Articles, Alerts & Perspectives

October 10, 2025

Prove It: Department of Transportation’s DBE Program Ceases Presumption of Disadvantaged Status for Women- and Minority-Owned Businesses

Pittsburgh, PA

Firm Alert

The U.S. Department of Transportation (DOT) issued an Interim Final Rule (IFR) effective October 3, 2025, instituting an immediate and significant change for the qualification of women- and minority-owned businesses in the DOT’s Disadvantaged Business Enterprise (DBE) and Airport Concessions Disadvantaged Business Enterprise (ACDBE) Program. For purposes of the DBE/ACDBE program, women- and minority-owned businesses were historically presumed to be disadvantaged, automatically meeting one of the requirements for DBE status; this is no longer the case.

What is the DBE/ACDBE program? The purpose of this longstanding program is to level the playing field for small businesses in the highway construction, transit, and airport industries, owned by socially and economically disadvantaged individuals, seeking to participate in federally funded contracts. Congress enacted the first statutory DBE provision in 1983, setting a goal that at least 10% of project funds be issued to DBEs on highway and transit projects. In 1987, Congress expanded the program for airport projects and concessionaries. This legislatively-mandated program was intended to ensure nondiscrimination and remove barriers in the award of DOT-assisted contracts, and thus the DOT was entrusted with oversight of the program.

Specifically, the program requires state and local transportation agencies that receive DOT grants to develop their own aspirational DBE contracting goals based on the availability of DBEs in their local markets, to meet the program targets. Notably, grantees are generally prohibited from using quotas or set-aside contracts for DBEs. (49 CFR § 26.43). They have been required to use race- and gender-neutral means to meet their goals to the extent possible, without using criteria favoring DBEs over non-DBEs (49 CFR §§ 26.5, 26.51). Examples of such neutral means are unbundling of large contracts, informational programs on contracting opportunities, and offering business support services. …

October 2, 2025

EPA Proposes to Extend Certain Compliance Deadlines for Steam-Electric Power Generating Effluent Limitations Guidelines

Washington, DC and Pittsburgh, PA

Environmental Alert

(by Ben Clapp, Gary Steinbauer and Mackenzie Moyer)

On October 2, 2025, the Environmental Protection Agency (EPA) published a Proposed Rule and a companion Direct Final Rule to extend certain compliance deadlines for effluent limitations guidelines (ELGs) for the Steam-Electric Power Generating point source category in the Federal Register. 90 Fed. Reg. 47617; 90 Fed. Reg. 47693. EPA is “taking action to provide near-term compliance flexibility to coal-fired power plants by extending seven deadlines in the 2024 ELG rule and additional flexibilities for power generators to enhance the service life of critical energy infrastructure.” EPA states that the proposal seeks to advance the goals of the Trump administration’s Unleashing American Energy Executive Orders and provide reliable energy as demand increases due to the rise of AI and data centers.

Under the Clean Water Act (CWA), EPA is authorized to establish nationally applicable, technology-based ELGs for discharges from different categories of point sources. ELGs are based on technological feasibility, not water quality, and are based on the performance of specific treatment technologies, but do not require use of those specific control technologies.

In November 2015, EPA promulgated revisions to the steam-electric power generating point source category for the first time since 1982. The 2015 Rule set the first federal limitations on certain pollutants, such as toxic metals, discharged from a steam-electric power plant’s largest wastewater streams. As a result of legal challenges, EPA was required to reconsider certain limitations in the 2015 Rule. EPA reconsidered the ELGs for flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water and published a reconsideration rule in 2020 (the 2020 Rule). …

September 26, 2025

Pennsylvania Supreme Court’s Ruling in Tranter Clarifies Standard for Intrastate Venue Transfers

Pittsburgh, PA

Litigation Alert

(by Joseph Schaeffer and Ryan McCann)

On September 25, 2025, the Pennsylvania Supreme Court clarified the standard governing motions to transfer venue under the doctrine of forum non conveniens and Rule 1006(d)(1) of the Pennsylvania Rules of Civil Procedure. The rule, together with its complementary doctrine, permits a party to seek transfer of venue—even when venue is otherwise proper—to another county “for the convenience of parties and witnesses.” Pa. R.C.P. 1006(d)(1).

In Tranter, et al. v. Z&D Tour, et al., Nos. 18 EAP 2024 to 32 EAP 2024 (Pa. 2025), a motorcoach bus carrying approximately five dozen passengers was involved in a deadly multi-vehicle collision in Westmoreland County, in western Pennsylvania. Plaintiffs, passengers on the coach bus, filed suit in Philadelphia County, in eastern Pennsylvania, for damages sustained from the accident. After conducting limited discovery on the issues of venue and forum non conveniens, defendants filed a motion to transfer venue to Westmoreland County, citing the overwhelming number of witnesses and evidence located in that area. The trial court balanced the plaintiffs’ interest in their chosen forum against the hardships asserted by defense witnesses. Considering the totality of the circumstances, and affidavits detailing the burdens of traveling across the state to testify, the trial court granted defendants’ motions to transfer venue.

