Department of the Interior to Adopt Expedited NEPA Permitting Procedures for Energy and Minerals Projects on Federal Lands
On April 23, 2025, the U.S. Department of the Interior announced plans to implement unprecedented emergency procedures to fast-track permitting for energy and critical minerals projects on federal lands. The initiative follows President Donald Trump’s Jan. 20, 2025 declaration of a National Energy Emergency and implements that executive order’s direction to “identify and exercise any lawful emergency authorities available” to facilitate energy development, including critical minerals. In his executive order dated March 20, 2025, President Trump used a broad definition of the term “critical mineral” to include all critical minerals identified by the Secretary of the Department of the Interior pursuant to the Energy Act of 2020, as well as uranium, copper, potash, and gold. Eligible energy permitting projects include those that seek to “identify, lease, site, produce, transport, refine, or generate” energy resources.
The Department of the Interior will use the new procedures to expedite its permitting approvals, “if appropriate,” employing existing regulations issued pursuant to the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the National Historic Preservation Act (NHPA). Notably, the press release promises the completion of environmental impact statements (EISs) in just 28 days, and environmental assessments (EAs) within two weeks. The expedited NEPA procedures will rely on 43 C.F.R. § 46.150(b), which authorizes Department of the Interior officials to take emergency actions before preparing a NEPA analysis under certain circumstances. The rule provides that if emergency action is necessary before preparing an EIS, officials must consult with the Council on Environmental Quality (CEQ) regarding the necessary NEPA compliance.
CEQ also released guidance on April 23, 2025 for federal agencies to use in updating their NEPA regulations. The guidance follows CEQ’s withdrawal of its own NEPA rules, as directed by President Trump in his January 20, 2025 executive order entitled Unleashing American Energy. An internal Interior memorandum from the same day documents the Department of the Interior’s consultation with CEQ – required by the Interior NEPA regulations – and its reliance on the CEQ guidance to develop its “alternative [NEPA] compliance process,” and explains how an EIS could be completed in just 28 days under these emergency procedures:
Project applicants must agree in writing to use the alternative procedures and must have submitted plans of operation, drilling permit applications, or other approval requests.
The Department of the Interior would publish the Notice of Intent to prepare an EIS, solicit written comments, and schedule a public meeting that would be held during the agency’s preparation of the EIS.
Comment periods would be approximately ten (10) days in most cases, and occur during the preparation of the EIS.
The EIS would be published in final form within the 28-day period. There would be no draft EIS.
The Record of Decision must document how the action “addresses the national energy emergency.
The press release contemplates similar emergency procedures for compliance with ESA and NHPA requirements. It is unclear when or how these new procedures will be adopted, and remains to be seen whether they will be widely employed by the Department of the Interior.
The State of Employment Law: Three States Have Virtually No Anti-Discrimination Laws
Under federal employment discrimination laws, race, color, religion, national origin, sex, sexual orientation, gender identity, disability, age, citizenship status, and genetic information are protected classifications. Most states have a list of protected classes that closely mirrors federal law, and many states have even added more protected classifications. However, three states have largely left civil rights protections in employment to the federal government.
Mississippi has no anti-discrimination statute and therefore has no protected classes of its own. Alabama and Georgia prohibit age discrimination and unequal pay on the basis of sex, and Georgia additionally prohibits disability discrimination, but Alabama and Georgia otherwise have no protected classes. As such, employees who work in those three states are largely dependent on federal law for protection against employment discrimination.
Employers in Mississippi, Alabama, and Georgia may feel they benefit from lesser regulation, as fewer anti-discrimination laws may translate into fewer discrimination charges, as well as less time and lower legal fees devoted to administrative investigations. Many states with more robust anti-discrimination laws conduct civil rights investigations that employers would just as soon avoid. However, the lack of regulation could cut both ways. In fact, those same civil rights investigations that employers dread often prevent lawsuits, as a no-cause dismissal from a state civil rights agency often persuades an employee not to file suit.
Because of their minimal state law protections, employees in Mississippi, Alabama, and Georgia are likely to pursue any discrimination claims at the federal Equal Employment Opportunity Commission. But the EEOC has largely abdicated its duty to investigate charges of discrimination in the past five years, instead simply issuing “right-to-sue” letters that provide said employees with an easy path to court.
Consequently, employers in Mississippi, Alabama, and Georgia may pine for state civil rights agencies to play a more active, gatekeeping role–minimizing costly and time-consuming discrimination lawsuits.
Re: Watch What You Say Here
The Commercial Electronic Mail Act (CEMA) is a Washington State law that prohibits sending state residents a commercial email misrepresenting the sender’s identity. A commercial email promotes real property, goods, or services for sale or lease. A recent Washington Supreme Court opinion held that this prohibition includes the use of any false or misleading information in the subject line of a commercial email and is not limited to false or misleading information about the commercial nature of the message. Brown v. Old Navy, LLC, No. 102592-1 (Wash. 4/17/25).
The case arose when the plaintiffs sued Old Navy after allegedly receiving emails with false or misleading subject lines about the retailer’s promotions . The plaintiffs categorized four types of false and misleading emails from Old Navy:
Emails that announced offers available longer than stated in the subject line;
Emails that suggested an old offer was new;
Emails that suggested the end of an offer; and
Emails that stated a promotion extension.
