December 12, 2025

New EPA Webpage Compiles Clean Air Act Resources for Data Center & AI Projects

Pittsburgh, PA and Washington, DC

Firm Alert

(by Gary Steinbauer, Gina Buchman and Christina Puhnaty)

In response to President Trump’s Executive Order 14179, “Removing Barriers to American Leadership in Artificial Intelligence (AI),” EPA announced this week a new EPA webpage dedicated to compiling agency resources related to the Clean Air Act requirements potentially applicable to the development of data centers and AI facilities across the United States. The webpage, Clean Air Act Resources for Data Centers, is intended to promote transparency by aiding developers and other interested parties in locating various agency resources, including Clean Air Act regulations, interpretative guidance, and technical tools, that may assist with Clean Air Act permitting and air quality modeling during project development.

In addition to linking to potentially applicable EPA regulations, the webpage provides in one place various historical EPA guidance documents relating to the federal New Source Review (“NSR”) and Title V permitting programs. These guidance documents include interpretation letters and memoranda related to calculating and limiting a source’s potential to emit, assessing whether multiple projects must be aggregated for purposes of determining major NSR applicability, and determining when an operator may initiate construction activities of a major NSR source prior to obtaining a construction permit. The webpage also includes a News and Updates section that houses recent EPA announcements relating to data center and AI facility development.

Notably, the webpage explains that in an effort to advance cooperative federalism, EPA’s Office of Air and Radiation (“OAR”) staff are “available to consult with permit reviewing authorities and individual sources on a case-by-case basis to identify existing data, models, and tools to demonstrate compliance and, as appropriate, exercise discretion and flexibilities in the permitting processes.” The webpage encourages both permitting authorities and permit applicants to contact their EPA Regional Offices and EPA’s Data Centers Team to engage OAR staff members on projects. …

December 11, 2025

Sixth Circuit Stands Alone (For Now?) on Third-Party Harassment Liability

Pittsburgh, PA

The Legal Intelligencer

(by Janet Meub)

When can an employee hold its employer liable for harassment by a third-party? For instance, can a concierge hold a hotel liable for the inappropriate conduct of a paying guest? The consensus in many circuit courts, heavily influenced by the Equal Employment Opportunity Commission’s (EEOCs) guidance and procedural regulations, is that negligence is enough to answer that question in the affirmative.  If an employer knew or should have known of the third-party harassment and failed to take immediate action, the employer can be held liable. However, the Sixth Circuit recently strayed from the path of the negligence theory of liability, and in Bivens v. Zep, Inc., 147 F. 4th 635 (Aug 8, 2025), held that Title VII “imposes liability for non-employee harassment only where the employer intends for the harassment to occur.”

To establish a sex-based hostile work environment claim under Title VII, a plaintiff must establish that (1) she is a member of a protected class (2) who faced unwelcome harassment, which (3) was based on her sex and (4) created a work environment that reasonably interfered with her work performance, for which (5) her employer is responsible. Employers can be held directly liable for the actions of their agents, whether those of a supervisor who can bind the company or those of a lower-level employee whose intentional acts are within the scope of employment can result in vicarious liability for the employer. Because sexual harassment does not serve any business purpose, most circuit courts have interpreted Title VII to require a showing that the harasser was either “aided in accomplishing the tort by the existence of the agency relationship” or that the employer was negligent in letting the employee commit the tort. …

December 8, 2025

Practical and Legal Hurdles to Lithium: The Next Extraction Revolution?

Pittsburgh, PA

The Drill Bit Magazine

(by Steve Silverman and Katerina Vassil)

There has been much talk within the oil and gas industry about the potential for lithium extraction from produced water, a waste byproduct produced during hydraulic fracturing and drilling.  Is this only talk, or are we approaching another extraction revolution? The answer is that the revolution is knocking on the door, but there remain significant practical and legal hurdles to overcome. To become viable, lithium extraction must become both economically and environmentally sustainable.  Thus far, these technologies have not proven to be economically scalable, nor could their environmental impacts be justified.

The legal hurdles involving lithium extraction can be summed up in one question:  Who owns the lithium?  Is it the surface owner, the mineral owner (where the two differ), or the operator?  As seen below, the standard lawyer answer applies:  it depends.

