NYC’s Enhanced ESSTA Rules for Prenatal Leave Create Policy, Posting + Paystub Requirements for Employers
Takeaways
Changes to NYC’s paid prenatal leave requirement take effect 07.02.25.
They incorporate and enhance NYS prenatal leave protections that went into effect at the beginning of this year.
NYC employers should understand their obligations and implement the changes to policies, notices, and recordkeeping.
Consistent with the expanding attention afforded to prenatal health and workplace protections nationally, New York State implemented a new paid prenatal leave requirement as an amendment to the state sick leave law, which went into effect Jan. 1, 2025. New York City recently amended its rules related to the Earned Safe and Sick Time Act (ESSTA) to incorporate the state prenatal leave protections and add enhanced requirements.
NYS Paid Prenatal Leave Rights
Since Jan. 1, 2025, all private-sector employers in New York have been required to provide up to 20 hours of paid prenatal leave in a 52-week period to eligible employees, regardless of company size. The 52-week leave period starts on the first day the prenatal leave is used.
The prenatal leave entitlement is in addition to the statutory sick leave entitlement and other paid time off benefits provided by company policy or applicable law, and it applies only to employees receiving prenatal healthcare services, such as medical exams, fertility treatments, and end-of-pregnancy appointments. Spouses, partners, or support persons are not eligible to use prenatal leave.
Employers cannot force employees to use other leave first or demand medical records or confidential health information to approve prenatal leave requests. (See NYS Paid Prenatal Leave: Employers Must Manage a New Entitlement in the New Year.)
NYC ESSTA Rules Incorporating Prenatal Leave
The New York City Department of Consumer and Worker Protection issued amended rules on May 30, 2025, formally incorporating the state prenatal leave requirement into ESSTA. Changes and obligations related to prenatal leave, which are effective July 2, 2025, include:
Policy Requirements
The obligation to promulgate and distribute a policy related to ESSTA is expanded to require that such policy address paid prenatal leave entitlements. Under the rules, employers must distribute their written safe and sick time and paid prenatal leave policies to employees personally upon hire and within 14 days of the effective date of any policy changes and upon an employee’s request.
In essence, all NYC employers have an obligation to modify their current policy and reissue the revised policy to current employees.
Employee Notice of Rights, Posting
The Department also issued an updated Notice of Employee Rights that includes paid prenatal leave. The updated notice must be provided to new hires and to current employees when rights change (which is the case here), and employers must maintain a record of receipt by the employee. The notice also must be posted.
All NYC employers have an obligation to modify the notice required for new hires and reissue the notice to current employees.
Paystub Requirement
For each pay period in which an employee uses prenatal leave, the following information must be clearly documented on pay stubs or other documentation provided to the employee, such as a pay statement:
The amount of paid prenatal leave used during the pay period; and
Total balance of remaining paid prenatal leave available for use in the 52-week period.
Under updated agency FAQs, this information can be provided by an electronic system in certain instances. This requirement is similar to the existing requirement for notice of paid sick and safe time.
NYC employers should understand their obligations and implement these changes to policies, notices, and recordkeeping.
The State of DOJ White Collar Enforcement: An Incoherent Policy Sets the DOJ on an Increasingly Clear Path
Like in all areas, the Trump Administration is bringing about great change, although the contours of the shift in white collar enforcement policy are less clear than in other places. It is clear, however, that this is an administration that will be less inclined to prosecute corruption and white collar crime.
A recent Department of Justice memorandum setting white collar enforcement policy by Criminal Chief Matthew Galeotti provides little substance aside from setting out three core tenets—focus, fairness, and efficiency. That these feel like the product of an AI chatbot or could be found in any entry-level management course is intentional and falls in line with an administration enamored with using uncertainty. The generality of the tenets grants the President and the Attorney General ample room to bend prosecutorial discretion in whatever direction serves the moment.
The DOJ’s slow start in identifying any white collar priorities has been understandable. While on the campaign trail, the President placed immigration, transnational criminal organizations, and fentanyl at center stage, and continued to hammer these themes from Inauguration Day on. Moreover, FBI Director Kash Patel stated almost immediately after being confirmed that the agency would focus on violent crime in order to return the agency to its Prohibition-era roots. Aside from repeated promises to tackle “fraud, waste, and abuse” and a DOGE-sized detour, there has thus been little oxygen left for the traditional fraud investigation at the core of white collar enforcement. So, what do these tenets generally mean for the practice going forward?
First, look for less complex corporate and individual prosecutions resulting in a smaller number of headline trials. This is clear from the goals Galeotti’s memorandum articulates, and also a byproduct of other trends, including an unprecedented wave of departures from the DOJ. Regardless of the underlying reasons, the loss of so many veteran prosecutors will leave a vacuum of the necessary expertise and deep institutional knowledge to navigate long-term and wide-ranging investigations. With new prosecutors being assigned mostly immigration cases out of the gate, that expertise will not return anytime soon, nor will trial teams have additional resources to rely on when most needed. For those investigations that do get off the ground, Galeotti’s memorandum urges prosecutors to act expeditiously under the guise of efficiency when making charging decisions. This will condense the timeline before a more complex case can develop organically.
On the tenet of fairness, expect generally less criminal enforcement of corporate misdeeds, especially those of a more regulatory nature. The memorandum’s language calls on prosecutors to essentially give the benefit of the doubt to corporations that are “willing to learn from their mistakes.” Whether those in the C-suite will truly be able to take the first pitch looking may depend on other factors, but it certainly dovetails with the DOJ’s early commitment to shifting traditionally criminal investigations into the civil arena, where the transactional nature will surely satisfy the President’s disposition and Congress’s desire for pro-growth policies. The DOJ has already taken this step explicitly with respect to the Foreign Corrupt Practices Act in a move that the President openly stated would “mean a lot more business for America.”
Third, as to the focus of those investigations and prosecutions prosecutors do bring, the number one area, according to the memorandum, is unsurprisingly, “waste, fraud, and abuse.” Amongst the other top priorities identified, Gaelotti notes trade and customs fraud, fraud conducted by variable interest entities, Ponzi schemes, and others directly involving U.S. investors, and fraud involving national security. As the headlines strongly indicate, criminal enforcement of immigration and matters involving the undocumented will take extreme precedence, although they typically fall outside of the realm of fraud.
Distilling these priorities and some of the DOJ’s early moves, one can see two prominent efforts emerging from fraud prosecutors over the next year or so that fit comfortably within these three core tenets. On a more traditional front, Medicare and Medicaid fraud are very likely to continue to be a priority. Given the ballooning numbers of Americans served by these programs, the opportunity to commit fraud has risen exponentially, and thus, it is a logical area where the goals of the administration are likely to align with prosecutorial priorities. Prosecuting cases of fraud by healthcare professionals and drug distributors, especially, would serve a secondary role in defending cuts to federal healthcare spending or even shifting part of the cost burden to the states. Notably, this would continue the trend from past years as the Biden and first Trump Administration put significant resources and headlines behind these investigations.
Second, expect to see more investigations into local governments’ use of federal funds. In the Central District of California, this has already occurred with the new U.S. Attorney’s Homelessness Fraud and Corruption Task Force, which was announced in April 2025. Tasked with determining whether federal funds have been misappropriated by the City of Los Angeles’s leaders and misused by recipients, the new task force can kill two birds with one stone by acting as a quasi-DOGE faction while also prosecuting fraud, if it is ever found. Expect more of these initiatives to be announced. Already, Chicago has seen a freeze in $1 million specifically earmarked for counter-terrorism efforts, which came on the heels of a threat to freeze all of the nearly $2.7 billion the city receives from the federal government. Such moves are a precursor to investigations and well-publicized strike forces such as the one already announced in Los Angeles.
Similarly, non-profit groups receiving federal funding should anticipate greater scrutiny, and more so when those groups’ stances run counter to the Administration’s messaging. Those skeptical that the Administration would act with this much zeal need only to look to executive orders levied against law firms, educational institutions, and even the Democrats’ major fundraising platform, ActBlue.
Of course, these trends can shift quickly. It was only two months ago that Attorney General Pam Bondi thanked Elon Musk for discovering significant levels of fraud and warned future defendants that the DOJ was “coming after you.” One notable assertion Musk made that same day was that the Small Business Association had improperly doled out $330 million in loans to minors, including a $100,000 loan to a “nine-month-old.” With the passage of time, and potentially that would-be defendant now having taken their first steps, Musk has now formally stepped back from the DOGE, and the headlines covering his allegations have quieted. Yet, at least for the time being, the inclination to repeatedly assert fraud, waste, and abuse has not lost its preeminence in government or amongst the Administration’s most fervent supporters, and it will no doubt still hold some position within the DOJ. When and if the Attorney General will bring criminal prosecutions in larger numbers is anybody’s guess, but at least we now know that as a matter of DOJ policy, the process underlying them will be focused, fair, and efficient.
On the Menu: Florida SB 606 Serves Up More Rigid Requirements for Restaurants to Disclose Operations Charges
Takeaways
Starting 07.01.26, new disclosure requirements go into effect for restaurants that impose “operations charges.”
“Operations charges” are defined in the new law and include gratuities.
Notice requirements will affect many points of customer contact, including menus, bills, receipts, and more.
Amendments to Florida law on notification of automatic gratuity charges create more stringent requirements for how restaurants communicate operations charges to customers. Restaurant owners should review and update their policies and procedures to ensure full compliance with the new requirements.
On June 2, 2025, the governor signed Florida Senate Bill 606, making significant amendments to Section 509.214 of the Florida Statutes regarding “operations charges” in restaurants. SB 606 will go into effect on July 1, 2026.
As a restaurant owner or manager in Florida, understanding the changes to the law is crucial to ensure compliance. This article outlines key changes and what they mean for your business operations.
Background
Previous Florida law allowed restaurants to impose service charges that are not distributed to employees as tips, provided proper notice was given to customers. Early versions proposed in HB 535 would have allowed service charges only for parties of at least six, among other restrictions and requirements.
SB 606 has substantially modified those requirements, creating new obligations for restaurant owners regarding how operations charges are communicated and distributed, but it does not put in place a minimum on party size.
New Definition of “Operations Charge”
Under the amended law, an “operations charge” is defined as any additional fee or charge that a public food service establishment adds to the price of a meal that is not a government-imposed tax, including charges designated as a “service charge,” “gratuity charge,” “delivery fee,” or similar terminology.
