September 15, 2026

Pennsylvania Adopts SB 349 Setting Statewide Framework for Utility-Scale Solar and Preempting Local Ordinances and Regulations

Pittsburgh, PA

Renewables Alert

(by Anna Jewart and Mary Binker)

On July 20, 2026, Pennsylvania Governor Josh Shapiro signed into law Act 44 of 2026 (Senate Bill 349) intended to establish a uniform, statewide framework governing decommissioning of utility-scale solar projects, codified as new Chapter 43 of Title 27 of the Pennsylvania Consolidated Statutes, 27 Pa. C.S. §§ 4301–4307 (Act 44).  The new framework establishes mandatory decommissioning obligations for certain solar facilities, including phased financial assurance, and creates a path for development of a standard-form decommissioning plan.  Perhaps most importantly, Act 44 expressly preempts any county, municipal or other local government ordinance that materially impedes the Act’s purposes. 

I. Applicabilty.

Act 44 does not apply to all solar facilities that one might colloquially identify as “utility scale”.  First, Act 44 applies to the execution of any “solar energy facility agreement” executed after the effective date of the Act.  A “solar energy facility agreement” is defined as a “lease agreement between a grantee and a surface property owner that authorizes the grantee to operate a solar energy facility on leased property.”  Consequently, the Act does not appear to apply to solar projects on land owned by the facility operator.

Second, the Act expressly does not apply to facilities with a nameplate capacity of two megawatts AC (2MW) or less.  27 Pa. C.S. §4307(1).

Third, it includes a carve out for customer-generators as defined in Section 2 of the Alternative Energy Portfolio Standards Act (AEPS).  27 Pa. C.S.§4307(2).  Consequently, it does not appear to apply to commercial facilities operating under a Hommrich Rule, net-metering structure. See Hommrich v. …

September 5, 2026

One Year Later: How Pennsylvania’s Data Center Rules Are Rewriting Deal Terms

Pittsburgh, PA

TEQ Magazine

(By Kate Cooper)

When U.S. Senator Dave McCormick convened the Pennsylvania Energy and Innovation Summit in Pittsburgh in July 2025, more than $90 billion in new investment in AI infrastructure, energy generation, transmission and workforce development was announced. The message was that Pennsylvania is uniquely positioned in the national AI data center economy due to its abundant natural gas production, industrial redevelopment sites, available land, strategic location and skilled workforce.

A year later, that remains true. What has changed is the nature of the questions. The issue is no longer whether projects will come to Pennsylvania. It is whether power, permitting, transmission and local approvals can keep pace and, increasingly, who bears the cost and the risk when they cannot.

The scale of modern AI campuses is what changed the calculus. Facilities requiring hundreds of megawatts, and in some cases more than a gigawatt, of electric service do not fit comfortably within frameworks built for conventional industrial load. Over the past 12 months, the Commonwealth, its utility regulator and the regional grid operator have each moved to address that mismatch, and each has moved in the same direction: toward putting the cost and the risk of new load on the projects creating it. That shift is showing up in contracts well before it shows up in regulations.

Harrisburg Set Standards but Left the Rules Unfinished

In May, Governor Shapiro released the full Governor’s Responsible Infrastructure Development (GRID) Standards, first previewed in his February budget address. Projects seeking Commonwealth support must demonstrate commitments in four areas:

  • energy affordability:  projects should not shift electric costs onto existing ratepayers;
  • transparency and community engagement:  developers should coordinate early with local governments and residents;

    • …

September 3, 2026

PADEP Considering ASTM Standard Guide for Moving Sites to Closure for Petroleum UST Releases

Pittsburgh, PA

Environmental Alert

(by Tim Bytner)

On September 2, 2026, the Pennsylvania Department of Environmental Protection (PADEP) held a quarterly Storage Tank Advisory Committee (STAC) meeting wherein Thomas Shruben, Physical Scientist of the U.S. Environmental Protection Agency Office of Underground Storage Tanks, presented information on ASTM E3488-25 Standard Guide for Moving Sites to Closure (MStC) for Petroleum Underground Storage Tank (UST) Releases (ASTM E3488-25).  The purpose of the presentation was to provide a background of the standard to STAC members and inform the members of recent updates.