Incentives for overcoming these hurdles could not be higher.  Whoever masters lithium extraction technology from produced water will be able to name their own price for licensing that technology.   Just as importantly, the oil and gas industry will be a major contributor to solving the obstacles currently facing the U.S. in sourcing lithium. Current U.S. dependence on foreign suppliers of lithium, especially China, raises significant geo-political concerns that can be cured by sourcing lithium domestically.  Current estimates are that 40% of the country’s lithium needs are contained within the Appalachian Basin alone.

LITHIUM IN CONTEXT

  1. Lithium as a Commodity

    Produced water contains a variety of constituents – sediment, salts, hydrocarbons, minerals, and metals. Lithium is one of these constituents, and when extracted and processed, lithium has numerous uses and applications.

    2. …

December 4, 2025

Surprise Act: Pending Appeal Involving Last-Minute Amendment Could Presage the Revival of Trial by Ambush in Pa.

Harrisburg, PA and Pittsburgh, PA

The Legal Intelligencer

(by Casey Alan Coyle and Ryan McCann)

Pleadings are the opening act of litigation—setting the stage, defining the cast, and signaling the story to come.  But Bernavage v. Green Ridge Healthcare Group, LLC, et al., No. 1576 MDA 2023 (Pa. Super. Ct.), which is pending on appeal before the en banc Superior Court, presents a plot twist: what happens when a plaintiff introduces an entirely new theory just as the curtain is about to fall and the house lights begin to rise?  Specifically, the appeal poses the question of whether a plaintiff is permitted to amend her complaint in the middle of trial to add allegations of the defendants’ recklessness and request an award of punitive damages.

Standard to Amend Pleadings

Rule 1033 of the Pennsylvania Rules of Civil Procedure governs amended complaints.  It states, in relevant part, that a party may amend a pleading—whether to “change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading”— “at any time” “either by filed consent of the adverse party or by leave of court.”  Pa.R.Civ.P. 1033(a).  On its face, Rule 1033 does not impose a time limit on when a pleading such as a complaint must be amended.  Indeed, the Superior Court has held that a complaint may be amended “at the discretion of the trial court after pleadings are closed, while a motion for judgment on the pleadings is pending, at trial, after judgment, or after an award has been made and an appeal take therefrom.”  Biglan v. Biglan, 479 A.2d 1021, 1025–1026 (Pa. …

December 1, 2025

Practical and Legal Hurdles to Lithium: The Next Extraction Revolution?

Pittsburgh, PA

GO-WV

(by Steve Silverman and Katerina Vassil)

There has been much talk within the oil and gas industry about the potential for lithium extraction from produced water, a waste byproduct produced during hydraulic fracturing and drilling.  Is this only talk, or are we approaching another extraction revolution? The answer is that the revolution is knocking on the door, but there remain significant practical and legal hurdles to overcome. To become viable, lithium extraction must become both economically and environmentally sustainable.  Thus far, these technologies have not proven to be economically scalable, nor could their environmental impacts be justified.

The legal hurdles involving lithium extraction can be summed up in one question:  Who owns the lithium?  Is it the surface owner, the mineral owner (where the two differ), or the operator?  As seen below, the standard lawyer answer applies:  it depends.

Incentives for overcoming these hurdles could not be higher.  Whoever masters lithium extraction technology from produced water will be able to name their own price for licensing that technology.   Just as importantly, the oil and gas industry will be a major contributor to solving the obstacles currently facing the U.S. in sourcing lithium. Current U.S. dependence on foreign suppliers of lithium, especially China, raises significant geo-political concerns that can be cured by sourcing lithium domestically.  Current estimates are that 40% of the country’s lithium needs are contained within the Appalachian Basin alone.

