Articles, Alerts & Perspectives

Pittsburgh, PA

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Mining

(by Joe Reinhart, Sean McGovern and Christina Puhnaty)

In November 2024, the Pennsylvania Department of Environmental Protection (PADEP) submitted to the Pennsylvania Environmental Quality Board (Board) a proposed rule that would establish notification requirements for persons reporting unauthorized discharges to waters of the Commonwealth under 25 Pa. Code § 91.33. Section 91.33 currently requires the person responsible for an unauthorized discharge to immediately notify PADEP if a discharge results in pollution, creates a danger of pollution of the waters of the Commonwealth, or would damage property. PADEP’s proposed rule references 40 C.F.R. § 117.3 to identify a list of reportable substances and quantities that require immediate PADEP notification if discharged into waters of the Commonwealth and outlines five categories of factors for consideration when determining if an unauthorized discharge does not require immediate PADEP notification. Those five categories are:

1. properties of the substance or substances involved;
2. location or locations involved;
3. weather conditions before, during and after the incident;
4. presence and implementation of adequate response plans, procedures or protocols; and
5. duration of the accident or other activity or incident.

PADEP’s preamble to the proposed rule provides that

[i]f any single one of the following factors, or a combination of the factors, can adequately establish that there is no risk of the substance reaching waters of the Commonwealth, no further analysis of the other considerations is necessary to determine that immediate Department notification is not required. This may be the case when a spill occurs into secondary containment or where a spill response plan is used to immediately capture all of a substance with low mobility. …

Pittsburgh, PA and Washington, DC

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Matthew C. Wood)

On November 21, 2024, the Pennsylvania Department of Environmental Protection (PADEP) notified the Clean Air Council (CAC) and Environmental Integrity Project (EIP) that the agency had reviewed their rulemaking petition requesting amendments to 25 Pa. Code Chapter 78a and determined that it complies with the petition policy of the Environmental Quality Board (EQB). Letter from PADEP (Nov. 21, 2024). Specifically, in October 2024, CAC and EIP submitted a rulemaking petition to increase the minimum setback distances from unconventional oil and gas wells to 3,281 feet from any building and drinking water well; 5,280 feet from any building serving vulnerable populations, e.g., schools, daycare centers, and hospitals; and 750 feet from any surface water of the Commonwealth. See Clean Air Council and Environmental Integrity Project Petition (Oct. 22, 2024) (Petition). Current setback requirements include 500 feet from buildings and 1,000 feet from water supply extraction points.

In their petition, CAC and EIP cite the 2020 43rd Statewide Investigating Grand Jury Report (43rd Grand Jury Report) that concluded, among other things, that the Commonwealth “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.” Petition at 2 (citing the 43rd Grand Jury Report at 93–94). They also allege that the people living near unconventional oil and gas wells experience negative health consequences, that the wells release dangerous pollution, and the wells contaminate surface and groundwater, and for these reasons, the EQB should increase the minimum setbacks to protect public health and public resources. …

Washington, DC and Pittsburgh, PA

The Drill Bit Magazine

(by Sloane Wildman, Joseph Schaeffer and Jessica Deyoe)

The final year of the Biden administration saw several significant developments related to the regulation of per- and polyfluoroalkyl substances, more commonly known as PFAS. These developments included the U.S. Environmental Protection Agency’s designation of the two most common PFAS compounds as hazardous substances under federal cleanup laws and its limitation of six PFAS compounds under federal drinking water regulations, among others. The past year also saw a growing number of PFAS-related lawsuits, which are currently in various stages of litigation. What could happen to all these developments in 2025? Can the Trump administration change these rules and policies? What about the numerous PFAS related lawsuits that have been filed in the past year?  This update takes a look at some of the more significant PFAS-related developments from the past year and considers what might happen in 2025 and beyond.

What are PFAS and what were the prior administration’s PFAS priorities?