Customer Disclosure Requirements
The amended statute requires restaurants to provide clear and conspicuous notice to customers about service charges in the following ways:
Menus, menu boards, contracts, and mobile applications or websites where orders are placed: A notice of the operations charge including the amount or percentage of the charge must appear in a font equal to or greater than the font used for menu item descriptions or contract provisions;
Signage by the register: If no menu or menu board, contract, or table service is provided, as in a fast-food establishment, the operations charge notice must be obvious and clear on a sign by the register;
Bills: A notice of operations charge with a clear statement of the percentage or amount of the charge must be present; and
Receipts: Operations charges must appear on customer receipts and must be on their own lines. Gratuities and sales tax must appear on separate lines. If the operations charge includes an automatic gratuity, this must be stated.
Compliance Steps
To ensure compliance with the updated statute, restaurant owners should:
Review current operations charge practices and determine how they are being communicated and distributed;
Update all affected materials to clearly indicate the existence of operations charges and the amount or percentage of such charges; and
Modify point-of-sale systems to ensure receipts properly itemize and explain operations charges.
The law does not create a private cause of action related to compliance.
Is the One Big Beautiful Bill Act an Employee Benefits Crystal Ball?
Takeaways
Republicans in the U.S. House of Representatives attempt to deliver on President Trump’s campaign promises in the One Big Beautiful Bill Act (BBB or the Act), which passed the House by a razor-thin margin of 215 in favor and 214 opposed on May 22, 2025.
BBB shows favoritism of Health Savings Accounts and Health Reimbursement Account benefits, making changes to broaden their scope, increase utilization, and bolster savings.
The Act also provides a glimpse into legislative or regulatory changes that may be on the horizon for ERISA-governed plans, including standards for Pharmacy Benefit Manager compensation, contractual requirements, and disclosures applicable to government-subsidized plans.
The goal of the U.S. Senate is to pass One Big Beautiful Bill in a form on which Senators can agree, send it back to the U.S. House of Representatives, who then would have it on President Trump’s desk for signature by July 4, 2025. Time will tell whether this accelerated schedule is practical and what ultimately makes its way into federal law.
Without getting too far ahead of the legislative process and certainly staying out of the weeds of the 1,038 pages of legislative proposals, the BBB reveals fringe benefit, health and welfare benefit, and executive compensation priorities. The legislation also tips the hand of the Trump Administration, shining a light on areas in which we may see additional activity.
HSA, HRA Improvements
It is clear that House Republicans like Health Savings Accounts (HSA) and Health Reimbursement Accounts (HRA). There are pages of text aimed at expanding eligibility (including permitting Medicare-eligible enrollees to contribute to HSAs), increasing savings opportunities, allowing rollovers from other healthcare accounts, and permitting the reimbursement of qualified sports and fitness expenses. If the Act becomes law, employers offering HSA or HRA benefits will have some new bells and whistles to add to their programs.
Fringe Benefits That Make Education and Childcare More Affordable
With a focus on families and paying down student loan debt, BBB makes permanent an employer’s ability to make student loan debt repayments on a tax-favored basis under Section 127 of the tax code. BBB also enhances the employer-provided childcare tax credit, further incentivizing employers to provide childcare services to their employees. Whether the employer operates a childcare facility or pays amounts under a contract with a qualified childcare facility, BBB entices employers to add this much-needed employee benefit.
Executive Compensation Changes
The executive compensation changes baked into BBB are designed to help pay for some of the other changes. BBB expands the application of the excise tax on certain tax-exempt organizations paying compensation over $1 million (or excess parachute payments) to include former employees (think: severance). BBB also requires public companies to allocate the Internal Revenue Code Section 162(m) $1 million deduction limit among controlled group members relative to compensation when specified covered employees receive pay from those related employers.
Tax Cuts and Jobs Act Extension
A priority of President Trump, who touted extending his tax cuts during the campaign trail, BBB extends and makes permanent the Tax Cuts and Jobs Act changes. For example, BBB permanently makes qualified moving expense reimbursements taxable.
Pharmacy Benefit Manager Regulation
BBB also includes a few surprise new twists related to Pharmacy Benefit Managers (PBM). Although the legislative reforms currently focus on Medicaid and prescription drug programs subsidized by the federal government (e.g., Medicare Part D plans, including Employer Group Waiver Plans for retirees absent a waiver), it is clear that the Trump Administration and Republicans in Congress seek transparent and fair pricing of prescription drugs. These initiatives eventually may spill over to apply to ERISA-governed plans, in furtherance of President Trump’s Executive Orders advancing Most-Favored Nation prescription drug pricing and directing increased transparency over PBM direct and indirect compensation. So, the changes are worthy of note by all employers that use PBMs.
For Medicaid, BBB prohibits the “spread pricing” model in favor of “transparent prescription drug pass-through pricing model,” which essentially is cost-plus pricing. No more than fair market value can be paid for PBM administrative services.
In the case of Medicare Part D plans, BBB imposes contractual requirements limiting PBM compensation to bona fide service fees. Rebates, incentives, and other price concessions all would need to be passed on to the plan sponsor. Further, the PBM would be required to define and apply in a fully transparent and consistent manner against pricing guarantees and performance measures terms such as “generic drug,” “brand name drug,” and “specialty drug.”
Transparency also is paramount. BBB requires PBMs not only to disclose their compensation, but also their costs and any contractual arrangements with drug manufacturers for rebates, among other details.
It certainly is possible these PBM reforms are coming to an ERISA plan near you. BBB provides a roadmap for the Department of Labor’s Employee Benefits Security Administration to issue ERISA fiduciary standards, best practices, or disclosure requirements.
Recent Federal Developments for June 2025
TSCA/FIFRA/TRI
TSCA Section 21 Petition Seeks Reconsideration Of 2024 Rule Regarding Procedures For Chemical Risk Evaluation: On May 15, 2025, the Center for Environmental Accountability (CEA) filed a petition under Section 21 of TSCA requesting that the U.S. Environmental Protection Agency (EPA) reconsider the 2024 final rule regarding procedures for chemical risk evaluation under TSCA and initiate a rulemaking to amend certain provisions in 40 C.F.R. Part 702, subpart B. The petition states that EPA’s risk evaluation procedural regulations should:
Provide additional definitions for key terms, offering increased transparency and clarity regarding methods and goals of the risk evaluation process;
Bolster intra- and interagency collaboration throughout the risk evaluation process, including requirements that EPA document the outcome of those efforts;
Confirm EPA’s authority to determine which conditions of use (COU) fall within the scope of a risk evaluation;
Explain the criteria EPA may use in determining the COUs it expects to consider;
Provide for a de minimis level below which EPA may exclude COUs from the scope of the risk evaluation;
Explicitly require consideration of existing regulations administered by EPA and other agencies when determining exposure estimates for each COU for a chemical substance;
Require that any assumptions, uncertainty factors, models, and/or screening approaches used in the risk evaluation reasonably reflect the COUs of the chemical substance in practice;
Require EPA to make an unreasonable risk determination for each COU of a chemical substance assessed in a risk evaluation;
Clarify when determinations regarding unreasonable risk or no unreasonable risk are considered final agency actions;
Explicitly require peer review for all risk evaluations;
Create a clear regulatory pathway for the development and submission of draft risk evaluations by requesting manufacturers and other interested persons; and
Extend applicable comment periods and include opportunities for further extensions.
Chemical Coalition Withdraws TSCA Section 21 Petition Seeking Revisions To TSCA Section 8(a)(7) PFAS Reporting Rule: As reported in our May 4, 2025, blog item, on May 2, 2025, a coalition of chemical companies petitioned EPA for an amendment of the TSCA Section 8(a)(7) rule requiring reporting for per- and polyfluoroalkyl substances (PFAS). The petitioners ask that EPA revise the reporting rule to exclude imported articles, research and development (R&D) materials, impurities, byproducts, non-isolated intermediates, and PFAS manufactured in quantities of less than 2,500 pounds (lb.). According to a May 22, 2025, letter from EPA, on May 16, 2025, the coalition withdrew its petition via e-mail to EPA Administrator Lee Zeldin and “EPA now considers this petition closed.” After the coalition submitted its petition, EPA published an interim final rule to postpone the data submission period to April 13, 2026, through October 13, 2026. 90 Fed. Reg. 20236. Small manufacturers reporting exclusively as article importers would have until April 13, 2027, to report. Comments on the interim final rule were due June 12, 2025.
EPA Proposes To Extend Certain Compliance Deadlines To Ensure Lab Compliance With Final Methylene Chloride Risk Management Rule: On May 27, 2025, EPA proposed to extend certain compliance dates in the final risk management rule for methylene chloride under TSCA. 90 Fed. Reg. 22214. The proposed rule would extend the Workplace Chemical Protection Program (WCPP) compliance dates for non-federal laboratories by an additional 18 months to align with the dates allowed for federal laboratories and their contractors. If issued in final, the rule would extend the following compliance dates for non-federal laboratories: for initial monitoring from May 5, 2025, to November 9, 2026; for establishing regulated areas and ensuring compliance with the Existing Chemical Exposure Limit (ECEL) from August 1, 2025, to February 8, 2027; and for ensuring the methods of compliance as well as developing and implementing an exposure control plan from October 30, 2025, to May 10, 2027. Comments are due June 26, 2025.
DOD RFI Seeks Information On Certain Chemicals Undergoing TSCA Section 6 Risk Evaluation: On May 27, 2025, the U.S. Department of Defense (DOD) issued a request for information (RFI) to gather information to identify and assess critical applications for DOD and the defense industrial base (DIB) that necessitate the use of existing chemicals undergoing EPA’s TSCA Section 6 risk evaluation process. The RFI states that it will help the Office of the Assistant Secretary of Defense for Energy, Installations, and Environment (OASD (EI&E)) Chemical and Material Risk Management Program (CMRMP) better understand the use of TSCA existing chemicals in products leading into the defense supply chain. The RFI is focused on receiving information related to the following existing chemicals:
1,3-Butadiene (Chemical Abstracts Service Registry Number® (CAS RN®)106-99-0);
1,1-Dichloroethane (CAS RN 75-34-3);
1,2-Dichloroethane (CAS RN 107-06-2);
Butyl benzyl phthalate (1,2-benzene-dicarboxylic acid, 1-butyl 2(phenylmethyl) ester) (BBP) (CAS RN 85-68-7);
Dibutyl phthalate (1,2-benzene- dicarboxylic acid, 1,2- dibutyl ester) (DBP) (CAS RN 84-74-2);
Dicyclohexyl phthalate (DCHP) (CAS RN 84-61-7);
Di-ethylhexyl phthalate (1,2-benzene-dicarboxylic acid, 1,2-bis(2-ethylhexyl) ester) (DEHP) (CAS RN 117-81-7);
Di-isobutyl phthalate (1,2-benzene-dicarboxylic acid, 1,2-bis-(2methylpropyl) ester) (DIBP) (CAS RN 84-69-5);
Di-isodecyl phthalate (1,2-benzenedicarboxylic acid, 1,2-diisodecyl ester) (DIDP) (CAS RNs 26761-40-0; 68515-49-1);
Diisononyl phthalate (1,2-benzenedicarboxylic acid, 1,2-diisononyl ester) (DINP) (CAS RNs 28553-12-0; 68515-48-0); and
Octamethylcyclotetra-siloxane (D4) (CAS RN 556-67-2).