For example, plaintiffs claimed that they received emails with subject lines including phrases like “today only” or “three days only” when sales or promotions lasted longer. The plaintiffs also pointed to emails from Old Navy about a 50% off promotion that would supposedly end that day, but continued in the following days. Plaintiffs argued that such emails violate CEMA because of false or misleading subject lines.
The applicable CEMA provision prohibits entities from sending commercial emails that “contain false or misleading information in the subject line.” RCW 19.190.020(1)(b). While plaintiffs argued that the provision refers to any information, Old Navy asserted that the prohibition is directed at statements in the subject line that mislead the recipient as to what the email is about. The Washington Supreme Court noted that the plain meaning of Subsection 1(b), and CEMA’s general truthfulness requirements, indicate that the statute applies to any information contained in an email subject line.
Old Navy also claimed that the plaintiffs’ interpretation of the subsection would punish Old Navy for “banal hyperbole.” According to the retailer, such puffery was not intended to be in CEMA’s scope. The court noted that though this issue was not within the scope of the narrow question in the case, typical puffery, including statements such as “Best Deal of the Year,” is not misrepresentation or false because “market conditions change such that a better sale is later available.” According to the court, mere puffery differs from representations of fact, such as “the duration or availability of a promotion, its terms and nature, the cost of goods, and other facts” that are important to Washington consumers when making decisions.
Though five justices signed the majority opinion, four others dissented. The dissent notes the antispam legislative intent and history behind CEMA, holding that the legislature was concerned about the “volume of commercial electronic mail being sent,” suggesting the narrower interpretation of Subsection 1(b) that Old Navy proposed. The dissent opinion points to the preceding provision of CEMA, which precludes transmitting an email that “[u]ses a third party’s internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message.” RCW 19.190.020(1)(a). According to the dissent, Subsection (1)(b) should “be read in harmony” with Subsection 1(a) and should be interpreted to address the prevention of sending emails that hide the email’s origin and promotional purpose. In support of its position, the dissent includes the example of the Washington Attorney General’s Office website, which directs consumers to “[c]arefully examine the body of the email message as it relates to the email’s subject line” and see if “it accurately describe[s] what is contained in the email” to determine whether the subject line would violate CEMA.
Companies can expect increased CEMA litigation due to this case. Those engaging in email marketing should be mindful of their subject line language. Statements about the nature of specific offers could be subject to increased scrutiny in Washington state. When choosing between general puffery and a more targeted subject about a specific offer, businesses may want to err on the more conservative side of the line (pun intended).
New Jersey Bill to Eliminate Minimum Wage Tip Credit Will Impact Hospitality Industry
New Jersey stands at a crossroads regarding the compensation of tipped workers. Introduced on March 10, 2025, Assembly Bill A5433 proposes a significant change to the New Jersey Wage and Hour Law: phasing out the “tip credit.”
Quick Hits
New Jersey Assembly Bill A5433 proposes a five-year phase-out of the tip credit, spanning from 2026 to 2030.
The bill would mandate employers pay the full state minimum wage to tipped employees before the addition of tips.
Potential consequences include increased labor expenses for businesses, higher prices for consumers, and uncertain effects on the overall income of tipped workers.
The tip credit is a legal provision allowing employers to pay tipped employees a direct cash wage below the applicable minimum wage rate, and allows employers to use a portion of the tips received by the employee to make up the difference.
This initiative has sparked intense debate about its potential consequences. Advocates claim the bill promotes fairness and worker protection, while opponents fear it will inflate business costs, drive up consumer prices, and trigger job losses within the restaurant and hospitality sectors.
Understanding the Tip Credit
Most employers in New Jersey are governed by two wage and hour laws: the federal Fair Labor Standards Act (FLSA) and the New Jersey Wage and Hour Law (NJWHL). Employers must pay their nonexempt employees the federal ($7.25) or state ($15.49) minimum wage rate, whichever is higher. Currently, both laws also permit employers to count a portion of their employees’ tips toward their minimum wage obligation—a legal mechanism known as the “tip credit.”
Under the FLSA, to utilize the tip credit, employers must first inform employees of their intent to do so. Subsequently, employers must pay “customarily tipped” employees (e.g., waiters and bartenders) a direct cash wage of at least $2.13 per hour. If an employee earns at least $5.12 per hour in tips (the difference between the $2.13 minimum cash wage and the $7.25 minimum wage) over the employee’s shift, the employer can apply these tips as a “credit” against the employee’s minimum wage obligations.
The NJWHL also allows for a tip credit, capped at $9.87 per hour as of 2025. Employers must pay tipped employees a minimum cash wage ($5.62 per hour in 2025), and the total of wages and tips must meet or exceed the state minimum wage.
Employers must ensure that the sum of the direct cash wage and the received tips equals or surpasses the federal (and state) minimum wage for all hours worked in a workweek. If the total falls short, the employer must pay the difference to the employee. This guarantees that the employee receives at least the minimum wage, regardless of the combination of employer-provided cash wages and customer tips. Employers are not required to use the tip credit, but employers commonly use it because it can reduce their costs.
