Employee Benefit Strategies to Aid Workers During 2025 California Wildfires

The wildfires moving through Southern California have destroyed communities and displaced countless individuals.
While the nation’s first responders are tirelessly working to contain and neutralize the devastation, many employers are grappling with how best to provide support for their affected employees.
Disaster Assistance to Employees
Employers may consider offering the following disaster assistance directly to employees:

Qualified Disaster Relief Payments: Under Section 139 of the Internal Revenue Code of 1986, as amended (the “Code”), employers operating in states such as California, receiving FEMA assistance can make tax-free qualified disaster relief payments directly to impacted employees. The payments can be made for reasonable and necessary personal, family, or living expenses as a result of a qualified disaster. Funeral expenses as a result of a qualified disaster will also qualify under these payments. However, employers should be aware that these payments do not cover income replacement payments or expenses reimbursed through insurance of FEMA grants.
Charitable Emergency Funds: Employers may provide tax-free emergency funds to employees through related 501(c)(3) charities and foundations. The specific rules and requirements for these 501(c)(3) entities, including whether and to what extent contributions are deductible, differ depending on whether the entity is an employer-sponsored public charity, an employer-sponsored private foundation, an employer-sponsored donor advised fund, or an unrelated public charity.

Distributions from 401(k) Plans and 403(b) Plans
Depending on the terms of an employer’s plan, which may be amended subject to coordination with the plan’s recordkeeper, impacted participants may be eligible to withdraw funds from their retirement plans to assist with the wildfire-related expenses.

Hardship Distributions: Participants may be able to take in-service distributions from their 401(k) or 403(b) plan to cover certain hardships that create an immediate financial need that cannot be met from other assets reasonably available. This could include expenses and losses related to the wildfires if the participant either worked or lived in the wildfires’ designated disaster areas and repairs to the participant’s residence or the costs involved with purchasing a new residence. A hardship distribution is typically subject to income tax plus an additional 10% early withdrawal penalty if the impacted participant is under age 59 ½.
Qualified Disaster Recovery Distributions: Under the SECURE 2.0 Act, participants may take in-service Qualified Disaster Recovery Distributions from their 401(k) or 403(b) plan account in an amount up to $22,000. To qualify for this distribution, a participant’s principal residence must be in a qualified disaster area, and the participant must have sustained an economic loss due to the disaster. These distributions are not subject to the 10% early withdrawal penalty, which distinguishes them from the Hardship Distributions discussed directly above. These distributions must be requested within 180 days of the disaster’s declaration. For the Southern California wildfires, which were declared emergencies in early January, participants will have until early July to request a Qualified Disaster Recovery Distribution.

In order to offer Qualified Disaster Recovery Distributions as a distribution option from a 401(k) plan or 403(b) plan, employers must adopt provisions for their plans specifically permitting these types of distributions. However, if an employer does not do so, affected participants may still be able to take another type of distribution (e.g., a hardship distribution or other in-service distribution) and treat it as a Qualified Disaster Recovery Distribution by using Form 89150F to report the distribution. This would allow participants to avoid the 10% early withdrawal penalty for up to the $22,000 limit. Employers who are not able to adopt the Qualified Disaster Recovery Distribution option in a timely manner may wish to communicate this alternative option to employees.

Emergency Personal Expense Withdrawals: Participants may also make emergency withdrawals from their 401(k) or 403(b) plan account to cover unforeseeable or immediate financial needs required for personal or family expenses. These distributions are limited to the lesser of $1,000 or the participant’s vested balance minus $1,000 and may only be taken once per calendar year. These distributions are exempt from the 10% early withdrawal penalty, but are generally subject to income tax in the year of distribution.
Plan Loans: Participants may be able to take loans from their 401(k) or 403(b) plan. The maximum loan is the lesser of $50,000 or 50% of the participant’s vested account balance, reduced by any outstanding loans the participant may have. The SECURE 2.0 Act’s disaster relief sections provide that participants residing in a qualified disaster area may have this loan limit increased to the lesser of $100,000 or 100% of their vested balance, reduced by any outstanding loans the participants may have. Affected participants may also be granted an additional year to repay their loans. As with the Qualified Disaster Recovery Distributions, these expanded plan loan options are only permitted if the terms of the plan specifically allow for them, meaning that employers may need to adopt an amendment to offer these options.

Deadlines and Other Relief
In response to previous disasters, the Department of Labor and other federal agencies have released guidance extending certain deadlines (e.g., COBRA continuation coverage election) to aid those most severely impacted. The extensions can also apply to businesses operating in the affected areas (e.g., Form 5500 filings). On January 10, 2025, the Internal Revenue Service issued a press release, “IRS: California wildfire victims qualify for tax relief; various deadlines postponed to Oct. 15,” extending various deadlines for individuals and businesses impacted in Southern California. The press release notably extends the deadline for 2024 contributions to IRAs and health savings accounts to October 15, 2025 for eligible taxpayers. Employers should work with their counsel to monitor for similar extensions and may consider voluntarily extending deadlines (subject to insurer/stop loss carrier approval) for directly impacted employees.
Next Steps
Employers should work with counsel when offering any qualified disaster relief payments or charitable emergency funds to ensure that requirements are met for such payments to remain tax-free.
Employers should also review their current retirement plans to see what options for employee relief are available, amending plans as necessary. Employers should also coordinate with their retirement plan recordkeepers to implement any distribution options and ensure that participants are notified of the options available to them.

2025 California Wildfires: Understanding Employers’ Obligations

As the Southern California wildfires rage on with devastating consequences, employers may be grappling to formulate an appropriate response.
Employers may have specific legal obligations as well as optional ways to provide assistance to affected employees. This publication addresses applicable employment laws that implicate pay, leaves, and other aspects of employment that may be impacted by the wildfires. Employers should also review our publication on special benefits they may wish to provide.
Employer Obligations
Notice Requirement for New Hires
California law requires employers to provide non-exempt employees with a wage theft notice upon hire. Among other requirements, employers must notify employees if there is a state or federal emergency or disaster declaration applicable to the county or counties where the employee will work issued within 30 days before the employee’s first day of employment that may affect their health and safety. Accordingly, employers in Los Angeles and Ventura counties will need to notify non-exempt employees starting employment within thirty days after January 7, 2025 that the Governor issued an Emergency Proclamation related to the wildfires if the emergency may affect their health and safety during their employment.
Disaster and Evacuation Zones
Except for certain essential personnel, employees are generally protected from retaliation by employers under a new California law if they refuse to work in unsafe conditions, including refusing to work in evacuation zones. The law also prohibits employers from preventing any employee from accessing their mobile or other communication device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety. California employers can monitor to see whether their worksites are subject to an evacuation order or evacuation warning through resources such as the California Department of Forestry and Fire Protection (CalFire)’s Emergency Incident website.
Addressing Wildfire-Related Workplace Closures
Employers in certain industries or specific circumstances may be subject to special rules governing their payroll and benefits obligations, as detailed in this section below. If in doubt about whether any of the following special rules or exceptions apply, and for information about additional wage and hour laws, California employers should seek counsel to ensure compliance. Several points are broadly applicable to employers whose normal operations are disrupted by the ongoing disaster.
Non-Exempt (Overtime-Eligible) Employees
Under normal circumstances, California requires employers to provide reporting time pay to non-exempt employees who report to work but are sent home early by the employer. Specifically, when a non-exempt employee reports for their shift and works less than half of their scheduled shift, they must be compensated for “reporting time” at their regular rate of pay for at least half of their scheduled hours, but in no event for less than two hours nor more than four hours.
However, no reporting time pay is due:

When the employer’s operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue;
When public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or
When the interruption of work is caused by conditions not within the employer’s control (for example, a wildfire).