DOD seeks to understand better applications that require the use of these chemicals and the criticality of these chemicals for industry and supply. The RFI notes that DOD will continue to issue RFIs to consider additional TSCA chemicals. Responses are due June 20, 2025.
ACC Files TSCA Section 21 Petition Seeking Reconsideration Of TCE Risk Management Rule: On May 27, 2025, the American Chemistry Council (ACC) petitioned EPA under TSCA Section 21 for reconsideration of the final risk management rule for trichloroethylene (TCE). ACC requests that EPA reconsider and amend two provisions of the rule:
Revise the byproduct exclusion in 40 C.F.R. Section 751.301(c) by removing the “site-limited” restriction that requires byproduct TCE to be reused as a “part of the same overall manufacturing process.” The petition states that this would allow facilities to continue reusing/processing byproduct TCE either at the same facility where the byproduct was generated or at another facility; and
Delete the last sentence from the “regulatory threshold” provision in 40 C.F.R. Section 751.301(b), allowing facilities to continue discharging wastewater that contains TCE at less than 0.1 percent by weight pursuant to their valid, existing Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permits.
Draft Risk Evaluations Determine That DBP And DEHP Present Unreasonable Risks To Human Health And The Environment: On June 5, 2025, EPA announced the release of the draft TSCA risk evaluations for DBP and DEHP. 90 Fed. Reg. 23931. EPA states that it used the best available science to prepare the draft risk evaluations and to determine preliminarily, based on the weight of scientific evidence, that DBP and DEHP present unreasonable risk to health and the environment driven primarily by certain COUs analyzed in the draft evaluations. Comments on the draft risk evaluations are due August 4, 2025. The Science Advisory Committee on Chemicals (SACC) will peer review the documents at a meeting on August 4-8, 2025. Comments submitted by July 21, 2025, will be considered by SACC during its peer review meeting. More information will be available in a forthcoming memorandum.
EPA Extends Deadline To Report Health And Safety Data For 16 Chemicals: EPA issued a final rule on June 9, 2025, that extends the reporting deadlines for a rule under TSCA Section 8(d) requiring manufacturers (including importers) of 16 chemicals to report data from unpublished health and safety studies to EPA. 90 Fed. Reg. 24228. EPA notes that these health and safety studies “will help inform EPA’s prioritization, risk evaluation, and risk management of chemicals under TSCA. ” The reporting deadline in EPA’s December 13, 2024, final rule was March 13, 2025. In March 2025, EPA extended the reporting deadline to June 11, 2025, for vinyl chloride and to September 9, 2025, for the other chemicals covered under the rule. The rule extends the reporting deadlines for all 16 chemicals to May 22, 2026. According to EPA, the extension will provide it additional time to prepare final guidance for companies on issues related to complying with the rule, including those related to templates required for submissions containing confidential business information. The chemicals subject to the TSCA Section 8(d) rule are:
Acetaldehyde;
Acrylonitrile;
2-anilino-5-[(4-methylpentan-2-yl) amino]cyclohexa-2,5-diene-1,4-dione (6PPD-quinone);
Benzenamine;
Benzene;
Bisphenol A (BPA);
Ethylbenzene;
Hydrogen fluoride;
4,4-Methylene bis(2-chloraniline) (MBOCA);
N-(1,3-Dimethylbutyl)-N′-phenyl-p-phenylenediamine (6PPD);
Naphthalene;
Styrene;
4-tert-octylphenol(4-(1,1,3,3-Tetramethylbutyl)-phenol);
Tribromomethane (bromoform);
Triglycidyl isocyanurate; and
Vinyl chloride.
More information on EPA’s December 2024 rule is available in our December 23, 2024, memorandum.
EPA Issues Final SNURs For Certain Chemicals: EPA issued final significant use rules (SNUR) on June 13, 2025, for certain chemical substances that were the subject of premanufacture notices (PMN) and are also subject to an Order issued by EPA pursuant to TSCA. 90 Fed. Reg. 24977. The SNURs require persons to notify EPA at least 90 days before commencing the manufacture (including import) or processing of any of these chemical substances for an activity that is designated as a significant new use in the SNUR. In addition, the manufacture or processing for the significant new use may not commence until EPA has conducted a review of the required notification; made an appropriate determination regarding that notification; and taken such actions as required by that determination. The final SNURs are effective August 12, 2025.
RCRA/CERCLA/CWA/CAA/PHMSA/SDWA
CEQ Withdraws NEPA Interim Guidance On Consideration Of Greenhouse Gas Emissions And Climate Change: On May 28, 2025, the Council on Environmental Quality (CEQ) announced the withdrawal of its interim guidance entitled “National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change,” for which notice was published in the Federal Register on January 9, 2023. 90 Fed. Reg. 22472. According to CEQ, it has concluded that the interim guidance is inconsistent with the policy objectives in Executive Order (EO) 14154, Unleashing American Energy. The withdrawal was effective May 28, 2025.
PHMSA Seeks Stakeholder Feedback On Whether To Amend Or Repeal Hazardous Materials Rulemaking Procedures, Program Procedures, Or Regulations: On June 4, 2025, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published an advance notice of proposed rulemaking (ANPRM) to solicit stakeholder feedback on whether to repeal or amend any requirements in the Hazardous Materials Rulemaking Procedures and Program Procedures or the Hazardous Materials Regulations (HMR), as well as any letters of interpretation, guidance documents, or other material, “to eliminate undue burdens on the identification, development, and use of domestic energy resources and to improve government efficiency.” 90 Fed. Reg. 23656. PHMSA states that it seeks stakeholder feedback regarding opportunities to identify widely used hazardous material special permits with established safety records for conversion into deregulatory provisions with broader applicability. PHMSA also seeks stakeholder feedback regarding opportunities to introduce efficiencies to its petitions process. Finally, PHMSA also solicits stakeholder feedback on whether to amend the HMR to require PHMSA to conduct periodic, mandatory regulatory reviews. Comments are due August 4, 2025. PHMSA notes that it will consider late-filed comments to the extent practicable.
FDA
FDA Advances Post-Market Chemical Review Program: On May 15, 2025, the U.S. Food and Drug Administration (FDA) announced the launch of “a stronger, more systematic review process for food chemicals already on the market — especially those that concern consumers most.” Over the coming months, FDA will roll out the following key actions:
A modernized, evidence-based prioritization scheme for reviewing existing chemicals. According to FDA, it will soon release a draft for public comment;
A final, systematic post-market review process shaped by stakeholder input. More information on FDA’s 2024 Discussion Paper Development of an Enhanced Systematic Process for the FDA’s Post-Market Assessment of Chemicals in Food is available in our August 22, 2024, blog item; and
An updated list of chemicals under review, including butylated hydroxytoluene (BHT); butylated hydroxyanisole (BHA); and azodicarbonamide (ADA). FDA states that it will also take steps to expedite its review of chemicals currently under review like phthalates, propylparaben, and titanium dioxide. FDA notes that it will continue to share information about the status of its work on its public website as part of its push for greater transparency.
FDA notes that until now, it has conducted post-market reviews “on a case-by-case basis, often in response to citizen petitions or new scientific evidence.” FDA states that the new framework “will be proactive, science-based, and built for long-term impact.”
NANOTECHNOLOGY
NASEM Releases Quadrennial Review Of NNI, Recommends Renewed And Expanded Infrastructure: On May 20, 2025, the National Academies of Sciences, Engineering, and Medicine (NASEM) announced the release of a report entitled Quadrennial Review of the National Nanotechnology Initiative (2025): Securing U.S. Global Leadership Through Renewed and Expanded Infrastructure. Requested by Congress as part of the 21st Century Nanotechnology Research and Development Act, the report focuses on the infrastructure of the National Nanotechnology Initiative (NNI). The Committee on the Quadrennial Review of the NNI “recommends a new focus on renewing and expanding the nanotechnology infrastructure, including instruments, facilities, and people, so that the intellectual capital of nanotechnology can be converted into economic, social, and national security gains for the United States.” More information is available in our May 23, 2025, blog item.
PUBLIC POLICY AND REGULATION
When States Step In: PFAS Policy Innovation Or Fragmentation?: While federal regulators continue to lay the groundwork for a comprehensive response, including through the PFAS Strategic Roadmap, states are increasingly positioning themselves as policy innovators in this space. The recent announcement that EPA will issue additional guidance and extend the compliance deadline for the TSCA Section 8(a)(7) PFAS reporting rule underscores a broader dynamic: in the absence of fast-moving federal action that states perceive as comprehensive, states are setting the pace, even if their approaches do not always (or ever) mirror the federal approach to regulation and risk mitigation. While this federal delay, and retreat in other PFAS areas, is recent, states have not waited for federal action. Over the past few years, several states have increasingly framed PFAS regulation as a space for environmental leadership, and their regulatory approaches diverge significantly from federal approaches to PFAS regulation.
Congress And The Feds — The Impact Of Nonperformance: Ponder the following existential question: Who does their job less effectively? Members of Congress or employees of federal agencies? Congress has not been able to reauthorize environmental statutes for years, with some (most) needing significant attention. Many of the “problems” often cited by critics of Agency behavior can be traced back to the fact that demands to fix current problems are being made of a program that does not quite fit the text of the authorizing statute. To address action demanded by state and federal legislative members, the bureaucracy has to rely on fitting the law they implement to often unforeseen problems that they now confront.
Many observers fear the fallout of the demise of the Chevron doctrine — concern that, without deference to agency interpretations, important problems may remain unaddressed (or worse, for some, resolution may fall to federal judges). But consistent with the court opinion, interpretations of legislative text is the domain of judges or, heaven forfend, the responsibility of Congress to define or refine clearly the extent and intent of the legislation.
The current result to fill effectively the legislative effort can be called “rubber-suiting” — stretching the colorable authority already granted to address a new problem not originally anticipated by the legislative authors. An example in the environmental space is the EPA authority to regulate biotechnology products: TSCA and FIFRA can reach (stretch) to cover most of the waterfront about regulatory issues identified needing regulation.
Over the past decades, Congress and different administrations have made intermittent attempts to craft a new, broad, and modern statute to coordinate and regulate government review and approval of biotechnology products. The current government allocation of responsibilities across agencies, reliant on authority legislated mostly long before biotechnology products were developed, is governed by policies first crafted during the Reagan and H.W. Bush Administrations.
