Multiple States Propose Bans on Food Additives and “Ultra-Processed Foods”
Since the start of February, at least four states have introduced or advanced proposals to ban various food chemicals and address concerns over the use of ultra-processed foods (UPFs). New food chemical bans have surfaced in recent days in Florida, Arizona, and Utah, while lawmakers in Illinois advanced a food chemicals ban that has long raised concerns for industry stakeholders.
The Illinois chemicals ban (SB 93) would prohibit brominated vegetable oil, potassium bromate, propylparaben, and Red No. 3, effective in 2028.
Florida has been one of the latest states to introduce a food chemical ban. If passed, the bill (SB 560) would prohibit food companies from manufacturing, selling or distributing food that contains nine food chemicals, including potassium bromate, propylparaben, Blue No. 1, Yellow No. 5, benzidine, butylated hydroxyanisole (BHA) and butylated hydroxytoluene (BHT).
In Arizona, Republican Sen. Leo Biasiucci said he was inspired by the MAHA movement to introduce HB 2164, which would ban any food that contains eleven chemicals: potassium bromate, propylparaben, titanium dioxide, brominated vegetable oil, Yellow No. 5 and 6, Blue No. 1 and 2, Green No. 3, and Red No. 3 and 40. The bill would also ban UPFs in school meals – however, the definition for UPFs included in this bill categorizes these as foods that contain any of the eleven chemicals set to be banned by the proposal. This definition differs significantly from other approaches, by focusing more on specific additives, rather than the degree of processing.
Utah has followed a similar approach to Arizona with HB 402. If passed, this bill would ban certain ultra-processed foods from being served at schools. UPFs are defined here as foods containing one or more of the following ingredients: brominated vegetable oil, potassium bromate, propylparaben, titanium dioxide, Blue No.1 and 2, Green No. 3, Red No. 3 and 40, and Yellow No. 5 and 6.
Guangdong Higher People’s Court: 107 Million RMB Settlement in Pokémon Copyright and Unfair Competition Case
On February 21, 2025, Guangdong’s Higher People’s Court announced a settlement of 107 million RMB in favor of The Pokémon Company for copyright infringement and unfair competition. Pokémon had sued Guangzhou Mai Network Technology Co., Ltd., Huo Network Technology Co., Ltd. and others for copyright infringement and unfair competition disputes over the game “Pokémon: Remastered” in December 2021. Pokémon requested 500 million RMB and was awarded 107 million RMB in the first instance at the Shenzhen Intermediate People’s Court. The Guangdong High People’s Court then mediated an appeal to reach the current settlement.
The Shenzhen Intermediate People’s Court held in the first instance that the core elements of the Pokémon characters, game protagonists, maps, etc. in the accused game correspond one-to-one and are similar to the corresponding elements of the Pokémon Company’s games. The multiple element systems formed by the combination of game elements are highly similar or even completely consistent, and many numerical system designs are the same. Therefore, the specific story expressions of the accused game and the Pokémon Company’s games are substantially similar. The accused game infringes the copyright of the Pokémon Company’s games (including the reproduction rights, information network dissemination rights and adaptation rights stipulated in Article 10, paragraph 1, items 5, 12 and 14 of the Copyright Law).
In addition, the Court also determined that the operation and promotion of the game in question violated Article 2 and Article 8, Paragraph 1 of the Anti-Unfair Competition Law, and constituted unfair competition.
The Guangdong Higher People’s Court stated:
Under the current background of various industrial policies to help Chinese games go global and strengthen the export of Chinese culture, equal protection of the intellectual property rights of digital entertainment products of Chinese and foreign parties in accordance with the law is an important aspect of adhering to cultural self-confidence and self-reliance and promoting the construction of a strong country in intellectual property rights. This case involves the rights protection lawsuit of the world’s top game and animation IP “Pokemon”, which has a high level of social attention, a large amount of compensation in the first instance, and an open trial in the second instance, which has educational and guiding significance for the innovation and standardized development of related industries.
…
In addition, it is necessary to remind relevant industries and practitioners that copying other people’s game products to gain attraction and influence among relevant player groups, thereby obtaining undeserved commercial benefits, may infringe copyright and other intellectual property rights, and may also constitute unfair competition. Competition in the game product market cannot stop at “copying”, but must innovate and deeply empower elements such as game play, which can truly benefit the healthy and long-term development of the game industry.
The full text of announcement is available here (Chinese only).
State Department Updates Criteria for Nonimmigrant Visa Interview Waivers
On February 18, 2025, the U.S. Department of State updated visa interview waiver (“drop box”) eligibility criteria for individuals renewing their visa stamps, resulting in sudden drop box appointment cancellations and administrative processing for some who had already submitted documents. The update, which took effect immediately, limiting eligibility for visa interview waivers, supersedes the expanded criteria set forth on December 21, 2023.