When a business must close due to a wildfire (as a result of a threat to employees or property, a public utilities failure, or on civil authorities’ recommendation), the reporting time pay requirements do not apply. In this limited scenario, an employer that sends non-exempt employees home early must only pay for the hours the employee actually worked. However, as noted below, employees may be entitled to access paid time off, such as vacation and paid sick time under an employer’s policies and applicable law to be compensated during the time not worked.
Similarly, retail employers operating in the City of Los Angeles that are subject to the Fair Work Week Ordinance should note that store closures due to the wildfires may qualify as a “force majeure” exemption from the ordinance’s predictive scheduling requirements, as described in Regulation 5.1 of the Rules and Regulations implementing the law. 
Exempt (Overtime-Ineligible) Employees
Generally, under federal and California law, when an exempt employee performs any work during a workweek, they are entitled to their full pay for the workweek. Therefore, even if an exempt employee only works one day in a workweek before a business is closed due to a wildfire, the employer must generally pay the exempt employee for the entire workweek.
However, if a business is closed for a full workweek and the exempt employee performs no work, an employer is not required to pay the employee for that workweek (though an employer may still choose to do so). Employees who are not paid for a full week for this reason may be entitled to access paid time off, such as vacation and paid sick time under an employer’s policies and applicable law.
Wildfires’ Impact on Unemployment Benefits and Filing of Payroll Taxes/Reports
Employees who lose their jobs or have their hours reduced due to the wildfires may be eligible for unemployment insurance benefits through the State of California. The Governor’s Executive Order N-2-25 related to the wildfires waives the one-week waiting period for affected workers who qualify for regular unemployment benefits. The order also allows employers to request up to a 60-day extension to file state payroll reports or deposit payroll taxes.
In addition, individuals who lost their jobs due to the severe wildfires and winds, and who do not qualify for regular unemployment benefits, may now apply for federal Disaster Unemployment Assistance (DUA). DUA benefit claims must be filed by March 10, 2025.
Leave of Absence and Time Off Considerations
Employers in impacted areas will likely see employees taking time off from work for various wildfire-related reasons. In this regard, employers should keep the following laws in mind, including some recent amendments.
California and Los Angeles City Paid Sick Time
Employees who need time off due to wildfire-related reasons may be entitled to use paid sick time under state and local law. This can be for treatment or for preventative care. Employers should remember that covered “family members” include an employee’s parent, child, spouse, registered domestic partner, grandparent, grandchild, sibling or designated person. A “designated person” is anyone designated by the employee at the time of taking leave. While employees may be limited to one designated person per year under state law, the Los Angeles City paid sick leave law also covers as family members any individual related to the employee by blood or affinity whose close association with the employee is the equivalent of a family relationship.
The number of paid sick time hours to which employees are entitled under California law increased last year to 40 hours per year. Employers should also be mindful that employees working in the City of Los Angeles may be entitled to up to 48 (not 40) hours of paid sick time per year. More time may be required under both laws if the employer uses an accrual-based policy.[1]
The California Family Rights Act (“CFRA”)
Employers should also recall that, to the extent an eligible employee needs to take time off to care for their own serious health condition or a serious health condition of a family member, the California Family Rights Act applies where an employer has at least five employees (not 50, as under the FMLA), and that under CFRA, the definition of “family member” is broader than under the FMLA. Specifically, in addition to covering an employee’s spouse, parents, and minor children, CFRA also covers an employee’s child of any age, domestic partner, parent-in-law, grandparent, grandchild, or sibling with a serious health condition. As is the case with the paid sick leave law, there is also a “designated person” provision. Under this law, a designated person can be any individual related by blood or whose association with the employee is the equivalent of a family relationship.
Employers should also remember that even in cases where the FMLA and/or CFRA does not apply, the employer may be required to allow an employee to take time off as an accommodation for a disability under the federal ADA and/or the California Fair Employment and Housing Act.
Other Potentially Applicable California Leave Laws
California employers should also be mindful of the following leave laws that could be implicated by the fires. The State’s School Activities Leave Law may provide employees with the right to take time off in connection with school closures and other childcare emergencies, and to locate and enroll a child in a new school. Further, California’s recently expanded crime and victim leave laws may require that employees be given time off to testify or attend court proceedings related to certain crimes or obtain medical treatment and psychological counseling in connection with domestic violence. Finally, under California’s bereavement leave law, employers should be aware that they must provide up to five unpaid days off in connection with the death of certain family members of their employees.
Wildfire Smoke and Workplace Safety
The California Division of Occupation Safety and Health (Cal/OSHA)’s “Protection From Wildfire Smoke” regulation addresses the hazards employees may be exposed to from small particles in wildfire smoke, known as PM2.5.
Employers must comply with the regulation where applicable unless:

The worksite is a completely enclosed building or vehicle in which air is filtered by a mechanical ventilation system and the employer ensures that windows, doors, and other openings are kept closed except when it is necessary to open doors to enter or exit.
The employee’s exposure is limited to a total of one hour or less during a shift.
The employee is a firefighter engaged in wildland firefighting.

When an employer subject to the regulation should reasonably anticipate that employees may be exposed to wildfire smoke, the employer must:

Monitor the Air Quality Index (AQI) for levels of PM2.5, which can be monitored through resources such as the U.S. Environment Protection Agency’s AirNow website.
Implement a system for communicating wildfire smoke hazards in a language and manner readily understandable by all employees.
Provide relevant training.
Control harmful exposures to employees, including but not limited to, providing NIOSH-approved respirators (such as N95s) to employees for voluntary use when AQI for PM2.5 is between 151 to 500; and for mandatory use when AQI for PM 2.5 exceeds 500.

Cal/OSHA maintains an informative “Worker Safety and Health in Wildfire Regions” webpage, including a fact sheet for employers.
Additional Ways to Assist Employees

Provide your employees with information from the State and County regarding wildfire resources and recovery.
Provide your employees with a 401(k) or other benefits plan that allows for hardship distributions for disaster-related expenses and losses, or remind them of existing distribution options.
Work with tax advisers to explore the feasibility of providing employees with non-taxable payments to assist with disaster-related expenses or establishing a charitable foundation to provide disaster relief assistance to employees.
Consider donating to or collaborating with an existing charitable relief organization to aid employees, clients, and other stakeholders in need.
Add an Employee Assistance Program (EAP) as a benefit, which includes counseling and other social services to assist employees and families in crisis. If the company already maintains an EAP, remind employees of its existence and benefits provided.

ENDNOTES
[1] Recent changes to the California paid sick time law include an expansion of the use of paid sick time for “safe time” purposes and clarification of the preventative care reasons for which agricultural employees may use paid sick time. We wrote about that here.

Mr. Robot Goes To Washington: The Shifting Federal AI Landscape Under the Second Trump Administration

President Trump’s inauguration on January 20, 2025, has already resulted in significant changes to federal artificial intelligence (AI) policy, marking a departure from the regulatory frameworks established during the Biden administration. This shift promises to reshape how businesses approach AI development, deployment, governance, and compliance in the United States.
Historical Context and Initial Actions
The first Trump administration (2017–2021) prioritized maintaining US leadership in AI through executive actions, including the 2019 Executive Order (EO) on Maintaining American Leadership in Artificial Intelligence and the establishment of the National Artificial Intelligence Initiative Office. This approach emphasized US technological preeminence, particularly in relation to global competition.
For its part, the Biden administration’s approach to AI development emphasized “responsible diffusion” — allowing AI advances and deployment while maintaining strategic control over frontier capabilities.
In a swift and significant move, President Trump revoked President Biden’s October 2023 Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence on his first day in office. This action signals a clear pivot toward prioritizing innovation and private sector growth and development over regulatory oversight and AI safety (or at least a move away from government mandates and toward market-driven safety measures).
Emerging Policy Priorities
Several key priorities have emerged that will likely shape AI development under the second Trump administration:

Focus on National Security: The Trump administration EO framed AI development as a matter of national security, particularly with respect to competition with China. This is an area where the administration is likely to enjoy bipartisan support.
Energy Infrastructure: The Trump administration’s declaration of a national energy emergency on his first day in office highlights the administration’s recognition of AI’s substantial computational and energy demands. And on his second day in office, President Trump followed the declaration with the announcement of a private-sector $500 billion investment in AI infrastructure assets code-named “Project Stargate,” with the first of the project’s data centers already under construction in Texas.
Defense Integration: Increased military spending on AI capabilities and the administration’s focus on military might indicate an emphasis on accelerated development of defense-related AI applications.

