412) 394-5668 or santonelli@babstcalland.com.

This article is reprinted with permission from the July 2025 issue of Contractor’s Compass and Babst, Calland, Clements and Zomnir, P.C. for educational purposes. This information is not designed to be, nor should it be considered or used as a substitute for specific legal advice. All rights reserved. Attorney Advertising.

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[1] While police officers are allowed to search and arrest without a warrant in the event of different types of emergencies such as while in “hot pursuit” of a criminal suspect, ICE agents are not police officers (regardless of whether their uniforms say “Police”). ICE agents may not search and seize without a warrant if they are merely in “hot pursuit” of a suspected undocumented person. Under applicable law, this type of warrantless search or seizure by ICE is only permitted if the agent is in “hot pursuit” of an individual who “poses a public safety threat” or who the agent personally observed crossing the border.

[2] One key exception is the “in plain view” principle. With or without a warrant, ICE agents are always allowed to look at anything in “plain view,” including computer screens or papers sitting out on desks, or listen to audible conversations that can be overheard without a listening device. If what the agent sees or hears in “plain view” gives them probable cause that unlawful activity is, has, or will occur, they can search the relevant private area and seize relevant items without a warrant.

[3] The Form I-9 is a document used to verify the identity and employment eligibility of individuals within the United States. Federal law requires employers to create and maintain I-9 Forms and supporting documentation for all employees.

[4] As of the date of this publication, federal legislation has been introduced to require ICE agents to wear a legible identification that displays the employing agency name/acronym and either the agent’s last name or badge number. This proposed bill also would prohibit non-medical face coverings that obscure identity unless the agents are faced with environmental hazards or are engaged in covert operations.

[5] Employers are cautioned against voluntarily consenting to a search or seizure of Forms I-9 if ICE agents do not have a judicial warrant for this information or if the 3-day period after receiving a Notice of Inspection has not yet expired. The Form I-9 rules are nuanced and strict, and it is very common for employers to unknowingly violate a rule due to an unintended error on the forms or in record-keeping. Employers can be subject to monetary fines for substantive violations and any uncorrected technical violations regardless of whether the violation was intentional.

Amidst EPA’s Reconsideration, PADEP Publishes Proposed State Plan for Greenhouse Gas Emissions from Existing Oil and Natural Gas Facilities

PIOGA Press

(by Gary Steinbauer and Gina Buchman)

On May 31, 2025, the Pennsylvania Department of Environmental Protection (PADEP) published notice of opportunity for public comment on its Proposed State Plan for 40 CFR Part 60, Subpart OOOOc Emissions Guidelines for Greenhouse Gas Emissions from Existing Crude Oil and Natural Gas Facilities in the Pennsylvania Bulletin. 55 Pa.B. 3810.

PADEP is obligated to undertake this rulemaking pursuant to section 111(d) of the Clean Air Act and its implementing regulations, which require states to establish, implement, and enforce standards of performance for existing sources of a pollutant for which emission guidelines have been issued by the United States Environmental Protection Agency (EPA). In March 2024, EPA published Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review. 89 Fed. Reg. 16820 (Mar. 8, 2024). This rule, referred to by some as the “Methane Rule,” established new New Source Performance Standards regulating greenhouse gases (GHGs) and volatile organic compounds (VOCs) emissions for the Crude Oil and Natural Gas source category that begin construction, reconstruction, or modification after December 6, 2022 (referred to as OOOOb) and emission guidelines for states to use in developing, submitting, and implementing state plans to establish standards of performance to limit GHG emissions (in the form of methane) from sources existing as of December 6, 2022 in the Crude Oil and Natural Gas source category (referred to as OOOOc). OOOOb and OOOOc are very similar as it relates to methane reduction. States, industry trade groups, and oil and gas companies have challenged the Methane Rule, and these challenges are pending before the D.C. Circuit Court of Appeals.

States can either adopt EPA’s model emission guidelines as their state plan or develop their own standards that are equally as or more stringent than the federal model rule. States may apply standards less stringent than those included in OOOOc by taking into consideration the remaining useful life (RULOF) of the regulated facilities, or classes of regulated facilities in their plans. The state must demonstrate to EPA that each such facility (or class of such facilities) cannot reasonably achieve the degree of emission limitation in the model rule due to (1) unreasonable cost of control resulting from plant age, location, or basic process design; (2) physical impossibility or technical infeasibility of installing necessary control equipment; or (3) other circumstances specific to the facility. 40 C.F.R. § 60.24a(e).