Proposed Changes: Assembly Bill A5433
Assembly Bill A5433 aims to completely eliminate the tip credit under the NJWHL by reducing the amount of tip credit an employer may claim over a five-year period:
2026: $7.90 per hour allowable tip credit
2027: $5.92 per hour allowable tip credit
2028: $3.95 per hour allowable tip credit
2029: $1.97 per hour allowable tip credit
2030 and beyond: Tip credit eliminated
Crucially, the bill would not prohibit tipping; it would only prevent employers from using a portion of those tips to fulfill their obligation to pay nonexempt employees the minimum wage. By 2030, employers would be required to pay all tipped employees the full state minimum wage before any additional tips.
While the FLSA still permits employers in other states to utilize the tip credit, employers in New Jersey would be obligated to comply with the more stringent requirements of the bill. Thus, eliminating the tip credit under the NJWHL would effectively prohibit New Jersey employers from utilizing the tip credit under the FLSA as well, as taking any tip credit would constitute a violation of New Jersey’s minimum wage law for tipped employees.
Potential Impacts and Concerns
On April 10, 2025, the New Jersey Assembly convened a two-hour hearing to gather public feedback on the bill. The potential elimination of the tip credit elicited strong and contrasting reactions from employees and employers.
The bill’s sponsor, Assemblywoman Verlina Reynolds-Jackson, stated the bill’s intent is to ensure tipped workers “make a decent wage; people should be paid fairly for the work they do.” Proponents argue that eliminating the tip credit guarantees a stable baseline income that is not dependent on the discretionary nature of tipping. This simplified wage structure could also enhance employees’ understanding of their rights and streamline the enforcement of wage laws, thereby reducing wage theft.
Opponents say it would paradoxically reduce earnings for servers, who often make significantly more than minimum wage through tips. Restaurants would bear the increased burden of directly paying all tipped employees the full minimum wage, leading to increased labor costs. Restaurants might be forced to implement mandatory service charges that don’t necessarily benefit their tipped employees, or they could reduce staff hours and eliminate positions altogether. These changes could result in higher menu prices, potentially harming the business, and could also discourage individuals from seeking server positions due to diminished earning potential. Opponents also argue New Jersey’s current system functions effectively, already guaranteeing minimum wage while allowing for substantial earning potential through tips.
Conclusion
The proposed elimination of the tip credit in New Jersey has the potential to dramatically reshape the state’s legal landscape, particularly within the restaurant and hospitality industry. While intended to foster a more equitable wage system, the potential repercussions for employees, businesses, and consumers warrant careful consideration as the legislative process unfolds.
Unleashing American Energy: Trump Administration’s Latest Executive Orders
New Executive Orders and Proclamation
On April 8, 2025, President Donald J. Trump issued three significant executive orders (“EOs”) and a fourth proclamation consistent with his pledge to “Unleash American Energy.” These Presidential actions, titled (1) Strengthening the Reliability and Security of the U.S. Electric Grid, (2) Protecting American Energy from State Overreach, (3) Reinvigorating America’s Beautiful Clean Coal Industry, and (4) Regulatory Relief for Certain Stationary Sources to Promote American Energy, seek to promote domestic oil, gas, and coal energy production. Each of these actions is discussed below.
Strengthening the Reliability and Security of the U.S. Electric Grid, EO 14262
This EO directs the Secretary of Energy to streamline emergency processes and to develop a uniform methodology for analyzing reserve margins across all regions of the bulk power system. The stated needs for the EO include aging infrastructure, increased need for electricity, and demand for energy use by datacenters.
Using Section 202(c) of the Federal Power Act, the EO seeks to curtail the decommissioning of generation resources or to prevent fuel-switching of generation resources in excess of 50 megawatts if the fuel-switching will reduce the nameplate capacity. While not expressly stated, this EO likely seeks to prevent oil, gas, and coal generation resources from going offline.
The EO requires the Secretary of Energy to develop the uniform methodology by May 8, 2025, at which time we will have a better sense of how the Administration intends to implement this order.
Protecting American Energy from State Overreach, EO 14260
EO 14260 aims to counter the more recent state efforts to target oil and gas companies for greenhouse gas emissions and climate change issues. For example, several municipalities, counties, and state governments have initiated litigation against oil and gas companies for alleged climate change damages, using various state tort law theories. We have previously written about these cases and, with this EO, these cases will likely take a new twist. We can expect to see the federal government intervene in these cases if they have not done so already.
The EO also seeks to challenge state laws and regulations that curtail greenhouse gas emissions or seek payments from oil and gas companies for climate change damages. The EO cites New York’s and Vermont’s climate superfund legislation, where the states seek collective payments from oil and gas companies for remediation involving climate change related damages. In addition, the EO cites to California’s carbon cap-and-trade program.
The EO directs the attorney general to identify all state and local laws and regulations burdening domestic energy production, including “any such State laws purporting to address ‘climate change’ or involving ‘environmental, social, and governance’ initiatives, ‘environmental justice’, carbon or ‘greenhouse gas’ emissions, and funds to collect carbon penalties or carbon taxes.” The EO also directs that the attorney general take all appropriate action to stop the enforcement of these state laws and to provide a report to the president within 60 days (by June 7) of the attorney general’s efforts. We will likely see the federal government initiating lawsuits against these states under various theories of the Dormant Commerce Clause and federal law supremacy related to the Clean Air Act.
