March 25, 2026

Navigating Opportunities and Challenges for Data Centers in the Region

Pittsburgh, PA

TEQ Hub

(featuring Justine Kasznica)

The rapid growth of data centers – driven by cloud computing, artificial intelligence, and the need for low-latency digital infrastructure – has transformed what were once primarily real estate projects into some of the most complex developments in the energy and infrastructure sectors in our region.

At the core of modern data center development is power. Securing sufficient, reliable, and resilient electricity has become one of the defining challenges for developers, particularly as grid congestion, interconnection delays, and regulatory scrutiny increase. Many projects now require sophisticated power purchase agreements (PPAs), power generation agreements (PGAs), and on-site or co-located generation solutions to meet capacity and uptime requirements.

Today’s data center projects sit at the intersection of power generation, environmental regulation, land use, construction, and technology governance, requiring coordinated legal strategies across multiple disciplines. Babst Calland’s legal team has become increasingly involved from the earliest stages of development on projects – advising on site acquisition and control, evaluating water and energy access, and assessing regulatory and permitting risks across state and federal jurisdictions, and land use and zoning approvals, including variances and conditional use permits, often require public hearings and coordination with local governments, which often add another layer of complexity and potential delay.

Behind-the-Meter Power and Islanded Systems Gain Momentum 

Grounded in active, large-scale work, Babst Calland is currently guiding the development of well over 3,000 megawatts of new power generation capacity tied to data center projects across Pennsylvania and West Virginia. These projects range from hyperscale campuses to smaller modular facilities encompassing the design, permitting, interconnection, and financing of both behind-the-meter generation assets, such as natural gas turbines and solar paired with battery storage, as well as fully islanded power systems. …

March 27, 2026

POWERING THE FUTURE: Navigating Opportunities and Challenges for Data Centers in the Region

Pittsburgh, PA

Pittsburgh Business Times

(featuring Justine Kasznica and Anna Jewart)

Energy-rich and workforce-strong, Pennsylvania is the focus of an increased national demand to develop and power data centers – centralized technology hardware facilities that support digital services such as AI, streaming and more. “By 2030, $1 trillion of new invested private capital will be devoted to data center projects,” said Justine Kasznica, chair of the Emerging Technologies Group and team lead of the data center development practice for the law firm Babst Calland.

To fuel the global demand signal, approximately 100 gigawatts of new power generation will need to come online, fueling the 1000 terawatt-hours of new electricity projected to be consumed on an annual basis by 2030. Forty-five percent of that is expected to be driven by the United States.

Domestically, the Commonwealth of Pennsylvania ranks among the top states for growth in data center development. In 2025 alone, more than 90 billion dollars’ worth of new data center, energy, and AI infrastructure commitments were announced across Pennsylvania.

But despite tremendous demand and potential for significant regional economic opportunities, communities in which these centers are proposed are faced with a number of issues, and developers need to be prepared to address them.

“They have to go somewhere and the somewhere is in someone’s community no matter where it is; whether it’s rural, urban or suburban, it’s somebody’s home,” said Anna Jewart, an attorney who focuses her practice in real estate, land use and zoning, in the Energy and Natural Resources, and Public Sector groups at Babst Calland.

Babst Calland’s multidisciplinary data center development team includes specialists in land use and zoning, real estate, environmental and regulatory, energy, construction, emerging technologies, and corporate law. …

March 11, 2026

Non-Solicitation vs. Non-Compete Agreements: When to “Employ” One, the Other, or Both

Pittsburgh, PA

Firm Alert

(by Steve Silverman and Katerina Vassil)

Employers who want to protect their trade secrets and goodwill can use several types of restrictive covenants to limit departing employees from harming them in future employment. Two of the most common are non-competition (non-compete) and non-solicitation (non-solicit) provisions that can be included in employment agreements. These provisions are often confused by employers and thought to be equally enforceable, but in practice they are not. The following addresses the differences between these two types of restrictions, their respective limitations on enforcement, and why an employer may want to use one over the other, or even both.