Lithium in Context

A. Lithium as a Commodity

Produced water contains a variety of constituents – sediment, salts, hydrocarbons, minerals, and metals. Lithium is one of these constituents, and when extracted and processed, lithium has numerous uses and applications. …

November 26, 2025

Adding Motions to the Posted Agenda is Once Again Permitted by the Sunshine Act

Pittsburgh, PA

Public Sector Alert

(by Max Junker and Alex Giorgetti)

As Pennsylvania local governments are no doubt well aware, on June 30, 2021, the General Assembly enacted Act 65 of 2021, which amended the Pennsylvania Sunshine Act, 65 Pa.C.S. §§701-716, (Sunshine Act) to require that agencies make their meeting agendas available to the public, and set restrictions on taking official action on any item not listed on the published agenda.  The Sunshine Act requires that agencies provide citizens with notice of, and access to, all meeting agendas at which official action and deliberations by a quorum will occur at least 24 hours in advance.  The agenda must be posted at the municipal building and on the municipality’s website.  There is a process to amend the posted agenda at the meeting, but the Commonwealth Court ruled that the Sunshine Act only permitted such revisions in limited circumstances for emergencies or actions which did not require the expenditure of funds or a contract. On November 24, 2025, the Supreme Court overruled that decision and reinstated the process for amending an agenda for any reason.

Four Exceptions to the Prohibition on Official Action Not Included on Posted Agenda

The legislature included four exceptions to the requirement that items be listed on the agenda before a board can take public action.  First, Section 712.1(b) permits the agency to take official action on matters not included in the agenda if they relate to a real or potential emergency involving a clear and present danger to life or property.

Second, Section 712.1(c) permits official action on a matter brought to the attention of the agency within the 24-hour period prior to the meeting, provided the matter is de minimis in nature and does not involve the expenditure of funds or entering into any contract or agreement. …

November 18, 2025

EPA Proposes to Scale Back WOTUS Definition

Pittsburgh, PA and Washington, DC

Environmental Alert

(by Lisa Bruderly and Ethan Johnson)

On November 17, 2025, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (the Corps) proposed a revised definition of “waters of the United States” (WOTUS) under the Clean Water Act (Proposed Rule). The Trump administration announced that the Proposed Rule would “provide greater regulatory certainty and increase Clean Water Act program predictability and consistency.”

The new definition is expected to reduce the number of streams and wetlands that are regulated under the Clean Water Act and will impact several federal regulatory programs, including Section 404 permitting of impacts to regulated waters. The agencies drafted the Proposed Rule to closely mirror the U.S. Supreme Court’s 2023 decision in Sackett v. EPA, which held that the Clean Water Act extends to “relatively permanent” bodies of water connected to traditional navigable waters and wetlands with a “continuous surface connection” to those waters.

The Proposed Rule adds definitions for several terms, including “relatively permanent,” “tributary,” “continuous surface connection,” “prior converted cropland,” and “ditch.”

The public comment period will begin when the Proposed Rule is published in the Federal Register. If finalized, it will replace the Biden administration’s 2023 definition of WOTUS. The definition of WOTUS has changed several times in the last decade. Each new definition has been challenged in the courts.

Babst Calland will stay up to date on WOTUS developments and the Clean Water Act, in general. If you have any questions or would like any additional information, please contact Lisa Bruderly at (412) 394-6495 or lbruderly@babstcalland.com, or Ethan Johnson at (202) 853-3465 or ejohnson@babstcalland.com.

November 17, 2025

Practical and Legal Hurdles to Lithium: The Next Extraction Revolution?

Pittsburgh, PA

PIOGA Press

(by Steve Silverman and Katerina Vassil)

There has been much talk within the oil and gas industry about the potential for lithium extraction from produced water, a waste byproduct produced during hydraulic fracturing and drilling.  Is this only talk, or are we approaching another extraction revolution? The answer is that the revolution is knocking on the door, but there remain significant practical and legal hurdles to overcome. To become viable, lithium extraction must become both economically and environmentally sustainable.  Thus far, these technologies have not proven to be economically scalable, nor could their environmental impacts be justified.

The legal hurdles involving lithium extraction can be summed up in one question:  Who owns the lithium?  Is it the surface owner, the mineral owner (where the two differ), or the operator?  As seen below, the standard lawyer answer applies:  it depends.