Reinvigorating America’s Beautiful Clean Coal Industry and Amending Executive Order 14241, EO 14261
The third EO is an effort to support the domestic coal industry. Originally issued by President Trump on March 20, 2025, EO 14241 aims to enhance coal production and use as a means of securing economic prosperity and national security, lowering electricity costs, and supporting job creation. The revised April 8 EO further outlines a series of policies and actions to remove regulatory barriers, promote coal exports, and assess coal resources on federal lands, while also encouraging the development of coal technologies. Working together, these orders seek to promote coal as a key fuel source for steel production and artificial intelligence data centers in the United States.
By previously designating coal as a “mineral” under the March 20 EO, coal will be granted various benefits specific to mineral production, including expedited environmental review and a streamlined permitting process.
The April 8 EO also grants specific powers to various federal agencies to identify and assess coal resources and reserves on federal lands, as well as to prioritize coal leasing and related activities. The Secretary of the Interior, the Secretary of Agriculture, and the Secretary of Energy are instructed to identify, revise, or rescind any guidance, regulations, programs, or policies that seek to transition the United States away from coal production and electricity generation, or that discourage investment in coal projects, both domestically and internationally. These agencies are further instructed to promote and identify export opportunities for coal and coal technologies, and to facilitate international offtake agreements for U.S. coal. The order also specifically directs the Secretary of the Interior to publish a notice in the Federal Register terminating the Obama Administration’s 2016 “Jewell Moratorium,” which halted federal coal leasing on public lands with the intent to change the way the United States managed its coal and oil resources.
Finally, this EO expands the use of categorical exclusions for coal under the National Environmental Policy Act (“NEPA”), which would allow coal-related projects to avoid NEPA’s requirements to prepare an environmental impact statement or an environmental assessment.
Due to the broad powers being granted to these few federal agencies, along with the rescinding of previous administrations’ programs designed to limit coal production and reliance nationally, we anticipate litigation from various energy and environmental groups challenging this order.
Regulatory Relief for Certain Stationary Sources to Promote American Energy
The fourth action, a Presidential proclamation, also addresses coal usage in the United States but specifically in the context of coal-fired electricity production.
Invoking the authority of Section 112(i)(4) of the Clean Air Act, which allows the President to exempt stationary sources from compliance with federal emissions standards, this proclamation exempts certain coal-fired power plants from compliance with the U.S. Environmental Protection Agency’s May 7, 2024, final rule amending the preexisting Mercury and Air Toxics Standards (“MATS”) Rule that was issued to make air emissions more stringent. Citing national security concerns pertaining to the shutdown of coal-fired power plants that would cause the elimination of jobs and place the United States’ electrical grid at risk, as well as the unavailability of necessary technology to implement the MATS Rule, this proclamation issues an exemption to certain stationary sources subject to the Rule. Therefore, the Rule, which is scheduled to go into effect on July 8, 2027, will allow the stationary sources to be further exempt from the Rule’s stricter emissions requirements until July 8, 2029. All stationary sources that are specifically subject to this exemption are identified in Annex I of the proclamation.
Because there are certain stationary sources that may be excluded from Annex I and, thus, this exemption, we anticipate litigation from various companies and industries challenging their lack of inclusion in this exemption. Furthermore, it is expected that various energy and environmental organizations will file challenges to this EO in court.
Conclusion
All of these new executive actions are likely to face legal challenges from different states and energy and environmental groups. Blank Rome will continue to monitor any developments and provide updates on the legal and policy implications of these EOs.
New York Court of Appeals Holds That Child Victims Act Claims Brought Against the State of New York Must Meet Statutory Substantive Pleading Requirements
In a unanimous ruling, the New York Court of Appeals held that the New York State Legislature did not alter the substantive pleading requirements of Section 11(b) of the Court of Claims Act (the “Act”) for claims brought against the State of New York (the “State”) pursuant to the New York Child Victims Act (“CVA”).
In Chi Bartram Wright v. State of New York, the plaintiff alleged that between 1986 and 1990, when he was twelve to fifteen years old, he was repeatedly sexually assaulted by various men at a state-owned performance arts facility located in Albany, New York. The complaint filed in the Court of Claims failed to identify any of the men who allegedly assaulted plaintiff, the specific months and dates of the alleged assaults, why plaintiff was in the company of the alleged abusers multiple times over a four year period, or what repeatedly brought plaintiff to the performance arts facility. Instead, the complaint generally alleged that during the alleged time period, plaintiff was assaulted by various State employees and members of the general public while on the state-owned premises. Plaintiff sought over $75 million in damages based on various negligence-based causes of action, including negligent hiring, retention, direction, and supervision.
The complaint was filed in 2021 pursuant to the CVA, which temporarily relaxed the statute of limitations for asserting civil claims of childhood sexual abuse and provided a two-year lookback window during which previously time-barred civil actions could be filed.
The Court of Claims granted the State’s motion to dismiss the complaint, agreeing that the CVA had not relaxed the Act’s pleading requirements “and that a claim brought under [section 11(b) of the Act] must plead the date of the underlying conduct with sufficient definiteness to enable the State to promptly investigate its claim and to ascertain its potential liability.”
Plaintiff appealed the Court of Claims’s decision to the Appellate Division for the Third Department, which reversed the Court of Claims and held that the four-year period alleged in the complaint satisfied the Act’s requirements because the alleged acts occurred many decades ago when the plaintiff was a child. The Appellate Division further opined that requiring more specific or exact dates would not better enable the State to investigate the allegations. The Appellate Division further concluded that the general allegations were “sufficient to provide [the State] with an indication of the manner in which [Wright] was injured and how [the State] was negligent.” The Appellate Division granted the State’s motion for leave to appeal to the Court of Appeals.
