Articles, Alerts & Perspectives

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.

…

Harrisburg, PA

The Legal Intelligencer

(by Casey Alan Coyle)

The music genre hip-hop recently celebrated its 50th anniversary.  According to PBS, “no song announced hip-hop’s entrance into the mainstream louder” than the 1997 single “Mo Money Mo Problems” by Brooklyn-born Rapper Christopher Wallace, better known by his stage names “Notorious B.I.G.” and “Biggie.”  https://www.pbs.org/wgbh/americanexperience/features/songs-of-the-summer-1997/.  Built on a sample of Diana Ross’s “I’m Coming Out,” the track featured the chorus: “I don’t know what, they want from me/ It’s like the more money we come across/ The more problems we see.”  Now, nearly three decades later, that hook captures an emerging trend in the law.

The Fourteenth Amendment’s Due Process Clause “prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.”  State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003).  While this concern precipitated the creation of a framework to assess the constitutionality of punitive damages awards over 30 years ago, no such rubric exists to determine whether compensatory damages awards comport with due process.  Pennsylvania litigants are therefore left to challenge excessive compensatory damages awards under the common law.  But as noneconomic damages awards continue to grow, so do concerns over their constitutionality, especially where they dwarf the economic damages, if any, awarded.  This begs the question: when it comes to noneconomic damages, is it a case of mo money, mo problems?

Compensatory v. Punitive Damages

Compensatory and punitive damages, though typically awarded at the same trial, serve distinct purposes.  Compensatory damages compensate for proven injury or loss.  They aim to redress the concrete loss that the plaintiff suffered because of the defendant’s conduct and include both economic harm (such as lost wages or out-of-pocket expenses) and noneconomic harm (like mental anguish, pain and suffering, and embarrassment and humiliation).  …

Pittsburgh, PA and Harrisburg, PA

Legal Intelligencer

(by Morgan Madden and Steve Antonelli)

In the ever complex and evolving landscape of employment law, some of the most effective compliance tools are not found in case law or federal regulations but in routine and consistent documentation. Job descriptions, performance evaluations, and disciplinary writings are three foundational tools that can play a crucial yet often underestimated role in shaping and defending employers’ decisions. These documents are not standalone checkboxes, rather their effectiveness lies in their interconnectedness. Job descriptions lay the groundwork for expectations, performance evaluations track whether and how those expectations are met, and disciplinary writings memorialize any shortcomings or failures to meet them.

The proper use and maintenance of these documents can bolster compliance with key employment statutes. In the event of litigation, these records almost always become central to the body of evidence considered by a factfinder. Employers that use them regularly and consistently are often in a far stronger position to defend against claims and to demonstrate legitimate, nondiscriminatory reasons for adverse employment actions.

Job Descriptions: The Foundation of Employment Expectations

Job descriptions are more than administrative formalities—they define the who, what, and why of a role. A well-crafted job description outlines an employee’s essential functions, required qualifications, and reporting relationships.  As an employer’s expectations change, so too should corresponding job descriptions.  For example, how many employers allowed remote/hybrid work before March 2020?

Accurate and up to date job descriptions benefit both employers and employees because they help guide hiring decisions, compensation structures, and employee development.  They can also play a pivotal role in litigation. They help delineate essential job functions and impact whether an employee’s accommodation request is reasonable in an ADA case, and they have a significant bearing on whether a position is exempt from overtime laws in a wage and hour case, to name a few examples. …

Washington, DC and Pittsburgh, PA

Babst Calland announced that Attorney Natalie Baughman has joined the firm’s Washington, DC office as a shareholder and member of its Environmental practice group.  

Natalie Baughman has a deep expertise in CERCLA site remediation, particularly in complex, multi-party cleanups involving decades of contamination. Her practice also includes representing clients in enforcement actions, environmental litigation, and permitting and compliance matters arising under the Clean Water Act, Safe Drinking Water Act, and state environmental laws.

Prior to joining Babst Calland, Ms. Baughman worked in the U.S. Department of Justice’s Environmental Enforcement Section and the District of Columbia’s Department of Energy and Environment, where she oversaw the agency’s work on the CERCLA cleanup of the Anacostia River and numerous other contaminated sites. Ms. Baughman has represented clients in administrative and civil judicial enforcement cases in both government positions.

Ms. Baughman earned her B.S. from Northwestern University in 2002. She received her J.D. from the University of Maryland School of Law in 2009.

Ms. Baughman is admitted to practice in the District of Columbia and Maryland.