Regulatory Shifts and Business Impacts
The new administration’s approach signals several potential changes to the AI regulatory landscape:

Federal Agency Realignment: Key agencies like the Federal Trade Commission may relax their focus on consumer protection to allow more free market competition and innovation.
Preemption Considerations: The administration might pursue federal legislation to create uniform standards that preempt the current patchwork of state and local AI laws and regulations.
International Engagement: Restrictions on international AI collaboration and technology sharing, particularly regarding semiconductor exports used for AI (which had already been tightened under the Biden administration), are likely to be enhanced.

Strategic Planning Considerations
The AI policy shift creates new imperatives for business leaders, including:

Multi-jurisdictional Compliance: Despite potential reduced federal oversight, businesses must maintain compliance with any applicable federal, state, and local regulations and international requirements, including the EU AI Act for those organizations doing business in EU countries.
Investment Strategy: Changes in federal policy and potential international trade restrictions could transform AI development costs, investment patterns, and technology budgets.
Risk Management: Businesses should maintain robust internal governance frameworks regardless of regulatory requirements, particularly considering the ongoing operational and reputational risks.

Looking Ahead
While specific policy developments remain in flux, the Trump administration’s emphasis on technological leadership and reduced regulatory oversight suggests a significant departure from previous approaches. The continued integration of AI into critical business functions, however, necessitates continued attention to responsible development and deployment practices, even as the regulatory landscape evolves.
Businesses should stay informed of policy developments while maintaining robust AI governance and compliance frameworks that can adapt to changing federal priorities while ensuring compliance with any applicable legal and regulatory obligations and standards.

Proposed Texas Senate Bills Have Potential Negative Impacts on Wind and Solar

Renewable energy developers should be aware of the proposed legislation in Texas that, if passed, will significantly impact existing wind and solar facilities as well as development-stage projects. Senate Bill 819 (SB 819) was filed on 16 January 2025, and if approved unchanged, would impose additional permitting requirements for Texas wind and solar projects. Also, Senate Bill 714 (SB 714) was filed recently and, if enacted, would require the Electric Reliability Council of Texas (ERCOT) and the Public Utility Commission of Texas (PUCT) to adopt rules, operating procedures, and protocols to eliminate or compensate for any distortion in electricity prices in ERCOT caused by federal tax credits under 26 U.S.C. § 45.
SENATE BILL 819 REPACKAGES FAILED SENATE BILL 624 FROM LAST YEAR’S SESSION
SB 819 appears to be an updated version of Senate Bill 624 (SB 624), which was introduced during the 2023 Texas legislative session, but ultimately failed. SB 624 would have: 1) required all (including existing) renewable facilities in the state to obtain a permit from the Texas Commission on Environmental Quality, which included submitting detailed plans, conducting various studies, and complying with strict regulations, and 2) afforded local governments more authority to approve or deny permits for renewable energy projects.
SB 624 proposed several burdensome requirements that would have been costly to the renewable energy industry, and experts at the time anticipated that a similar bill would be reintroduced potentially in a future legislative session. 
AS PROPOSED, SENATE BILL 819 WOULD IMPACT EXISTING AND NEW WIND AND SOLAR PROJECTS
Similar to SB 624, SB 819 proposes several new restrictive requirements on wind and solar (renewable) energy generating facilities. Renewable energy facilities with a capacity of 10 MW or more would have to obtain a previously unrequired permit to interconnect to a transmission facility, unless the PUCT approves the construction by order. A wind or solar facility interconnected prior to 1 September 2025, must apply for a permit if that facility increases its electricity output by 5 MW or more, or if there are any material changes to the placement of the facility. 
The application to obtain this permit would require key information, including the location and type of facility and an environmental impact review prepared by the Parks and Wildlife Department. Details around the scope of the environmental impact review are to be determined by the PUCT, but at a minimum, the format of review must establish certain processes for application, criteria for the PUCT to evaluate the environmental impact, methods to determine an environmental impact score, fees to conduct the review, and guidelines for use of mapping applications. 
After receipt of the permit application, SB 819 would require the PUCT to provide public notice of the application to county judges within 25 miles of the boundary of the renewable energy facility, hold a public meeting, and publish two consecutive publications in a newspaper in each county in which the renewable energy facility will be or is located. The proposed bill provides further instructions to the PUCT on information to be provided and other minimum requirements for the public notice and public meeting. 
When considering the permit application, the PUCT would assess the applicant’s compliance history, whether the issuance of the permit would violate any state or federal law, and whether the permit holder has any vested right in the permit. Permits are to be issued with several conditions prescribed by the PUCT, including boundary lines, the maximum number of renewable energy generation facilities authorized under the permit, and monitoring and reporting requirements.
SB 819 also considers decommissioning and removal of renewable energy generation facilities. Each permit holder would be required to pay an annual environmental impact fee, which would be deposited into a new renewable energy generation facility cleanup fund, assessed by the PUCT based on several factors including the efficiency and the area and size of the renewable energy generation facility, the environmental impact score provided under the environmental impact review, and any expenses necessary to implement the renewable energy generation facility cleanup fund. This bill also allows the PUCT to seek funding from the US Environmental Protection Agency for costs to remove decommissioned facilities. 
Finally, SB 819 would prohibit the governing body of a taxing unit to exempt from taxation a portion of the value of real property on which a renewable energy generation facility is located or of tangible personal property located or planned to be located on the real property during the life of the facility.
SENATE BILL 714
Separately, Senate Bill 714 (SB 714) was also recently filed, and if enacted, would require ERCOT and the PUCT to adopt rules, operating procedures, and protocols to eliminate or compensate for any distortion in electricity prices in ERCOT caused by federal tax credits under 26 U.S.C. § 45, which provides tax credits for renewable energy produced. Essentially, the bill would require rules to be adopted to ensure that costs imposed on the ERCOT system by the sale of electricity from facilities eligible for a section 45 federal tax credit are paid by the parties that impose those costs. As an example, the bill cites “costs of maintaining sufficient capacity to serve load at the summer peak caused by the loss of new investment from below-market prices”. SB 714 specifically authorizes the PUCT and ERCOT to eliminate any rules or protocols that “attempt to adjust electricity prices to reflect the value of reserves at different reserve levels based on the probability of reserves falling below the minimum contingency level and value of lost load”. If enacted, SB 714 would take effect on 1 September 2025. 
CONCLUSION
If passed, SB 819 and SB 714 are likely to stifle renewable development at a time when the state cannot keep up with increased energy demands. SB 819 would impose costly regulatory burdens on the renewable energy industry in Texas. If passed in its current form, SB 819 is likely to have a chilling effect on investors’ appetites to finance new projects or expand existing facilities and will likely negatively impact renewable projects that are operating within the state. SB 714 would erode the pricing benefits that correspond to the tax credit, including the ability of renewable facilities to offer negative pricing to the ERCOT market.  Both bills would slow the growth of the renewable energy industry in Texas.