Jurisdiction remains fragmented, relying on statutes drafted before modern methods of biotech engineering were even developed, and holes in the rubber-suit remain. In addition to the jurisdictional difficulties and holes, especially acute in the last decade or three, is the bitter partisanship besetting congressional deliberation. There are continued calls for “regular order,” but apparently little appetite for the same. “Regular order” would see legislation introduced, deliberated by the assigned subcommittee(s) and committee(s), moving to floor consideration in each chamber, and differences between House and Senate resolved by a conference committee. Such a schematic is about as currently relevant as having new members watch Jimmy Stewart’s Mr. Smith Goes to Washington as part of orientation.
Our April 2, 2025, blog post discussed how the call to reorganize EPA has been a long-standing idea to “reform” the Agency to better achieve its mission. Likewise, the point here is to suggest that Congress might benefit from a version of “doctor, heal thyself” should any serious attempt be made to make government work better, be more efficient, and give more meaning to the phrase “your tax dollars at work.” More information is available in our May 21, 2025, blog item.
Chemical Policy Crossroads: MAHA Report’s Assessment Calls For Reform Amid Deregulatory Trends: In response to President Trump’s February 13, 2025, EO 14212, “Establishing The President’s Make America Healthy Again Commission,” the White House issued part of what is being called “The MAHA Report” (with MAHA an acronym for Make America Healthy Again), entitled “Make Our Children Healthy Again: Assessment” (the Assessment), on May 22, 2025. Section One of the Assessment, “The Shift to Ultra-Processed Foods,” includes the Commission’s thoughts on the U.S. agricultural system, food additives, food industry regulation, and government food programs, while Section Two of the Assessment, “The Cumulative Load of Chemicals in our Environment,” includes its take on chemical exposures and pathways, corporate influence, and highlights some top concerns. The Assessment’s core messages add yet another element of business uncertainty that chemical stakeholders would be wise to note. For our thoughts on the Assessment, please read our June 2, 2025, blog. More information on the Assessment is also available in our June 11, 2025, blog item.
Big Beautiful Bill Means Big Cuts For Clean Energy Manufacturers: On March 20, 2025, House Republicans passed the “Big Beautiful Bill” (BBB) as part of H.R. 1, a sweeping legislative package that includes dramatic rollbacks of many of the clean energy tax credits established under the Inflation Reduction Act (IRA). While the bill has little chance of advancing in the Senate in its current form, its proposed cuts offer a window into shifting political priorities and could have significant implications for the U.S. clean energy manufacturing sector. Subtitle C of the bill, titled “Make America Win Again,” proposes to sunset, repeal, or restrict nearly every major clean energy tax credit under the IRA. Among those affected are credits for clean vehicle purchases (Section 25E), commercial clean vehicles (Section 45W), alternative refueling infrastructure (Section 30C), residential energy efficiency improvements (Sections 25C and 25D), new energy efficient homes (Section 45L), and advanced manufacturing (Section 45X).
For manufacturers, the most potentially damaging proposals are those that target the clean electricity production and investment credits under Sections 45Y and 48E, and the advanced manufacturing production credit under Section 45X. The bill would not only accelerate the phase-out dates for these credits but would also impose new restrictions on facilities and companies that receive any form of “material assistance” from so-called “prohibited foreign entities,” including entities with even minor Chinese ownership or influence. In addition to severing incentives for manufacturers with foreign ties, the BBB repeals the ability to transfer clean energy tax credits under IRA Section 6418 — a key tool for helping smaller developers and manufacturers monetize credits and attract financing.
Although the BBB is unlikely to become law in its current form, its provisions could resurface in future negotiations or budget bills. Industry participants should monitor legislative developments closely and consider how foreign ownership structures, supply chain dependencies, and tax credit planning may need to adapt to an evolving policy landscape. More information is available in our June 6, 2025, blog item.
Clearing Regulatory Roadblocks: How Smarter Implementation Can Help Supply Chain Modernization: On June 5, 2025, the Joint Economic Committee (JEC) of the U.S. Congress convened a hearing titled “Barriers to Supply Chain Modernization and Factor Productivity Enhancements.” Throughout the hearing, members and witnesses alike underscored the role of “regulatory friction” — especially in the form of fragmented and unpredictable requirements — as a key factor slowing investment in domestic manufacturing and threatening supply chain resilience. While EPA and TSCA were not named directly, the concerns raised map closely onto the compliance challenges companies face under TSCA Section 5 and Section 6 and related programs.
The JEC hearing makes clear that regulatory clarity and coordination are essential to rebuilding a productive and resilient industrial base. Even without mentioning TSCA by name, the hearing highlighted the very pressures companies face under EPA’s chemical management programs: unclear compliance standards, disconnected data requests, and prolonged uncertainty about new product approval despite considerable capital investment and unclear future legal obligations.
EPA has opportunities to reduce these pressures. Codifying frequently referenced guidance through notice-and-comment rulemaking, aligning reporting obligations across programs, and engaging earlier with agencies like DOD and the U.S. Department of Commerce could provide the predictability and coordination manufacturers need to invest confidently in modernization. To the extent of trying “new ideas” or probing varied regulatory options, a pilot program could reward those who might be willing to volunteer if such program participation provided an interim safe harbor of sought-after certainty while emerging rules and definitions are further clarified. More information on the issues discussed at the hearing is available in our June 13, 2025, blog item.
LEGISLATIVE
Bipartisan VET PFAS Act Would Support Veterans Exposed To PFAS: Representatives Mike Lawler (R-NY) and Josh Riley (D-NY) introduced the VET PFAS Act (H.R. 3639) on May 19, 2025. According to Lawler’s May 29, 2025, press release, the bipartisan legislation would ensure veterans and their families exposed to PFAS at military installations receive the health care and disability benefits they have earned through the Department of Veterans Affairs (VA). The bill would:
Designate PFAS exposure as a service-connected condition for affected veterans;
Require the VA to provide health care and benefits for medical conditions associated with PFAS exposure; and
Ensure military families have access to the care and support they need.
Bipartisan Plant Biostimulant Act Would Advance Agricultural Innovation: On May 22, 2025, Senators Roger Marshall, M.D. (R-KS) and Alex Padilla (D-CA) introduced the Plant Biostimulant Act (S. 1907) to establish a standardized process for approving the commercial use of plant biostimulants as alternatives to synthetic pesticides and fertilizers. Marshall’s May 30, 2025, press release states that plant biostimulants “have demonstrated potential in advancing sustainable practices, including carbon sequestration and water quality enhancement.” According to the press release, the bill would also support research into the benefits of these technologies for soil health.
Bipartisan Bill Would Streamline FDA Review Of Nonprescription Sunscreens: On June 3, 2025, the Co-Chairs of the Congressional Skin Cancer Caucus, Representatives John Joyce, M.D. (R-PA), Debbie Dingell (D-MI), Dave Joyce (R-OH), and Deborah Ross (D-NC), introduced the Supporting Accessible, Flexible, and Effective (SAFE) Sunscreen Standards Act (H.R. 3686) to streamline the FDA review process of the effectiveness and safety of new ingredients for nonprescription sunscreens. According to Dave Joyce’s June 4, 2025, press release, the bill would:
Improve regulatory standards:
Directs FDA to establish clearer, more flexible standards for evaluating sunscreen ingredients;
Allows the use of real-world evidence, observational studies, and nontraditional scientific data to determine safety and effectiveness; and
Incorporates non-animal testing alternatives to align with modern research practices and ethical standards;
Requires FDA to update its final administrative order on pending sunscreen ingredients to:
Consider historical data on ingredients already used safely in the United States;
Reinforce that sunscreen is a proven cancer prevention tool; and
Use the new evidence and testing standards established in the bill; and
Increase transparency and reporting by requiring the Secretary of Health and Human Services to submit annual reports to Congress detailing:
Progress on implementing new standards;
How many applications were reviewed under the new process; and
FDA’s use of non-animal testing methods.
Bipartisan Legislation Would “Deliver Justice For PFAS-Impacted Families”: On June 5, 2025, Representatives Brian Fitzpatrick (R-PA) and Kristen McDonald Rivet (D-MI), Co-Chairs of the Congressional PFAS Task Force, introduced bipartisan legislation (H.R. 3761) to ensure greater transparency and accountability from DOD for communities impacted by widespread PFAS contamination. According to Fitzpatrick’s June 5, 2025, press release, the bill would establish a new high-level position at the Pentagon — Coordinator for PFAS-Impacted Defense Engagement — “to serve as a direct advocate for affected families, improve transparency, drive remediation, and ensure the government delivers answers, not delays.” The PFAS coordinator would be responsible for:
Engaging directly with affected communities to address concerns, ensure accountability, and provide updates on remediation efforts;
Streamlining communication between local stakeholders, advocacy organizations, and federal agencies; and
Driving progress on cleanup efforts with transparency and urgency.
MISCELLANEOUS
Petitions Filed To Add Chemicals To List Of Chemical Substances Subject To Superfund Excise Tax: On May 21, 2025, the Internal Revenue Service (IRS) announced that petitions have been filed to add the following chemicals to the list of taxable substances:
Ethylene propylene diene (EPDM) rubber (90 Fed. Reg. 21825): Petition filed by Exxon Mobil Corporation, an exporter of EPDM rubber;
Neo decanoic acid (90 Fed. Reg. 21824): Petition filed by Exxon Mobil Corporation, an exporter of neo decanoic acid;
Nonene (90 Fed. Reg. 21826): Petition filed by Exxon Mobil Corporation, an exporter of nonene;
Tridecyl alcohol (90 Fed. Reg. 21824): Petition filed by Exxon Mobil Corporation, an exporter of tridecyl alcohol; and
Tri-isononyl tri-mellitate (90 Fed. Reg. 21827): Petition filed by Exxon Mobil Corporation, an exporter of tri-isononyl tri-mellitate.
Comments on the petitions are due July 21, 2025.