The state must also demonstrate that there are fundamental differences between the information specific to these facilities (or class of such facilities) and the information EPA considered in determining the degree of emission limitation achievable in the model emission guidelines. Id. If the state has made the required demonstration, it may apply a less stringent standard of performance, but it must be no less stringent than necessary to address the fundamental differences identified and set a standard of performance in the form required by the applicable emission guideline. 40 C.F.R. § 60.24a(f). If the state applies less stringent standards based on an operating condition(s) within the designated facility’s control, such as remaining useful life or restricted capacity, the state’s plan must also include requirements for the implementation and enforcement of such operating condition(s), such as requirements for monitoring, reporting, and recordkeeping. 40 C.F.R. § 60.24a(g).

EPA promulgated regulations outlining the specific process for RULOF demonstrations in 2023 to give states greater clarity on and predictability for applying less stringent standards of performance consistent with CAA Section 111. 88 Fed. Reg. 80,480. In the preamble to that 2023 final rule, EPA acknowledged that the OOOOc emissions guidelines “address large, complex, and highly diverse source category[y].” 88 Fed. Reg. at 80, 512. As such, EPA suggested that RULOF may play a more significant role in state plans for OOOOc. Id.

PADEP has chosen to adopt EPA’s model OOOOc emissions guidelines as its Proposed State Plan, while also seeking comments on whether RULOF should be considered in establishing a standard of performance in its State Plan “for any facility or class of facilities that would be regulated.” Operators that believe that they own and operate oil and natural gas facilities that should be subject to differing standards under a RULOF analysis, should consider providing as much information as possible to PADEP in the public comment period regarding unreasonable costs of control resulting from facility age, location, and design, infeasibility of installing equipment, and other specific details that would be relevant to such analysis.

In the Proposed State Plan, PADEP explains that it believes OOOOc, as part of the New Source Performance Standards, to be adopted by reference under 25 Pa. Code §122.3 and the Department has the statutory and regulatory authority to adopt the OOOOc performance standards through its federally enforceable plan approval, state operating permits, Title V permit programs, or general permits. The Department intends to develop General Plan Approval(s)/Operating Permit(s) that would incorporate the OOOOc model rule and the compliance, monitoring, recordkeeping, and reporting requirements required by federal regulation. PADEP says that it intends to collaborate with industry in developing these permits and will provide opportunity for public comment. What is not clear, however, is whether there will be additional opportunity for public comment regarding the State Plan that is submitted to EPA regarding its findings on RULOF.

A copy of the Proposed State Plan is available on the DEP eLibrary. The Proposed State Plan is 193 pages and includes various appendices. The Department will accept written comments on the proposed plan for a 60-day comment period, which closes on July 30, 2025. In addition, the Department is holding seven public hearings on its proposal in June and July, where the public can provide comments on the proposal. Further information regarding these hearings and registration can be found on the Department’s website.

As of the date of this article, PADEP must submit its state plan to EPA by March 9, 2026, with compliance deadlines in 2029. However, less than one week after the Department opened its Proposed State Plan for comment, the federal Office of Management and Budget received what it describes as the EPA’s interim final rule to extend deadlines in OOOOb and OOOOc. In the past, EPA has issued interim final rules for rules related to the Agency’s organization, procedure, or practice. These interim final rules typically become effective upon publication in the Federal Register or 30 days after publication and provide a relatively short period for submission of public comments. EPA has followed prior interim final rules with a final rule that considers and responds to comments submitted on the interim rule. Although EPA’s interim final rule that is undergoing review by OMB has not been released to the public, it may extend the current March 9, 2026, deadline for the Department to submit the Proposed State Plan to EPA under 40 C.F.R. § 60.5362c.

Babst Calland’s Environmental Practice Group is closely tracking PADEP’s Proposed State Plan and EPA’s pending interim final rule, and our attorneys are available to provide strategic advice on how these actions may affect the oil and gas industry in Pennsylvania and can assist with drafting and submitting comments on PADEP’s proposal. For more information or answers to questions, please contact Gary Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com or Gina Buchman at (202) 853-3483 or gbuchman@babstcalland.com.

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Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.

Necessary

Always Enabled

Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.

Cookie	Duration	Description
cookielawinfo-checkbox-analytics	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional	11 months	The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy	11 months	The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.

Functional

Performance

Analytics

Others