Incentives for overcoming these hurdles could not be higher.  Whoever masters lithium extraction technology from produced water will be able to name their own price for licensing that technology.   Just as importantly, the oil and gas industry will be a major contributor to solving the obstacles currently facing the U.S. in sourcing lithium. Current U.S. dependence on foreign suppliers of lithium, especially China, raises significant geo-political concerns that can be cured by sourcing lithium domestically.  Current estimates are that 40% of the country’s lithium needs are contained within the Appalachian Basin alone.

Lithium in Context

A. Lithium as a Commodity

Produced water contains a variety of constituents – sediment, salts, hydrocarbons, minerals, and metals. Lithium is one of these constituents, and when extracted and processed, lithium has numerous uses and applications. …

November 17, 2025

The 7 Most Common Mistakes Employers Make as to Non-Competes

Pittsburgh, PA

TEQ Hub

(by Steve Silverman)

Employers often cling to misconceptions about non-compete agreements that can prevent them from effectively using these powerful tools or render such agreements unenforceable. Here are the seven most common reasons why this happens.

  1. Failing To Understand What Non-Competes Are
    In the common vernacular, a non-compete is an umbrella term for contractually prohibiting an employee (or independent contractor, buyer of a business, or even a vendor) from working for a competitor or otherwise restricting that employee’s subsequent employment. However, a non-compete is one of several tools available to impose restrictions on an employee leaving their employer called “restrictive covenants.”  A non-compete, which is just one type of restrictive covenant, limits a former employee or independent contractor from working for a competitor for a particular time period in a specific geographic area. A non-solicit agreement is another type of restrictive covenant, which allows an ex-employee to work for any employer they want without any geographic restriction but prohibits them from seeking business from their former employer’s customers for a period of time. Another variation of a non-solicit prohibits that ex-employee from hiring away or encouraging their former colleagues to leave their employment with their former employer. These are sometimes known as anti-piracy provisions. The distinctions between these various types of restrictive covenants are important. For instance, courts are generally more willing to enforce non-solicitation provisions than non-competes. Employers have to decide which, if not all, of these restrictive covenants work best for their business.
  2. Assuming That Non-Competes Are Unenforceable
    A significant number of employers, as well as employees, incorrectly believe that restrictive covenants such as non-competes are categorically unenforceable. While this can be true for certain classes of employees (as discussed below), this misconception cannot be further from the truth.

    3. …

November 14, 2025

Fiscal Code of 2025 Abrogates RGGI, Expedites Permitting Procedures, and Gives the PUC Oversight of PJM Load Forecasts

Pittsburgh, PA

Environmental Alert

(by Kevin Garber and Alex Graf)

On November 12, 2025, Governor Josh Shapiro signed House Bill 416, a Fiscal Code Bill and a segment of the Pennsylvania budget package for Fiscal Year 2025-26.  The Fiscal Code has several important implications for industry regulation, including the abrogation of the Regional Greenhouse Gas Initiative regulations, permitting relief through expedited review schedules for certain air and water general permits, and provisions to ensure grid reliability.

The Fiscal Code abrogates the RGGI provisions contained in 25 Pa. Code Chapter 145, Subchapter E, known as the CO2 budget trading program.  The RGGI regulations were promulgated in 2022 but have not yet been implemented in Pennsylvania because of ongoing legal challenges.  In November 2023, the Pennsylvania Commonwealth Court ruled that RGGI is an unconstitutional, unenforceable tax.  Governor Shapiro and many other parties appealed that ruling to the Pennsylvania Supreme Court, where the case was fully briefed and argued last May.  Although the Court’s course of action remains uncertain now that RGGI has been abrogated, the Court could dismiss the appeal as moot and decline to issue an opinion.