In its appeal to the Court of Appeals, the State argued that the complaint should be dismissed for lack of subject matter jurisdiction due to its failure to comply with the specific pleading requirements of Section 11(b) of the Act, which requires that a claim “shall state the time when and place where such claim arose, the nature of the same, the items of damage or injuries claimed to have been sustained and . . . the total sum claimed” (Court of Claims Act § 11 [b]). The Court of Appeals agreed, holding that the complaint lacked the sufficient details required by Section 11(b) of the Act and, therefore, must be dismissed.
In rendering its decision, the Court of Appeals stated that the “CVA lacks any indication, let alone a clear expression, that the Legislature intended to exempt CVA claims from [S]ection 11(b)’s conditions; indeed, it does not amend or even mention the Act’s pleading requirements.” The Court further noted that the Legislature’s silence in the CVA as to Section 11(b)’s pleading requirements contrasted “sharply” with the Legislature’s amendment of Section 10 of the Act “by waiving the notice of claim requirement for claims revived by the CVA.” The Court further noted that if the Legislature had wanted to lower the pleading requirements of Section 11 and adjust the conditions on the State’s waiver of sovereign immunity for certain classes of claims, it knew how to do so as evidenced by its adoption of different pleading requirements for claims of unjust conviction and imprisonment. Accordingly, the Court held that Section 11(b)’s pleading requirements must be applied to CVA claims “in the same manner we would apply them to any other claim against the State.”
The Court of Appeals’ decision is a reminder that the suits brought against the State must meet the Act’s heightened pleading requirements. The Court of Appeal’s decision that the CVA does not alter the Act’s pleading requirements could not only have implications for other CVA lawsuits brought against the State that rely on general allegations, but also actions commenced under the Adult Survivors Act, which, like the CVA, temporarily provided a lookback window to allow previously time-barred claims to be filed. Additionally, it remains to be seen whether the Court of Appeal’s holding that the CVA does not create a different pleading standard will impact cases not involving the State that are filed pursuant to the New York CPLR’s notice-based pleading requirements.
Federal Proposal to Rescind ESA’s ‘Harm’ Definition Raises the Stakes for California’s AB 1319
The United States Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services) proposed last week to rescind the regulatory definition of “harm” under the federal Endangered Species Act (ESA), sparking intense criticism from environmental advocacy groups. If finalized, the rescission would remove a longstanding protection for the habitat of wildlife species listed as threatened or endangered under the ESA, making regulatory compliance easier for many types of projects across the country. But it would also set up a potential collision between the current president’s deregulation efforts and one of several bills that California’s Legislature is considering as a way to compensate for potential “backsliding” of federal environmental protections, with the regulated community in California likely to be among the losers.
Federal Action Would Remove Prohibition on Habitat Modification
Section 9 of the ESA prohibits the “take” of any endangered species, a prohibition extended to many threatened species by regulation. (16 U.S.C. § 1538(a)(1)(B)-(C).) Under the ESA, “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct.” (16 U.S.C. § 1532(19) [italics added].) Existing regulations further define “harm” as “an act that actually kills or injures fish or wildlife … [including] significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” (50 C.F.R. § 17.3 [italics added]; see also § 22.102.)
The Services have proposed to eliminate the regulatory definition of “harm,” leaving only the statutory definition of “take,” which the Services said they interpret as prohibiting only affirmative acts that are intentionally directed toward particular members of a listed wildlife species. Actions that could indirectly harm listed wildlife by modifying their habitat would no longer be prohibited by the ESA, removing a significant source of potential liability for projects that involve clearing, grading, vegetation removal and similar activities. While effects on listed species’ habitat still could trigger a federal agency’s obligation to consult with the Services under Section 7 of the ESA, many projects lacking a federal “handle” such as a federal approval or funding, likely would be able to forgo seeking ESA authorization.
AB 1319 Aims to Combat Federal ‘Backsliding’ Through Emergency State Listings
AB 1319, a bill introduced in the California Assembly in February 2025, would require the California Fish and Game Commission to consider listing under the California Endangered Species Act (CESA) any California-native species that would receive reduced protection as a result of a “federal action” taken under the ESA after January 19, 2025. Such federal actions specifically include, but are not limited to, those relying in whole or in part on amendments to the ESA regulations. The Commission initially would list new species through adoption of an emergency regulation, a process already authorized by the CESA although seldom used, but then would need to promptly evaluate each species for permanent listing under the CESA procedures that apply to “candidate” species.
The California Department of Fish and Wildlife (CDFW) currently identifies 80 wildlife species in California that are ESA-listed but not CESA-listed, nearly all of which could be eligible for emergency listing if AB 1319 becomes law. Adopting emergency regulations to list those species under the CESA may be fairly straightforward, but evaluating the newly listed species as candidates for permanent protection would place an unprecedented workload on the Commission and the Department. The evaluations almost certainly would drag on for years (as many already do), during which time the candidate species would remain subject to the CESA’s take prohibition and permitting requirements, even though an emergency regulation, by law, may remain in effect for no more than 360 days (including conditional extensions).