Quick Hits
Updated interview waiver criteria limits eligibility to those seeking a visa renewal in the same category and only if their most recent visa expired within twelve months prior to the application.
Visa appointment wait times are likely to increase.
Consulate action such as scheduling interviews for those already issued drop box appointments who may now be ineligible remains unclear.
The State Department updates followed the recent changes to U.S. Mission India’s nonimmigrant visa processing, which included application of the February 18, 2025, visa interview waiver criteria.
Eligible visa applicants under the new interview waiver criteria include those:
applying for visa classifications under A-1, A-2, C-3 (except attendants, servants, or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1 through NATO-6, or TECRO E-1;
applying for diplomatic- or official-type visas; or
applying for a visa in the same category as a previously held visa that expired less than twelve months prior to the new application.
In addition to falling under the above-listed categories, applicants must also:
apply in their country of nationality or residence;
have never been refused a visa (unless such refusal was overcome or waived); and
have no apparent or potential ineligibility.
The latest guidance also removes interview waiver eligibility for first-time H-2 visa applicants.
The State Department’s February 18, 2025, interview waiver eligibility criteria supersedes the interview waiver criteria published on December 21, 2023. Notably, the December 2023 criteria considered eligible for interview waivers those applying for a visa who were previously issued a visa in any category (except for a B-1 or B-2 visa) that expired less than forty-eight months prior to the new application.
The sudden change in eligibility has led to drop box appointment cancellations and administrative processing for some applicants who had submitted documents under the previous policy. The Bureau of Consular Affairs has not issued formal clarification on how these appointments and submissions will be treated, and each consulate may operate differently.
Key Takeaways
Stakeholders can expect longer visa appointment wait times due to the increased demand for visa interview appointments. Visa applicants may consider scheduling appointments and planning international travel well in advance. For employers, longer appointment wait times may mean a longer lead time during international new-hire onboarding, renewal processes, and business travel planning. Finally, stakeholders may want to consider cost-reduction measures, such as purchasing refundable plane tickets and other travel accommodations.
Québec’s Bold Proposal: Empowering Authorities to Safeguard Public Welfare During Work Stoppages
On February 19, 2025, Québec Minister of Labour Jean Boulet introduced Bill 89, which would amend the Québec Labour Code and related provisions to safeguard the well-being of the population by maintaining necessary services during strikes or lock-outs. According to the bill, the goal is to prevent “disproportionat[e]” impacts on “social, economic or environmental security,” especially for vulnerable populations.
The legislative changes would apply to all employers and unions under provincial jurisdiction in Québec, with the exception of the health and public service sectors, which already have specific provisions to maintain a wide range of services.
Quick Hits
On February 19, 2025, Québec Minister of Labour Jean Boulet introduced legislation that would ensure necessary services are maintained during strikes or lock-outs to protect public well-being.
The bill would empower the government and the Administrative Labour Tribunal to ensure necessary services are maintained during work stoppages, balancing the right to strike with public welfare.
The bill would allow the minister of labour to refer disputes to arbitration if mediation has failed and a strike or lock-out poses or threatens serious harm to the population.
In recent years, work stoppages have significantly affected Québec citizens. Consequently, Bill 89 proposes solutions to balance the needs of the public with the respect to the right to strike or lock out.
Proposed Legislative Changes
The proposed changes would empower the government to “designate, by order, a certified association and an employer [for whom] the Administrative Labour Tribunal may determine whether services ensuring the well-being of the population must be maintained in the event of a strike or lock-out.” The order would remain valid “until the filing of a collective agreement or [a] document in lieu thereof” (e.g., an arbitration award).
Once designated by the government, and at the request of one of the parties (i.e., the employer or the union), the Tribunal would have the authority to determine whether necessary services must be maintained during a work stoppage. The parties would have the opportunity to submit their respective positions before the Tribunal makes a decision.
If the Tribunal renders a decision requiring that services be maintained, the designated parties would be required to negotiate which services would be maintained within fifteen days of receiving notification. The Tribunal would then assess whether the agreement was sufficient to protect the well-being of the population. In the event the parties cannot reach an agreement, the Tribunal would have the authority to determine which services are necessary.
The bill further specifies that if a strike or lock-out is in progress, despite a decision from the Tribunal ordering the maintenance of services, the strike or lock-out may continue unless otherwise ordered by the Tribunal.
Additionally, if a strike or lock-out causes or threatens to cause serious or irreparable harm to the population and mediation efforts fail, the minister of labour can refer the dispute to arbitration, effectively ending the ongoing strike or lock-out and establishing arbitration procedures.