GAO Recommends EPA’s New Chemicals Program Develop a Systematic Process to Manage and Assess Performance Better

The U.S. Government Accountability Office (GAO) publicly released a report entitled “New Chemicals Program: EPA Needs a Systematic Process to Better Manage and Assess Performance” on January 22, 2025. GAO states that it was asked to review the U.S. Environmental Protection Agency’s (EPA) implementation of its Toxic Substances Control Act (TSCA) New Chemicals Program. The report summarizes the perspectives of selected manufacturers on EPA’s review process and evaluates the extent to which EPA follows key practices for managing and assessing the program. GAO identified a random, nongeneralizable sample of premanufacture notices (PMN) submitted to EPA from October 2021 to April 2024 and interviewed 19 manufacturers that submitted these notices. GAO also compared EPA’s management and assessment activities to key practices it developed based on federal laws, federal guidance, and prior GAO work.
According to GAO, the manufacturer representatives identified a range of challenges, strengths, and potential improvements for EPA’s new chemicals review process. For example, most (16 of 19) representatives told GAO they experienced review delays and described effects of these delays on their businesses. GAO states that the effects manufacturers cited included harming customer relations, creating a competitive advantage for existing chemical alternatives at the expense of new chemicals, and hindering market participation.
GAO notes that the representatives also identified strengths in how EPA implements the program and potential process improvements. For example, almost all (18 of 19) of the representatives found EPA’s public information sources somewhat or very helpful. Representatives suggested that EPA improve the new chemicals review process by clarifying review requirements, providing realistic timeframes for completing reviews, and improving communication, among other improvements.
According to GAO, EPA’s New Chemicals Division (NCD) has taken important initial planning steps but has not followed most key practices for managing and assessing the results of its New Chemicals Program. For example, in August 2024, NCD drafted a strategic plan that identifies five strategic goals and how to achieve them. GAO states that NCD did not follow some relevant key practices in developing the plan, however, including involving external stakeholders and identifying resources needed to achieve each draft goal. Moreover, NCD officials told GAO that they had not developed a systematic process to ensure that NCD consistently follows all key practices.
GAO recommends that:

The EPA Administrator should ensure that NCD, as it prepares its final strategic plan, addresses relevant key practices for managing and assessing the New Chemicals Program, including involving stakeholders and identifying resources; and
The EPA Administrator should ensure NCD implements a systematic process that aligns its performance management approach with key management and assessment practices.

EPA agreed with GAO’s recommendations.

What President Trump’s Energy Plan Means for the State Regulatory Environment, the Generation Mix and Electric Transmission

Signaling the prioritization of energy, President Donald Trump declared a national energy emergency on inauguration day. He issued several Executive Orders (EO) and Presidential Memoranda either unwinding the Biden administration’s energy policies or entering his own Orders to address what he described as inadequate energy supply in the United States and to encourage the expedient development of fossil fuel resources. Here, we will outline the key Orders and what they mean for the state regulatory environment, generation mix and electric transmission construction.
The Rescissions
Let’s start with the rescissions. President Trump revoked most of President Biden’s EOs and Presidential Memoranda on energy matters, some of which were entered in the weeks before he left office. The following is a summary of the key rescissions:

EO 13990 of January 20, 2021 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis) entered on President Biden’s first day in office. The Order revoked the permit for the Keystone XL pipeline, established an Interagency Working Group on the Social Cost of Greenhouse Gases and directed federal agencies to support a transition to clean energy.
EO 14008 of January 27, 2021 (Tackling the Climate Crisis at Home and Abroad) that paused “new oil and natural gas leases on public lands or in offshore waters pending completion of a comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices.”
EO 14057 of December 8, 2021 (Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability) setting forth the policy of achieving a carbon pollution-free electricity sector by 2035 and net-zero emissions economy-wide by no later than 2050. 
EO 14082 of September 12, 2022 (Implementation of the Energy and Infrastructure Provisions of the Inflation Reduction Act of 2022) establishing funding to implement the IRA in the energy sector and creating the Office on Clean Energy Innovation and Implementation.
Presidential Memorandum of March 13, 2023 (Withdrawal of Certain Areas off the United States Arctic Coast of the Outer Continental Shelf from Oil or Gas Leasing) withdrawing areas in the Beaufort Sea from future oil and gas leasing, which completed protections for the entire U.S. Arctic Ocean.
Presidential Memorandum of January 6, 2025 (Withdrawal of Certain Areas of the United States Outer Continental Shelf from Oil or Natural Gas Leasing) protecting the East Coast, the eastern Gulf of Mexico, the Pacific off the coasts of Washington, Oregon and California and additional portions of the Northern Bering Sea in Alaska from future oil and natural gas leasing.

Energy-Focused Executive Orders
President Trump also issued several EOs and Presidential Memoranda focused on the energy sector following up on the President’s inaugural speech suggesting support for oil, gas and nuclear energy and an end to federal policies favoring clean energy, including wind and solar. Outlined below are the Trump administration’s energy-related EOs.
Unleashing American Energy
The Unleashing American Energy EO intends to encourage energy production and exploration on Federal lands and waters, to increase production of non-fuel minerals and to eliminate the electric vehicle (EV) mandate, among other policies. The order calls for:

federal agencies to review, revise and/or rescind all regulations that impose an undue burden on domestic energy production and use, specifically for “oil, natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy resources.”
the Council on Environmental Quality to provide guidance on implementing the National Environmental Policy Act (NEPA) with the goal of expediting permitting approvals and rescinding certain NEPA regulations related to the national environmental policy put in place during the Biden administration.
federal agencies to make every effort to expedite the permitting process.
the National Economic Council and the Director of the Office of Legislative Affairs to prepare recommendations to Congress that will expedite the permitting and construction of interstate energy transportation and other critical energy infrastructure projects, such as pipelines, particularly in regions lacking such development in recent years.
the federal permitting process to adhere to only relevant laws for environmental considerations without using arbitrary or ideologically motivated methodologies.
the resumption of the review of applications for liquified natural gas export projects.