Non-competes restrict a former employee’s ability to work for a competitor or start a competing business within a specific time frame and geographic area. Courts are hesitant to uphold non-compete agreements that overly restrict an employee’s ability to engage in work opportunities within their profession. Non-compete agreements are upheld so long as they are of reasonable duration, geographic scope, and necessary to protect legitimate business interests. If a non-compete agreement is overly broad and fails to identify legitimate business interests to be protected, courts will often refuse to enforce them.  A reasonable geographic scope limitation is essential to a non-compete because of the nature of the business interest that the agreement seeks to protect.

Conversely, non-solicit agreements allow ex-employees to work for competitors but restrict them from soliciting customers and clients of the former employer for a specified time period. Non-solicit agreements do not typically include explicit geographic limitations. Instead, geographic limitations implicitly exist in non-solicit agreements based on where the specific customers or clients are located. If these customers and clients are scattered in various locations, an explicit geographic limitation could make the non-solicit agreement overly restrictive and provide insufficient protections for the former employer. …

March 9, 2026

DEP Publishes Final Environmental Justice Policy and PennEnviroScreen EJ Tool and Methodology Document

Pittsburgh, PA and Washington, DC

FNREL Water Law Newsletter

(by Lisa Bruderly and Ethan Johnson)

On January 3, 2026, the Pennsylvania Department of Environmental Protection (DEP) announced the publishing of the Final Environmental Justice Permit Review and Public Participation Policy (EJ Policy) and the Final PennEnviroScreen EJ Tool and Methodology Document. See 56 Pa. Bull. 81 (Jan. 3, 2026). Both documents were updated from September 16, 2023, interim final versions.

In the 2026 final versions of both documents, DEP’s revisions largely focus on expanding, clarifying, and refining policies and key terms in response to public comments. The core substantive policies remain the same as the 2023 interim versions. For example, in the 2026 final EJ Policy, DEP added to the definition of “environmental justice” that it involves “the centering of environmentally burdened community voices in addressing environmental justice concerns.” DEP also broadened the definition of “community-based organizations” by including any organizations, not just those that are private or public. DEP also clarified that community-based organizations are not officially selected or appointed by DEP. Additionally, DEP expanded EJ area coverage by redefining which census block groups are considered EJ areas. More specifically, DEP revised the criteria so that census block groups that lacked overall scores due to data gaps but were in the top 5% of PennEnviroScreen Pollution Burden Scores qualified as EJ areas. National Pollutant Discharge Elimination System (NPDES) permits for industrial wastewater facilities remained on the list of enhanced public participation trigger projects in the 2026 final version. In a substantive change, DEP reclassified concentrated animal feeding operations as public participation opt-in projects instead of public participation trigger projects.

In the 2026 final EJ Tool and Methodology Document, DEP added violence, political engagement/political disenfranchisement/political powerlessness, gentrification, climate change, industrial developments, and drinking water as additional future considerations, as well as offering strategies on integrating this new data in the future. …

March 3, 2026

PAPUC Announces Increase in Act 13 Impact Fees

Pittsburgh, PA

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Matthew Wood and Christina Puhnaty)

On January 24, 2026, the Pennsylvania Public Utilities Commission (PAPUC) published notice of an increase in the Act 13 unconventional gas well impact fees for calendar year 2025. 56 Pa. Bull. 580 (Jan. 24, 2026). Act 13 of 2012 allows counties or municipalities to impose fees on unconventional gas wells within their borders based on a 15-year fee schedule, provided the county or municipality passed an impact fee ordinance. Act 13 requires a significant portion of the funds received from the impact fees to go to the affected local governments, with remaining fees being divided between various state agencies and funds, including the Marcellus Legacy Fund. The impact fees are intended to offset the local impacts of unconventional gas well drilling and are based on the average annual price of natural gas. They are adjusted on an annual basis as appropriate to reflect upward changes in consumer price index if the total number of unconventional wells spud in a given year exceeds the prior year.