Practical Considerations
The legal implications of Bill 89 are significant. The bill would enhance the roles of the government and the Tribunal in managing labour disputes, ensuring that necessary services are maintained to prevent “disproportionat[e]” impacts on “social, economic or environmental security.” The legislation seeks to balance the right to strike with the need to protect public welfare, particularly for vulnerable populations. The labour minister’s authority to refer disputes to arbitration emphasizes the importance of resolving disputes without prolonged strikes or lock-outs.
It is important to note that Bill 89 does not define the term “disproportionate impacts on social, economic, or environmental security.” This language can be interpreted broadly, which could have far-reaching implications. Unions are likely to oppose Bill 89 and will likely participate in consultation periods before the National Assembly.
The proposed changes also include the addition of penal provisions to ensure compliance with necessary service agreements and Tribunal decisions in Article 146.2 of the Québec Labour Code.
Bill 89 deserves close attention, as it may affect future negotiations. If adopted, it is anticipated that unions may challenge the constitutionality of the law on the grounds of freedom of association.
President Trump Takes Additional Actions on Reciprocal Tariffs, Shipping, and Digital Services Taxes
On 21 February 2025, President Trump ordered three additional steps to implement the America First Trade Policy announced on 20 January 2025:
Establish a notice and comment process for the US Trade Representative (USTR) to collect input from interested parties on the proposed “reciprocal tariffs” announced 13 February.
Initiate a process for USTR to collect input on potential trade actions to address what USTR under the prior administration found to be China’s “targeting” of the maritime, logistics, and shipbuilding sectors in the United States and globally.
Direct the Treasury Secretary, working with USTR, Commerce, and the White House advisor to the President on trade and manufacturing, to formulate and impose tariffs and other measures to respond to other countries’ access barriers to and taxes on American digital services.
Each of these three steps launches parallel administrative proceedings before the relevant agencies that will culminate in recommendations to the President to impose tariffs or other trade measures. Companies and investors with interests impacted by the above topics should carefully review these announcements and the schedules for submitting comments and consider whether and how best to participate.
Notice and Comment Process Regarding Reciprocal Tariffs
USTR is requesting comments by 11 March 2025 regarding any unfair trade practices maintained by other countries and what steps USTR should take to address these practices. Comments should include the foreign country or economy concerned, the practice or trade arrangement of concern, a brief explanation of the operation of the practice or trade arrangement, and an explanation of the impact or effect of the practice or trade arrangement on the interested party or on US interests generally.
Of particular interest are comments on the trading practices and other tariff and non-tariff barriers and practices of Argentina, Australia, Brazil, Canada, China, the European Union, India, Indonesia, Japan, Korea, Malaysia, Mexico, Russia, Saudi Arabia, South Africa, Switzerland, Taiwan, Thailand, Türkiye, United Kingdom, and Vietnam. According to USTR, these countries cover 88 percent of total goods trade with the United States.
Submissions should quantify the harm or cost (including actual cost or opportunity cost) to American workers, manufacturers, farmers, ranchers, entrepreneurs and businesses from the practice or trade arrangement of concern – ideally ascribing a dollar amount to the harm or cost and describing the underlying methodology. Information that is business confidential can be submitted in confidence to USTR and separate from this specific process, USTR is also interested in ongoing engagement with and information from interested parties regarding unfair foreign trade practices of US trading partners.
Comments on Proposed Trade Remedies to Address China’s Maritime, Logistics, and Shipbuilding Practices
Separately, USTR is seeking comments from interested parties on how it should implement the findings of the Biden Administration pursuant to Section 301 of the Trade Act of 1974 that China was engaged in practices that targeted the maritime, logistics, and shipbuilding sectors in pursuit of what USTR found to be goals to dominate those sectors. Written comments are due by 24 March 2025. USTR will also hold a hearing on this matter on 24 March–requests to appear at the hearing are due by 10 March 2025. Additional written comments in rebuttal can be submitted no later than seven calendar days after the last day of hearings.
Action Against Foreign Countries’ Digital Services Taxes
In a 21 February 2025 memorandum, President Trump has separately directed the US Treasury Department, working with Commerce, USTR, and White House stakeholders, to formulate tariff and other responses to digital services taxes and related practices imposed by other countries. According to the memorandum, such practices are hindering the success of American digital services companies and investors in other markets and imposing unfair costs, barriers and risks on American companies, data, and jobs. Reports and recommendations on these issues are due to the president by 1 April 2025.Among the actions contemplated by the memorandum are:
Renewal of Section 301 trade actions from 2019 and 2020 against the digital services taxes of Austria, France, Italy, Spain, Turkey and the UK;
Consideration of dispute settlement against Canada and Mexico pursuant to the US-Mexico-Canada Agreement;
Recommended tariffs against US imported goods and services from countries imposing such taxes and other measures;
Actions to address mandates by other countries with regard to the content or content monitoring of US social media and other digital platforms and services;
A determination of whether to impose tariffs of up to 50% in response to tax measures that discriminate against US citizens and companies;
A moratorium on the levying of customs duties by other countries on electronic transmissions; and
A mechanism for American businesses to report to USTR on the foreign tax and regulatory practices of other nations that are believed to harm US companies.
