Articles, Alerts & Perspectives

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. …

Pittsburgh, PA and Harrisburg, PA

The Legal Intelligencer

(By Alex Graf and Morgan Madden)

On October 22, 2024, the Clean Air Council (CAC) and Environmental Integrity Project (EIP) (collectively, “Petitioners”) filed a rulemaking petition with the Pennsylvania Environmental Quality Board (EQB) to increase minimum setback distances from unconventional oil and gas wells.  The EQB is a 20-member independent board chaired by the Secretary of the Pennsylvania Department of Environmental Protection (PADEP) and is the body responsible for adoption of all PADEP regulations.  Petitioners assert in their submission that alleged health impacts, in addition to alleged groundwater and surface water pollution, associated with unconventional oil and gas wells require the EQB to take action to increase minimum setback distances.

At present, Section 3215 of the 2012 Oil and Gas Act, 58 Pa.C.S.A. § 3215, establishes the setbacks from unconventional oil and gas wells, measured horizontally from the vertical well bore, at 500 feet from buildings and 1,000 feet from water supply extraction points, water wells, surface water intakes, and/or reservoirs.  Petitioners seek to expand the current setbacks to require that any unconventional oil or gas well be at least 3,281 feet from any building and/or drinking water well, 5,280 feet from any building serving vulnerable populations, and 750 feet from any surface water of the Commonwealth.  While the rulemaking petition does not explicitly define what constitutes “surface water,” it generally contends that the EQB’s authority to protect Pennsylvania’s water extends broadly over waters of the Commonwealth.

More specifically, the Petitioners have requested that the EQB promulgate regulations under Title 25 of the Pennsylvania Code, 25 Pa. Code §§ 78a.1, et seq., to increase the minimum setback distances, arguing that the EQB has broad authority under the Oil and Gas Act to promulgate regulations governing the development of oil and gas resources in Pennsylvania.  …

Pittsburgh, PA

Contractor’s Compass

(by Steve Antonelli and Alex Farone)

The Trump administration’s efforts to prioritize immigration law enforcement has resulted in increased activity by U.S. Immigration and Customs Enforcement (“ICE”) and an uptick of questions from employers about how to handle ICE investigations. This article provides guidance to employers for potential interactions with or inspections by ICE at the workplace, including preliminary actions, suggested steps during an ICE visit (whether announced or unannounced), and follow-up recommendations.

There is a common misconception that only employers that specifically seek or intentionally hire unauthorized workers are at risk of a visit from ICE. However, there are multiple avenues by which a generally law-abiding employer may find itself unknowingly employing an unauthorized worker. For example, an individual may have presented the employer with fraudulent documentation for the Form I-9 employment eligibility verification, and the employer may not have realized the document was inauthentic. Or an employer may have lawfully hired a noncitizen with proper employment paperwork but later may forget to reverify the worker’s Form I-9; in this instance, the individual’s work authorization could lapse or expire without the employer noticing.

To the extent an employer’s office or work facility is private property, employers have certain legal rights when faced with an ICE arrival. Employers should become familiar with their rights and best practices in the event of an ICE visit to minimize the risk of inordinate disruption to the workforce or operations, or the unauthorized seizure of company property and information. Employers should seek to balance (1) lawful compliance and cooperation with (2) private property rights and a general duty of care for employees.

Babst Calland recognizes that the topics of immigration enforcement and undocumented persons have been politicized. …

Pittsburgh, PA and Washington, DC

PIOGA Press

(by Gary Steinbauer and Gina Buchman)

On May 31, 2025, the Pennsylvania Department of Environmental Protection (PADEP) published notice of opportunity for public comment on its Proposed State Plan for 40 CFR Part 60, Subpart OOOOc Emissions Guidelines for Greenhouse Gas Emissions from Existing Crude Oil and Natural Gas Facilities in the Pennsylvania Bulletin.  55 Pa.B. 3810.

PADEP is obligated to undertake this rulemaking pursuant to section 111(d) of the Clean Air Act and its implementing regulations, which require states to establish, implement, and enforce standards of performance for existing sources of a pollutant for which emission guidelines have been issued by the United States Environmental Protection Agency (EPA).  In March 2024, EPA published Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review.  89 Fed. Reg. 16820 (Mar. 8, 2024).  This rule, referred to by some as the “Methane Rule,” established new New Source Performance Standards regulating greenhouse gases (GHGs) and volatile organic compounds (VOCs) emissions for the Crude Oil and Natural Gas source category that begin construction, reconstruction, or modification after December 6, 2022 (referred to as OOOOb) and emission guidelines for states to use in developing, submitting, and implementing state plans to establish standards of performance to limit GHG emissions (in the form of methane) from sources existing as of December 6, 2022 in the Crude Oil and Natural Gas source category (referred to as OOOOc). OOOOb and OOOOc are very similar as it relates to methane reduction. States, industry trade groups, and oil and gas companies have challenged the Methane Rule, and these challenges are pending before the D.C. …

