Articles, Alerts & Perspectives

Pittsburgh, PA and Washington, DC

GO-WV

(by Gary Steinbauer, Gina Falaschi 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.

…

Pittsburgh, PA

Contractor’s Compass

(by Marc Felezzola and Angela Harrod)

Maybe your construction business is growing, or maybe it has been a long-standing national competitor, but regardless of how established your business is on the national scene, there are certain things that you should always consider when reviewing a subcontract. This is especially true when your business is entering into a subcontract for a project in an unfamiliar jurisdiction. The following are just a few of the contract provisions that any subcontractor should give special consideration when undertaking a new project in an unfamiliar jurisdiction.

• Anti-Indemnity Legislation
  Indemnity clauses are a popular and effective means for shifting financial risk. Owners utilize them to shift risk to general contractors; general contractors use them to shift that risk down further to their subcontractors; and so on. These clauses generally require one party to agree to legally defend another in disputes arising from the project, and to pay for any damages that are awarded to the party whom is owed the indemnity. Indemnity clauses can cover all types of risk, but among the most common are non-payment of another party (e.g., the subcontractor must indemnify the prime contractor from claims for payment by the subcontractor’s vendors and suppliers), intellectual property ownership or usage, missing project milestones, and injury to persons or property.While indemnification in construction contracts is commonplace, some states limit the circumstances under which indemnity provisions may be enforced. For example, states like West Virginia (W. Va. Code § 55-8-14), Michigan (MCLS § 691.991), and Georgia (O.C.G.A. § 13-8-2) prohibit broad, generalized indemnity provisions.  In contrast, Texas prohibits one party requiring another to indemnify it against the other from that party’s own negligence.

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Pittsburgh, PA and Washington, DC

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(by Joe Reinhart, Sean McGovern, Matt Wood and Gina Buchman)

On May 31, 2025, the Pennsylvania Department of Environmental Protection (PADEP) announced the availability of $8 million in grants offered through the Pennsylvania Grid Resilience Grants Program (Program), which is funded by the Infrastructure Investment and Jobs Act of 2021. See 55 Pa. Bull. 3809 (May 31, 2025). The Program’s funding is available to entities that own or operate electric power systems, such as electric grid operators, electricity storage operators, electricity generators, transmission owners or operators, distribution providers, and fuel suppliers, who are looking to implement measures intended to mitigate the impact of electric grid disruptions.

PADEP is specifically interested in projects that promote clean energy generation and workforce benefits. A minimum of 5% of the program funding is being reserved for entities that sell less than 4 million MWh of electricity annually (the “Small Utility Set Aside”). On its website, PADEP has identified several eligible project types, including weatherization technologies and equipment, fire resistant technologies and fire prevention systems, the undergrounding of electrical equipment, and utility pole management. The following types of projects are ineligible for the Program: construction of a new electric generating facility, construction of a new large-scale battery storage facility, and projects relating to cybersecurity. See PADEP, “Pennsylvania Grid Resilience Grant Program,” here.

Concept paper submissions were due on August 8, 2025, and PADEP was to provide feedback on concept papers by email by August 22, 2025. …

Pittsburgh, PA and Washington, DC

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(by Joe Reinhart, Sean McGovern, Matt Wood and Gina Buchman)

On June 16, 2025, Bucks County, Pennsylvania filed a notice of appeal to the Superior Court of Pennsylvania challenging the court of common pleas’ dismissal of Bucks County’s climate change lawsuit against 14 energy companies and the industry’s largest trade association, the American Petroleum Institute (API).

The complaint alleged that the energy companies and the API should be held financially liable for climate change impacts. Specifically, Bucks County alleged that the defendants engaged in a decades-long disinformation campaign that was designed to discredit climate science, create doubt around the impact of burning fossil fuels, and delay the transition to a low carbon future. Bucks County also alleged that the campaign worsened emissions, accelerated global warming, and brought devastating climate impacts to the county. The lower court dismissed the complaint for a lack of subject matter jurisdiction due to federal preemption, concluding that our federal structure does not allow any state law to address the claims in the complaint. Bucks Cnty. v. BP P.L.C., No. 2024-01836 (Pa. Ct. Com. Pleas May 16, 2025).