Maryland Extends Lender Licensure Enforcement Deadline Amid Industry Pushback
On February 18, 2025, the Maryland Office of Financial Regulation (OFR) extended its temporary moratorium on the enforcement of mortgage lender licensure guidance and emergency regulations it issued on January 10, 2025. In that guidance and regulations, the OFR for the first time applied the State’s mortgage lender licensure requirements to acquirers and assignees (including passive trusts) of residential mortgage loans on Maryland properties. The temporary moratorium will expire making the new compliance deadline July 6, 2025. Please read our earlier discussion of these emergency regulations in our legal update Even Passive Trusts?!? Maryland Extends Mortgage Lender Licensure Requirements to Holders of Residential Mortgage Loans.
Following broad pushback from industry stakeholders, including some who suspended all mortgage operations in Maryland, Senator Pamela Beidle and Delegate Pam Queen sponsored the Maryland Secondary Market Stability Act of 2025 before both chambers of the Maryland General Assembly. As proposed, the emergency bill would provide an exemption from Maryland’s mortgage lender and installment loan licensure requirements for entities under certain circumstances that acquire or are assigned certain mortgage loan and/or installment loans but who do not originate, service, or collect payments on these loans on their own behalf. In their February 18th release, the OFR indicated they “strongly support[] the passage of this bill to ensure the continued availability of mortgage loans for Maryland consumers.”
Finally, through its announcement, the OFR “clarifie[d] that commercial lenders making loans exclusively for business purposes under Maryland’s installment loan statutes . . . are not subject to OFR’s licensing requirements under mortgage lending and installment licensing provisions.”
Hunton will continue to monitor developments from the Maryland legislature and the OFR regarding these assignee licensure requirements and provide periodic updates to clients.
Restoring Western North Carolina’s Infrastructure: NCDOT Receives $250 Million in Federal Emergency Relief Funds
The Federal Highway Administration (FHWA) has announced an immediate allocation of $352.6 million in Emergency Relief funds to support recovery efforts following the devastation caused by Hurricane Helene in September 2024.
Of this funding, the North Carolina Department of Transportation (NCDOT) will receive $250 million to repair damaged roadways and bridges, including Interstate 40. Another $32.6 million will be split between the U.S. Forest Service and the National Park Service to make repairs along the Blue Ridge Parkway and other roadways located in national forests.
The Impact of Hurricane Helene
Hurricane Helene left a trail of destruction across the Southeast, including widespread flooding, landslides, and structural damage to roadways and bridges. Western North Carolina, known for its mountainous terrain and vital transportation routes, was particularly hard-hit. The storm caused severe washouts, rockfalls, bridge collapses, and pipe failures, creating hazardous conditions and disrupting travel.
The cumulative cost of federally eligible damage is still being assessed, but early estimates suggest the total will exceed $4 billion. In response, federal, state, local, and tribal agencies have mobilized to restore accessibility and safety to the affected areas.
Emergency Relief Funds: A Lifeline for Infrastructure Recovery
The FHWA’s Emergency Relief program plays a crucial role in providing financial assistance to repair and reconstruct damaged transportation infrastructure after natural disasters. The program’s “quick release” funding mechanism ensures that states receive immediate support for urgent repairs, reducing delays in reopening critical routes.
The newly allocated $250 million for NCDOT will be directed toward repairing damage along North Carolina’s roadways, including I-40, a key transportation corridor linking North Carolina to Tennessee.
Challenges and Considerations for Construction Professionals
While the federal funding is a significant step toward recovery, construction professionals working on these repair projects must navigate several key challenges:
State and Federal Procurement Requirements – Public contracts for federally funded infrastructure projects come with strict guidelines. Even though these projects are state-managed, they often require compliance with federal laws and regulations. Contractors need to ensure they are complying with all applicable laws and requirements, which may include:
The Federal Acquisition Regulation;
The Build America Buy America Act;
Davis-Bacon Act wage standards;
Minority business participation mandates; and
Bonding and insurance requirements, among others.
Licensing Concerns – If you are an out-of-state contractor interested in performing work in Western North Carolina as part of the state and federal disaster relief effort, it is critical that you understand and comply with North Carolina’s licensing laws.