The Fiscal Code also expedites permitting for certain air and water-related general permits. The Pennsylvania Department of Environmental Protection now must respond within 20 days of submission to an application under the Air Pollution Control Act for coverage under a general plan approval or general permit. If the applicant addresses the technical deficiencies within 25 days, DEP must issue a final determination on the application within 30 days thereafter. However, if DEP misses this deadline, the application is deemed to have been approved. DEP may seek a one-time, 5-day extension to respond if the applicant agrees. …

November 13, 2025

EPA Proposes to Scale Back PFAS Reporting Requirements Under TSCA

Washington, DC

Environmental Alert

(by Sloane Wildman and Ethan Johnson)

On November 10, 2025, EPA announced a proposed revision to regulations issued under Toxic Substances Control Act (TSCA) Section 8(a)(7), which would reduce certain per and polyfluoroalkyl substance (PFAS) reporting requirements for manufacturers and importers. The regulation was promulgated in October 2023 under the prior Administration and requires manufacturers and importers of PFAS in any year between 2011–2022 to report data on exposure and detrimental effects to EPA. In proposing this revision, EPA noted its reliance on Executive Order 14219, entitled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative,” which directs each agency to review and rescind existing rules based on consistency with the agency’s best reading of the governing statute, Administration policy, and cost-benefit balancing principles. EPA Administrator Lee Zeldin estimated the existing rule would have cost American businesses $1 billion in total to comply.

Specifically, EPA’s proposed revision would exempt reporting on PFAS manufactured (including imported) in mixtures or products at concentrations of 0.1% or lower. It would also exempt imported articles, certain byproducts, impurities, research and development chemicals, and non-isolated intermediates from reporting. The revision also includes technical corrections that would clarify what must be reported in certain data fields and adjust the data submission period. Notably, however, the revision will not change the 2011–2022 reporting timeframe. The proposed rule has not yet been published in the Federal Register, but once published EPA will accept comments on the proposed changes for 45 days after publication.

Babst Calland’s Environmental Practice Group is closely tracking EPA’s PFAS actions, and our attorneys are available to provide strategic advice on how developing PFAS regulations may affect your business. …

November 6, 2025

Babst Calland Ranked in 2026 Best Law Firms®

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

Babst Calland has been recognized in the 2026 edition of Best Law Firms®, ranked by Best Lawyers®, nationally in 8 practice areas and regionally in 41 practice areas:

  • National Tier 2
    • Energy Law
    • Environmental Law
    • Land Use and Zoning Law
    • Litigation – Construction
    • Litigation – Environmental
    • Mining Law
  • National Tier 3
    • Natural Resources Law
    • Oil and Gas Law
  • Regional Tier 1
    • Pittsburgh
      • Bet-the-Company Litigation
      • Commercial Litigation
      • Construction Law
      • Corporate Law
      • Energy Law
      • Energy Regulatory Law
      • Environmental Law
      • Land Use and Zoning Law
      • Litigation – Construction
      • Litigation – Environmental
      • Litigation – Land Use and Zoning
      • Mediation
      • Municipal Law
      • Natural Resources Law
      • Water Law
    • Charleston-WV
      • Business Organizations (including LLCs and Partnerships)
      • Commercial Litigation
      • Energy Law
      • Environmental Law
      • Litigation – Environmental
      • Oil and Gas Law
  • Regional Tier 2
    • Pittsburgh
      • Information Technology Law
      • Real Estate Law
    • Charleston-WV
      • Arbitration
      • Banking and Finance Law
      • Commercial Transactions / UCC Law
      • Corporate Law
      • Mining Law
      • Natural Resources Law
    • Washington, D.C.
      • Energy Law
      • Environmental Law
      • Litigation – Environmental
  • Regional Tier 3
    • Pittsburgh
      • Labor Law –

    • …

November 5, 2025

Court Enforces CLCPA Compliance: NY DEC Ordered to Adopt Emission Reduction Regulations

Lakewood, NY and Washington, DC

Environmental Alert

(by Polly Hampton, Gina Buchman and Jordan Brown)

On October 24, 2025, the Albany County Supreme Court (Court) issued a decision and order in Citizen Action of New York et al v. New York State Department of Environmental Conservation, Index No. 903160-25, NYSCEF Document No. 93.  The Court directed the New York State Department of Environmental Conservation (DEC) to issue regulations to meet the emissions reduction mandates pursuant to the State’s 2019 Climate Leadership and Community Protection Act (CLCPA). The CLCPA amended the Environmental Conservation Law (ECL) to include Article 75, which sets forth the statewide greenhouse gas (GHG) limits and directs DEC to promulgate regulations to ensure compliance. Pursuant to that authority, ECL § 75-0109 required DEC to adopt rules “to ensure compliance with the statewide emissions reduction limits” established in § 75-0107. The Court’s order gives DEC until February 6, 2026, to finalize those implementing regulations.