Far from experiencing regulatory relief, projects in California, even those already fully approved and permitted, would face the prospect of obtaining incidental take permits to cover a slew of species newly listed (or treated as candidates for listing) under the CESA. CDFW, which issues those permits, is already struggling under a workload that reflects the recent addition of two new candidate species that are relatively widespread, the western burrowing owl and the Crotch’s bumble bee. Additional delay for many types of projects is a sure outcome if AB 1319 becomes law.[1] Thus, Governor Newsom will face a difficult choice if AB 1319 clears the Legislature. In 2019, he vetoed a bill containing nearly identical language over concerns about its effects on the state’s water conveyance projects. This year, he will have to choose between his desire to oppose the current federal administration and his need to show that his own administration can deliver the housing, energy, infrastructure and fire preparedness projects that California urgently needs.
FOOTNOTES
[1] AB 1319 is a non-urgency bill; if enacted, it would take effect on January 1, 2026.
Bella Spies also contributed to this post.
Washington State Makes Key Changes to Amend Equal Pay and Opportunities Act
On April 22, 2025, the Washington State Senate passed Substitute Senate Bill 5408, as amended by the House on April 15, 2025 (“Amended SSB 5408”), making substantial changes to the Equal Pay and Opportunities Act related to pay and benefit information in job postings, a law that has resulted in hundreds of class action lawsuits since summer 2023.
Amended SSB 5408 makes significant changes to the law as it relates to procedures and potential damages, but it maintains the pay transparency in job posting requirements.
Quick Hits
Under SSB 55408, which amends the Equal Pay and Opportunities Act, Washington employers may now list a fixed pay amount instead of a wage range if only one amount is offered, including for internal transfers; postings that are replicated without employer consent are not considered official job postings.
Between the law’s effective date and July 27, 2027, employers have five business days to correct a noncompliant posting after receiving written notice and can avoid penalties if the posting is timely corrected.
The amended law further defines and clarifies two separate remedies, each of which is exclusive: administrative remedies (civil penalties up to $1,000 and statutory damages between $100 and $5,000 per violation) or remedies via private civil actions, including statutory damages between $100 and $5,000 per violation. Each permits statutory damages and considers factors such as willfulness and employer size.
Key Updates to RCW 49.58.110
The key updates to RCW 49.58.110 follow below.
Wage Scale or Salary Range
The wording of the previous statute appeared to require a “wage scale or salary range,” even if all individuals employed in that position had the same pay or the same starting pay. Amended SSB 5408 permits employers that offer only a fixed amount of pay to list only that fixed amount, and they are not required to provide a wage scale or salary range that does not really exist. This also applies for internal transfers where the employer only offers a fixed wage amount.
Definition of “Posting”
Amended SSB 5408 makes clear that a posting does not include a “solicitation for recruiting job applicants that is digitally replicated and published without an employer’s consent.”
Cure Period
For postings between the effective date of Amended SSB 5408 and July 27, 2027, employers must be given the opportunity to correct a job posting that does not meet the requirements of the law. Under the new law, any person may provide “written notice” to the employer that they believe a posting fails to comply with the job pay transparency requirements, and the employer has five (5) business days from the receipt of the written notice to correct the posting and notify any third-party posting entity to correct the posting. The cure opportunity must be provided before the individual may seek any remedy under the law, and if the posting is timely cured, no damages, penalties, or other relief may be assessed.
Damages/Relief
RCW 49.58.110 previously relied on damages sections that arose from the equal pay law as it existed prior to the job posting wage transparency laws. Amended SSB 5408 now further defines and clarifies two separate remedies, each of which is exclusive.
Administrative remedies. Amended SSB 5408 permits an investigation, encourages conference and conciliation, and, if that fails, permits the director to assess a civil penalty of $500 for a first violation and up to $1,000 for repeat violations, or up to ten percent of the damages. In addition to the civil penalty, costs, and other relief for the affected job applicant or employee, the department may “order the employer to pay each affected job applicant or employee statutory damages of no less than $100 and no more than $5,000 per violation.” Amended SSB 5408 provides factors to be considered when assessing the penalty, including the willfulness of the violation or whether it was a repeated violation; the employer’s size; the amount necessary to deter noncompliance; the purposes of the law; and other factors deemed appropriate.
Private civil action. Amended SSB 5408 leaves in place an affected job applicant or employee’s right to bring a private right of action. The new law, however, provides that an affected job applicant or employee may be “entitled to statutory damages of no less than $100 and no more than $5,000 per violation, plus reasonable attorneys’ fees and costs.” The court, in assessing statutory damages, may consider the same factors as the agency.
Wyoming Joins the List of States Banning Some Noncompete Agreements
On March 19, 2025, Wyoming became one of the latest states to enact legislation banning noncompete agreements.
The new law, which goes into effect July 1, 2025, voids “[a]ny covenant not to compete that restricts the right of any person to receive compensation for performance of skilled or unskilled labor.” The law applies only to contracts entered into on or after July 1, 2025, and specifically states that nothing in the law alters, amends or impairs “any contract or agreement entered into before July 1, 2025.”
The law, as drafted, broadly applies to any agreement containing a noncompete clause, such as an employment agreement, independent contractor agreement, or some other type of agreement. The law does not impact or address non-solicitation agreements.
Though the new law appears on its face to be far-reaching, it contains notable exceptions that effectively narrow the scope of noncompetes impacted by the law, discussed below.