Looking Ahead: A Resilient Future for North Carolina’s Infrastructure
The infusion of federal emergency relief funds into North Carolina’s transportation network is a welcome development for residents, businesses, and the construction industry. As the state embarks on the challenging task of rebuilding, collaboration among government agencies, engineers, contractors, and legal professionals will be essential to achieving a resilient and efficient transportation system.
For construction firms and industry stakeholders, the recovery efforts present both opportunities and responsibilities. With careful planning, regulatory compliance, and strategic risk management, North Carolina can emerge from this disaster with stronger, more sustainable infrastructure that serves future generations.
Trump Administration: TPS for Haiti Will Terminate Aug. 3, 2025
On Feb. 20, 2025, DHS Secretary Kristi Noem partially vacated a July 1, 2024, decision by former DHS Secretary Alejandro Mayorkas to extend the Temporary Protected Status (TPS) designation for Haiti for 18 months.
Secretary Noem has limited the extension to 12 months, expiring Aug. 3, 2025, instead of Feb. 3, 2026. Work authorization documents based upon Haitian TPS are auto-extended to Aug. 3, 2025, rather than Feb. 3, 2026.
If no decision is made to extend Haitian TPS beyond Aug. 3, 2025, the expiration will become final.
Two lawsuits were recently filed in response to Secretary Noem’s decision to terminate Venezuelan TPS. Similar legal challenges may be made to the decision to terminate Haitian TPS.
The CEQ has No Clothes: The End of CEQ’s NEPA Regulations and the Future of NEPA Practice
On February 20, 2025, the White House Council on Environmental Quality (CEQ) posted a pre-publication notice on its website of an Interim Final Rule that rescinds its regulations implementing the National Environmental Policy Act (NEPA), which, in one form or another, have guided NEPA practice since 1978. CEQ simultaneously issued new guidance to federal agencies for revising their NEPA implementing procedures consistent with the NEPA statute and President Trump’s Executive Order 14,154 (Unleashing American Energy). The Interim Final Rule was submitted for publication in the Federal Register on February 19, 2025 and will become effective 45 days after it is published. This action represents the final blow to CEQ’s NEPA regulations, coming in the wake of two recent federal court decisions in the past few months that foreshadowed their impending demise. In light of those court decisions, CEQ is unlikely to issue new regulations, even under a future presidential administration, without express congressional authorization.
Background
NEPA generally applies to discretionary actions involving federal agencies, including projects carried out by a federal agency itself or by private parties that receive a permit or financial assistance from a federal agency. When NEPA is triggered, it requires a federal agency to analyze the environmental impacts of the project before making a decision to carry it out or issue an approval that may also include conditions or mitigation requirements. NEPA is a procedural law and does not mandate a specific outcome or require that the project proponent mitigate any identified environmental impacts.
NEPA, which was enacted in 1970, is a rather barebones statute. NEPA practice has long been governed by CEQ’s NEPA regulations, which were first promulgated in 1978 after President Carter issued Executive Order 11,991 (Relating to Protection and Enhancement of Environmental Quality) earlier that year directing CEQ to replace its earlier nonbinding guidance. Many common features of NEPA practice — such as environmental assessments, categorical exclusions, programmatic environmental documents, supplemental environmental documents, lead and cooperating agencies, required analysis of a no-action alternative, and required analysis of mitigation measures — are directly tied to CEQ’s 1978 NEPA regulations (some were eventually codified by Congress’s 2023 amendments to NEPA). Agencies could also develop their own NEPA implementing procedures consistent with CEQ’s regulations. Except for one relatively minor amendment in 1986, CEQ’s NEPA regulations did not change between 1978 and 2020, and a large body of case law resulted as courts evaluated agencies’ compliance with the regulations. CEQ substantially revised its regulations during the first Trump administration (in 2020) and during the Biden administration (in 2021 and 2024). For the past nearly 50 years, federal agencies, courts (including the Supreme Court), and NEPA practitioners have largely accepted CEQ’s authority to issue binding regulations without objection.
Recent Court Decisions
Two recent federal court cases challenged the longstanding assumption of CEQ’s authority. First, as we previously reported, in November 2024 the U.S. Court of Appeals for the D.C. Circuit found that CEQ lacked authority to issue binding regulations. (Marin Audubon Society v. Federal Aviation Administration, No. 23-1067 (D.C. Cir. Nov. 12, 2024).) On January 31, the full D.C. Circuit denied a petition for rehearing en banc, with a majority of the judges issuing a concurring statement explaining that the earlier decision’s “rejection of the CEQ’s authority to issue binding NEPA regulations was unnecessary to the panel’s disposition” and, impliedly, not part of the court’s holding.