Minnesota Extends Public Comment Period On Proposed PFAS Reporting Rule As Entities Voice Concerns About Compliance With Deadlines And Due Diligence Standards: On May 22, 2025, the Minnesota Pollution Control Agency (MPCA) held a public hearing on its “Proposed Permanent Rules Relating to PFAS in Products; Reporting and Fees” (proposed rule). Administrative Law Judge (ALJ) Jim Mortenson facilitated the hearing, which had more than 100 participants in attendance. MPCA has made available online the PowerPoint document used for the hearing presentation, the hearing exhibits, and a transcript of the hearing. The pre-hearing public comment period for the proposed rule closed on May 21, 2025. Under Minnesota administrative procedure, comments must be accepted for five days following a hearing on a proposed rule, and the overseeing ALJ may extend the comment period by no more than 20 days. Following the close of comments and a brief rebuttal period, the presiding ALJ will issue a report on the proposed rule within 30 days, unless an extension is granted. The post-hearing comment period for the proposed rule has been extended until 4:30 p.m. (CDT) on June 23, 2025. A rebuttal period of five business days, lasting from the close of the public comment period until 4:30 p.m. (CDT) on June 30, 2025, will follow. Persons may respond to public comments during this rebuttal period, but they may not submit new comments. Any person who wishes to comment on the rule or provide rebuttal may do so via e-comments, mail, or fax. MPCA will not accept comments submitted via e-mail. Comments must be received by MPCA by the end of the respective periods, so persons planning to submit comments or rebuttals via mail should ensure comments are sent with enough time to reach MPCA by the cutoff. More information on the public hearing is available in our May 29, 2025, memorandum.
President Signs EO To Restore Gold Standard For Science, Calls For Reevaluation Of Biden Administration’s Scientific Integrity Policies: On May 27, 2025, President Trump signed an EO on “Restoring Gold Standard Science.” 90 Fed. Reg. 22601. The EO states that the Trump Administration “is committed to restoring a gold standard for science to ensure that federally funded research is transparent, rigorous, and impactful, and that Federal decisions are informed by the most credible, reliable, and impartial scientific evidence available.” The EO restores the scientific integrity policies of the first Trump Administration and “ensures that agencies practice data transparency, acknowledge relevant scientific uncertainties, are transparent about the assumptions and likelihood of scenarios used, approach scientific findings objectively, and communicate scientific data accurately.” The EO directs the Director of the White House Office of Science and Technology Policy (OSTP), in consultation with the heads of relevant agencies, to issue guidance within 30 days for agencies on implementing “Gold Standard Science” in the conduct and management of their respective scientific activities. The EO defines Gold Standard Science as science conducted in a manner that is reproducible; transparent; communicative of error and uncertainty; collaborative and interdisciplinary; skeptical of its findings and assumptions; structured for falsifiability of hypotheses; subject to unbiased peer review; accepting of negative results as positive outcomes; and without conflicts of interest. Once OSTP publishes the guidance, the EO directs each agency head to update promptly applicable agency policies governing the production and use of scientific information, including scientific integrity policies, to implement the OSTP Director’s guidance. Within 60 days of the publication of OSTP’s guidance, agency heads must report to the OSTP Director on the actions taken to implement Gold Standard Science at their agency. More information on restoring the Gold Standard for Science is available in our June 5, 2025, memorandum.
EPA Publishes FY 2026 Budget In Brief: On May 30, 2025, EPA published its FY 2026 Budget in Brief. President Trump requested $4.16 billion for EPA for fiscal year (FY) 2026, a 54 percent decrease from the FY 2025 enacted budget level. According to EPA, the budget request supports 12,856 full-time equivalents (FTE), a decrease of 1,274 FTEs from the 2025 level, aligning with the President’s goal of streamlining the federal workforce. EPA states that it “is focused on a back-to-basics approach that will lower the cost of living, remove unnecessary barriers for business and industry, empower states, and return the Agency to administering core statutory obligations as Congress intended.” EPA notes that it is currently developing the FY 2026-2030 EPA Strategic Plan and states that the FY 2026 Budget will advance the EPA Administrator’s five strategic pillars: Clean Air, Land, and Water for Every American; Restore American Energy Dominance; Engage in Permitting Reform, Cooperative Federalism, and Cross-Agency Partnership; Develop Artificial Intelligence (AI) Capabilities; and Protect American Auto Jobs.
NTP Updates Report On Carcinogens Handbook On Methods For Conducting Cancer Hazard Evaluations: On June 2, 2025, the National Toxicology Program (NTP) announced the availability of The Report on Carcinogens Handbook on Methods Conducting Cancer Hazard Evaluations. An update to the 2015 version, it provides methods for conducting a robust and transparent evaluation to determine whether a substance is a cancer hazard. The topics covered include: developing and planning the evaluation framework; human exposure data evaluation; human cancer studies evaluation; experimental animal cancer studies evaluation; disposition and toxicokinetic data evaluation; mechanistic data evaluation; and evidence integration and cancer hazard conclusion.
AMS Conducting Referendum To Determine Whether To Continue Regulations Regarding National Paper And Paper-Based Packaging Research And Promotion Program: On June 3, 2025, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) published a notice of referendum on the Paper and Paper-Based Packaging Promotion, Research and Information Order. 90 Fed. Reg. 23421. This document directs that a referendum be conducted among eligible domestic manufacturers and importers of paper and paper-based packaging to determine whether they favor continuance of AMS’s regulations regarding a national paper and paper-based packaging research and promotion program. AMS also announced an immediate moratorium on the collection of assessments under the program. The referendum will be conducted by express mail and electronic ballot from July 14, 2025, through July 25, 2025. Ballots delivered to AMS via express mail or electronic ballot must show proof of delivery by no later than 11:59 p.m. (EDT) on July 25, 2025. Eligible persons will receive a ballot through mail and may cast a ballot through express mail or electronic ballot. Each person who is an eligible domestic manufacturer or importer at the time of the referendum and during the representative period from January 1, 2024, through December 31, 2024, shall be entitled to cast a ballot in the referendum.
WDOE Proposes To Regulate PFAS In Certain Consumer Products: The Washington Department of Ecology (WDOE) issued a proposed rule on June 4, 2025, that would regulate PFAS in certain consumer products. Beginning January 1, 2027, the proposed rule would prohibit the intentional use of PFAS in:
Apparel and accessories;
Automotive washes; and
Cleaning products.
Under the proposed rule, manufacturers would be required to report by January 31, 2027, intentionally added PFAS in the following products manufactured on or after January 1, 2026:
Apparel for extreme and extended use;
Footwear;
Gear for recreation and travel;
Automotive waxes;
Cookware and kitchen supplies;
Firefighting personal protective equipment (PPE);
Floor waxes and polishes;
Hard surface sealers; and
Ski waxes.
Annual reports would be due thereafter. WDOE will hold online hearings on July 9 and July 10, 2025. Comments on the following draft documents are due July 20, 2025:
Proposed rule: Includes draft restrictions and reporting requirements on intentionally added PFAS in 12 product categories. This rulemaking focuses on requirements related to PFAS in 12 new product categories;
Preliminary Regulatory Analyses: Explains the potential costs and benefits of the proposed rule; and
Draft State Environmental Policy Act (SEPA) Determination of Non-Significance and Environmental Checklist: Describes potential environmental benefits of the proposed rule.
WDOE will review comments, consider revisions to the proposed rule and other rulemaking documents, and respond to comments. WDOE states that it expects to decide on rule adoption in November 2025.
ACGIH Updates Documentation; Second Comment Period Will Begin July 1, 2025: The American Conference of Governmental Industrial Hygienists (ACGIH®) announced on June 12, 2025, that the first half of the Threshold Limit Value (TLV®) Development Process for 2025 has ended. Updated documentation is now available on ACGIH’s website through Data Hub and for purchase as PDFs in ACGIH’s Publications Store. ACGIH has posted the updated list of Notices of Intended Changes (NIC) and adopted substances. ACGIH notes that the second comment period will open July 1, 2025. ACGIH encourages further comment for the second half of the year. Comments are due September 30, 2025, with ratification occurring in November 2025, and updates in December 2025.
CPSC Publishes RFI On Reducing Regulatory Burdens: The U.S. Consumer Product Safety Commission (CPSC) published an RFI on June 12, 2025, seeking public comment on opportunities for CPSC to reduce burdens and costs of its existing rules, regulations, or practices without impacting safety. 90 Fed. Reg. 24791. According to CPSC, “[r]egulations and other practices that do not reasonably advance safety, but instead promote unscientific ideological agendas, create unnecessary burdens and costs, restrict consumer choice, or reduce competition, entrepreneurship, and innovation — and thereby restrain the American economy — should generally be eliminated or modified.” Comments are due August 11, 2025.
President’s FY 2026 Budget Requests Would Eliminate CSB, Reorganize CPSC: President Trump’s FY 2026 budget request for the Chemical Safety and Hazard Investigation Board (CSB) states that the President’s budget proposes to eliminate funding for CSB as part of the Trump Administration’s plans “to move the Nation towards fiscal responsibility and to redefine the proper role of the Federal Government.” The President’s budget request proposes $0 for CSB in FY 2026 with the expectation that CSB begin closing down during FY 2025. CSB’s emergency fund of $844,145 will be appropriated to cover costs associated with closing down the agency.
President Trump’s FY 2026 budget request for CPSC proposes to reorganize and transfer the functions of CPSC to the U.S. Department of Health and Human Services (HHS) Office of the Secretary as the Assistant Secretary for Consumer Product Safety (ASCPS). The budget request states that “[u]ntil the enactment of authorizing legislation to reorganize, the CPSC will continue to carry out its mission to protect the public from unreasonable risks of injury from consumer products as a standalone agency.” Under the budget request, the ASCPS would receive $135 million, $15.975 million below the FY 2025 enacted budget, to support 459 FTEs and operational costs, a reduction of 75 FTEs from the FY 2025 enacted budget. More information is available in our June 5, 2025, blog item.
Oregon Imposes Limitations on Restrictive Covenants in Agreements With Healthcare Practitioners
On June 9, 2025, Oregon Governor Tina Kotek signed into law Senate Bill (SB) 951, which, among other things, will impose significant new limitations on restrictive covenants with healthcare practitioners relating to noncompetition, nondisparagement, and nondisclosure. The limitations may soon be modified by separate legislation, House Bill (HB) 3410.
Quick Hits
With some exceptions, Oregon’s SB 951 renders “void and unenforceable” noncompetition agreements with “medical licensees,” i.e., Oregon-licensed physicians, nurse practitioners, physician associates, and practitioners of naturopathic medicine.
The law also renders “void and unenforceable” certain kinds of nondisparagement and nondisclosure agreements between medical licensees and management services organizations, hospitals, or hospital-affiliated entities.
The new limitations currently apply prospectively and void noncompliant agreements entered into or renewed on or after the law takes effect. HB 3410, if passed, will apply new limitations on noncompetition agreements retroactively.
The law provides anti-retaliation protections to medical licensees who violate otherwise valid nondisclosure or nondisparagement agreements or who disclose or report information that a licensee believes in good faith violates a law, rule, or regulation.