The Superior Court reversed. Drawing on its own precedent, the Superior Court held that the trial court erred in granting the motions because the defendants had not shown that the proposed testimony would be “critical” to their defense. While the defendants established that the witnesses could offer relevant testimony, the defendants neither demonstrated—nor did the trial court explain—why that testimony was essential. …

September 22, 2025

FTC Withdraws Non-Compete Appeal, Previews a More Focused Approach

Pittsburgh, PA

The Legal Intelligencer

(by Steve Antonelli and Alex Farone)

Recent activity from the Federal Trade Commission (FTC or Commission) indicates yet another shift in the Commission’s view on non-compete agreements, the latest in a turbulent 16-month period for this topic that began with the FTC’s May 2024 publication of a final rule banning most non-competes throughout the country.

The rule was set to take effect 120 days later, on September 4, 2024, and it would have banned the vast majority of new non-competes with employees, independent contractors, and volunteers nationwide, with the exception of those entered into pursuant to certain business sales. The ban was published based on the view of the Commission, which was controlled by a Democratic majority at the time, that non-competes are an unfair method of competition and therefore a violation of Section 5 of the FTC Act. In addition to the ban, the rule would have required employers to notify impacted workers of their agreements’ unenforceability.

Two weeks before its effective date, on August 20, 2024, the U.S. District Court for the Northern District of Texas invalidated the ban with its opinion in Ryan LLC, et al. v. Federal Trade Commission. The court ruled that the ban exceeded the FTC’s statutory authority. In doing so, it held that the creation of substantive rules stretched beyond the FTC’s power, and that the ban was unreasonably overbroad. The FTC appealed the court’s ruling to the U.S. Court of Appeals for the Fifth Circuit. The FTC filed its appellate brief in January 2025 but then sought a stay of the appeal in March 2025.

On September 5, 2025, one year and one day after the ban was originally set to take effect, the FTC formally withdrew its appeal of the Ryan decision as well as a similar appeal pending in the 11th Circuit. …

September 19, 2025

EPA Will Retain PFOA and PFOS CERCLA Hazardous Substance Designation

Washington, DC and Pittsburgh, PA

Environmental Alert

(by Sloane Wildman and Alex Graf)

On September 17, 2025, EPA announced that it will retain the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substance designation for PFOA and PFOS, two PFAS compounds. The final rule designating PFOA and PFOS (and their salts and structural isomers) as hazardous substances under CERCLA became effective on July 8, 2024. 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. Further, EPA may require potentially responsible parties – PRPs – to clean up or pay for the cleanup of hazardous substances. In conjunction with EPA’s announcement, the U.S. Department of Justice submitted a filing in Chamber of Commerce of the United States of America v. EPA, No. 24-1193 (D.C. Cir.) (ongoing litigation, currently in abeyance, challenging the CERCLA designation of PFOA and PFOS), asking the court to lift the abeyance and propose an amended briefing schedule.

Prior to its 2024 PFOA and PFOS designation, EPA’s CERCLA hazardous substance list was comprised solely of substances designated under other environmental statutes (e.g., Clean Water Act, Clean Air Act, Resource Conservation and Recovery Act, and the Toxic Substances Control Act). EPA’s 2024 designation of PFOA and PFOS represented the first time the Agency used its authority under CERCLA Section 102(a) to list specific hazardous substances that were not designated under another environmental statute. In this week’s announcement, EPA stated its intention to initiate a rulemaking to “establish a uniform framework governing designation of hazardous substances under section 102(a) of CERCLA moving forward.” Such a “Framework Rule” would establish a uniform approach to guide future CERCLA hazardous substance designation, including EPA’s method for considering the costs of proposed designation. …

September 19, 2025

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

Pittsburgh, PA and Washington, DC

PIOGA Press

(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.

…

September 11, 2025

D.C. Circuit Reinstates Clean Air Act Affirmative Defense for Emergency Exceedances

Pittsburgh, PA and Washington, DC

Environmental Alert

(by Joseph Schaeffer, Gina Buchman and Ryan McCann)

On September 5, 2025, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) reinstated an affirmative defense under the Clean Air Act (CAA) for exceedances occurring as a result of an emergency, ruling that the Environmental Protection Agency’s (EPA) rescission of that defense was arbitrary and capricious. EPA had first established that affirmative defense for state-issued Title V permits in 1992, 57 Fed. Reg. 32250, 32306, and then expanded it to federally-issued Title V permits in 1996, 61 Fed. Reg. 34202, 34239. In doing so, it created a limited shield to liability for exceedances of emissions limitations if the operator could prove that the exceedance was due to “any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God ….” 40 C.F.R. § 70.6(g)(2). By 2016, however, EPA had concluded that the affirmative defense unlawfully encroached on the judiciary’s role to impose appropriate civil penalties for CAA violations or, alternatively, rendered applicable emissions limitations “non-continuous” in violation of 42 U.S.C. § 7602(k). EPA then rescinded the regulation affording the affirmative defense in 2023. 88 Fed. Reg. 47029, 47030–31

SSM Litigation Group (SSM), a coalition of interest groups representing Title V permit holders, petitioned the D.C. Circuit for review. After first disposing of EPA’s challenge to SSM’s standing, the Court turned to whether EPA’s elimination of the affirmative defense was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

EPA’s merits-based argument was two-pronged. The CAA allows any person to commence a civil action against another person or entity who is alleged to have violated an emission standard or limitation. …

September 7, 2025

White House Releases Sweeping AI Action Plan

Pittsburgh, PA

TEQ Hub

(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.