ASTM E3488-25 is intended to provide parties involved in the cleanup of petroleum releases from USTs, such as responsible parties and regulators, with guidance on methods to more quickly move through the remedial process and achieve closure of the site more quickly while remaining protective of human health and the environment.  For example, a site proceeding to closure using considerations of ASTM E3488-25 may contemplate the cessation of monitoring of a natural attenuation remedy if existing monitoring results demonstrate a trend toward the achievement of natural attenuation goals as opposed to the actual achievement of those goals.[1]

At the time of the STAC meeting, ASTM E3488-25 was adopted, to varying extents, only in North Carolina, Wisconsin, and Washington, DC.  A handful of state agencies, including the PADEP, are considering adopting the standard to some extent.  Consideration would have to be given to how the standard would integrate into a state’s existing statutory and regulatory framework prior to adoption of ASTM E3488-25 or portions thereof.[2]

The potential adoption and implementation of ASTM E3488-25 presents an interesting opportunity to progress sites that have had a petroleum release from USTs to closure in a faster and more efficient and cost-effective manner.  …

August 28, 2026

Cell Towers Stand or Fall Under the TCA: Commonwealth Court is Divided after Fall of Chevron Deference

Pittsburgh, PA

The Legal Intelligencer

(by Jenn Malik and Anna Jewart)

For most projects in Pennsylvania, deviation from the requirements of a zoning ordinance requires a variance under the Pennsylvania Municipalities Planning Code, 53 P.S. §10101 et seq.(“MPC”).  To obtain a variance, an applicant must meet all five criteria articulated in Section 910.2(a) of the MPC, including the “hardship criterion” – requiring that applicants demonstrate “unique physical . . . conditions. . . peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance . . .” 53 P.S. §10910.2(a)(1).  In rare circumstances, state or federal law may provide additional protections for a particular use outside of the MPC’s variance process.  Recently, the Commonwealth Court considered a matter involving local permitting for a cell tower which examined the interplay between the MPC and the federal Telecommunications Act of 1996, 47 U.S.C. §§151-624 & 641-646 (“TCA”). See T-Mobile S., LLC v. City of Roswell. Ga. 574 U.S. 293, 300 (2015) (the TCA is a limitation on the “’authority of state and local governments to regulate the location, construction, and modification’ of wireless communications facilities”).

Under the TCA, state and local governments retain general zoning authority; however, the TCA expressly limits that authority, stating “regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof — (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” 47 U.S.C. §332(c)(7)(A , §332(c)(7)(B)(i)(I-II).

The Federal Communications Commission (“FCC”) opined that a local government impermissibly prohibits wireless communication services where (i) a provider shows such relief is necessary to cover a gap in that provider’s coverage or (ii) to allow the provider to improve service to compete with other providers.   …

August 28, 2026

GRID Project Consent Order and Agreement: What Data Center Developers Need to Know

Pittsburgh, PA and Washington, DC

Data Center Development Alert

(by Kate Cooper, Ben Clapp, Anna Jewart and Peter Landau)

Governor Josh Shapiro issued Executive Order 2026-05 (EO), “Protecting Pennsylvania Consumers from Data Center Impacts” on August 18, 2026. Among other provisions, the EO requires that developers execute a project-specific Consent Order and Agreement with Pennsylvania Department of Environmental Protection (DEP) in order to benefit from an expedited review track created by the EO. For a more thorough discussion on the EO in general, see our previous Alert, “Pennsylvania’s New Data Center Executive Order: Two Tracks, One Choice” (Aug. 19, 2026).

On the same date, the Governor’s Office released the form Template GRID Project Consent Order and Agreement (COA) that developers must execute to qualify to have DEP permits reviewed on a rolling basis.  If the COA is not executed, the EO directs DEP not to begin reviewing any application until local approvals under the Municipalities Planning Code (MPC), Home Rule authority, as well as any required water withdrawal or wastewater discharge authorizations are complete and documented, and not to issue any permit until every application for the project has been received and reviewed by DEP.  The incentive to execute is therefore significant, but so is the cost.