Limitations on Noncompetition Agreements With Medical Licensees
SB 951 renders void and unenforceable noncompetition agreements with medical licensees that are entered into on or after the passage of the law, with some exceptions. If HB 3410 becomes law, however, SB 951 will be given retroactive effect as to noncompetition agreements. The law will render void and unenforceable noncompetition agreements with medical licensees that are entered into before, on, or after the passage of the law.
A “medical licensee” includes an individual licensed in Oregon to practice medicine or naturopathic medicine, or an individual licensed as a nurse practitioner or physician associate.
SB 951 defines a “noncompetition agreement” as “a written agreement between a medical licensee and another person under which the medical licensee agrees that the medical licensee, either alone or as an employee, associate or affiliate of a third person, will not compete with the other person in providing products, processes or services that are similar to the other person’s products, processes or services for a period of time or within a specified geographic area after termination of employment or termination of a contract under which the medical licensee supplied goods to or performed services for the other person.”
The limitation on noncompetition agreements broadly applies to agreements between medical licensees and any person, management services organization, hospital, or hospital-affiliated clinics.
A “management services organization” in this context is defined as “an entity that under a written agreement, and in return for monetary compensation” provides “management services”—i.e., “ services for or on behalf of a professional medical entity”—including payroll, human resources, employment screening, employee relations, or any other administrative or business services that support or enable the entity’s medical purpose but that do not constitute the practice of medicine; the enabling of physicians, physician associates, and nurse practitioners to jointly render professional healthcare services; or the practice of naturopathic medicine.
The law provides exceptions to the prohibition on noncompetition agreements with medical licensees. In all cases, a noncompetition agreement must comply with Oregon’s general limitations on such agreements between employers and employees set out in ORS 653.295. The exceptions may be revised if HB 3410 passes the legislature and the bill is signed into law by the governor.
In both SB 951 and HB 3410, noncompetition agreements with medical licensees will be permitted where the medical licensee has a minimum ownership or membership interest in the other party to the agreement; where “the medical licensee does not engage directly in providing medical services, health care services or clinical care”; or where the professional medical entity provides the medical licensee with documentation of a “protectable interest” (SB 951) or a “recruitment investment” (HB 3410), defined as costs to the professional medical entity equivalent to at least 20 percent of the annual salary of the medical licensee that are incurred for (a) “marketing to and recruiting the licensee”; (b) “providing the licensee with a sign-on or relocation bonus”; (c) “educating or training the licensee in the entity’s procedures”; (d) providing the licensee with “support staff, technology acquisitions or upgrades and license fees related to the employee’s employment”; or (e) “similar or related items.” In some circumstances, both measures place limits on the length of time a noncompetition agreement can remain in effect.
Limitations on Nondisclosure and Nondisparagement Agreements With Medical Licensees
In addition to its limitations on noncompetition agreements, SB 951 also limits nondisclosure and nondisparagement agreements between medical licensees and management services organizations, or between medical licensees and hospitals or hospital-affiliated entities, if the licensee is an employee of the hospital or hospital-affiliated entity. These limitations apply to agreements entered into on or after the date of the law’s passage. There are also some important exceptions.
Nondisclosure Agreements
SB 951 defines a “nondisclosure agreement” as any written agreement that restricts a medical licensee from disclosing (a) a policy or practice that the licensee was required to use in patient care other than individually identifiable health information protected from disclosure under the Health Insurance Portability and Accountability Act of 1996 (HIPAA); (b) a policy, practice, or other information about or associated with the licensee’s employment, conditions of employment, or rate or amount of pay or other compensation; or (c) any other information the licensee possesses or to which the licensee has access by reason of the licensee’s employment by, or provision of services for or on behalf of, the other party to the agreement.
Nondisparagement Agreements
SB 951 defines a “nondisparagement agreement” as any written agreement that requires a medical licensee to “refrain from making to a third party a statement about another party to the agreement or about another person specified in the agreement as a third-party beneficiary of the agreement, the effect of which causes or threatens to cause harm to the other party’s or person’s reputation, business relations or other economic interests.”
Exceptions to the Limitations on Nondisclosure and Nondisparagement Agreements
The limitations on nondisclosure and nondisparagement agreements expressly do not apply to information subject to protection by applicable trade secret law or to information that is proprietary to the other party or other third-party beneficiary of the agreement. The limitations also do not apply to statements by medical licensees that constitute actionable libel, slander, tortious interference with contractual relations, or other established tort, so long as a claim against the medical licensee does not depend upon or derive from a breach or violation of the agreement.
The new law also permits a nondisclosure or nondisparagement agreement with a medical licensee under the following two circumstances:
The medical licensee’s employment with the other party has terminated, voluntarily or involuntarily, and the licensee is not restricted from making a good faith report of information that the licensee believes is evidence of a violation of a law, rule, or regulation to a hospital, hospital-affiliated clinic, or state or federal authority.
The nondisclosure or nondisparagement agreement is part of a negotiated settlement between the medical licensee and the other party.
Antiretaliation Protections
The new law prohibits a management services organization or a professional medical entity from taking an “adverse action” against a medical licensee in retaliation for, or as a consequence of, the licensee’s violation of a nondisclosure or nondisparagement agreement or because the licensee in good faith disclosed or reported information that the licensee believed was a violation of law, rule, or regulation to the management services organization, a hospital, a hospital-affiliated clinic, or a state or federal authority.
An “adverse action” is broadly defined to include “discipline, discrimination, dismissal, demotion, transfer, reassignment, supervisory reprimand, warning of possible dismissal or withholding of work, even if the action does not affect or will not affect a medical licensee’s compensation.”
Next Steps
With SB 951, Oregon joins other states, such as Colorado, Wyoming, Pennsylvania, Louisiana, Maryland, and Connecticut, that are considering or have taken steps to significantly limit or prohibit restrictive covenants with healthcare practitioners.
In light of the changes, employers of healthcare practitioners in Oregon may want to consider reviewing and revising their employment contracts and evaluating alternative strategies for protecting their business interests.
Indiana Adds More Restrictions on Physician Noncompete Agreements
Last month we reported on physician and healthcare noncompete laws enacted in 2025. Shortly after the article was posted, another state joined the ranks: Indiana.
Indiana recently enacted Senate Enrolled Act No. 475 (the “Act”), which amended Indiana’s preexisting physician noncompete statute. The amendment prohibits certain physicians from entering noncompete agreements with hospitals, parent companies of hospitals, affiliated managers of hospitals, or hospital systems. The Act is Indiana’s third law restricting physician noncompetes, building upon existing legislation passed in 2020 and 2023.
Backdrop: Indiana’s 2020 and 2023 Physician Noncompete Restrictions
In 2020, Indiana took its first step toward restricting physician noncompete agreements with the passage of Indiana Code section 25-22.5-5.5. Under the 2020 law, a physician noncompete agreement is only enforceable if it satisfies certain requirements, such as ensuring patient notification of the physician’s contact information, ensuring the physicians’ access to medical records, and giving the physician the option to purchase a release from the terms of the noncompete covenant at a “reasonable price.”
In May 2023, Indiana took a second step toward restricting physician noncompete agreements with the passage of Senate Enrolled Act No. 7 (“SEA 7”). Most notably, SEA 7 prohibits noncompete agreements between an employer and a primary care physician. SEA 7 also renders noncompete agreements with all other types of physicians unenforceable where (1) the employer terminates the physician’s employment without cause, (2) the physician terminates their employment for cause, or (3) the physician’s employment contract expires, and the physician and employer have fulfilled their obligations under the employment contract. SEA 7 also clarified the “reasonable price” buyout provision in the 2020 law by specifying a process for negotiating a reasonable buyout price.
Senate Enrolled Act No. 475
This year, on May 6, 2025, Governor Mike Braun signed into law Senate Enrolled Act No. 475. Effective July 1, 2025, the Act prohibits noncompete agreements between a physician and a hospital, parent company of a hospital, affiliated manager of a hospital, or hospital system. The Act does not repeal, replace, or reduce any aspect of the 2020 or 2023 laws. It only applies to agreements entered into on or after July 1, 2025.
The Act defines a “noncompete” as any contract or contractual provision that restricts or penalizes a physician’s ability to practice medicine in any geographic area for any period of time after a physician’s employment ends. The Act provides further illustration: the definition explicitly includes restrictive covenants that impose financial penalties or repayment obligations pursuant to practicing medicine with a new employer, provisions requiring employer consent to practice medicine with a new employer, and provisions that impose indirect restrictions that limit or deter a physician from practicing medicine with a new employer.
The Act does not apply to:
Agreements in the sale-of-business context where the physician owns more than 50% of the business entity at the time of sale;
Nondisclosure agreements protecting confidential business information and trade secrets; or
Non-solicitation agreements, so long as the non-solicitation agreement only lasts for a one-year term post-employment and does not restrict patient interactions, patient referrals, clinical collaboration, or a physician’s professional relationships.
Importantly, the Act’s definition of “hospital” does not include freestanding health facilities, rural emergency hospitals, and institutions specifically intended to diagnose and treat mental illness and developmental disabilities.
In light of these new restrictions, employers expecting to enter noncompete agreements with physicians in Indiana should work with counsel to make sure their agreements meet these new standards.
EPA Proposes Rescission of Power Plant GHG Standards Under Clean Air Act Section 111
Go-To Guide
EPA proposes to rescind all GHG limits for new and reconstructed gas turbines and existing and modified coal and oil/gas-fired power-generating units under CAA Sections 111(b) and (d).
EPA concludes that Section 111 requires a finding that a source category ‘“causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare”’ prior to regulating a new pollutant, regardless of whether EPA has previously listed the source category for a separate pollutant(s).
EPA reinterprets the statutory phrase “contributes significantly” to require a proximate-cause-based nexus between the specific pollutant, the source category, and the extent of contribution required to trigger regulation based on the type of emissions. EPA determines it has the discretion to consider policy factors in making the determination, and if the cost of achieving the desired emission reductions is unreasonable, then regulation is not warranted.
Under its alternative proposal, the agency withdraws its prior conclusions that carbon capture and sequestration/storage (CCS) and natural gas co-firing are “adequately demonstrated,” commercially available, and cost-effective systems of emission reduction to reduce GHG emissions from EGUs.
The proposed rule implicitly challenges EPA’s 2009 Endangerment Finding—a finding made in response to the Supreme Court’s direction in Massachusetts v. EPA, 547 U.S. 497 (2007)—and signals potential reconsideration of GHG regulation in other sectors.
The proposal reflects the Trump administration’s stated objective to reduce regulatory burdens and bolster domestic energy production. EPA estimates nearly $1 billion in annual cost savings across the utility sector if the rule is finalized: it also projects that the proposal will result in PM2.5 and ozone-related health costs of $76-$130 billion annually.