The term “PFAS” encompasses thousands of manmade chemicals.  PFAS compounds have been widely used for decades in various applications, including manufacturing water-, stain-, and heat-resistant consumer products, e.g., waterproof clothing and food packaging, and as ingredients in aqueous film forming foams (known as AFFF) used to extinguish certain kinds of chemical fires. There is research indicating that exposure to certain PFAS, which are prevalent and persistent in the environment, may cause various health-related impacts. In an effort to address the impacts related to PFAS, in 2021, the Biden administration published a “PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024” identifying a number of regulatory priorities that the administration planned to take during its four-year term. …

Pittsburgh, PA

Pittsburgh Technology Council

(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)

Amid a series of ongoing legal battles, the beneficial ownership information (BOI) reporting requirements under the Corporate Transparency Act (CTA) have been reinstated. In light of the U.S. Supreme Court’s January 23, 2025 order in McHenry v. Texas Top Cop Shop Inc., which granted the government’s request for a stay of a nationwide injunction in a separate case challenging the BOI reporting requirements, on February 17, 2025, the U.S. District Court for the Eastern District of Texas granted the government’s motion to stay the preliminary injunction issued in Smith v. United States Department of the Treasury. As a result, U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) is no longer prohibited from enforcing the CTA’s BOI reporting requirements, and reporting companies’ compliance obligations have resumed. This ruling is pending an appeal to the U.S. Court of Appeals for the Fifth Circuit.

FinCEN has announced a 30-day deadline extension for reporting companies. The new deadline for the majority of reporting companies to file an initial, updated, and/or corrected BOI report is March 21, 2025. FinCEN has also indicated that it will assess the need for further modifications to the reporting deadlines during this 30-day extension period, with a focus on lower-risk entities.

In parallel, BOI reporting requirements are receiving legislative attention. The Protect Small Business from Excessive Paperwork Act of 2025 unanimously passed the U.S. House of Representatives and a companion bill is awaiting action in the Senate. If enacted, reporting companies formed before January 1, 2025 will have until January 1, 2026 to comply with the BOI reporting requirements. …

Pittsburgh, PA

PIOGA Press

(by Steve Antonelli and Alex Farone)

The new presidential 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 Alert 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. …

Washington, DC and Pittsburgh, PA

PIOGA Press

(by Ben Clapp, Gary Steinbauer, Mackenzie Moyer, Christina Puhnaty and Alexandra Graf)

On January 20, 2025, the Trump administration issued a suite of Executive Orders and memoranda signaling a dramatic shift in American energy and environmental policy.  Collectively these actions, among a historically large array of “Day One” orders issued by the administration, aim to stimulate domestic energy production (with a focus on oil, natural gas, coal, hydropower, biofuels, critical minerals, and nuclear energy resources), expand energy transmission infrastructure, enlarge refining capacity, and streamline environmental permitting and review requirements for energy production and infrastructure projects while canceling Biden-era domestic climate policies, disengaging from international climate agreements, and curtailing leasing and permitting for offshore and onshore wind energy projects.

In conjunction with these Executive Orders and memoranda, the Trump administration carried out a sweeping revocation of Biden-era Executive Orders, including orders relating to energy policy and environmental regulation, climate initiatives, promoting electric vehicles, environmental justice, the withdrawal of areas of the Outer Continental Shelf from oil and gas leasing, and the implementation of the Inflation Reduction Act and Infrastructure Investment and Jobs Act.

President Trump also issued a Day One memorandum implementing a regulatory freeze requiring agencies to refrain from proposing or issuing any new rule and withdraw rules that have been finalized but not yet been published in the Federal Register, until those rules are approved by the new agency head. The memorandum also directs agency heads to consider postponing for 60 days the effective date of any rules that have been published or issued but have not taken effect, for the purpose of reviewing any questions of fact, law, and policy that the rules may raise.  …

Pittsburgh, PA

The Legal Intelligencer

(by Michael Korns and Anna Hosack)