The COA runs 33 pages and is wide-ranging, establishing requirements relating to energy procurement and usage, community involvement, environmental obligations relating to air emissions and water consumption, and compliance reporting obligations. While the EO has been the primary focus of market participants, close attention should be paid to the COA itself. The COA contains expansive requirements, substantial penalties, and a broad waiver of rights to challenge its substance after execution. …

August 26, 2026

PADEP Pilot Program Awarded $14 Million Federal Grant to Test Enhanced Geothermal Systems Model in Natural Gas Wells

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Gina Buchman and Matthew Wood)

On April 14, 2026, the U.S. Department of Energy (DOE) announced that a Pennsylvania Department of Environmental Protection (PADEP) pilot program would receive $14 million to evaluate the potential for cost-effective electricity generation via enhanced geothermal systems (EGS). Among the DOE-backed pilot programs, PADEP’s is the only one to “leverage the significant thermal resources in the Appalachian Utica Shale to assess the efficacy and scalability of EGS in the eastern United States.” Press Release, DOE, “U.S. Department of Energy Announces $14 Million for Enhanced Geothermal Systems Demonstration Project in Pennsylvania” (Apr. 14, 2026).

Geothermal energy utilizes the earth’s interior heat to create energy, is considered renewable, and produces negligible amounts of pollutants or carbon emissions. Specifically, PADEP will use this award to fund the conversion of a horizontal Utica Shale natural gas well to geothermal service and field testing needed to design and stimulate an EGS reservoir. Id. Testing will include engineering to determine well orientation and placement, and trials of fracture-creation techniques to enable fluid flow through hot rock for power generation. PADEP has indicated that because the project leverages existing oil and gas facilities, no additional land is required for the renewable generation facilities.

The PADEP pilot program will collect data on fracture performance, reservoir connectivity, fluid flow characteristics, well configuration effectiveness, and overall power production potential to determine whether a replicable EGS model can be scaled in similar eastern U.S. geologies. If successful, the project is intended to provide a replicable model to expand EGS deployment to other sites around the country and to expand knowledge and data about how EGS reservoirs function across geologies and subsurface conditions. …

August 26, 2026

PADEP Announces 400 Orphan and Abandoned Wells Plugged Under Shapiro Administration

Washington, DC and Pittsburgh, PA

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Gina Buchman and Matthew Wood)

On June 10, 2026, the Pennsylvania Department of Environmental Protection (PADEP) announced that 400 orphan and abandoned wells have been plugged since Governor Shapiro took office, with more wells plugged in the last three years than in the prior 11 years combined. See News Release, PADEP, “Plugging More Wells: Shapiro Administration Marks 400th Orphan and Abandoned Well Plugged, Continuing Historic Progress in Pennsylvania to Protect Public Health, Create Jobs, and Reduce Methane Emissions” (June 10, 2026). The four-hundredth well, located in North Fayette Township, Washington County, was plugged under an emergency contract after active methane leakage was identified in a residential neighborhood less than one mile from West Allegheny Middle School and High School.

Since the first commercial oil well was drilled in 1859 in Titusville, Pennsylvania, the conventional and unconventional oil and gas industries have drilled hundreds of thousands of wells across the commonwealth. Generally, Pennsylvania’s Oil & Gas Act requires a well owner to plug a well upon abandonment, i.e., if it has not been used to produce, extract, or inject any gas, petroleum, or other liquid within the preceding 12 months; if equipment necessary for production, extraction, or injection has been removed; or it is considered dry and not equipped for production within 60 days after drilling, redrilling, or deepening. 58 Pa. Cons. Stat. § 3203. An “orphan well” is defined as “[a] well abandoned prior to April 18, 1985, that has not been affected or operated by the present owner or operator and from which the present owner, operator or lessee has received no economic benefit other than as a landowner or recipient of a royalty interest from the well.” Id. …

August 26, 2026

Pennsylvania’s Natural Gas Act 13 Impact Fee Revenue Rose 48% in 2025

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Gina Buchman and Matthew Wood)

On June 9, 2026, Pennsylvania’s Independent Fiscal Office (IFO) reported impact fee revenues of $243.9 million for calendar year 2025, a 48% increase from the prior year. See IFO, “Impact Fee Update and Outlook” (June 2026). The increase was driven by a higher New York Mercantile Exchange-linked fee schedule and 442 new unconventional wells spud in 2025; an increase of 138 wells from the prior year. Id. Act 13 subjects new or “Year One” wells to the highest impact fee, making new wells an important measure for municipal governments.