The Wildcatter

(by Nikolas Tysiak)

Cavallo Mineral Partners LLC v. EQT Production Company, 2025 WL 800433 (Pa. Super., March 13, 2025). In this case, landowner Des Moine Field conveyed his 200 acre tract in Washington Twp., Greene County, PA to the McChesneys in 1990, using the following language: “ALSO EXCEPTING AND RESERVING, for the benefit of Grantees, his heirs and assigns, all oil and gas not previously excepted, reserved or conveyed, together with the right to mine and operate for the same . . .” (emphasis added). Field eventually purported to convey his oil and gas rights to Cavallo Mineral Partners. The McChesneys leased their oil and gas rights to EQT, which eventually included these interests in an oil and gas production unit. Cavallo eventually brought a quiet title declaratory action suit, alleging ownership of the oil and gas rights. EQT (and other co-defendants) eventually won on procedural grounds following competing motions for summary judgment, and the suit was dismissed without prejudice. In that decision, the court pointed out that Cavallo still had claims that could be made regarding the apparent Scrivener’s Error regarding the use of the term “grantees” in the reservation, and Cavallo was instructed to amend its complaint accordingly, which it failed to timely do. Instead, it further appealed the underlying case on procedural grounds. The Superior Court found that Cavallo could only succeed on its procedural claims if it were likely to succeed on the merits of its case. The court determined, based on the existing claims and record, that Cavallo was unlikely to succeed on the merits because the deed from Fields to the McChesneys did not properly except or reserve the oil and gas rights for the benefit of Fields or his heirs, successors and assigns. …

Charleston, WV, Pittsburgh, PA

Pittsburgh Business Times

(by Moore Capito featuring Matt Smith)

With the surge of artificial intelligence, the demand for data centers to support that computing power is growing fast. “One of the challenges is that we as human beings and as businesses require so much more computing power than we ever have,” said A.A. Moore Capito, a shareholder specializing in energy and emerging technologies with the law firm Babst Calland. “That growth has continued consistently over the past 50 years, but at this current moment, we are seeing an exponential increase in demand.”

Yet, with this rapid growth comes significant challenges as businesses compete for power and land. With a wealth of energy resources, affordable land, and proximity to densely populated areas, this region is right in the thick of the trend.

Capito recently joined Allegheny Conference on Community Development Chief Growth Officer Matt Smith in the Pittsburgh Business Times offices for a conversation about the opportunities and challenges for the region, when it comes to data center growth.

Surging demand for power

Data centers are energy giants. They require a massive amount of power to process information, particularly as artificial intelligence capabilities expand. In February, Goldman Sachs Research predicted global power demand from data centers will increase 50 percent by 2027 and up to 165 percent by the end of 2029.

This spike in demand is forcing businesses and industry to rethink how to power their operations. Traditional reliance on the energy grid alone may no longer suffice.

“What I would consider the biggest challenge today is providing the power to sustain the growth that we need,” Capito said.

“A lot of these folks in the tech sector are saying we can’t rely on the grid anymore. …

Pittsburgh, PA

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(by Joe Reinhart, Sean McGovern, Matt Wood and Alex Graf)

On April 8, 2025, the Pennsylvania Environmental Quality Board (EQB) tabled consideration of the Clean Air Council (CAC) and Environmental Integrity Project’s (EIP) petition for a rulemaking seeking to amend 25 Pa. Code ch. 78a to increase required minimum setbacks from unconventional oil and gas wells from 500 feet to 3,281 feet. During the meeting, Public Utility Commission (PUC) Commissioner Kathryn Zerfuss moved to table the petition, stating that the members of the EQB need more time to consider materials submitted by industry members and others prior to the meeting, which the EQB approved. Tabling the petition followed a Pennsylvania Department of Environmental Protection (PADEP) presentation recommending that the EQB accept the petition for further study, with the caveat that the recommendation was not an indication of PADEP’s substantive position on the petition. See PowerPoint Presentation, PADEP, “Petition for Rulemaking: Unconventional Gas Well Setbacks” (Apr. 8, 2025). CAC and EIP also presented their argument for why the EQB should accept the petition for further study at the meeting, which largely focused on the positions taken in their petition regarding potential adverse health and environmental consequences to people and resources located near unconventional oil and gas wells.

Procedurally, an EQB member would have to motion to un-table the petition to advance the petition for consideration, which could occur at the earliest at EQB’s next regularly scheduled meeting, currently set for June 10, 2025. The April meeting featured much debate by the EQB as to the exact timeline of events if the petition is un-tabled and considered during the June meeting. …