Trade Secret Exception
The Wyoming noncompete ban does not include covenants not to compete “to the extent the covenant provides for the protection of trade secrets as defined by W.S. 6-3-501(a)(xi).” Under W.S. 6-3-501(a)(xi), “trade secret” is broadly defined as:
the whole or a portion or phase of a formula, pattern, device, combination of devices or compilation of information which is for use, or is used in the operation of a business and which provides the business an advantage or an opportunity to obtain an advantage over those who do not know or use it. “Trade secret” includes any scientific, technical or commercial information including any design, process, procedure, list of suppliers, list of customers, business code or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art and the level of skill in the business, art or field to which the subject matter pertains, when the owner of a trade secret takes measures to prevent it from becoming available to persons other than those selected by the owner to have access to it for limited purposes, the trade secret is considered to be:
(A) Secret;
(B) Of value;
(C) For use or in use by the business; and
(D) Providing an advantage or an opportunity to obtain an advantage to the business over those who do not know or use it.
The breadth of Wyoming’s statutory definition of “trade secret” arguably leaves employers with a fair amount of leeway to structure their restrictive covenants so that they fall under this exception.
Executive and Management Personnel Exception
The law also excludes noncompete agreements entered into with executive and management personnel and officers and employees who constitute professional staff to executive and management personnel. The law does not define the terms “executive and management personnel” or “officers and employees who constitute professional staff to executive and management personnel,” potentially providing employers relatively wide latitude in determining which employees may fit within this exception.
Physicians
The law also voids covenants not to compete in employment, partnership or corporate agreements between physicians that restrict the rights of a physician to practice medicine as that term is defined under Wyoming’s Medical Practice Act. All other provisions of a physician’s agreement that are “enforceable at law shall remain enforceable.”
Additionally, physicians will be permitted to disclose their “continuing practice of medicine and new professional contact information to any patient with a rare disorder as defined in accordance with the national organization for rare disorders, or a successor organization, to whom the physician was providing consultation or treatment before termination of the employment, partnership or corporate affiliation.” Physicians, and their new employers, shall not be liable for any damages resulting from the disclosure or from the physician’s treatment of the patient following the termination of the agreement or the physician’s employment, partnership or corporate affiliation.
Expense Repayment Provisions
Contractual provisions for recovering the “expense of relocating, educating and training an employee” are also exempt from the new law pursuant to the following statutory repayment provisions based on how long the employee has worked for the employer:
(A) Less than 2 years: Recovery up to 100% of expenses
(B) At least 2 years but less than 3 years: up to 66% of expenses
(C) At least 3 years but less than 4 years: 33% of expenses
(D) 4 or more years: 0% of expenses
Contract for the Purchase and Sale of a Business or Its Assets
Finally, the law also excludes covenants not to compete that are contained in a contract for the purchase and sale of a business or the assets of a business.
Key Takeaways
Employers wishing to enter into noncompete agreements on or after July 1, 2025 may only do so if the noncompete falls within one or more of the law’s specific carveouts. Notably, the law does not provide for any statutory damages or penalties, such as an attorneys’ fee-shifting or “loser pays” penalty, should a party choose to challenge the validity of a noncompete agreement. The law’s lack of a damages or penalties provision could potentially diminish the law’s impact as employers may perceive little risk in asserting a noncompete provision which falls under one or more of the law’s more expansive exceptions, such as the trade secret exception or executive and management personnel exception.
As Wyoming joins the growing list of jurisdictions considering and adopting legislation governing noncompetes, we will continue to report on key legislative updates and trends
EEOC Breaks Silence on 2024 EEO-1 Filing Cycle and Plans Shortened Filing Period
After a long silence, the U.S. Equal Employment Opportunity Commission (EEOC) has taken steps to move forward with the 2024 EEO-1 Component 1 data collection by submitting documents for approval to the White House Office of Management and Budget. The proposed 2024 EEO-1 Component 1 Data Collection Instruction Booklet states that the 2024 EEO-1 filing platform will open on May 20, 2025, and close on June 24, 2025.
Quick Hits
The 2024 EEO-1 data collection is set to open on May 20, 2025, and close at 11:00 p.m. (EDT) on June 24, 2025.
The proposed 2024 Instruction Booklet requires filers to indicate their federal contractor status and requires federal contractor employers with fifty or more employees (but with fewer than one hundred employees) to file EEO-1 reports.
The proposed 2024 Instruction Booklet removes the option to provide information about non-binary employees.
Shortened Reporting Period
The proposed 2024 Instruction Booklet provides for a shortened reporting period—down to five weeks—from the platform opening date of May 20, 2025, to the filing deadline of June 24, 2025.
Changes to Reporting by Sex
The proposed 2024 Instruction Booklet eliminates the option to report non-binary employees, stating that the reporting provides “only binary options (i.e., male or female) for reporting employee counts.” This change is tied to Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”
Reporting Based on EO 11246 Continues
Despite the rescission of Executive Order 11246 on January 21, 2025, the proposed 2024 Instruction Booklet and sample 2024 EEO-1 report provide that federal contractors with fifty or more employees are still required to file EEO-1 reports for the 2024 cycle.
Conclusion
Based on documents submitted by the EEOC, the 2024 EEO-1 Component 1 data collection site will open on May 20, 2024, and close on June 24, 2025. In addition, the proposed EEO-1 Instruction Booklet eliminates all references to non-binary employees. Due to the shortened filing period, EEO-1 filers may want to consider working now toward gathering the data necessary for the filings.