In a recent case, the Pennsylvania Commonwealth Court found that the use of an attestation may negate the need for a full privilege log when responding to a Right-to-Know Law, 65 P.S. §§ 67.701 et seq., (“RTKL”) request where there are redacted privileged documents and an attestation providing context for the privilege.  In Bergere v. Pennsylvania Department of Community and Economic Development, No. 269-CD-2024 (Pa. Cmwlth. Jan. 30, 2025) the Commonwealth Court reviewed an Office of Open Records (“OOR”) Final Determination relating to a RTKL request filed by the requester with the Department of Community and Economic Development (the “Department”) which sought records relating to communications and post decisional deliberations between board members and staff members regarding a Board of Property decision in favor of the applicant on April 24, 2023 and its subsequent vacation a day later on April 25, 2023.

The Department’s Open Records Officer (“ORO”) provided 163 pages of records in response to the request with a certification attesting that a good faith search has occurred in addition to the following language:

9. Certain emails included with the responsive records were redacted per the attorney-client privilege.
10. As to the claim of attorney-client privilege in the responsive records:
    (a) the asserted holders of the attorney-client privilege, namely the Board of Property and its administrators, are clients of legal counsel, Thomas Blackburn, Esquire;
    (b) the people to whom the referenced email communications were made are (1) Thomas Blackburn, Esquire, (2) the Board Members of the Board of Property; and (3) administrators of the Board of Property;
    (c) the referenced email communications relate to facts of which legal counsel was informed by his client, without the presence of strangers, for the purpose of securing assistance in a legal matter (specifically, the drafting and finalization of an Order);

…

Charleston, WV

The Wildcatter

(by Nikolas Tysiak)

Our update is West Virginia heavy this time. Here are the cases since our last update:

Kaess v. BB Land, LLC, —S.E.2d—, 2024 WL 4784609 (November 14, 2024). Certified question to Supreme Court from U.S. District Court for Northern District of West Virginia, inquiring whether the deduction of certain costs from the delivery of royalties were allowable under West Virginia law when the lease calls for “in kind” royalty delivery After extensive analysis, the Supreme Court likened an “in kind” royalty provision as being similar to a “flat” royalty provision, and ultimately held that lessor under a lease with an in kind royalty provision where the lessor elects NOT to take oil and gas in kind is not subject to the deduction of post-production costs as a matter of West Virginia law.

Venable Royalty Ltd. v. EQT Production Company, 908 S.E.2d 501 (W. Va. I. C., 2024). The Intermediate Court was presented with the problem of determining whether non-participating royalty interests (“NPRIs”) should be classified as “real estate” or “personal property” as a matter of West Virginia law. The NPRI at issue was conveyed by a tax deed following a delinquent tax sale concerning the interest. One side argued that the tax deed was void because an NPRI is personal property. The other side claimed that the tax deed was successful because an NPRI is assessable as real estate, rendering the tax deed effective as to the reserved NPRI. After reviewing the available authorities, the Intermediate Court determined that NPRIs should be classified as real estate interests because they are vested real property.

Romeo v. Antero Resources Corporation, —S.E.2d—, 2024 WL 4784706 (November 14, 2024). Another certified question from the U.S. …

Washington, DC and Pittsburgh, PA

GO-WV

(by Ben Clapp, Gary Steinbauer, Mackenzie Moyer, Christina Puhnaty and Alexandra Graf)

On January 20, 2025, the Trump administration issued a suite of Executive Orders and memoranda signaling a dramatic shift in American energy and environmental policy. Collectively these actions, among a historically large array of “Day One” orders issued by the administration, aim to stimulate domestic energy production (with a focus on oil, natural gas, coal, hydropower, biofuels, critical minerals, and nuclear energy resources), expand energy transmission infrastructure, enlarge refining capacity, and streamline environmental permitting and review requirements for energy production and infrastructure projects while canceling Biden-era domestic climate policies, disengaging from international climate agreements, and curtailing leasing and permitting for offshore and onshore wind energy projects.