The average annual NYMEX price was $3.43, triggering higher fees for most unconventional wells. In calendar year 2025 the average fee per well was $19,504, compared to $13,560 in 2024. Distributions for calendar year 2025 are allocated as follows:

  • $134 million to counties, municipalities, and the Housing Affordability and Rehabilitation Enhancement Fund;
  • $89.4 million to the Marcellus Legacy Fund;
  • $10.5 million to commonwealth agencies; and
  • $10 million to conservation districts and the State Conservation Commission.

Municipalities in Washington, Susquehanna, and Bradford counties received the majority of disbursements to local governments. See Pa. Pub. Util. Comm’n, “Act 13—Disbursements and Impact Fees,” here.

Although fees collected in 2025 represent a significant increase year-over-year, the total falls short of the record $278.88 million collected in 2022. Id. Between 2022 and 2023, the price of natural gas averaged $6.45 per British Thermal Unit, but prices declined in 2023 and remained lower through 2024.  …

August 26, 2026

PADEP Publishes Pennsylvania’s Proposed 2026 Annual Ambient Air Monitoring Network Plan

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Gina Buchman and Matthew Wood)

On June 20, 2026, the Pennsylvania Department of Environmental Protection (PADEP) published a notice in the Pennsylvania Bulletin of the availability of the 2026 Annual Ambient Air Monitoring Network Plan (Plan) for public comment. 56 Pa. Bull. 3692 (June 20, 2026). Under the Clean Air Act, states and the federal government work together in regulating air pollution.

To monitor compliance with the National Ambient Air Quality Standards (NAAQS), the U.S. Environmental Protection Agency (EPA) requires states to create a network of ambient air monitors to measure air quality. Pennsylvania’s Plan includes 63 stations in 39 counties and prioritizes new and expanded monitoring near industrial sources, including ozone, hydrogen sulfide, and PM2.5 monitoring sites. Each monitor has a statement of purpose and evidence that the monitor’s location and operation meets federal requirements pursuant to the national ambient air monitoring requirements codified at 40 C.F.R. pts. 53 and 58.

The Plan has been updated to address changes to Pennsylvania’s ambient air monitoring network and to identify changes anticipated to occur in the remainder of 2026 and in 2027. For example, PADEP plans to install a temporary Special Purpose Monitor at Fort McIntosh due to the proximity to major nitrogen dioxide emitting sources, including the Shell Pennsylvania Petrochemicals Complex in Beaver County.

The public comment period closed on July 20, 2026. After considering and responding to comments, PADEP will submit the final Plan to the regional EPA administrator for review and inclusion in Pennsylvania’s state implementation plan. …

August 26, 2026

PADEP Provides an Update on the OOOOc State Plan

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Gina Buchman and Matthew Wood)

The Pennsylvania Department of Environmental Protection (PADEP) provided an update on its OOOOc Final State Plan at the Air Quality Technical Advisory Committee Meeting on August 6, 2026.

As detailed in previous editions of this Newsletter, on March 8, 2024, the U.S. Environmental Protection Agency (EPA) finalized its rule targeting methane emissions from the oil and natural gas sector (the Methane Rule), which established New Source Performance Standards (NSPS) for facilities built, modified, or reconstructed after December 6, 2022 (OOOOb), as well as Emissions Guidelines (EG) (or model rule) for states to follow in designing and executing state plans for existing sources (OOOOc). 89 Fed. Reg. 16,820 (Mar. 8, 2024) (to be codified at 40 C.F.R. pt. 60); see Vol. 42, No. 3 (2025) and Vol. 41, No. 4 (2024) of this Newsletter. The Methane Rule applies to oil and gas facilities involved in production and processing (including equipment and processes at well sites, storage tank batteries, gathering and boosting compressor stations, and natural gas processing plants) and natural gas transmission and storage (including compressor stations and storage tank batteries). The Methane Rule requires frequent monitoring and repair of methane leaks at well sites, centralized production facilities, and compressor stations using established inspection technologies or, at an operator’s selection, novel advanced detection technologies. OOOOb applies to affected facilities that begin construction, reconstruction, or modification after December 6, 2022, while OOOOc (as implemented by state programs) will apply to sources existing as of that date. …

