Articles, Alerts & Perspectives

Pittsburgh, PA and Washington, DC

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Mining

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

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

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

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

Pittsburgh, PA

The Legal Intelligencer

(by Blaine Lucas and Anna Jewart)

In accordance with Section 909.1 of the Pennsylvania Municipalities Planning Code (MPC), a municipal zoning hearing board (ZHB) possesses exclusive jurisdiction to hear and render final adjudications over a number of land use matters.  Not only does a ZHB adjudicate applications for variances from, and special exceptions under, a zoning ordinance, it frequently operates in an appellate capacity as well.  Among other matters, Section 909.1(3) vests a ZHB with exclusive jurisdiction over appeals “from the determination of the zoning officer” including “the issuance of any cease and desist order,” 53 P.S. §10909.1(3).  In addition, the municipal zoning officer has the authority under Section 616.1 of the MPC, 53 P.S. §10616.1, to initiate enforcement proceedings against a person perceived to be in violation of the local zoning ordinance through issuance of an “enforcement notice.”  Section 616.1(c)(5) requires that the “enforcement notice” include a statement of the right to appeal to the ZHB, and Section 616.1(d) articulates that in “any appeal of an enforcement notice to the zoning hearing board” the municipality shall have the responsibility of presenting its evidence first.

It is clear from a reading of both Sections 909.1 and 616.1 of the MPC that the ZHB has appellate jurisdiction over both an “enforcement notice” specifically, or any other “determination” of the zoning officer.  However, the procedures and practice involved in the ZHB’s appellate review in these matters can be nuanced, and issues of interpretation of the relevant provisions of the MPC remain unsettled. A frequent issue is one of objector standing; i.e. who, beyond the appellant or applicant, is permitted to participate in a given case before a ZHB.  In Heinzee, LLC v. …

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

Babst Calland is pleased to announce that seven lawyers were selected as 2026 Best Lawyers® “Lawyer of the Year” in Pittsburgh, Pa. and Charleston, W. Va. (by BL Rankings). Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2026 Best Lawyers® “Lawyer of the Year” include:

Joseph G. Bunn – Mining “Lawyer of the Year” in Charleston, W. Va.

Kevin J. Garber – Natural Resources “Lawyer of the Year” in Pittsburgh, Pa.

Jennifer J. Hicks – Energy “Lawyer of the Year” in Charleston, W. Va.

Robert Max Junker – Municipal “Lawyer of the Year” in Pittsburgh, Pa.

Jean M. Mosites – Environmental “Lawyer of the Year” in Pittsburgh, Pa.

Mychal S. Schulz – Litigation – ERISA “Lawyer of the Year” in Charleston, W. Va.

Steven B. Silverman – Information Technology “Lawyer of the Year” in Pittsburgh, Pa.

View the award recipients here.

In addition, 47 Babst Calland lawyers were selected for inclusion in the 2026 edition of The Best Lawyers in America®, the most respected peer-reviewed publications in the legal profession:

• Chester R. Babst III – Environmental Law, Litigation – Environmental
• Donald C. Bluedorn II – Environmental Law, Litigation – Environmental, Water Law
• Lisa Bruderly – Energy Law
• Joseph G.

…

Pittsburgh, PA and Washington, DC

PIOGA Press

(by Ben Clapp and Gary Steinbauer)

Announced through a record-breaking number of executive orders, memoranda and directives, new White House energy and environmental policy initiatives are resulting in a rapidly changing environmental regulatory climate affecting the business community.

To help clients keep pace with these new policy initiatives, and recent steps that EPA has taken to implement this broad deregulatory agenda, attorneys at the law firm Babst Calland offer advice on how businesses can adapt and thrive in a swiftly changing regulatory environment.

It will be some time before we get a clear picture on “this administration’s policy objectives and how they’re all going to unfold,” Gary Steinbauer, a shareholder working with the environmental law practice of Babst Calland’s Pittsburgh office, says.

One of the emerging energy policy themes is the Trump administration’s goal of “American energy dominance,” achieved through permitting reform and environmental deregulation in the energy sector. Other themes include de-emphasizing climate change-based regulatory initiatives, promoting domestic manufacturing and mineral extraction, and grid reliability.

Executive orders 101

An executive order is a written statement in which a president broadcasts a directive to implement a policy change.

Presidents have fairly broad authority in terms of the scope of what they can order, “provided that that order is consistent with the applicable laws,” Ben Clapp, shareholder and chair of the environmental section at Babst Calland’s Washington, D.C. office, says.

A president cannot, through executive order, revise a regulation or amend or revoke a law.  However, a president can revoke a previous administration’s executive orders and use them to announce new policy initiatives. Sometimes, when undertaking specific activities that have been delegated to the executive branch by Congress or the Constitution, they can compel a specific, direct action through an executive order without further procedures. …

Pittsburgh, PA and Washington, DC

Pittsburgh Business Times

(by Ben Clapp and Gary Steinbauer)

Announced through a record-breaking number of executive orders, memoranda and directives, new White House energy and environmental policy initiatives are resulting in a rapidly changing environmental regulatory climate affecting the business community.

To help clients keep pace with these new policy initiatives, and recent steps that EPA has taken to implement this broad deregulatory agenda, attorneys at the law firm Babst Calland offer advice on how businesses can adapt and thrive in a swiftly changing regulatory environment.

It will be some time before we get a clear picture on “this administration’s policy objectives and how they’re all going to unfold,” Gary Steinbauer, a shareholder working with the environmental law practice of Babst Calland’s Pittsburgh office, says.