PAPUC reported 444 wells spud in 2025 as compared to 309 in 2024. Some categories of PAPUC’s impact fees for 2025 increased significantly as compared to 2024 fees (as much as 116%), while others barely increased. Impact fees for calendar year 2025 for horizontal unconventional gas wells are $59,700 for Year 1, $47,800 for Year 2, $35,800 for Year 3, $23,900 for Years 4–10, and $12,100 for Years 11–15. Horizontal unconventional gas wells pay the yearly fee upon spudding plus two subsequent years. …

March 3, 2026

Pennsylvania EQB Accepts Three Oil and Gas Rulemaking Petitions for Further Study

Pittsburgh, PA

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Matthew Wood and Christina Puhnaty)

At its December 9, 2025, meeting, the Pennsylvania Environmental Quality Board (EQB) voted to accept three oil and gas-related rulemaking petitions for further study. A rulemaking petition by the Clean Air Council (CAC) and Environmental Integrity Project (EIP) seeks to amend 25 Pa. Code ch. 78a to increase unconventional gas well setback distances (CAC and EIP Petition). The CAC and EIP Petition proposes to increase the minimum setback distances for any new unconventional oil and gas well to 3,281 feet from any building (currently 500 feet) and drinking water well (currently 1,000 feet for water supply extraction points, water wells, surface water intakes, and reservoirs), 5,280 feet from the property boundary of any building serving vulnerable populations (not currently addressed), and 750 feet from any surface water of the commonwealth (currently 300 feet from a wetland greater than one acre and 750 feet from certain other waters). As reported in Vol. 42, No. 2 (2025) of this Newsletter, the EQB voted to table the CAC and EIP Petition at its April 8, 2025, meeting, and did not address it for three months, causing the petition to expire, after which CAC and EIP resubmitted it to the EQB on September 18, 2025. The EQB’s acceptance of this rulemaking petition was published in the Pennsylvania Bulletin on December 27, 2025. See 55 Pa. Bull. 8758 (Dec. 27, 2025).

The EQB also voted to accept a petition submitted by Marcellus Shale Coalition (MSC), the Pennsylvania Coal Alliance (PCA), and the Pennsylvania Independent Oil and Gas Association (PIOGA), which requests a rulemaking to clarify how attainable bottom is determined during well plugging and how plugging of oil and gas wells should proceed from that point (MSC, PCA, and PIOGA Petition). …

March 3, 2026

PADEP Publishes Draft Updated Erosion and Sediment Control Policy

Pittsburgh, PA

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Matthew Wood and Christina Puhnaty)

On December 6, 2025, the Pennsylvania Department of Environmental Protection (PADEP) published for public comment a draft revised policy for erosion and sediment (E&S) control and stormwater management for earth disturbance associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities (Draft Guidance). 55 Pa. Bull. 8318 (Dec, 6, 2025). The Draft Guidance applies to both unconventional and conventional operators.

The draft policy would replace the existing 2012 version and includes permitting process requirements for general and individual erosion and sediment control permits. It also outlines regulatory requirements for erosion and sediment control, post construction stormwater management, stabilization, and restoration, co-permittees, and pre-construction meetings.

Regarding revisions to the existing policy, PADEP said at the September 2025 Oil and Gas Technical Advisory Board meeting it is not a “radical departure” from the way the program is currently being administered; that many of the changes are organizational. Oil and Gas TAB Meeting (Sept. 11, 2025). Specific substantive changes include increasing the distance by which support facilities, e.g., impoundments, staging areas, tank farms, auxiliary roads, parking lots, or borrow areas, are considered substantially connected and part of a project from 900 feet to 1,320 feet.

PADEP also adds details concerning filing deed instruments for stormwater control measures after a project is completed. For projects that do not require a well permit under the 2012 Oil and Gas Act, for any property containing a post-construction stormwater management plan with stormwater control measures (PCSM SCM), the E&S permittee or co-permittee must record an instrument with the County Recorder of Deeds Office. …

March 3, 2026

PADEP Publishes Renewal of General NPDES Permit for Stormwater Discharges Associated with Mining Activities

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

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

The Pennsylvania Department of Environmental Protection (PADEP) has reissued BMP GP-104, its General NPDES Permit for Stormwater Discharges Associated with Mining Activities, for a new five-year term with an effective date of March 28, 2026, and an expiration date of March 27, 2031. Pursuant to 25 Pa. Code § 92a.32, a National Pollutant Discharge Elimination System (NPDES) permit is required for stormwater associated with mining activity. BMP GP-104 is intended to provide NPDES permit coverage for eligible coal and noncoal mining and reclamation authorizations to address stormwater associated with mining activities. Both bituminous and anthracite coal mining operations are eligible for coverage under BMP GP-104. Discharges that do not qualify for coverage under BMP GP-104 include discharges from non-stormwater sources, discharges to high quality or exceptional value designated waters, and discharges to exceptional value wetlands. PADEP’s District Mining Offices retain authority to require individual NPDES permits for any other discharges deemed to be more suitably controlled under an individual NPDES permit because of water quality concerns and specific effluent limits that must be applied.