Pittsburgh, PA and Washington, DC

The Foundation Water Law Newsletter

(by Lisa M. Bruderly, Jessica Deyoe and Mackenzie Moyer)

On April 5, 2025, the Environmental Quality Board (EQB) published a public notice proposing to amend 25 Pa. Code § 91.33 (relating to incidents causing or threatening pollution). See 55 Pa. Bull. 2589 (Apr. 5, 2025). This proposed rule intends to clarify which unauthorized discharges require immediate notification to the Pennsylvania Department of Environmental Protection (PADEP) but does not change which unauthorized discharge incidents require immediate PADEP notification.

Section 91.33 currently requires the person responsible for an unauthorized discharge to immediately notify PADEP if a discharge results in pollution, creates a danger of pollution of the waters of the Commonwealth, or would damage property. The proposed rule would require a person responsible for unauthorized discharges to either report the discharge to PADEP immediately, or create and retain a written analysis of certain factors determining that an unauthorized discharge does not cause or threaten pollution. A signed statement attesting the document’s accuracy must accompany the documentation if it is provided to PADEP at PADEP’s request. The proposed rule would require analysis of the following factors:

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

If any one of the above factors, or a combination of the factors, can adequately establish that there is no risk of the substance reaching waters of the Commonwealth, no further analysis of the other factors is required to determine whether immediate notification to PADEP is required. …

Charleston, WV

GO-WV

(by Robert Stonestreet)

Through a unanimous 8-0 decision, the Supreme Court of the United States addressed what it described as “continuing confusion and disagreement in the Courts of Appeals” over the scope of judicial review for claims asserting violations of the National Environmental Policy Act (NEPA). Seven County Infrastructure Coalition v. Eagle County, No. 23-975 (May 29, 2025). In doing so, the Supreme Court clarified that decisions by federal agencies under NEPA are entitled to substantial deference, and courts should not be in the business of second-guessing how agencies weigh competing considerations under NEPA. “The bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.” Additionally, the Supreme Court ruled that NEPA does not compel federal agencies to address the environmental effects of projects separate in time or place from the construction and operation of the proposed project at issue.

Justice Kavanaugh authored the main opinion joined by Justices Alito, Thomas, and Barrett along with Chief Justice Roberts. Justice Sotomayor penned a separate concurring opinion joined by Justices Kagan and Jackson. Justice Gorsuch did not participate in the case.

Rail Project at Issue

In December 2021, the federal Surface Transportation Board approved an application to construct an 88-mile rail line in Utah’s Uinta Basin that would primarily transport crude oil to interstate rail lines and ultimately to refineries along the Gulf Coast.

NEPA required the Board to evaluate environmental impacts of the proposed project and consider potential alternatives to the project that would avoid or minimize those impacts. The Board’s NEPA evaluation was reflected in an Environmental Impact Statement (EIS) spanning more than 3,600 pages. …

Washington, DC

GO-WV

(by Lee Banse)

Introduction

Since entering office, President Trump has issued multiple executive orders seeking to promote the deregulation of American business, improve government efficiency, and unleash American energy.[1] In response, the U.S. Department of Transportation (DOT) and its agency responsible for pipeline safety, the Pipeline and Hazardous Materials Safety Administration (PHMSA), have initiated multiple rulemakings to achieve these objectives. This article will provide a brief overview of the initiatives that will impact operators subject to PHMSA’s pipeline safety regulations. Operators can engage with DOT and PHMSA by providing comments to assist in the deregulatory efforts.

DOT Initiatives

Ensuring Lawful Regulation; Reducing Regulation and Controlling Regulatory Costs Request for Information

On April 3, 2025, citing President Trump’s executive orders related to deregulation and government efficiency,[2] DOT published a request for information (RFI) seeking the public’s input to identify which DOT regulations, guidance, paperwork requirements, or other regulatory obligations can be modified or repealed.[3] The RFI is broad in scope and applies to all DOT programs, including the pipeline safety regulations, and seeks information to help drive future deregulatory rulemakings and initiatives.  DOT requested comments on the RFI to be submitted by May 5, 2025, but has also established an email inbox, Transportation.RegulatoryInfo@dot.gov, which remains open on a continuous basis for the public to submit additional ideas on programs suitable for modification or repeal.