…

September 3, 2025

Former U.S. Department of Justice Environmental Enforcement Attorney Nicholas McDaniel Joins Law Firm Babst Calland’s Washington, D.C. Office

Washington, DC

Babst Calland announced that Nicholas McDaniel has joined the firm as a shareholder in the firm’s Washington, D.C. office. With more than a decade of combined government and private practice experience, most recently as a senior enforcement attorney with the U.S. Department of Justice’s Environment and Natural Resources Division, Environmental Enforcement Section, McDaniel will be a member of the firm’s Litigation, Environmental, and Energy and Natural Resources groups. He will counsel companies on environmental compliance, enforcement, and litigation challenges.

At Babst Calland, McDaniel will focus his practice on complex environmental and commercial litigation for clients in the energy, natural resources, and manufacturing sectors. His work will include enforcement defense, citizen suits, and disputes involving environmental contamination. He also brings significant experience navigating bankruptcy proceedings involving environmental claims and negotiating settlements with regulators and citizen groups.

During his tenure at DOJ, McDaniel led major federal enforcement actions and complex negotiations that resulted in landmark environmental settlements. Notably, he secured the largest-ever civil penalty under the Clean Air Act, and is a three-time recipient of the prestigious Assistant Attorney General’s Award for Excellence – first for litigating and settling a cost recovery action under the Oil Pollution Act related to the longest-running oil spill in U.S. history, then for securing CERCLA cost recovery and natural resource damages on behalf of the United States, and later for his record Clean Air Act settlement. He also received numerous other honors, including the 2024 Arthur S. Flemming Award for legal achievement and recognition from the U.S. Department of Justice and the U.S. Environmental Protection Agency for exceptional service.

Earlier in his career, he litigated energy and rate-making cases before the Public Utilities Commission and in state courts with the Environmental Law & Policy Center.

“Nick is a highly skilled litigator with significant first-chair trial experience who has handled some of the toughest environmental enforcement cases in the country,” said Mark K. …

September 3, 2025

Key Environmental and Energy Policies in the Second Trump Administration

Pittsburgh, PA and Washington, DC

Developing Pittsburgh

(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. …

September 2, 2025

WVDEP Proposes Clean Water Act Section 401 Certification for New Corps of Engineers Expedited Permitting Mechanisms for Energy-Related Projects

Charleston, WV and Pittsburgh, PA

Environmental Alert

(by Kip Power and Mackenzie Moyer)

On August 21, 2025, the West Virginia Department of Environmental Protection (WVDEP) published its proposed Clean Water Act (CWA) Section 401 Water Quality Certification package with respect to two separate expedited permitting mechanisms recently proposed by the U.S. Army Corps of Engineers (Corps). The proposed 401 Certification would approve the use of the Corps’ proposed Regional General Permit (RGP) and Letter of Permission (LOP) for energy projects in West Virginia, each of which was published by the Corps on June 4, 2025. The Corps proposed the RGP and LOP to expedite permitting of energy related projects under Section 404 of the CWA and (as to the RGP) Section 10 of the Rivers and Harbors Act of 1899 (RHA), as a means of implementing several Executive Orders issued by President Trump aimed at expediting regulatory approval of such projects. In finalizing its decision on the proposed Certifications, the WVDEP will consider the impact of activities that would be authorized using these mechanisms on water resources, fish and wildlife, recreation, critical habitats, wetlands, and other natural resources. WVDEP is accepting public comment on its proposed Certification package until September 23, 2025.

Section 401 Water Quality Certifications are required for permits or licenses issued by federal agencies to ensure that such projects do not violate a state’s water quality standards or adversely affect designated uses of specific streams. Under applicable federal regulations and the terms of the Corps’ proposals, the WVDEP is required to act upon the Corps’ request for CWA Section 401 Certification of both the RGP and LOP within 60 days after they were received by the WVDEP, and a failure to meet that deadline would be deemed to be a waiver of the WVDEP’s certification authority. …

September 1, 2025

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

Pittsburgh, PA and Washington, DC

GO-WV

(by Gary Steinbauer, Gina Falaschi Buchman and Christina Puhnaty)

Summary of Deadline Extensions

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.

…

August 28, 2025

What to Look for When Entering a Construction Contract

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.

…

August 27, 2025

Grants Available Through Pennsylvania Grid Resilience Program Under Infrastructure Investment and Jobs Act of 2021

Pittsburgh, PA and Washington, DC

FNREL 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. Full applications will be received any time after September 1, 2025, until November 1, 2025. …

August 27, 2025

Bucks County Appeals Dismissal of Climate Change Lawsuit

Pittsburgh, PA and Washington, DC

FNREL 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.

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