One of the emerging energy policy themes is the Trump administration’s goal of “American energy dominance,” achieved through permitting reform and environmental deregulation in the energy sector. Other themes include de-emphasizing climate change-based regulatory initiatives, promoting domestic manufacturing and mineral extraction, and grid reliability.

Executive orders 101

An executive order is a written statement in which a president broadcasts a directive to implement a policy change.

Presidents have fairly broad authority in terms of the scope of what they can order, “provided that that order is consistent with the applicable laws,” Ben Clapp, shareholder and chair of the environmental section at Babst Calland’s Washington, D.C. office, says.

A president cannot, through executive order, revise a regulation or amend or revoke a law.  However, a president can revoke a previous administration’s executive orders and use them to announce new policy initiatives. Sometimes, when undertaking specific activities that have been delegated to the executive branch by Congress or the Constitution, they can compel a specific, direct action through an executive order without further procedures. …

Harrisburg, PA

The Legal Intelligencer

(by Casey Alan Coyle and Stefanie Pitcavage Mekilo)

According to the United Nations, climate change “is the defining issue of our time.”  https://www.un.org/en/global-issues/climate-change  (last visited July 28, 2025).  Yet views diverge over precisely what the solutions to the issue should be—and who is authorized to pursue them.  Over the years, efforts to address climate change have taken many forms, from international agreements to federal statutes to interstate compacts.  As policies evolve, some state and local governments have begun exploring novel theories through existing doctrine—including the law of public nuisance—for a pathway to seek relief, through individual courts, for alleged climate‑related harms.  Several recent decisions, however, reveal that the legal landscape remains in flux, with courts charting different courses through the crosswinds of federal law. 

Federal Common Law and the Displacement Doctrine

Despite the proclaimed extinction of “federal general common law” in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal common law still exists today in certain areas of national concern.  Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 410–421 (2011).  One such area is the general subject of environmental law and, specifically, ambient or interstate air and water pollution.  Id.  Thus, federal common law can apply to transboundary pollution suits, and they are often based on a theory of public nuisance.  Under federal common law, a public nuisance is defined as “unreasonable interference with a right common to the general public.”  Restatement (Second) of Torts § 821B(1) (1979).

The right to assert a federal common-law public nuisance claim is not without limits, however.  …

Pittsburgh, PA, Charleston, WV

OnRAMP Magazine

(by Jonathan Kersting featuring Moore Capito)

It’s no secret that data centers play a crucial role in our everyday lives. From managing the data behind our social media posts to controlling critical infrastructure, they have become integral to our existence. With the increasing demand for technology and computing power, there’s a surge in need for new, energy-hungry data centers. This demand is projected to outpace the entire power consumption of major cities, signaling a pressing challenge for our current energy infrastructure.

Recently, I had the opportunity to delve into a conversation with Moore Capito, a shareholder at Babst Calland, specializing in corporate, energy, and emerging technologies, about this very transformation.

With Capito’s hands-on energy sector experience and insights into emerging technologies, he focuses his corporate legal practice on leveraging fossil fuel resources with cutting-edge developments to effectively support critical infrastructure like data centers. Prior to Babst Calland, Moore served as in-house counsel for one of the largest oil and gas production companies in West Virginia, giving him deep firsthand knowledge of energy operations in the Appalachian Basin.

The Modern-Day Gold Rush

“Interestingly, the growth of data centers has been likened to a modern-day gold rush,” says Capito. He notes how developers, energy companies, and technology giants are racing to find strategic locations to build new centers, taking advantage of regions rich in fossil fuels. For the first time, we can take the data center to the power. And that’s where West Virginia and Western Pennsylvania have a great opportunity.”

With the availability of land, access to existing power infrastructure, and potential for expansion, Capito explains, West Virginia and Western Pennsylvania regions may become central hubs in the race to address the energy and infrastructure demands of burgeoning data centers near and far. …

Pittsburgh, PA

Allegheny County Bar Association- Lawyers Journal

(By Anna Jewart)

Over the past several years, developers have targeted the vast rural and undeveloped lands of Pennsylvania for renewable energy development. Yet, Pennsylvania lags behind the rest of the country in terms of renewable energy deployment. Beyond well-reported issues involving grid-interconnection and permitting backlogs, those seeking to develop renewable energy in the Keystone State often experience deal-killing roadblocks early on during local land use permitting.

Pennsylvania law recognizes that effective use of zoning power typically requires expertise and knowledge of local conditions, making it uniquely suited to local regulation. Outside the broad framework established by the Pennsylvania Municipalities Planning Code, 53 P.S. §10101, et seq., (“MPC”) and rare statutory exceptions, the two-thousand-plus municipalities in Pennsylvania are each free to determine if and how to regulate land use matters within their borders. This means that unlike most areas of the law, the rules may change entirely the moment you cross a municipal line.

This decentralized legal framework creates challenges for renewable development, which has faced significant NIMBY-ism over the past several years. In response, many municipalities have sought to make renewable development untenable or even impossible through adoption of onerous land use regulations. While many states have expressly limited municipal discretion in renewables siting through adoption of state-wide permitting or statutory protections, Pennsylvania has not.

However, generally applicable land use jurisprudence does help protect against unreasonable local regulation. First, municipalities cannot expressly prohibit renewable energy uses. Ordinances that attempt to do so are de jure exclusionary, and unconstitutional. Second, an ordinance that appears to permit a use, but under conditions that it cannot in fact be accomplished may be found to be de facto exclusionary. …

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. …