In this renewal of BMP GP-104, PADEP clarified an oversight in the prior version of the general permit that PADEP admits in its 2026 Renewal Fact Sheet likely caused some sites to be overdesigned with respect to erosion and sedimentation controls. The prior BMP GP-104 arguably required all facilities subject to the general permit to meet the 10-year, 24-hour design standard for erosion and sedimentation controls, a more onerous requirement only required by regulation for coal mining and large noncoal permits. …

March 3, 2026

PADEP Issues Final Revised Environmental Justice Policy

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

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

On January 3, 2026, the Pennsylvania Department of Environmental Protection (PADEP) published its final revised Environmental Justice Policy, as well as updates to the Pennsylvania Environmental Justice Mapping and Screening Tool (PennEnviroScreen) Methodology Documentation. See 56 Pa. Bull. 81 (Jan. 3, 2026); 56 Pa. Bull. 83 (Jan. 3, 2026). The final Environmental Justice Policy (TGD No. 015-0501-002) is now in effect. PADEP had been operating under its Interim-Final Environmental Justice Policy since 2023 while soliciting comments on the policy from the public, as reported in Vol. 40, No. 4 (2023) of this Newsletter. PADEP reported that it received over 700 comments during the comment period and published a Comment Response Document alongside the final policy.

The final policy uses PennEnviroScreen to determine whether facilities are in environmental justice areas based on 32 environmental, health, socioeconomic, and demographic indicators, as explained in the PennEnviroScreen Methodology Documentation (TGD No. 015-0501-003). Environmental effects indicators include proximity to coal mines, abandoned mine lands, land remediation projects, oil and gas wells, and railroads. The data sets contained within PennEnviroScreen are updated on a rolling basis. The Environmental Justice Policy also identifies permit types that require enhanced public participation. “Trigger Projects” that are automatically subject to the policy include various mining permits, including those for bituminous and anthracite underground and surface mines, large industrial mineral surface and underground mines, coal refuse disposal and processing, large coal preparation facilities, and the use of biosolids for reclamation. National Pollutant Discharge Elimination System permits for industrial wastewater facilities discharging at or above 50,000 gallons per day and air permits for new, major sources of hazardous air pollutants or criteria pollutants are also considered trigger projects. …

March 3, 2026

House Bill 416 Expedites Permitting Procedures, Enhances PAPUC Oversight, and Repeals RGGI

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

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

House Bill 416 was signed into law by Governor Josh Shapiro on November 12, 2025. This bill is part of the Pennsylvania budget package for Fiscal Year 2025–26. This bill includes several significant changes to industry regulations, including expedited permitting processes for certain air and water permits, measures to ensure grid reliability, and the repeal of the Regional Greenhouse Gas Initiative (RGGI) regulations.

House Bill 416 repeals the regulation promulgated by the Pennsylvania Department of Environmental Protection (PADEP) for a carbon cap-and-invest program linked to RGGI regulations found in 25 Pa. Code ch. 145, subch. E. PADEP promulgated this regulation in 2022, but it was never implemented due to various legal challenges. For a summary of Pennsylvania’s RGGI rule, see Vol. 39, No. 2 (2022) of this Newsletter. The Pennsylvania Commonwealth Court ruled that the regulation constituted an unconstitutional tax in 2023, which the litigants appealed to the Pennsylvania Supreme Court. For a summary of the commonwealth court’s decision, see Vol. 40, No. 4 (2023) of this Newsletter. Upon the passage of House Bill 416, the Commonwealth filed applications to discontinue its appeal given the legislative abrogation of the regulation at issue. On January 6, 2026, the Pennsylvania Supreme Court issued a per curiam order granting PADEP’s application to discontinue the appeal in light of House Bill 416. See Bowfin v. Dep’t of Env’t Prot., Nos. 106 MAP 2023, 107 MAP 2023, 2025 WL 3854118 (Pa. …