August 25, 2026

Federal Preemption Takes Center Stage

Washington, DC and Pittsburgh, PA

Litigation Alert

(by Nick McDaniel and Lucy Wiesner)

Federal preemption arguments are front and center in litigation involving regulated industries. Previously a largely defensive argument, asserted only where a federal statute expressly barred state regulation or where state and federal requirements were in clear conflict, the preemption doctrine is now being deployed more broadly. As courts embrace a more expansive view of federal authority, and as federal regulators grow more willing to step into or actively back litigation, preemption issues have become more common. The result is the continued development of case law, underscored last week by the Central District of California’s decision in California v. Wright, which denied California’s motion for preliminary injunction and held that an order issued by the Secretary of Energy under the Defense Production Act could lawfully preempt conflicting California law.

Background on the Preemption Doctrine

The preemption doctrine flows from the Constitution’s Supremacy Clause, which establishes the laws of the United States as the supreme law of the land notwithstanding any contrary state law. Courts recognize two general categories of preemption that function to invalidate state laws that interfere with, or run contrary to, federal law. Express preemption applies where federal law explicitly bars the state from regulating a particular activity. Implied preemption arises either where a federal scheme is so comprehensive that it leaves no room for state regulation (field preemption) or where compliance with both regimes is impossible or state law otherwise undermines congressional objectives (conflict preemption).

Whichever category applies, regulated entities typically deploy preemption in one of two ways: defensively, in response to a state enforcement action on the theory that the federal framework bars the state from enforcing its regulation; …

August 20, 2026

Calculating the Clock: Pennsylvania Supreme Court Tightens the Deadline for Appealing Collateral Orders

Pittsburgh, PA

The Legal Intelligencer

(by Joseph Schaeffer)

A missed deadline can be disastrous, which is why attorneys build entire systems to track deadlines and issue reminders. But even the best system fails if the deadline itself is miscalculated. That is precisely the risk highlighted by the Pennsylvania Supreme Court’s recent decision in Khalil v. Mary Jane Home Enrichment Center, No. 16 EAP 2025 (Aug. 5, 2026), which clarifies when the 30-day clock starts to run on an appeal from a collateral order—and along the way overrules a line of Pennsylvania Superior Court decisions that had let litigants wait.

Khalil traces back to a landlord-tenant dispute that began in the Philadelphia County Court of Common Pleas in January 2018. Sandra Khalil, proceeding pro se, alleged that her landlords retaliated against her after she reported unsafe housing conditions to the Philadelphia Housing Commission; the landlords answered with counterclaims of their own. Pro bono counsel later entered an appearance on Khalil’s behalf, and the case was transferred to arbitration. In May 2019, an arbitration panel ruled for the landlords on all claims and counterclaims.

Pro bono counsel advised Khalil of her right to appeal the arbitration award but made clear they would represent her no further. When Khalil filed a pro se notice of appeal in June 2019, her pro bono counsel filed a praecipe to withdraw that August.

Almost three years later, in July 2022, Khalil moved for extraordinary relief, asking the Court of Common Pleas to reinstate her pro bono counsel because they had withdrawn without leave of court, as required under Pa.R.C.P. 1012(b). The court denied that motion on procedural grounds, but granted a second motion seeking the same relief, entering an Order in January 2023 that struck the praecipe for withdrawal for noncompliance with Rule 1012(b). …

August 20, 2026

Five Babst Calland Attorneys Named as 2027 Best Lawyers® “Lawyer of the Year”, 49 Selected for Inclusion in the The Best Lawyers in America®, and Nine Named to Best Lawyers: Ones to Watch® in America

Pittsburgh, PA, Charleston, WV, Harrisburg, PA, and Washington, DC

Babst Calland is pleased to announce that five lawyers were selected as 2027 Best Lawyers® “Lawyer of the Year” in Pittsburgh, Pa. and Charleston, W. Va. 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 leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2027 Best Lawyers® “Lawyer of the Year” include:

Joseph G. Bunn – Mergers and Acquisitions Law “Lawyer of the Year” in Charleston, W. Va.