Then, on February 3, in a different case, a federal district court in North Dakota issued a decision expressly holding that CEQ lacked authority to issue binding regulations. (Iowa v. CEQ, No. 1:24-cv-00089 (D.N.D. Feb. 3, 2025).) That case was brought by Iowa and a coalition of 20 other states to challenge CEQ’s regulations issued in May 2024. The court’s decision closely followed the D.C. Circuit’s analysis in Marin Audubon and came to the same conclusion: CEQ does not (and never did) have the authority to issue binding regulations. The court reasoned that CEQ, which was established by NEPA, was authorized by statute only to “make recommendations to the President.” Thus, based on constitutional separation-of-powers principles, President Carter’s 1978 Executive Order could not legally confer regulatory authority on CEQ in the absence of congressional authorization.
Because the court found that CEQ had no regulatory authority, it vacated the challenged 2024 regulations. Notably, although the court’s conclusion about CEQ authority supported vacatur of all CEQ NEPA regulations, it vacated only the 2024 regulations that were challenged in the case before it, leaving “the version of NEPA in place on June 30, 2024, the day before the rule took effect.” The court noted, however, that “it is very likely that if the CEQ has no authority to promulgate the 2024 Rule, it had no authority for the 2020 Rule or the 1978 Rule and the last valid guidelines from CEQ were those set out under President Nixon.”
The court concluded: “The first step to fixing a problem is admitting you have one. The truth is that for the past forty years all three branches of government operated under the erroneous assumption that CEQ had authority. But now everyone knows the state of the emperor’s clothing and it is something we cannot unsee. . . . If Congress wants CEQ to issue regulations, it needs to go through the formal process and grant CEQ the authority to do so.”
CEQ’s Recission of its NEPA Regulations
Meanwhile, CEQ’s NEPA regulations were concurrently under fire from the executive branch. On January 20, President Trump issued Executive Order 14,154 (Unleashing American Energy), which was largely targeted at removing perceived barriers to domestic fossil fuel production and mining, including federal environmental permitting processes. To that end, Section 5 of the Executive Order revoked President Carter’s 1978 Executive Order directing CEQ to issue binding regulations and directed the chairperson of CEQ to, by February 19, (1) propose rescinding all CEQ NEPA regulations and (2) issue new guidance to federal agencies for implementing NEPA. CEQ has now done as directed.
The Interim Final Rule proposes to rescind the entirety of CEQ’s regulations. It will go into effect 45 days after it is published in the Federal Register to give the public an opportunity to submit comments, which CEQ will “consider and respond to” prior to finalizing the rule. In the preamble to the Interim Final Rule, CEQ states it has “concluded that it may lack authority to issue binding rules on agencies in the absence of the now-rescinded E.O. 11191.” While CEQ considers the revocation of the Carter Executive Order to constitute an “independent and sufficient reason” for rescinding the NEPA regulations, it also agrees (contrary to its longstanding and customary practice) that “the plain text of NEPA itself may not directly grant CEQ the power to issue regulations binding upon executive agencies.”
CEQ Guidance to Federal Agencies Regarding NEPA Implementation
At the same time CEQ proposed to rescind its NEPA regulations, it also issued guidance to federal agencies for implementing NEPA going forward and for revising or establishing their own NEPA-implementing procedures, consistent with the NEPA statute and Executive Order 14,154. That guidance recommends agencies “continue to follow their existing practices and procedures for implementing NEPA” while they work on their new procedures and “should not delay pending or ongoing NEPA analyses while undertaking these revisions.” As to these pending or ongoing NEPA reviews, CEQ advises agencies to “apply their current NEPA implementing procedures” and “consider voluntarily relying on” the soon-to-be rescinded regulations.
The guidance also proposes a path forward to agencies to follow in drafting new procedures. It “encourages agencies” to use the 2020 NEPA regulation revisions as a framework and advises that agencies should consider the following:
Prioritize project-sponsor-prepared environmental documents for expeditious review.
Ensure that the statutory timelines established in section 107 of NEPA will be met for completing environmental reviews. (Generally, one year for a completion of an environmental assessment and two years for an environmental impact statement.)
Include an analysis of any adverse environmental effects of not implementing the proposed action in the analysis of a no action alternative to the extent that a no action alternative is feasible.
Analyze the reasonably foreseeable effects of the proposed action consistent with section 102 of NEPA, which does not employ the term “cumulative effects.”
Define agency actions with “no or minimal federal funding” or that involve “loans, loan guarantees, or other forms of financial assistance” where the agency does not exercise sufficient control over the subsequent use of such financial assistance or the effect of the action to not qualify as “major Federal actions.”
Not include an environmental justice analysis, since Executive Order 12,898, which required all federal agencies to “make achieving environmental justice part of its mission” was separately revoked by Executive Order 14,173.