February 26, 2026

Cue Lee Corso: Reprieve From Heightened Standard To Enforce Online Arbitration May Be Short Lived

Harrisburg, PA and Pittsburgh, PA

The Legal Intelligencer

(by Casey Alan Coyle and Ryan McCann)

Lee Corso was a fixture in college football for over 60 years, first as a coach and then as an analyst on ESPN’s College GameDay program.  Coach Corso is known to many casual sports fans for his headgear segment, where he would put on the head of the mascot of the team he picked to win the signature game of the week—a feat he accomplished 431 times throughout his illustrious broadcasting career.  But for diehard College GameDay fans, Coach Corso is synonymous with his catchphrase “Not so fast, my friend!,” which he often employed (with glee) when disagreeing with a pick from another analyst.  While the college football season does not kick off for another six months, Coach Corso’s catchphrase is apropos because the reprieve from the heightened standard to enforce online arbitration agreements in Pennsylvania may be short lived.

Chilutti v. Uber

The story begins in 2016, when a woman registered for an Uber rider account.  As part of the registration process, the woman agreed to Uber’s hyperlinked terms and conditions, which, in turn, contained an arbitration agreement.  Such agreements are commonly referred to as “browsewrap” agreements.  In contrast, “clickwrap” agreements are where a website presents users with specified contractual terms on a pop-up screen and users must check a box explicitly stating “I agree” in order to proceed.  Three years later, the woman was injured while riding in an Uber.  She and her husband subsequently filed a negligence suit against the company and its subsidiaries.  The defendants filed a petition to compel arbitration, arguing that the terms and conditions of Uber’s app required the couple to arbitrate their claims.   …

February 25, 2026

OSM Finalizes Oversight Rules to Closely Resemble 2020 Version

Charleston, WV

Environmental Alert

(Christopher (Kip) Power, Robert Stonestreet and Joseph (Jed) Meadows)

Following up on a proposal published on June 16, 2025 (see Client Alert: “Federal Office of Surface Mining Proposes to Restore Coal Mine Regulatory Oversight Rules”), on February 19, 2026, the federal Office of Surface Mining Reclamation and Enforcement (OSM) finalized revisions to its oversight rules under the Surface Mining Control and Reclamation Act of 1977 (SMCRA), eliminating several aspects of the Biden-era version of the regulations (identified as “Ten-Day Notice and Corrective Action for State Regulatory Program Issues” rule, published in April 2024 (the 2024 Rule)). The new regulations largely return them to the 2020 version of the rule, “Clarification of Provisions Related to the Issuance of Ten-Day Notices to State Regulatory Authorities and Enhancement of Corrective Action for State Regulatory Program Issues,” (the 2020 Rule), adopted during the first Trump administration. Effective March 23, 2026, the new rule (the 2026 Rule) restores the 2020 Rule’s framework promoting states as the primary environmental regulatory authorities for coal mining operations. It does away with programmatic challenges in the guise of state-specific oversight and reinstates provisions requiring that the relevant State agency be given notice and an opportunity to correct any alleged violation brought to OSM’s attention. The new rule also makes some minor revisions to the 2020 Rule’s text to streamline coordination between agencies and to reduce duplicative actions.

States that have obtained OSM approval to administer their own coal mining regulatory program consistent with SMCRA (known as Primacy States) possess primary regulatory power within their borders. OSM retains oversight authority where (1) there is reason to believe SMCRA has been violated and (2) there is reason to believe that a Primacy State has failed to enforce its regulatory programs. …

February 24, 2026

EPA Adds PFHxS-Na to Toxics Release Inventory

Washington, DC

Environmental Alert

(by Sloane Wildman and Ethan Johnson)

On February 23, 2026, EPA announced its final rule adding sodium perfluorohexanesulfonate (PFHxS-Na) to the Toxics Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act. Businesses in covered industries must now track and report any use or release of PFHxS-Na above the reporting threshold of 100 lbs. The reporting period began January 1, 2026 and the first reports are due July 1, 2027.