Matthew S. Casto – Litigation – Environmental “Lawyer of the Year” in Charleston, W. Va.

James V. Corbelli – Energy Law “Lawyer of the Year” in Pittsburgh, Pa.

Robert Max Junker – Land Use and Zoning Law “Lawyer of the Year” in Pittsburgh, Pa.

Gary E. Steinbauer – Litigation – Environmental “Lawyer of the Year” in Pittsburgh, Pa.

View the award recipients here.

In addition, 49 Babst Calland lawyers were selected for inclusion in the 2027 edition of The Best Lawyers in America®, the most respected peer-reviewed publications in the legal profession:

  • Stephen A. Antonelli – Employment Law – Management
  • Chester R. Babst III – Environmental Law, Litigation – Environmental
  • Mary H. Binker – Real Estate Law
  • Donald C. Bluedorn II – Environmental Law, Litigation – Environmental, Water Law
  • Lisa Bruderly – Energy Law, Environmental Law, Oil and Gas Law
  • Joseph G.

    • …

August 19, 2026

Pennsylvania’s New Data Center Executive Order: Two Tracks, One Choice

Pittsburgh, PA and Washington, DC

Data Center Development Alert*
(*updated August 20, 2026)

(by Kate Cooper, Ben Clapp and Anna Jewart)

On August 18, 2026, Governor Josh Shapiro signed Executive Order 2026-05, “Protecting Pennsylvania Consumers from Data Center Impacts.” Much of the initial coverage described the order as blocking data center development. The text is more nuanced, and the most consequential point for developers is that it restructures how projects move through state permitting and makes the Governor’s Responsible Infrastructure Development (GRID) Requirements the price of keeping a project on schedule.

The order applies to any data center project with peak demand over 25 megawatts (a notably lower threshold than the 50 MW trigger in PJM’s pending large-load rules), and it applies to permit and authorization applications submitted after August 18 — which reaches further than it may first appear. The trigger is the application, not the project: a development that already holds some Department of Environmental Protection (DEP) permits will likely find its remaining applications subject to the new process, and land use approvals already in hand do not appear to exempt a project from the new regime. Existing sales tax exemption certificates are not disturbed.

The Two Tracks
The GRID Requirements, released in May, are the Administration’s standards for data center development in four areas: energy affordability (projects bring their own new power supply and bear their own infrastructure costs), transparency and community engagement, workforce and economic development, and environmental protection. Two choices are available to any developer seeking DEP permits for a covered project.

  1. Commit to the GRID Requirements, and DEP will review your permit applications on a rolling basis, in parallel with your local approval process.

    2. …

August 19, 2026

D.C. Circuit Upholds EPA’s PFAS Listing

Washington, DC

Environmental Alert 

(by Sloane Wildman and Jordan Brown)

On August 18, 2026, the U.S. Court of Appeals for the D.C. Circuit upheld the U.S. Environmental Protection Agency’s 2024 decision to list two PFAS chemicals — PFOA and PFOS — as hazardous substances under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund).  As we previously reported, in January 2026 the D.C. Circuit held oral arguments in Chamber of Commerce of the United States of America v. EPA, No. 24-1193 (D.C. Cir.), in which various industry groups, including the U.S. Chamber of Commerce, challenged EPA’s final rule designating PFOA and PFOS as CERCLA hazardous substances. The industry groups argued that EPA’s designation was arbitrary and capricious and exceeded the Agency’s statutory authority under CERCLA, focusing in large part on EPA’s cost-benefit analysis and the rule’s anticipated financial impact. On appeal, the Court concluded that EPA acted within its authority to designate the chemicals as hazardous substances.

The hazardous substance designation for PFOA and PFOS fundamentally alters liability for the two substances. Substances designated as hazardous under CERCLA are subject to release reporting requirements, specific spill rules, release tracking requirements, and additional reporting mandates under other environmental statutes. In addition, the designation provides EPA with the authority to require potentially responsible parties, or PRPs, to abate and cleanup releases of PFOA or PFOS and for EPA, states, and private parties to pursue enforcement actions to recover cleanup costs from PRPs.

If the industry groups decide to appeal this decision, the case will head to the U.S. Supreme Court, which will then choose whether to review the case. …

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