State Antitrust Enforcement Roundup: New Laws; New Potential Legislation; and New (and Broader) Areas of Focus
The number of U.S. states implementing or considering new antitrust laws (or supplementing existing laws) targeting proposed transactions continues to grow. As detailed in our healthcare merger matrix, many states have focused their attention on the healthcare industry, and that continues to be the case, for example, in New York, where a broad range of proposed transactions involving health care entities could be subject to filing requirements and suspensory rules before they can close.
Moreover, and as detailed below, recently adopted laws and legislation under consideration in certain states are not limited to transactions involving healthcare providers or payors, nor are such developments limited to “blue” (politically more liberal) states, with Arkansas, Texas, Utah, and West Virginia, among others, undergoing or considering substantial expansions of their respective antitrust laws.
Arkansas Adopts Law Banning Pharmacy Benefit Managers from Owning Pharmacies
On April 16, 2025, Governor Sarah Huckabee Sanders signed HB 1150 into law, which will prohibit pharmacy benefit managers (“PBMs”) from owning pharmacies. This Arkansas law is the first of its kind and provides that a pharmacy benefits manager shall not acquire a direct or indirect interest in, or otherwise hold, directly or indirectly, a permit for the retail sale of drugs or medicines as of January 1, 2026.
California Considers Expansive New Antitrust Laws
In 2022, the California Law Review Commission (CLRC) was asked by the California Legislature to consider and recommend revisions to the state’s competition laws, i.e., the Cartwright Act. As a result of its review, the CLRC has recommended substantial revisions to the state’s antitrust regime.
The CLRC’s recommended changes cover the antitrust enforcement waterfront, from single firm conduct (monopolization and attempted monopolization) to concerted action. With respect to mergers, the CLRC found that California should adopt its own, independent merger control regime (today the state may only challenge deals under the federal Clayton Act). Most notably, the CLRC proposed that California become more aggressive when it comes to challenging proposed transactions by adopting a lesser standard to challenge deals than the federal standard, which requires the FTC or DOJ to provide that it is more likely than not that a deal would substantially lessen competition.
Washington State Enacts First-in-the-Nation General Premerger Notification Law; Colorado, D.C., Hawaii, Nevada, Utah, and West Virginia Considering Similar Legislation
The state of Washington became the first state to enact a state-level general premerger requirement. While many states have industry-specific notification laws (e.g., for health care mergers), this is the first general premerger notification requirement for a state. The law is modeled on the Uniform Antitrust Premerger Notification Act. Similar legislation is under consideration in California, Colorado, the District of Columbia, Hawaii, Nevada, Utah and West Virginia.
Starting July 27, 2025, any person that files a federal Hart-Scott-Rodino (“HSR”) filing must also submit contemporaneously a copy of the HSR form to the state if the person meets one of three criteria:
the person’s “principle place of business” is in Washington; or
the person (or a person it controls directly or indirectly) has annual net sales in Washington for the goods or services involved in the proposed transaction that are at least 20% of the Federal HSR size of transaction filing threshold (at present, 20% is $25,280,000); or
the person is a healthcare provider or provider organization in Washington (filing already required under Washington’s existing healthcare transaction law).
All required Washington filers must submit a copy of their federal HSR form to the state. Filers whose principle place of business is in Washington must also file the additional documentary material filed with an HSR form. Notably, the state may, upon request, require any filer to submit the additional documentary material, even if their principle place of business is not in Washington. There is no filing fee for the state filing and it does not trigger a suspensory waiting period. However, failure to file may result in a civil penalty of up to $10,000 per day of noncompliance.
* * * * *
We can now definitively say that the growing state-level interest in becoming active participants in the review process for transactions that impact their state is part of a long-term secular trend. Regardless of political bent, many states are no longer content to sit passively by while the FTC or DOJ make enforcement decisions that can have dramatic impacts at the state level. In the months and years that follow, we expect that more states will enact antitrust or antitrust adjacent laws that are independent of and potentially even more stringent than, the federal antitrust regime. These state regimes, once more of an afterthought, will require the full attention of parties considering transactions that may be captured by these new laws.
Listen to this post
Employment Law This Week Episode – Non-Competes Eased, Anti-DEI Rule Blocked, Contractor Rule in Limbo [Video, Podcast]
This week, we’re covering the relaxation of state-level non-compete rules, the recent block of Executive Order 14173’s diversity, equity, and inclusion (DEI)-related certification requirement, and a federal appeals court’s decision to pause a challenge to the Biden-era independent contractor rule.
Non-Competes Eased in Kansas and Virginia
Kansas has enacted a law permitting non-competes while setting requirements for non-solicit provisions. Additionally, effective July 1, 2025, Virginia will prohibit non-compete agreements for non-exempt employees.
Federal Contractor DEI Rule Blocked
In a lawsuit brought by Chicago Women in Trades, a federal judge paused a rule from Executive Order 14173 requiring federal contractors to certify that they don’t operate DEI programs that violate anti-discrimination laws, citing unclear definitions of “illegal” DEI programs.
Independent Contractor Rule in Limbo
The U.S. Court of Appeals for the Fifth Circuit paused a challenge to the 2024 independent contractor rule, allowing the U.S. Department of Labor time to consider revising or replacing it. For now, the Biden-era rule remains in effect.