PFHxS-Na is the latest PFAS chemical added to the TRI under the 2020 National Defense Authorization Act, which requires EPA to add new PFAS chemicals to the TRI each year. EPA added seven PFAS chemicals to the TRI in 2024 and nine PFAS chemicals in 2025. EPA first announced that PFHxS-Na would be listed on the TRI in October, 2025, after the agency finalized the chemical’s toxicity value. EPA maintains a complete list of PFAS added to the TRI here. Adding PFAS chemicals to the TRI is part of EPA’s broader PFAS action plan that we reported on in our April 30, 2025 Environmental Alert.

Babst Calland’s Environmental attorneys closely tracking EPA’s PFAS actions, and our attorneys are available to provide strategic advice on how developing PFAS regulations may affect your business. For more information or answers to questions, please contact Sloane Wildman at (202) 853-3457 or swildman@babstcalland.com, Ethan Johnson at (202) 853-3465 or ejohnson@babstcalland.com, or your client relationship attorney at Babst Calland.

February 24, 2026

Use of AI-Generative Tools Poses Significant Risk to Attorney-Client Privilege and/or Work-Product Protections

Pittsburgh, PA

Firm Alert

(by David White, Marc Felezzola and Angela Harrod)

Given the sharp rise in AI usage, courts have begun wrestling with the extent to which usage of AI tools for assistance with legal issues is protected from disclosure in discovery or otherwise. Early court decisions demonstrate there is considerable risk that communications between a client and an AI platform may not be protected by the attorney-client privilege or work-product doctrine.

The attorney-client privilege generally protects communications between a lawyer and client from disclosure. Similarly, per Federal Rule of Civil Procedure 26(b)(3)(A), the work-product doctrine protects “documents and tangible things that are prepared in anticipation of litigation or for trial.”

Two courts recently released opinions that provide important insights into the risk of accidentally waiving attorney-client privilege or work-product doctrine when a client turns to AI tools. In United States v. Heppner, No. 1:25-cr-00503-JSR, ECF. 27 (S.D.N.Y. Feb. 17, 2026), the court ruled that an individual’s inputs and the resulting outputs generated by a non-enterprise AI tool (meaning a public tool that is generally available at a consumer-level) are not protected by the attorney-client privilege or the work-product doctrine even if the individual using the AI tool was involved in litigation and was seeking legal advice.

The Heppner court held that the attorney-client privilege does not extend to “communications” between an individual and an AI platform, only to communications between a client and its counsel. The court further noted that the AI tool used by the individual in Heppner included a disclaimer that user submissions were not confidential. As such, the court held that the use of the tool constituted a third-party disclosure, which is not protected by attorney-client privilege. …

February 23, 2026

Court Revives Lawsuit Challenging Implementation of Endangered Species Act for Coal Mining Projects

Charleston, WV

Environmental Alert

(Christopher (Kip) Power and Robert Stonestreet)

A federal court has revived a dormant lawsuit challenging a fundamental procedure for implementation of the federal Endangered Species Act (ESA) for coal mining projects.  The outcome of this lawsuit will likely have a substantial impact on the permitting and regulation of coal mining operations in the United States.

Section 7 of the ESA prohibits any federal agency from authorizing an action that is likely to “jeopardize the continued existence of” any endangered or threatened species, or cause “the destruction or modification of [designated critical habitat] of such species.” 16 U.S.C. § 1536(a). To ensure that their permitting or other actions will not violate this prohibition, federal agencies are required to consult with the U.S. Fish and Wildlife Service (Service) within the U.S. Department of the Interior.  The Service is the primary federal agency responsible for enforcing the ESA. Somewhat related to the Section 7 prohibition, Section 9 of the ESA forbids any person from “taking” an endangered species, which includes actions that “harm” such species in any way (whether permitted under a separate regulatory program or not).  16 U.S.C. § 1538 (a)(1)(B).

The federal Surface Mining Control and Reclamation Act of 1977 (SMCRA) is a comprehensive, multi-media statute regulating the environmental aspects of coal mining. SMCRA created the Office of Surface Mining Reclamation and Enforcement (OSM), a sister agency to the Service within the Interior Department, to promulgate and administer rules for issuing mining permits and establishing environmental protection performance standards for permitted mining operations. SMCRA recognizes that, due to differences in geology and other environmental conditions among the States, governmental responsibility for implementing its requirements “should rest with the States.” SMCRA § 101(f). …

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