CEQ has set a 12-month timeframe for federal agencies to complete the revision of their NEPA procedures. Agencies must consult with CEQ while revising their implementation procedures and CEQ will hold monthly meetings of the “Federal Agency NEPA Contacts and the NEPA Implementation Working Group” as required by Executive Order 14,154 to coordinate revisions amongst the agencies. Within 30 days of the guidance memorandum, agencies must develop and submit to CEQ a proposed schedule for updating their implementation procedures.
NEPA Practice in the Near Future
Going forward, agencies, project applicants, and NEPA practitioners should rely upon the NEPA statute (as amended by the Fiscal Responsibility Act in 2023) as primary authority. For projects with ongoing or pending NEPA review, applicants should expect federal agencies to continue to apply their existing NEPA practices and rely on the soon-to-be rescinded regulations, except to the extent they are inconsistent with Executive Order 15,154 or the NEPA statute (and in that regard, they will need to be closely evaluated on an individual basis). Case law also will need to be closely analyzed to determine whether courts’ holdings in prior cases were predicated on the statute itself (and therefore, still have binding or persuasive authority, depending on the court) or were based on CEQ’s regulations (in which case they should no longer have any authority). CEQ’s guidance is expressly non-binding, but should also be considered.
In a twist of irony, the rescission of CEQ’s NEPA regulations could lead to greater delays in environmental reviews and permitting (including for fossil fuel production and mining projects favored by Executive Order 14,514), at least in the near term. CEQ’s regulations created uniform procedures that applied to all federal agencies, which was particularly helpful for complex projects that require approvals from multiple federal agencies. Without uniform regulations, each individual agency might now impose its own requirements on the NEPA process. This could result in greater challenges coordinating environmental reviews and permitting among multiple agencies, although CEQ will likely attempt to harmonize implementation procedures as it reviews agencies’ proposals. In addition, permitting delays are expected as agency staff adjust to the new landscape and determine how to comply with NEPA without reliance upon CEQ’s regulations. Staffing shortages resulting from the Trump administration’s efforts to reshape the federal workforce are also likely to additionally exacerbate these problems.
Relatedly, this term, the Supreme Court is considering its first NEPA case since 2004 (Seven County Infrastructure Coalition v. Eagle County) involving the scope of impacts that agencies must consider. Because the case involves the NEPA statute rather than its implementing regulations, the rescission of CEQ’s regulations is unlikely to affect the decision. Oral argument was held in December, and a decision is expected this spring. We will continue to track developments related to this decision.
D.C. Court Finds A Piggyback Statute Of Limitations In Segway-Crash Case
According to court filings, on October 11, 2019, a Segway struck Marilyn Kubichek and Dorothy Baldwin as they strolled along a D.C. sidewalk.
On December 20, 2022, they filed two complaints in the Superior Court based on the Segway incident – one against the operator of the Segway that they said hit them, and one against the tour organizer. The cases were consolidated into one proceeding, Kubichek et al. v. Unlimited Biking et al.
Unfortunately for Ms. Kubichek and Ms. Baldwin, the statute of limitations for negligence in D.C. is three years. Their claims had become untimely before they filed their complaints.
Defendant Eduardo Samonte asserted the statute of limitations in a motion to dismiss, which was granted.
In fact, the order granting Mr. Samonte’s motion actually dismissed the case against both defendants. But the other defendant, Unlimited Biking, had not asserted the statute of limitations.
The question for the Court of Appeals was whether the complaint against Unlimited Biking could be dismissed based on Mr. Samonte’s motion.
Generally speaking, it’s on a defendant to assert the statute of limitations as a defense to the claims against it. Courts don’t do that on their own, and a defendant that fails to assert the statute in its answer to the complaint, or in a motion to dismiss, typically waives the defense.
The Court of Appeals returned to a 1993 case called Feldman, which had suggested that a trial court might have the power to invoke the statute-of-limitations defense on its own, but only if it “is clear from the face of the complaint” that the statutory period has expired.
In the Kubichek case, the Court of Appeals found that it was not clear from the complaints that the statute of limitations had expired.
So – back to court for Unlimited Biking, right?
Not so fast. The Court of Appeals proceeded to fashion a new, “narrow exception” whereby the dismissal of the complaint against Unlimited Biking could be affirmed.
The rule used by the Court appears to work this way:
One defendant asserts the statute of limitations.
+
The plaintiffs have a chance to litigate the issue.
+
The facts relevant to the application of the statute of limitations are not disputed.
+
The relevant facts are the same with respect to both defendants.
=
The trial court may dismiss claims against a defendant that did not assert the statute of limitations.