Background
In 2019, then New York Governor Andrew Cuomo signed into law the CLCPA, which mandates two statewide GHG emissions targets: a 40 percent reduction from 1990 levels by 2030, and an 85 percent reduction by 2050. The statute directs the DEC to adopt regulations to achieve those goals, however, implementation has been economically challenging.

In early 2023, DEC and the New York State Energy Research and Development Authority (NYSERDA) initiated the rulemaking process to establish a New York Cap and Invest (NYCI) Program, engaging in significant outreach to gather input from stakeholders. In December 2023, DEC and NYSERDA published a pre-proposal outline describing the structure and major components of the forthcoming rulemaking. …

November 4, 2025

The 7 Most Common Mistakes Employers Make as to Non-Competes

Pittsburgh, PA

Firm Alert

(by Steve Silverman)

Employers often cling to misconceptions about non-compete agreements that can prevent them from effectively using these powerful tools or render such agreements unenforceable. Here are the seven most common reasons why this happens.

  1. Failing To Understand What Non-Competes Are
    In the common vernacular, a non-compete is an umbrella term for contractually prohibiting an employee (or independent contractor, buyer of a business, or even a vendor) from working for a competitor or otherwise restricting that employee’s subsequent employment. However, a non-compete is one of several tools available to impose restrictions on an employee leaving their employer called “restrictive covenants.”  A non-compete, which is just one type of restrictive covenant, limits a former employee or independent contractor from working for a competitor for a particular time period in a specific geographic area. A non-solicit agreement is another type of restrictive covenant, which allows an ex-employee to work for any employer they want without any geographic restriction but prohibits them from seeking business from their former employer’s customers for a period of time. Another variation of a non-solicit prohibits that ex-employee from hiring away or encouraging their former colleagues to leave their employment with their former employer. These are sometimes known as anti-piracy provisions. The distinctions between these various types of restrictive covenants are important. For instance, courts are generally more willing to enforce non-solicitation provisions than non-competes. Employers have to decide which, if not all, of these restrictive covenants work best for their business.
  2. Assuming That Non-Competes Are Unenforceable
    A significant number of employers, as well as employees, incorrectly believe that restrictive covenants such as non-competes are categorically unenforceable. While this can be true for certain classes of employees (as discussed below), this misconception cannot be further from the truth.

    3. …

October 30, 2025

Expedited Reviews of Permit Applications Under SPEED Program

Pittsburgh, PA and Washington, DC

FNREL Water Law Newsletter

(by Lisa Bruderly, Mackenzie Moyer and Ethan Johnson)

On August 21, 2025, the Pennsylvania Department of Environmental Protection (DEP) announced that companies may now request expedited permit application reviews under the Streamlining Permits for Economic Expansion and Development (SPEED) program. DEP likened the new program to an amusement park “fast pass.” Eligible permit types for the SPEED program include:

  • Air Quality plan approvals (state only) (Chapter 127)
  • Earth Disturbance permits (Chapter 102)
    • Individual NPDES Permit
    • General NPDES Permit for Discharges of Stormwater Associated with Small Construction Activities (PAG-01)
    • General NPDES Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02)
    • Erosion and Sediment Control Permit
    • Erosion and Sediment Control General Permit for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing or Treatment Operations or Transmission Lines (ESCGP-4)
  • Individual Water Obstruction and Encroachment permits for project impacts eligible for coverage under the federal/state programmatic permit (PASPGP-6 or its successor) (Chapter 105)
  • Dam Safety Permits (Chapter 105)

After submitting a SPEED intake form, the appropriate office will schedule and hold an intake meeting with the applicant within two to three business days.

The applicant will then have the opportunity to select a DEP-approved qualified professional to conduct the expedited review of the application. Among other qualifications, the professional must have at least five years of relevant permitting experience in Pennsylvania. The applicant must pay the qualified professional the review fee up front. The qualified professional must complete the initial review within 20% of the total review timeframe in the project work order, or another agreed upon timeframe. …

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