National Energy Emergency
To start, President Trump’s National Energy Emergency EO defines energy as “crude oil, natural gas, lease condensates, natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal heat, the kinetic movement of flowing water, and critical minerals” with wind and solar energy missing from the list. The Order is designed to expedite the permitting process for energy projects, reduce environmental regulations and promote fossil fuel development, particularly in regions like Alaska. Executive departments and federal agencies are directed to use their emergency authority or any other authority they may possess to facilitate the identification, leasing, siting, production, transportation, refining and generation of domestic energy resources, including resources on Federal lands. The U.S. Environmental Protection Agency (EPA) and the Secretary of Energy are given broad authority to increase oil and gas production.
Unleashing Alaska’s Extraordinary Resource Potential
This EO tracks the inaugural remarks made by President Trump to “drill, baby drill.” The Order directs agencies to expedite the permitting and leasing of energy and natural resource projects in Alaska, including liquefied natural gas projects, and end related environmental restrictions that would derail such efforts.
Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects
The title of the Memorandum speaks for itself, but it also pauses federal permitting, approvals and loans for all “new” onshore and offshore wind projects. The emphasis on the word “new” suggests that any project that has received a Record of Decision (ROD) from the Bureau of Land Management or the Bureau of Ocean Energy Management (BOEM) should be able to proceed with their project. However, the Memorandum calls out the Lava Ridge Wind Project, which received an ROD, and directed the Department of the Interior to place a temporary moratorium on it and “conduct a new comprehensive analysis of the various interests implicated by the Lava Ridge Wind Project and the potential environmental impacts.” The Memorandum also directs federal agencies to investigate “defunct and idle windmills” and recommend authorities to require their removal.
Anticipated Impacts on the State Regulatory Environment
The Trump administration’s energy policy and declaration of a national energy emergency will have varied impacts on state agencies involved in energy regulation, such as public utility commissions. By prioritizing fossil fuels and curtailing support for renewable energy, these Orders may require adjustments at the state level.
The Orders are anticipated to have a significant impact on states like New Jersey and New York, which have been investing in offshore wind to meet their decarbonization goals. New Jersey’s goal is to generate 11,000 MW of electricity from offshore wind by 2040 and transition to 100% clean energy by 2035. New Jersey has approved solicitations from three offshore wind developers with only one project receiving a ROD from BOEM. The New Jersey Board of Public Utilities issued a fourth solicitation in early 2024 which has not yet been awarded. A fifth solicitation slated for Q2 2025 may be off the table given the Trump administration’s Memorandum on offshore wind. States like New Jersey may need to reassess their energy portfolios and may struggle to get renewable projects that rely on federal approvals off the ground, like offshore wind in federal waters.
The Trump administration’s support for fossil fuels is less impactful on the state regulatory environment due to preexisting market forces. While the Trump administration will want to take credit, the fact is that natural gas plants are already on the rise due to strong demand from data centers. In May 2024 (well before the election), S&P Global Market Intelligence reported that U.S. utilities and investors plan to add 133 new natural gas-fired power plants to the nation’s grid over the next few years. These same market forces are delaying the closure of coal plants. Accordingly, strong demand will bolster gas and coal generation more than the administration’s Orders and Memorandum. State regulatory agencies are already seeing the impact of dramatically increasing demand, as utilities make significant changes to generation resource plans and capital outlays to provide for new gas plants and continued operation of coal plants. Similarly, the U.S. became the world’s largest crude oil producer in 2018 and has maintained that status ever since, breaking records for oil projection in 2024.
Areas to Watch Related to Onshore Wind Projects
While the federal government holds the keys to offshore wind leases, onshore projects do not rely as heavily on approvals, rights of way, permits, leases or loans from the federal government. On the other hand, the Trump administration’s Memorandum could be interpreted to apply to permits such as an endangered species permit from the U.S. Fish and Wildlife Service or a Determination of No Hazard from the Federal Aviation Administration. If so interpreted, it would cause massive disruption to new onshore wind projects. However, the Orders and Memorandum do not impact the Investment or Production Tax Credits, which are determined by Congress.
Potential Impacts on Transmission
Another area of interest for state regulatory commissions is electric transmission. Regional Transmission Organizations have identified hundreds of miles of new transmission projects, and these projects may have additional momentum because of the EO declaring a national energy emergency. That Order calls on federal agencies to identify and exercise all lawful authorities they may possess to “facilitate the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources.” The term “transportation” means the physical movement of energy, including through, but not limited to, pipelines. This includes electric transmission. Accordingly, state regulatory agencies should expect an uptick in applications for certification and siting of electric transmission lines. Interstate pipelines, on the other hand, are certificated and sited by the federal government.
If Past is Prologue
As we look forward to the current administration, we can look back at President Trump’s previous efforts in the energy sector. In 2018, the EPA under the Trump administration announced the replacement of the Obama administration’s Clean Power Plan with the Affordable Clean Energy Plan (ACE). ACE altered the New Source Review under the Clean Air Act, allowing new investment in older coal plants that would not have passed previously. ACE was disallowed by the D.C. Circuit in 2021, but that D.C. Circuit decision was overturned by the U.S. Supreme Court in June of 2022. With the change in energy demand and slower decommissioning of coal fired generation, it is unclear whether there is a need or desire for something like ACE. However, with the 2022 Supreme Court ruling, it may be available.
The other act that caused significant concern in the energy industry during the previous Trump administration was in 2018 when President Trump ordered Energy Secretary Rick Perry to take steps to keep struggling coal and nuclear plants open. The plan called for the use of the Federal Power Act and Defense Production Act and would have required regional grid operators to buy coal and nuclear generated power and provide guaranteed profit. The cost impact and market disruption would have been immense, and the plan was rejected by the Federal Energy Regulatory Commission.

Property Tax Relief for Southern California Property Owners Affected by the Recent Palisades, Eaton, and Other Fires and Windstorm Conditions

Recent fires in Southern California, including the Palisades, Eaton, and Sunset fires, have collectively burned tens of thousands of acres and devastated communities across the Greater Los Angeles area. More than 12,000 structures have been destroyed or damaged, including homes and businesses, and initial estimates have placed this emergency among the most destructive in California history. On Jan. 7, 2025, Governor Newsom proclaimed a state of emergency in Los Angeles and Ventura Counties due to the Palisades Fire and windstorm conditions.
Below we highlight property tax relief measures that may be available to property owners whose properties have been damaged or destroyed by these recent events. As discussed further below, for most affected property owners, property tax relief options include a temporary reduction in the damaged or destroyed property’s assessed value, deferral of property taxes, and/or one or more options to transfer the damaged or destroyed property’s base year value to replacement property. A recently issued executive order also provides for a limited suspension on the imposition of penalties, costs, or interest for the failure to pay property taxes or file a personal property tax statement. Each of these relief measures, and the related eligibility and filing requirements, are discussed in more detail below. Additionally, in certain situations, additional relief options may be available, depending on the specific facts in each case. Property owners should seek the advice of their professional advisors to understand how the options may apply to their particular circumstances.
Samuel Weinstein Astorga also contributed to this alert
Continue reading the full GT Alert.

France Launches Long-Awaited Procedure to Support the Production of Renewable or Low-Carbon Hydrogen

Legal and Regulatory Framework
Just before Christmas, France took another major step forward in its decarbonization strategy with the launch of the competitive bidding procedure designed to award financial support for the production of renewable[1] or low-carbon[2] hydrogen (H2) by water electrolysis.
This support mechanism falls within the legal framework defined by Ordinance no. 2021-167 of February 17, 2021, codified in a dedicated chapter of the Energy Code.[3] Articles L.812-1 et seq. and R.812-1 et seq. of the Energy Code provide a framework for the State to grant public operating and/or investment aid, in order to accelerate the deployment of green hydrogen production capacity.
The support mechanism set out in the current procedure launched by Ademe provides for the granting of aid over 15 years, with a ceiling price of 4 euros/kgH2.
Details of the Procedure
The published consultation document specifies that the power allocated to this first phase of competitive bidding is 200 MW of indicative electrolysis for the period 2024-2025, with a planned ramp-up to 1000 MW spread over several periods, and in particular 250 MW in 2026 and 550 MW in 2027.
The procedure comprises three successive phases:

Selection of candidates on the basis of their technical and financial capabilities, assessed on the basis of the requirements detailed in article 3.4 of the consultation document. In principle, between three and 12 candidates will be admitted to the dialogue procedure.
The competitive dialogue phase with the selected candidates in order to refine their projects.
Designation of the winners who will be awarded financial support after evaluation of the final applications.

The deadline for applications for the first period is March 14, 2025. Applications will be analyzed within two months of this date, with a view to selecting the candidates for the dialogue phase in May. The date for submission of the final bids and selection of the winning projects remains to be confirmed.
Project Eligibility Criteria and Information Expected From Candidates
First of all, it should be noted that only entirely new installations are eligible. This means that work on the project must not have begun prior to the selection of candidates or at the time of the final application for aid (excluding any connection work), that investments must not be committed before the winners are chosen, and that the plant must not produce H2 before the contract comes into force (except in the test phases).
As part of the procedure, candidates must demonstrate their technical capabilities, their experience in the development of industrial projects involving technological risks (and present a minimum of three relevant references) and the stage of maturity and development of their project.
They must submit a file detailing in particular:

A description of the project: only projects with an electrolysis capacity of more than five MW and less than 100 MW, located in France, are eligible.
An electricity supply plan demonstrating that 30 percent of the total volume of electricity used is secured over 10 years by means of memoranda of understanding, letters of intent or other forms of pre-contractual clauses signed by the applicant, and that the electricity used is of renewable or low-carbon origin.
Commercial commitments covering at least 60 percent of production for direct industrial use.[4] The applicant must therefore be able to demonstrate that 60 percent of the offtake (Hydrogen Purchase Agreement – HPA) is secured by memoranda of understanding, letters of intent or other forms of pre-contractual clauses.
Financial guarantee: A guarantee equivalent to eight percent of the maximum amount of support requested is required, which must take the form of a GAPD (Guarantee on First Demand) or a deposit in the hands of the CDC.
Strict timetable for financial closure and industrial commissioning: Financial closure must take place within 30 months of signature of the aid contract between the French government and the winning candidate, and industrial commissioning within 60 months (except in exceptional circumstances, duly justified, which will be specified in the specifications).
Cybersecurity criteria: Facilities must be operated and data stored within the EEA (European Economic Area).
The consultation document also emphasizes the resilience of projects and their contribution to Europe’s “net zero” strategy, notably by limiting to 25 percent of the project’s electrolysis capacity (in electrical MW) the supply of cell stacks whose surface treatment, cell unit production or assembly has been carried out in a non-EU country.[5] The procedures for checking this requirement will be detailed in the specifications at the end of the dialogue phase.[6]

Summary of Selection Criteria and Weighting Issues
At the end of the dialogue phase, successful applicants will be asked to submit their final applications. Project selection will be based on two criteria,[7] with a weighting that strongly favors the financial criterion:

Price criterion (at least 70 percent of the weighting): Projects will be assessed on the level of subsidy requested, expressed in euros per kilogram of hydrogen produced. The amount of the subsidy may not exceed the ceiling of four euros/kgH2. However, the consultation document does not specify how this weighting is to be applied. Should we deduce, for example, that a request for four euro/kg would be equivalent to a score of zero?
Non-price criteria (maximum 30 percent of the weighting): These criteria will assess the energy, technological and environmental impact of the projects.

The high weighting of the price criterion encourages applicants to limit their subsidy requests to maximize their chances of being selected. However, non-price criteria, although secondary, will play a decisive role in differentiating projects on strategic aspects such as innovation, energy efficiency and environmental benefits.
Opportunities and Challenges for Economic Operators
This procedure represents a significant opportunity for economic players wishing to position themselves on the green hydrogen market in France. However, it implies rigorous preparation of applications, mastery of regulatory requirements, and the ability to structure a sustainable and secure business model. The conditions for participation require a well-defined strategy and a perfect command of the commitments required by the consultation document and future specifications.
Interested operators should therefore familiarize themselves with the requirements of the consultation document and prepare for the various phases of the procedure. Particular attention should be paid to compiling administrative and technical files, identifying industrial partnerships and securing supply and sales contracts.
In particular, the technical information to be provided by bidders should focus on the progress and strategy of engineering, procurement and construction contracts (EPC, O&M, MOE, MOA, etc.), securing offtake and selecting equipment suppliers. It seems illusory to expect bidders to present firm commitments or signed contracts at the bid submission stage, given the uncertainty surrounding their selection, the risk of exposure linked to the indexation of material prices and the impossibility for their co-contractors to commit to a firm price at this stage.
Finally, given the prices currently observed in France for green hydrogen compared with those for grey hydrogen, it is legitimate to question the level of support envisaged in this procedure. Is a ceiling of €4/kg sufficient to enable a transition to scale and provide an adequate incentive for the development of the sector? This is doubtful.
Read a French language version of this update.

[1] As defined in article L. 811-1 of the French Energy Code, supplemented by decree.
[2] Ibid.
[3] Chapter II of Title I of Book VIII on hydrogen.
[4] For the purposes of the consultation document, direct industrial use does not include heating (with the exception of high-temperature thermal processes ( >400°C)); injection into the natural gas network; or electricity production from hydrogen.
[5] If the volume concerned makes the EU dependent.
[6] This clarification is welcome, as the entire legal framework for implementing the NZIA Regulation is not yet in force at the time of writing.
[7] Defined by article R. 812-14 of the French Energy Code.

International Arbitration: What You Need to Know for 2025

As 2025 gets underway, Womble Bond Dickinson has been taking stock of the major international arbitration developments from last year that are likely to affect our clients with international business.
In 2024, we saw significant developments in international arbitration law and policy in the U.S. and elsewhere. The impact will vary depending on the nature of your business and where you conduct it. Some of the developments are positive—especially for companies seeking to enforce their arbitration agreements and awards in the U.S. federal courts. Other changes—including, for example, in the European Union and Mexico—require companies to be especially vigilant about their international arbitration agreements and how their operations and investments in those jurisdictions are structured.
We have selected five developments from 2024 that will significantly impact international arbitration in the United States and elsewhere:

U.S. Supreme Court blocks immediate appeals of decisions to compel arbitration while arbitration is ongoing
Bipartisan consensus possibly emerges in the United States against international arbitration of foreign investment disputes
The Energy Charter Treaty “modernization” will restrict the international arbitration of many energy investment disputes in Europe
D.C. Circuit decides that district courts have jurisdiction to enforce investor-state arbitral awards from disputes within the European Union
Mexican court reform bolsters the need for international arbitration when doing business in Mexico

Last Year’s Key Developments for International Arbitration

U.S. Supreme Court Blocks Immediate Appeals of Decisions to Compel Arbitration While Arbitration is Ongoing

Last year, the U.S. Supreme Court once again confirmed the long-standing commitment of the U.S. federal courts to ensure that agreements to arbitrate are enforced. In May 2024, the Court held in Smith v. Spizzirri that, when a district court compels arbitration pursuant to the Federal Arbitration Act, it must stay—not dismiss—the lawsuit upon the request of a party.
Before Smith, some federal courts entered a final order of dismissal, allowing the losing party to immediately appeal the final order—which often resulted in appellate litigation parallel to arbitration. The major practical upshot of Smith is that no appeal will be immediately available against a district court’s decision to compel arbitration.
Thus, even if a contractual counterparty seeks to circumvent an arbitration agreement by filing suit in the United States, the federal courts will enforce the arbitration agreement without burdening the other party with additional appellate court battles as the arbitration proceeds.
By contrast, if the motion to compel arbitration is denied, the party seeking arbitration is entitled to an immediate interlocutory appeal pursuant to the Federal Arbitration Act. In other words, the party who has filed a motion to compel arbitration—but loses—has the right to an immediate interlocutory appeal. The party who opposes the motion to compel arbitration—and loses— does not have the right to an immediate appeal. Instead, the litigation is stayed while the arbitration proceeds.
Smith provides a strong affirmation in favor of enforcing agreements to arbitrate, as it largely precludes parallel appellate court proceedings, and enables the arbitration to proceed without the burden of such additional proceedings.
While the Supreme Court decided Smith under Chapter 1 of the Federal Arbitration Act—which primarily applies to domestic arbitration—the decision will likely apply to international arbitration as well. In the United States, most international arbitration is governed by Chapter 2 of the Federal Arbitration Act (implementing the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards). However, the Federal Arbitration Act provides that Chapter 1 also applies to international arbitration to the extent it is not inconsistent either with Chapter 2 or with the New York Convention.
Womble Bond Dickinson previously published a Client Alert on this development.

Is There an Emerging Bipartisan Consensus in the United States Against International Arbitration of Foreign Investment Disputes?