Similar suits have been brought by cities and states around the country. Some courts have held that these cases properly belong in state court, but courts in Delaware, Maryland, New Jersey, and New York have made rulings similar to the court of common pleas in the Bucks County case. The superior court received the original record on August 12, 2025, and will proceed from there.

Copyright © 2025, The Foundation for Natural Resources and Energy Law, Westminster, Colorado

Pittsburgh, PA and Washington, DC

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(by Joe Reinhart, Sean McGovern, Matt Wood and Gina Buchman)

The Pennsylvania Department of Environmental Protection (PADEP) released its Proposed State Plan for 40 C.F.R. Part 60, Subpart OOOOc Emissions Guidelines for Greenhouse Gas Emissions from Existing Crude Oil and Natural Gas Facilities (Proposed State Plan) for public comment on May 31, 2025. See 55 Pa. Bull. 3810 (May 31, 2025).

PADEP released its Proposed State Plan in response to the Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review published by the U.S. Environmental Protection Agency (EPA) in spring 2024. 89 Fed. Reg. 16,820 (Mar. 8, 2024). This rule established New Source Performance Standards Subpart OOOOb that regulates emissions for new facilities in the Crude Oil and Natural Gas source category. It also included Subpart OOOOc, establishing model emission guidelines to address emissions from existing sources in the same source category. When EPA publishes emissions guidelines as part of the New Source Performance Standard, PADEP is obligated under the federal Clean Air Act to propose a state plan that implements the federal model emission guidelines. States can choose to implement EPA’s model guidelines or develop regulatory provisions with standards that are as or more stringent than the federal provisions.

States may apply to EPA to implement less stringent standards than the model rule that take into account the remaining useful life and other factors (RULOF) of certain regulated facilities. RULOF demonstrations must show that a facility (or class thereof) cannot reasonably achieve the emission limitations in the model guidelines due to (1) unreasonable cost of control resulting from facility design, age, or location; …

Pittsburgh, PA and Washington, DC

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Mining

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

On April 23, 2025, Pennsylvania lawmakers introduced six pieces of legislation intended to implement Governor John Shapiro’s “Lightning Plan” announced earlier this year. The Shapiro administration has called the plan a “commonsense energy plan” that will create jobs, lower costs for consumers, accelerate permitting, and promote energy generation in Pennsylvania. See Press Release, Gov’r Josh Shapiro, “Governor Shapiro’s ‘Lightning Plan’ Introduced in General Assembly” (Apr. 24, 2025). These six bills are currently making their way through the Pennsylvania House and Senate.

EDGE Tax Credit (House Bill 500, Senate Bill 500)
This proposal updates the 2022 Pennsylvania Economic Development for a Growing Economy (EDGE) Tax Credit. Since its creation in 2022, no entities have been eligible for the EDGE Tax Credit, leaving billions in potential economic development untapped. The proposed 2025 amendments to the EDGE Tax Credit propose a new Reliable Energy Investment Tax Credit and a new Sustainable Aviation Fuel Tax Credit. The amendments also propose to revise the Dairy Production Tax Credit, the Regional Clean Hydrogen Tax Credit, and the Semiconductor Manufacturing and Biomedical Manufacturing and Research Tax Credit.

Pennsylvania Reliable Energy Sustainability Standard (PRESS) (House Bill 501, Senate Bill 501)
PRESS is intended to increase the amount of electricity in Pennsylvania that comes from renewable energy sources like wind and solar power. According to the Shapiro administration, PRESS would modernize Pennsylvania’s energy standards by incentivizing innovation in renewable and nuclear energy to remain competitive with other states. …

Pittsburgh, PA

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. …

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

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.

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Pittsburgh, PA and Washington, DC

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. …

Pittsburgh, PA and Washington, DC

Pittsburgh Business Times

(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. …

Harrisburg, PA

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.  …

Pittsburgh, PA, Charleston, WV

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. …

Pittsburgh, PA

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. …