In conjunction with these Executive Orders and memoranda, the Trump administration carried out a sweeping revocation of Biden-era Executive Orders, including orders relating to energy policy and environmental regulation, climate initiatives, promoting electric vehicles, environmental justice, the withdrawal of areas of the Outer Continental Shelf from oil and gas leasing, and the implementation of the Inflation Reduction Act and Infrastructure Investment and Jobs Act.

President Trump also issued a Day One memorandum implementing a regulatory freeze requiring agencies to refrain from proposing or issuing any new rule and withdraw rules that have been finalized but not yet been published in the Federal Register, until those rules are approved by the new agency head. The memorandum also directs agency heads to consider postponing for 60 days the effective date of any rules that have been published or issued but have not taken effect, for the purpose of reviewing any questions of fact, law, and policy that the rules may raise.  …

Harrisburg, PA

The Legal Intelligencer

(by Casey Alan Coyle)

Inspired by the Charli XCX album, the “brat summer” trend took the country by storm in the summer of 2024.  From the radio to fashion to TikTok to even Vice President Harris’s campaign, “brat” was everywhere.  The Collins Dictionary even declared “brat” its 2024 word of the year, defining it as “characterized by a confident, independent, and hedonistic attitude.”  This spring, the Pennsylvania Supreme Court is poised to hear oral argument in Chilutti v. Uber, 58 EAP 2024.  The case concerns, among other things, whether an order staying a case pending arbitration is immediately appealable as a collateral order—a question that asks the Court to not only disregard the text of the Pennsylvania Rules of Appellate Procedure but also upend four decades of contrary precedent.  With the argument fast approaching, everyone is asking the same question: Is the collateral order doctrine about to have a “brat summer”?

Collateral Order Doctrine

Generally, an appellate court’s jurisdiction extends only to review of final orders.  Final orders are those that dispose of all claims and all parties, are explicitly defined as final orders by statute, or are certified as final orders by the trial court or other reviewing body.  Pa.R.A.P. 341.  There are, however, limited exceptions to the final order rule—specifically, interlocutory appeals as of right (Pa.R.A.P. 311); interlocutory appeals by permission (Pa.R.A.P. 312); and collateral orders (Pa.R.A.P. 313).  The collateral order doctrine is derived from U.S. Supreme Court case law and codified in Pennsylvania Rule of Appellate Procedure 313.  It is the narrowest of the three exceptions because the rules already allow a party to seek permission to appeal an interlocutory order not enumerated in Rule 311 and that discretionary process would be undermined by an overly permissive interpretation of Rule 313’s limited grant of collateral appeals as of right.  …

Harrisburg, PA

Federal Lawyer

(by Stefanie Pitcavage Mekilo)

In modern litigation, written submissions are not just a lawyer’s first opportunity to make an impression with the court; they’re also often our last. Cases increasingly are won or lost on the papers, and trials, for better or worse, are largely a thing of the past. These trends exhibit no signs of reverting. To be effective litigators, we must learn to embrace them.

A crucial component of effective written advocacy is knowing your audience. Judges, obviously, are our ultimate audience. But most often, the first person to read a pleading, motion, brief, or letter filed with the court will be the judge’s law clerk. Though their roles and degree of influence vary from one judge to the next, law clerks usually are the front line in chambers—studying briefs and the record, conducting research, and relaying initial impressions on the outcome to the judge.

During my dozen years as a federal judicial clerk, I consumed tens of thousands of pages of legal writing—some exceptional, some decidedly less so, most falling somewhere in between. In this article, I’ll share writing insights and practical tips gleaned during my time in chambers to help you get and keep the judge’s law clerk on your side.

Start with a plan. The real work of good writing occurs before any actual writing happens at all. After you’ve done your research but before you start drafting, think about which issues to raise and the order in which to raise them. Always start with your strongest argument. The lone exception would be if you have a jurisdictional argument, even if novel or only moderately compelling, because the court must satisfy itself that it has jurisdiction before turning to the merits. …