We will be paying close attention to shifts in U.S. policy on the protection of foreign investment, including the availability of investor-State arbitration to resolve disputes with foreign governments. Under many U.S. trade and investment treaties, an investor from the United States can bring arbitration for alleged treaty violations directly against a foreign State that has ratified the treaty—and vice versa. The idea is to encourage foreign investment by providing various protections to foreign investors—including a neutral arbitration forum where the investor can assert claims for violations of the treaty directly against the State that is “hosting” the investment.
But apparent bipartisan opposition to investor-State arbitration could have a significant impact on both current and future U.S. treaties that offer this key form of protection to U.S. companies with foreign investments and operations.
Although the new Trump administration has not yet expressed a clear position on investment protection and investor-State arbitration, we currently expect that it will not be supportive. During the first Trump administration, U.S. Trade Representative Robert Lighthizer expressed deep skepticism about such protections—as they encourage investment abroad and, according to Lighthizer, intrude on U.S. sovereignty at home. Under Lighthizer’s stewardship, the first Trump administration curtailed the investment protections on offer in the USMCA. The nominee for U.S. Trade Representative in the second Trump Administration, Jamieson Greer, served as chief of staff to Lighthizer in the last Trump administration.
Opposition to investor-State arbitration also has support among various democratic members of Congress. In recent years, democratic senators and representatives have sent repeated letters that express strong criticisms of investor-State arbitration and call for the reduction or elimination of this mechanism in U.S. treaties. In a recent letter from December 19, 2024, 37 democrats called upon the Biden administration “to eliminate or drastically reduce the ability of multinational corporations to use ISDS [investor-state dispute settlement] tribunals as a tool to attack legitimate government actions and extract unlimited sums from countries’ taxpayers.”
This opposition translated into some action in the closing days of the Biden administration. Despite skepticism from some senators regarding the secrecy of negotiations, on January 15, 2024, the United States and Colombia concluded a decision to re-interpret the investment protections in the Colombia-USA Trade Promotion Agreement. It was rumored that the United States Trade Representative was also negotiating with Mexico to similar ends.
As we move into the Trump administration, we will continue to monitor these developments and alternative means of investment protection for U.S. investors abroad.

The Energy Charter Treaty “Modernization” Will Restrict the International Arbitration of Many Energy Investment Disputes in Europe

We expect a flurry of investor-State arbitration activity in the European energy sector through September 2025. The parties to the Energy Charter Treaty (ECT)—which protects energy investments in Europe and surrounding areas—adopted a “modernization” of the treaty on December 3, 2025 after years of debate and false starts. The modernization significantly curtails investment protections overall, but it is not applicable to investor-State arbitrations commenced before the changes take provisional effect on September 3, 2025.
While this development will impact many European energy businesses, the modernization is also relevant to non-Europeans—such as United States companies. These businesses may currently enjoy ECT protection for their subsidiaries, operations, or investments in Europe or surrounding areas. They should assess how the ECT modernization may affect their investment protections in and around Europe.
The full set of changes to the ECT is extensive and detailed. However, some of the changes with the most significant impact on foreign investors include the following:

The ECT will no longer apply to most new hydrocarbon investments made after 3 September 2025 (Annex NI, Section B). Even most existing hydrocarbon investments will lose protection after a ten-year period (Annex NI, Section C). Investors in the hydrocarbon sector in Europe will, in many cases, need to start looking elsewhere for investment protection, such as other investment treaties.
The ECT will contain language that may block the application of its dispute resolution provisions to so-called intra-EU investor-State disputes—i.e., disputes between a company from one EU member state and another EU member State (Art. 24(3)). The highest court in the EU, the Court of Justice of the European Union, has already held that EU law prohibits intra-EU investor-State arbitration, but many international arbitration tribunals have disagreed with the court’s ruling and have allowed the arbitrations to proceed. The new language will make the prohibition explicit.
Businesses that are currently protected by the ECT through their presence in the EU—because either their parent company or a subsidiary is established in an EU Member State—should plan accordingly for future investment protection.
The ECT will add detailed guidelines for the application of key investment protections and for the conduct of investor-State arbitration. These guidelines may, in some cases, expand the scope of protection but, in many other cases, will restrict or reduce it.
The ECT will expressly reflect governments’ concerns about their freedom to adopt climate change mitigation and adaptation measures. The modernization adds provisions addressing the right to regulate (new Art. 16), providing exceptions to the treaty for certain necessary environmental measures (Art. 24), and containing commitments to implementing climate change agreements (Art. 19bis).

All energy-sector businesses should consider carefully the specific consequences of the ECT modernization for their investments or operations in and around Europe. A more comprehensive summary of the changes is available here. Womble Bond Dickinson’s International Arbitration practice can also advise on the specific impact for your business.

D.C. Circuit Decides that District Courts Have Jurisdiction to Enforce Investor-State Arbitral Awards from Disputes within the European Union

We are closely following key litigation in the United States over the enforceability of investor-State arbitral awards rendered between an EU company and an EU member state. The EU has campaigned for over a decade to eliminate so-called intra-EU investor-State arbitration. As noted above, the Court of Justice of the European Union, the highest EU court, has opined that EU law invalidates arbitration clauses permitting such arbitration.
Various investors that have obtained favorable awards in such intra-EU arbitrations have sought to enforce them outside of the EU, including in the United States, the United Kingdom, and Australia. Arbitral tribunals have generally concluded that EU law does not affect their jurisdiction to resolve intra-EU disputes. However, the EU and the respondent states have opposed enforcement of the resulting arbitral awards, arguing that the arbitrations were not permitted under EU law.
On August 16, 2024, the D.C. Circuit clarified the U.S. position on the matter in its NextEra v. Spain decision. It held that the U.S. district courts have jurisdiction to enforce these awards under the arbitration exception to the state immunities afforded by the Foreign Sovereign Immunities Act (FSIA). The NextEra decision is a significant step toward definitively establishing that intra-EU investor-State awards are indeed enforceable in the United States.
Spain, which has numerous unpaid awards in favor of EU investors, argued in NextEra that the FSIA blocked the enforcement actions against it. It argued that it had no arbitration agreements allowing for intra-EU arbitration, since such agreements are not permitted by EU law. The DC Circuit rejected this line of argument. It concluded that the Energy Charter Treaty—the basis for the relevant arbitrations— contains a relevant arbitration agreement and therefore that the U.S. district courts have enforcement jurisdiction over intra-EU awards.
Following the DC Circuit’s decision, the district courts will still need to decide upon the merits of each enforcement action. However, the Federal Arbitration Act and the federal law regarding ICSID awards as well as the ICSID Convention and New York Conventions (two international treaties governing the enforcement of arbitral awards) leave few or no grounds for the courts to deny enforcement.
As of this writing, Spain has petitioned to challenge the D.C. Circuit’s NextEra decision before the U.S. Supreme Court. However, the Supreme Court has not yet agreed to review the decision. Businesses that are potentially affected should follow future developments in this key litigation.

Mexican Court Reform Bolsters the Need for International Arbitration When Doing Business in Mexico

We noted last year that Mexico had adopted a major judicial reform in September 2024, the effects of which will begin to be felt this year. This judicial reform will require popular elections for judges at all levels of the Mexican court system. It underscores the importance of access to international arbitration for all foreign companies doing business in Mexico, as international arbitration provides insulation and protection from an increasingly unpredictable domestic court system.
Various observers have voiced concerns that the reform threatens to politicize and destabilize the judiciary and undermine judicial independence. As the U.S. Ambassador to Mexico emphasized in a public statement, the reform “will threaten the historic trade relationship we have built, which relies on investors’ confidence in Mexico’s legal framework” and “[d]irect elections would also make it easier for cartels and other bad actors to take advantage of politically motivated and inexperienced judges.”
The Mexican judicial reform includes the following significant changes:

Judges will be elected by popular vote to the Mexican Supreme Court, Circuit Courts, and District Courts, as well as others. The initial election will take place in 2025 for about half of judges, including all Supreme Court justices, with a further election in 2027 for the remaining judges.
All judges will be subject to disciplinary proceedings before a popularly elected Tribunal of Judicial Discipline, which will have the power to impose sanctions on judges up to and including removal from office. The decisions of the Tribunal of Judicial Discipline are not subject to appeal.
The Mexican judiciary will be prohibited from issuing general injunctions against laws and regulations in response to challenges to their constitutionality. 
The number of justices on the Mexican Supreme Court will be reduced to nine—from the current 11 justices.