Administrative Rulemaking, Guidance, and Enforcement Procedures Notice of Proposed Rulemaking

On May 16, 2025, DOT published a notice of proposed rulemaking (NPRM) to recodify certain DOT administrative procedures and practices in the Code of Federal Regulations (CFR). …

Pittsburgh, PA

The Legal Intelligencer

(by Michael Korns and Anna Hosack)

With election season just around the corner, Pennsylvania municipalities often face the issue of municipal vacancies.  While some municipalities have highly contested elections, others, particularly small boroughs, may struggle to find individuals even willing to serve.  Municipalities often have questions regarding the rules for these openings, which follow rules from multiple statutes and codes.  To add to the confusion, the rules for filling vacancies differ greatly depending on the type of municipality and the exact timing of when the vacancy occurs.  This article provides a broad overview of how vacancies occur, how they are filled, and for how long the new official will serve.

How Vacancies Occur

Vacancies on municipal governing bodies can occur in several ways.  Most commonly, they occur due to the death, resignation, or relocation of the elected official.  The timing of the vacancy depends on the cause.  Where a vacancy occurs by the death of an elected official, the official and operative date of the vacancy is the date of death.  Where a vacancy occurs by resignation, the date of the vacancy is either (i) on the date the municipality’s governing body accepts the resignation as a whole by vote at a public meeting or (ii) 45 days from the date the resignation was tendered, whichever comes first.  An elected official may withdraw their resignation in writing prior to the governing body’s acceptance, so long as 45 days have not passed.

Relocations are the trickiest vacancies to date, as in those cases, the vacancy occurs when the elected official has established a permanent domicile outside of the municipality.  Most commonly, the operative date of vacancy is the date they moved into a new home.   …

Washington, DC

PIOGA Press

(by Lee Banse)

Introduction

Since entering office, President Trump has issued multiple executive orders seeking to promote the deregulation of American business, improve government efficiency, and unleash American energy.[1] In response, the U.S. Department of Transportation (DOT) and its agency responsible for pipeline safety, the Pipeline and Hazardous Materials Safety Administration (PHMSA), have initiated multiple rulemakings to achieve these objectives. This article will provide a brief overview of the initiatives that will impact operators subject to PHMSA’s pipeline safety regulations. Operators can engage with DOT and PHMSA by providing comments to assist in the deregulatory efforts.

DOT Initiatives

Ensuring Lawful Regulation; Reducing Regulation and Controlling Regulatory Costs Request for Information

On April 3, 2025, citing President Trump’s executive orders related to deregulation and government efficiency,[2] DOT published a request for information (RFI) seeking the public’s input to identify which DOT regulations, guidance, paperwork requirements, or other regulatory obligations can be modified or repealed.[3] The RFI is broad in scope and applies to all DOT programs, including the pipeline safety regulations, and seeks information to help drive future deregulatory rulemakings and initiatives.  DOT requested comments on the RFI to be submitted by May 5, 2025, but has also established an email inbox, Transportation.RegulatoryInfo@dot.gov, which remains open on a continuous basis for the public to submit additional ideas on programs suitable for modification or repeal.

Administrative Rulemaking, Guidance, and Enforcement Procedures Notice of Proposed Rulemaking

On May 16, 2025, DOT published a notice of proposed rulemaking (NPRM) to recodify certain DOT administrative procedures and practices in the Code of Federal Regulations (CFR). …

Pittsburgh, PA

TEQ Magazine

(by Kristen Petrina)

On May 19, 2025, President Trump signed into the law the “TAKE IT DOWN Act (the “Act”). The Act includes data privacy, digital protections, and AI governance requirements of companies to remove deepfakes from “covered platforms”, particularly with a focus on nonconsensual intimate imagery (“NCII”).

The Act, whose acronym stands for “Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act” includes both criminal and civil elements; however, it does not create a new private right of action, rather provides the Federal Trade Commission with the enforcement authority over failures to comply with the notice and removal obligations, which would constitute an unfair or deceptive act or practice under the Federal Trade Commission Act.

Criminal and Civil Liability

The Act criminalizes the publication of an authentic or computer-generated NCII and outlines penalties for when the images of “intimate visual depiction” as defined in 15 USC 6851(5)(A), of an adult or minor and imposes new obligations on social media and online platforms to respond to requests to promptly remove unlawful NCII. Synthetic or computer-generated NCII, includes the term “digital forgery” meaning “any intimate visual depictions of an identifiable individual created through the use of software, machine learning, artificial intelligence, or any other computer generated or technological means, including by adapting, modifying, manipulating, or altering an authentic visual depiction, that, when viewed as a whole by a reasonable person, is indistinguishable from an authentic visual depiction of the individual.” An identifiable individual includes someone “(i) who appears in whole or in part in an intimate visual depiction; and (ii) whose face, likeness, or other distinguishing characteristic (including a unique birthmark or other recognizable feature) is displayed in connection with such intimate visual depiction.”

Criminal Liability for “Knowingly” Publishing NCII

1. Involving Adults.

…