After more than a decade of regulatory flip flopping on greenhouse gas (GHG) emission limits from power plants and corresponding litigation, the U.S. Environmental Protection Agency (EPA) proposes to rescind all GHG limits for fossil fuel-fired power plants promulgated under Clean Air Act (CAA) Sections 111(b) and 111(d). On June 11, 2025, EPA issued a proposed rule that repeals carbon pollution standards for new and reconstructed gas turbines and existing and modified coal and oil/gas-fired units (collectively, “electric generating units” or “EGUs”). See Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units (“Proposed Rule”).
The Proposed Rule follows executive orders directing EPA and other federal agencies to review existing regulations that may inhibit domestic energy development and security—and, specifically, to develop new regulatory frameworks that would reinvigorate the coal industry. The Proposed Rule is based on a new scientific and economic framework that runs counter to the agency’s 2009 Endangerment Finding and broader efforts to regulate GHGs. (See GT E2 Blog: “EPA Announces Broad Suite of Pollution Regulations for Power Plants,” May 7, 2024.)
EPA’s Reinterpretation of “Contributes Significantly” Under Section 111
The core of EPA’s proposal is a reinterpretation of the agency’s 2015 reading of 42 U.S.C. § 7411(b)(1)(A) (“Section 111”). Section 111 requires EPA to list source categories that “contribute[] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare” and promulgate standards of performance to regulate emissions from the listed source categories.
In 2015, EPA concluded it did not need to make a significant contribution finding to regulate GHG emissions from EGUs because the agency had already listed these sources under Section 111 in 1971 and 1977 and issued standards of performance in 1979. Alternatively, if required to make a GHG-specific finding, EPA determined the 2009 Endangerment Finding would suffice.
In the 2025 Proposed Rule, EPA first declared that a separate, GHG-specific significant contribution finding is a prerequisite to regulating EGU emissions. Then, EPA determined that a significant contribution finding must be based on:
1.The “influence, effect, or usefulness of finding such contribution,” accounting for policy considerations. Emissions are “not significant” if regulating them would “have little effect on dangerous air pollution” or “would not be useful” given an administration’s policies for the source category. The EPA Administrator has discretion in determining whether a source category causes or significantly contributes to air pollution.
2.The cost to regulate emissions from the proposed source category. Previously, EPA did not interpret Section 111 as requiring the agency to consider regulatory cost as part of the significant contribution finding, and only considered cost as part of crafting standards of performance to regulate emissions from a listed source category.
Applying its new standard, EPA concluded that EGU emissions do not “contribute significantly” to air pollution which may endanger public health or welfare and warrant regulation under Section 111. Although the source category accounts for approximately 25% of total U.S. GHG emissions according to EPA data, EPA found the volume of GHG emissions from EGUs compared to global emissions relegates the U.S. EGU emissions to a non-significant role. Additionally, EPA believes the causal role of U.S. EGU emissions to the potential danger to public health and welfare from climate change is too attenuated for regulation.
Implications for the 2009 Endangerment Finding
In 2015, EPA determined its 2009 Endangerment Finding provided an alternative basis to regulate GHG emissions from EGUs under Section 111(b) because the Endangerment Finding concluded that six well-mixed greenhouse gases, including CO₂, may reasonably be anticipated to endanger public health and welfare. The Proposed Rule rejects this rationale, arguing the “best reading” of Section 111 requires pollutant-specific and source-category specific significant contribution findings. The implication is EPA cannot rely on the 2009 Endangerment Finding as a sufficient basis for regulating GHG emissions from any appropriately listed source category. By introducing a new legal prerequisite to regulate under Section 111, the Proposed Rule raises questions about the sufficiency of the 2009 Endangerment Finding as a regulatory cornerstone and signals a broader effort to either revoke or limit its applicability to stationary source categories.
EPA’s Alternative Proposal: Reject and Repeal CCS and Fuel-Switching BSER
Once EPA lists a source category under Section 111, EPA must issue emission performance standards for the sources in that category based on the “best system of emission reduction [BSER] which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.”
As an alternative to determining that EGU GHG emissions do not contribute significantly to dangerous air pollution and therefore cannot be regulated under Section 111, the Proposed Rule includes a proposal to repeal specific portions of 40 CFR part 60, subparts TTTTa and UUUUb. These regulations contain the emission guidelines and BSER determinations for coal-fired steam generating units undertaking a large modification and phase 2 CCS-based requirements, and existing fossil fuel-fired steam generating units.
EPA proposes to withdraw its 2024 determination that CCS is the BSER to achieve a 90% reduction in CO₂ emissions from existing and modified EGUs because CCS has not been adequately demonstrated and the cost is not reasonable. Specifically, EPA states: (1) 90% capture from EGU flue gas has not been demonstrated at commercial scale and the limited projects cited in the 2024 rule suffered from reliability issues; (2) the capital costs of onsite capture systems, and compression and pipeline infrastructure, remain prohibitively high; and (3) CCS capture, pipeline, and sequestration infrastructure cannot be deployed at scale by the January 1, 2032, compliance date.
The Proposed Rule also would revoke EPA’s prior finding that 40% natural gas co-firing is BSER for existing, medium-term coal-fired EGUs. EPA believes coal-fired steam generating units “will continue to comprise a substantial portion of the nation’s electricity supply” and using natural gas for co-firing may have significant adverse effects on the energy system given the growing demand for natural gas domestically and abroad. EPA further determined that co-firing natural gas in a coal-fired unit is an example of impermissible generation shifting invalidated in West Virginia v. EPA, 597 U.S. 697 (2022), because it likely would require significant new infrastructure and modification or additional burners. Like its CCS determination, EPA also stated it does not believe sufficient natural gas pipeline infrastructure could be constructed by the January 1, 2030, compliance date to implement the BSER.
Implications for OOOOb/c and Other Sector Rules
The reinterpretation of “contributes significantly” raises questions about the legal foundations of EPA’s rules to regulate methane in the oil and gas sector codified at 40 C.F.R. Part 60, subparts OOOOa, OOOOb, and OOOOc. In those rules, EPA asserted a new significant contribution finding was unnecessary for already-listed categories and that oil and gas operations emit methane in sufficient volumes to justify regulation. The current proposal undercuts both rationales. EPA now explicitly rejects volume of emissions as a sole basis for regulating. If high-GHG emitting categories like fossil fuel-fired EGUs do not satisfy the statutory threshold, regulations for sectors that emit fewer GHGs will be up for debate.
Consistent with this administration’s concurrent policy of empowering states—particularly through the CAA’s cooperative federalism framework—the proposal strongly reemphasizes the “remaining useful life and other factors” (RULOF) discretion under Section 111(d), which EPA previously narrowed in favor of uniform standards. Refocusing on RULOF would give states substantially more flexibility in crafting existing source compliance plans for power plants and oil and gas sources.
GT Insights
EPA will launch a 45-day public comment period once the Proposed Rule is published in the Federal Register. The agency also will hold a virtual public hearing. EPA is soliciting feedback on numerous issues in the proposal, including how the agency’s statutory interpretation squares with recent Supreme Court cases. Stakeholders—including electric utilities, state regulators, and technology developers—may consider submitting comments about EPA’s revised interpretation of Section 111, the feasibility of CCS and fuel-switching technologies, and the broader implications for GHG regulation across sectors.
The proposal represents a major shift in EPA’s approach to regulating the power sector and its interpretation of Section 111 for all industrial sectors. If finalized, the Proposed Rule would have broad implications for GHG regulation across other sectors—including oil and gas—and for EPA’s 2009 Endangerment Finding. It also may affect investments in CCS technology and infrastructure.
Litigation is likely regardless of the Proposed Rule’s final form. In the meantime, various source categories should consider how the Proposed Rule would affect their governing regulations, ongoing or forthcoming litigation and reconsideration of those regulations, and how a rollback of GHG regulation under the CAA might impact their businesses and operations.
FERC Approves $927,990 Civil Penalty Against Green Plains Inc. for Natural Gas Trading Violations
On June 13, 2025, the Federal Energy Regulatory Commission (FERC) issued an order approving a stipulation and consent agreement between its Office of Enforcement and Green Plains Inc., resolving allegations that the ethanol producer engaged in manipulative natural gas trading during bidweek at the MichCon hub in early 2023. The case (Docket No. IN25-2-000) is notable both for the relatively small financial gain realized by the trader—$19,069—and the magnitude of the resulting penalty: a $927,990 civil fine, a $19,069 restitution payment to affected counterparties, multi-year compliance obligations, and a two-year trading restriction.
FERC’s investigation focused on Green Plains’ simultaneous participation in the physical and financial natural gas markets during bidweek—the last three trading days of the month prior to delivery. During bidweek in January through April 2023, Green Plains was a significant seller of physical gas at the MichCon hub, accounting for 25% to 36% of reported bidweek volumes used by Platts to publish the monthly IFERC MichCon index. While Green Plains did not report its trades directly to Platts, its transactions were included in index calculations via counterparties. At the same time, Green Plains held substantial short financial basis positions—many times larger than its physical inventory—that were settled using the MichCon index.
FERC took issue with this trading pattern, alleging that Green Plains intentionally sold physical gas at a loss or negligible profit to depress the MichCon index and thereby benefit its larger short financial positions. In FERC’s view, the disproportion between the physical sales and the financial exposures—along with the repeated nature of the trading across multiple months—supported an inference of market manipulation in violation of Section 4A of the Natural Gas Act and the Commission’s Anti-Manipulation Rule, 18 C.F.R. § 1c.1.
Green Plains did not admit or deny wrongdoing but agreed to the stipulated facts. Notably, this conduct occurred after FERC’s Division of Analytics and Surveillance (DAS) had raised concerns in 2021 about similar behavior by Green Plains during bidweeks in February, March, November, and December of that year. Although Green Plains implemented some compliance enhancements following DAS’s inquiry, it failed to fully enforce them. FERC found this lack of follow-through to be an aggravating factor.
Energy trading and compliance professionals will recognize that the enforcement theory rests on the use of physical trading activity to benefit financial positions—a practice that may have legitimate business purposes in some contexts, such as storage hedging. For instance, financial short positions can act as a risk offset for entities holding physical inventory expected to be sold during the delivery month. However, FERC emphasized that Green Plains’ financial short positions far exceeded its physical volumes, and that the bidweek physical sales were executed at prices below market norms or without commercial justification. FERC viewed this as evidence that the physical trades were not legitimate hedges, but rather tools to affect the index.
The settlement imposes a two-year restriction prohibiting Green Plains from engaging in MichCon bidweek trading in fixed price or physical basis if the company holds any related financial positions tied to the MichCon index. In addition, the company must continue compliance reforms—such as internal monitoring of trading positions, annual FERC-specific training, quarterly compliance meetings, and annual reporting to Enforcement—for at least three years.