No litigator or party should neglect to assert a statute-of-limitations defense at the earliest opportunity in a case where the defense may apply. But, after Kubichek, if you are so neglectful, your co-defendant may save you.
Just one more reason why persons who have been harmed and believe they have legal claims should be careful not to wait too long to go to court.
No Business Transaction, No Chapter 93A Claim: Mass. Courts Clarify Requirements
To pursue a Chapter 93A claim, there must be some business, commercial, or transactional relationship between the plaintiff(s) and the defendant(s). An indirect commercial link—such as upstream purchasers—may be sufficient to state a valid claim, but there must ultimately be some commercial connection between the plaintiff and defendant. The District of Massachusetts and the Appeals Court of Massachusetts recently affirmed this requirement in two separate cases.
First, the District of Massachusetts affirmed this principle when it denied plaintiffs’ motion for leave to conduct limited discovery, as the allegations in the complaint only highlighted the commercial relationship between the various defendants and not with the plaintiff. In Courtemanche v. Motorola Sols., Inc., plaintiffs brought a putative class action against a group of commercial defendants and the superintendent of Massachusetts State Police, alleging that the State Police unlawfully recorded conversation content between officers and plaintiffs, and then later used those recordings to pursue criminal charges against plaintiffs. The commercial defendants allegedly willfully assisted the State Police by providing them with intercepting devices and storing the recordings on their servers. The commercial defendants moved to dismiss based on plaintiffs’ failure to allege a business, commercial, or transactional relationship between them and the commercial defendants. Plaintiffs then sought to conduct limited discovery in order to establish such a relationship. The court concluded that allowing even limited discovery on the issue would only amount to an inappropriate fishing expedition and denied the motion.
Shortly thereafter, the Massachusetts Appeals Court reversed portions of a consolidated judgment against defendants for Chapter 93A § 11 violations in Flightlevel Norwood, LLC v. Boston Executive Helicopters, LLC. On appeal, the defendants argued, and the Appeals Court agreed, that the trial judge erred in denying their motion for judgment notwithstanding the verdict. The parties both operated businesses at the Norwood Memorial Airport and subleased adjoining parcels of land with a taxiway running along their common border. At trial, plaintiff argued that defendants engaged in unfair acts to exercise dominion and control over plaintiff’s leasehold to advance defendants’ commercial interests and deliberately interfere with plaintiff’s commercial operations. The Appeals Court reiterated that to maintain a Section 11 claim, a business needs to show more than just being harmed by another business’s unfair practices. Instead, plaintiff must prove that it had a significant business deal with the other company, and that the unfair practices occurred as part of the deal. The Appeals Court thus concluded that Chapter 93A § 11 was inapplicable, as there was no business transaction between the parties.
March 14, 2025, Looming as Important Date for Congressional Republicans and President Trump, and May Provide Leverage to Democrats
March 14, 2025, looms as an important deadline in the middle of President Trump’s first 100 days in office, a milestone often used to evaluate the effectiveness of a new President. March 14 is the day that the American Relief Act, 2025 (Public Law 118-158), which provides temporary funding for the federal government, expires. The law was enacted during the 118th Congress and signed into law by President Biden. At the time, some questioned whether having government funding expire during President Trump’s first 100 days in office was a good idea. Now, Republicans, who control the White House, Senate, and House of Representatives, need to pass legislation to avoid a government shutdown on March 15, and may need Democratic support to do so. The question is, at what cost?
Government funding is not the only thing that expires March 14, 2025. The National Flood Insurance Program was extended through March 14, 2025, and will also expire if not extended, as will Temporary Assistance for Needy Families (TANF), which provides benefits to families in need. Congress also needs to raise the debt limit, but not necessarily within this same timeframe.
Simultaneous with figuring out how to fund the federal government for the remainder of Fiscal Year 2025, the Republican-led Congress also is working on legislation to enact President Trump’s priority issues, including extending the 2017 tax provisions, providing money for border security, and addressing immigration. Making matters more challenging, leadership in the House of Representatives and Senate are taking sharply different approaches to developing such legislation. Adding one more degree of difficulty to this legislative effort, House Republicans in the last Congress needed Democrats to vote for the legislation for it to pass. What is unknown this time is whether Democrats will vote in sufficient numbers with Republicans to fund the government and, if so, what concessions they will be able to gain from Republicans to secure their support.
I wrote in December that slim majorities will test Republican unity in the 119th Congress. The looming March 14, 2025, deadline combined with the desire to pass legislation to enact President Trump’s priorities early in 2025, present an interesting test of Republican unity, and may present out-of-power Democrats with sufficient leverage to gain concessions to win their support. The next few weeks will provide a fascinating look at what to expect for the remainder of the 119th Congress.