This order underscores FERC’s aggressive stance on cross-market manipulation and its willingness to impose significant penalties even where monetary gains are minimal. It also signals the Commission’s heightened scrutiny of index-influencing behavior by entities with substantial market share, especially where those entities fail to report trades or enforce prior compliance commitments.
Relevant Precedents and Enforcement Context
FERC’s enforcement action against Green Plains is consistent with prior cases involving similar cross-market manipulation strategies, where traders engaged in uneconomic physical transactions to benefit related financial positions. These cases provide precedent for the theory that even small index price movements—when induced by trades without legitimate commercial purpose—can constitute market manipulation under Section 4A of the Natural Gas Act and FERC’s Anti-Manipulation Rule.
For example, in the landmark case against BP America Inc. (Docket No. IN13-15-000), FERC alleged that BP’s trading at the Houston Ship Channel was designed to suppress index prices to benefit a related financial position. FERC ultimately imposed a $10.75 million civil penalty and emphasized that manipulative intent can be inferred from trading patterns inconsistent with rational economic behavior.
Similarly, the Commission initiated proceedings against Total Gas & Power North America, Inc. (Docket No. IN12-17-000), alleging that its traders engaged in physical sales designed to move index prices in the Southwest to benefit financial positions. Although the Commission did not finalize penalties due to procedural issues, the case remains a touchstone for understanding how FERC approaches physical-to-financial manipulation schemes.
Other notable proceedings include the 2016 action against Deutsche Bank Energy Trading LLC (Docket No. IN12-4-000), where FERC found that Deutsche Bank’s uneconomic trades at the California ISO’s Silver Peak node were designed to affect congestion revenue rights. Deutsche Bank paid a $1.5 million penalty and disgorged $172,645 in unjust profits.
Collectively, these cases demonstrate that FERC views uneconomic or loss-making physical trades executed during critical price-setting windows—such as bidweek—as potential indicia of manipulative conduct, especially where paired with leveraged financial positions.
The Green Plains settlement fits squarely within this enforcement pattern. The extent to which FERC continues to challenge these types of trading patterns under new leadership bears close scrutiny in the coming months, as potential new FERC policies emerge.
In any event, to reduce enforcement risk, market participants should ensure that internal compliance programs rigorously assess the alignment of physical trading strategies with legitimate commercial needs and document the rationale behind any simultaneous financial positions—particularly when those positions are leveraged or directionally sensitive to index movements.
Request for Comments on Rulemaking to Implement Firming Reliability Requirements for Electric-Generating Facilities in the ERCOT Region Pursuant to PURA § 39.1592.
Legislative Background
On Friday, 6 June, the Public Utility Commission of Texas (the PUCT or the Commission) released a memorandum detailing the new requirements set forth under House Bill 1500 (HB 1500) (88 Reg. Session) and seeking public comment before filing the initial draft of its proposed rule.1 HB 1500 went into effect on 1 September 2023 and significantly amended the Public Utility Regulatory Act (PURA) by adding § 39.1591 and § 39.1592, which created a goal of ensuring electric reliability during high-risk events, such as severe weather or unanticipated peaks in energy demand. In furtherance of this goal, HB 1500 amends PURA to require the Commission to define and enforce firming reliability requirements for electric generating facilities in the Electric Reliability Council of Texas (ERCOT) region. A firming reliability requirement is normally interpreted as a requirement to make intermittent generation, such as wind and solar, less intermittent and more predictable by backing it up with a more predictable resource. These requirements ensure that these sources can generate supply during periods of poor energy generation. The firming requirement is typically designed to redirect investment away from variable generation and toward reliability measures to improve overall system reliability.
Pursuant to PURA § 39.1592(b), “[n]ot later than December 1 of each year, an owner or operator of an electric-generation facility, other than a battery energy storage resource, shall demonstrate to the commission the ability of the owner or operator’s portfolio to operate or be available to operate when called on for dispatch at or above the seasonal average generation capability during the times of highest reliability risk . . . .”2
These updated firming reliability requirements will apply to electric-generating facilities in ERCOT that (1) sign a standard generation interconnection agreement (SGIA) on or after 1 January 2027, (2) have been in operation for at least one year, and (3) are not a self-generator.3 Before filing an initial draft of the rule implementing its new directive, the PUCT is seeking responses to questions for public comment by 27 June 2025.
Questions Posed by the PUCT
The PUCT is seeking comment on six questions, many with a number of subparts. Some questions include the following:4
How is the seasonal average generation capability calculated?
How is a generator’s availability during the hours of highest risk calculated?
Can the eligibility of capacity from electric generating facilities not implicated by the updated firming reliability requirements be used to satisfy the reliability requirements of other facilities?
What is the appropriate penalty for facilities that fail to comply with the new performance requirements?
Should facilities that were not implicated by the new performance requirements but go on to make capacity upgrades that amend their SGIA when enforcing the new performance requirements be included?
The PUCT is also seeking comment on any additional issues related to these new reliability requirements that it should consider.
The PUCT asked for comments to be submitted in Project No. 58198 by 27 June 2025, and the energy regulatory attorneys at our firm are available to answer any questions you may have in considering this new rule and how to participate in the PUCT rulemaking process. The PUCT will evaluate the responses to these questions and likely use the insight gained in drafting a Proposal for Publication, which would include a draft rule adopting HB 1500 (88 Reg. Session).
Footnotes
1 PUCT Project No. 58198, Rulemaking to Implement Firming Reliability Requirements for Electric Generating Facilities in the ERCOT Region Under PURA § 39.152 (June 6, 2025), https://interchange.puc.texas.gov/Documents/58198_2_1505670.PDF.
2 PURA § 39.1592(b).
3 Id. § 39.1592(a).
4 This is not an exhaustive list but rather a representative sample of the types of questions the PUCT is seeking public comment on by 27 June 2025.
One Big Beautiful Bill: Update on Provisions for Nonprofits
On May 22, 2025, the House of Representatives passed the One Big Beautiful Bill Act (H.R. 1, hereafter the “Revised House Bill”). The Revised House Draft Bill contains certain changes to the original bill that was released on May 12, 2025 by the House Ways and Means Committee (the “Original House Draft Bill”). As summarized in our previous blog post, there were several proposed changes in the Original House Draft Bill that would have particularly impacted nonprofits if enacted.
The Revised House Bill dropped the proposed change to treat income arising from a sale or license by a tax-exempt organization of its name or logo as “unrelated business taxable income” (“UBTI”) but retained the following provisions that would also impact nonprofits, if enacted:
For private foundations, the current 1.39% excise tax would be replaced by a tiered tax on net investment income based on the total gross value of the assets held by the foundation—the top rate reaching 10%.
For private colleges and universities, the current 1.4% excise tax on net investment income would be replaced with a tiered system based on an institution’s “student-adjusted endowment”. For such schools with a student-adjusted endowment of more than $2 million, the excise tax would be increased to 21%. The scope of “net investment income” would also be expanded to include interest income from student loans.
Income from scientific research would be exempt from UBTI only if the research is publicly available.
Nonprofits (other than “churches” or certain “church-affiliated organizations”) would have to pay tax (generally at the corporate rate of 21%) on parking facilities and transportation fringe benefits. The original Tax Cuts and Jobs Act of 2017 included a provision imposing taxes on such facilities and benefits, but that provision had been retroactively repealed in 2019.
The excise tax imposed on significant compensation paid to the 5 highest-compensated employees of an applicable tax-exempt organization would be expanded to all employees of the organization or any related person or governmental entity.
A 1% floor would be added for charitable contribution deductions made by corporations.
For a full summary of provisions from the Revised House Bill, please see our blog post here.
The Revised House Bill will be reviewed by the Senate and is subject to further revision and amendment as the budget reconciliation process continues. The changes summarized above may or may not be included in the final tax legislation. Congressional Republicans have previously stated that their goal is to have tax legislation finalized by July 4, 2025.
UPDATE: First Amendment Freedoms and Federal Funds: Why Harvard’s Stand Matters for All Americans
Since filing its Complaint on April 21, 2025, Harvard has faced an intensifying series of actions from the Trump Administration. In early May, the Administration revoked all new federal research grants to the university, including those from the National Institutes of Health, National Science Foundation, and the Departments of Agriculture, Energy, and Housing and Urban Development.1 The Administration has also threatened to redirect $3 billion in Harvard’s federal grant funding to vocational schools and to revoke the school’s tax-exempt status.2 Most recently, President Trump signed a proclamation to suspend international visas for new students at Harvard.3 Harvard is not alone in warding off attacks from the Administration. Princeton and the University of Pennsylvania face the suspension of hundreds of millions in research grants, and the Department of Education is actively investigating at least ten universities for alleged antisemitism conduct.
As the attacks expand in scope and target, the core constitutional concern remains unchanged: that the Administration’s actions undermine First Amendment principles and jeopardize the health, safety, and scientific progress on which millions of Americans rely. Rather than allow the Court to address the constitutional issues in Harvard’s initial complaint, Harvard is forced to file new complaints to the Administration’s actions, while contending with the onslaught of new attacks. In a May 23, 2025, editorial, “Is Trump Trying to Destroy Harvard?,” The Wall Street Journal wrote: “The Trump Administration has frozen billions in federal grants to Harvard University, threatened its tax-exempt status, and sought to dictate its curriculum and hiring. Now the government seems bent on destroying the school for the offense of fighting back.”5 Indeed, this conflict is far from over, and its implications for academic freedom and American innovation are only beginning to unfold.
This article is an update to First Amendment Freedoms and Federal Funds: Why Harvard’s Stand Matters for All Americans, originally published on June 9, 2025.
The views expressed in this article are those of the author and not necessarily of her law firm, Dilworth Paxson LLP, or The National Law Review.
1 Peter Charalambous, Timeline: Trump Administration’s Actions Against Harvard University, ABC News (May 28, 2025), https://abcnews.go.com/US/timeline-trump-administrations-actions-harvard-university/story?id=122267583
2 Id.
3 Emma Tucker, Trump Signs Proclamation to Suspend Visas for New Harvard International Students, CNN (June 4, 2025), https://www.cnn.com/2025/06/04/us/trump-harvard-student-visas-suspended.
4 Anthony Zurcher, The Fallout from Trump’s War on Harvard Will Long Outlast His Presidency, BBC (May 31, 2025), https://www.bbc.com/news/articles/c0ln9lexyedo
5 The Editorial Board, Is Trump Trying to Destroy Harvard, WSJ (May 23, 2025), https://www.wsj.com/opinion/donald-trump-harvard-dhs-foreign-students-kristi-noem-b8ac80edrd?