The good news is that, with careful advanced planning, foreign businesses can avoid the Mexican courts in many circumstances. They can seek to have any contractual disputes with Mexican business partners submitted to international arbitration instead. They may also be able to arrange for access to international arbitration to resolve any disputes with the Mexican government itself.
Womble Bond Dickinson previously published a Client Alert addressing Mexico’s judicial reform and options for foreign businesses that may be impacted.

Thailand Eases Regulations for Solar Rooftop Installations

On December 27, 2024, the Thai Cabinet relaxed regulations on solar rooftop installations with the introduction of the Ministerial Regulation Re: Designation of Type, Kind, and Size of Factories (No. 3), B.E. 2567 (2024) (the “Ministerial Regulation”). The Ministerial Regulation does away with the need to obtain a factory license (commonly known as a Ror. Ngor. 4) from the Energy Regulatory Commission (ERC) or Department of Industrial Works (DIW)[1] for all solar rooftop power generation installations located outside of industrial estates, irrespective of their production capacity. This relaxation came into effect on December 28, 2024.
Previously, the installation of such solar rooftops with a generating capacity exceeding 1,000 kW required a factory license. This move specifically targets solar power generation installations located on rooftops, terraces, or any part of buildings that can be occupied or used. It is noted that solar ground mounted and floating projects are not affected by the Ministerial Regulation.
As a result of the introduction of the Ministerial Regulation, the procedures for installing solar power panels on rooftops outside of industrial estates have been simplified, eliminating the need for companies and individuals to obtain factory licenses from the ERC.
Impacts on Ongoing Projects Located Outside of Industrial Estates
For companies currently in the process of obtaining the Ror. Ngor. 4, this requirement is no longer applicable. Correspondingly, the environmental safety assessment (ESA) report, which was a prerequisite for submitting a Ror. Ngor. 4 application, is also no longer required.
For applications already submitted to the ERC, no further action is required from the companies.
Projects Located Within Industrial Estates
Despite the relaxation on factory licensing requirements, electricity generation and sale from solar rooftop projects located in industrial estates under the Industrial Estate Authority of Thailand (IEAT) still require the usual Land Use Permit (IEAT 01/2) and the notification of business commencement in industrial estates for such electricity generation and sale business.
However, for self-consumption solar rooftop projects, the IEAT plans to exempt the abovementioned requirements. The exemption is currently under the IEAT’s internal discussion and development.
The IEAT expects to release its official notification and detailed procedures by mid-2025. Until then, these requirements remain applicable to all solar rooftop installations within industrial estates.
Next Steps on the Ministerial Regulation
The enactment of the Ministerial Regulation marks a significant step towards simplifying the regulatory process for solar rooftop installations in Thailand, encouraging more sustainable energy projects throughout the country.
As a leading law firm for projects and energy in Thailand, we are well-positioned to advise both local and international companies on all aspects of renewable energy.

This article was authored by Chumbhot Plangtrakul, Thaphanut Vimolkej, Jidapa Songthammanuphap, and Joseph Willan.
[1] Section 48 of the Energy Industry Act, B.E. 2550 (2007), as amended permits the ERC to act as a one-stop service unit which grants all permits and licenses required for energy businesses, instead of the lead regulators. This includes a Ror. Ngor. 4 required under the Factory Act, B.E. 2535 (1992), as amended. Therefore, the ERC is responsible for issuing a Ror.Ngor. 4 on behalf of the DIW, the lead regulator. 

The Trump Administration’s Day-One Executive Actions: Impacts on Energy and Environmental Policy and More

On January 20, 2025, President Trump re-assumed the presidency with a flurry of executive orders and memoranda, many of which directly impacted energy and environmental issues. These orders included a production-minded strategy entitled “Unleashing American Energy,” a short-term regulatory freeze, a declaration of a national energy emergency, a specific order regarding wind energy and an order establishing the new Department of Government Efficiency (DOGE). Other topics may have profound impacts on energy, like the trade executive order which may impact the supply chain for energy projects.
Bracewell’s Policy Resolution Group has prepared a source book of analytical material on all the executive orders and more. We invite you to read through the material and contact us with questions. It has been said that so many orders came out on Day One precisely to shield any one order from too much criticism. In any event, the process of addressing all these executive actions is ongoing and iterative.
To get a sense of all that has happened, we have broken out a series of answers to frequently asked questions. Below is our thinking, although it is not yet dispositive.
1. What is an executive order anyway, and how far can it move the needle?
A presidential executive order is a signed directive from the president to federal agencies and officials of the executive branch, carrying the force of law. These orders allow presidents to move quickly on policy matters without congressional approval, making them powerful tools for implementing the president’s agenda.
However, executive orders face significant limitations. First, they must be rooted in powers granted to the president by the Constitution or delegated by Congress through federal law. Presidents cannot simply create new laws or override existing ones through executive orders. Second, executive orders can be challenged in federal courts if they exceed presidential authority or violate constitutional rights. The Supreme Court has struck down executive orders multiple times throughout history.
Additionally, future presidents can easily revoke or modify previous executive orders with a stroke of a pen. This means that policies implemented through executive orders may lack permanence compared to legislation passed by Congress. Congress can also pass laws that explicitly override executive orders or deny funding for their implementation.
Finally, executive orders only apply to the federal government and its employees. They cannot directly regulate private citizens, businesses, or state governments unless specifically authorized by the Constitution or federal law.
2. I see the president signed an executive order implementing a regulatory freeze. What does that mean for rules already final? What does it mean for sub-regulatory actions like guidance?
A regulatory freeze like the one described in President Trump’s recent executive order could be applied to regulations and to guidance documents or other sub-regulatory notices. Such freezes are fairly commonplace during presidential transitions between administrations of different political parties. In brief, the executive order, titled “Regulatory Freeze Pending Review,” directs executive departments and agencies to halt the proposal or issuance of any rules until they are reviewed and approved by a department or agency head appointed or designated by the president after January 20, 2025.

For rules that are recently finalized and effective, the executive order may still impact their implementation depending on their status and significance.
The order directs agencies to consider suspending or extending the effective dates of recently issued rules to allow for further review by the new administration. This review ensures alignment with the administration’s priorities and provides an opportunity to re-evaluate rules for their legal, economic, and policy implications.
If deemed inconsistent with the administration’s objectives, such rules could be modified, repealed, or replaced. However, exemptions may apply to rules critical to public health, safety, or national security.
As a result, agencies and stakeholders may face delays or uncertainty regarding the enforcement of these recently finalized regulations. This process underscores the administration’s focus on recalibrating the regulatory landscape to reflect its goals while maintaining flexibility for urgent matters.

The executive order establishes a temporary halt on the issuance, proposal, or implementation of new regulations and guidance by executive departments and agencies. It applies to rules and regulatory actions, including those defined under the Administrative Procedure Act (5 U.S.C. § 551(4)), Executive Order 12866, and Executive Order 13891, encompassing guidance documents and policy interpretations.
The order mandates that no regulatory action be proposed or finalized without review and approval by a department or agency head appointed by the president after January 20, 2025. It also calls for the withdrawal of regulations that have been submitted to the Federal Register but have not yet been published, as well as the suspension or extension of effective dates for recently issued rules to allow for additional review.
This freeze aims to ensure that pending or new regulations align with the incoming administration’s priorities, allowing for comprehensive evaluation of their economic, legal, and policy implications. Exemptions may be granted for rules critical to public health, safety, or national security, as determined on a case-by-case basis.
3. What did the president mean when he declared a “National Energy Emergency” and what are the practical implications?
President Trump declared a “National Energy Emergency,” citing insufficient energy production, transportation, refining, and generation as critical threats to the US economy, national security, and foreign policy. The key elements of that declaration included: (1) an order designating vulnerabilities in energy infrastructure and supply as unusual and extraordinary threats, justifying the use of broad emergency powers; (2) a directive to agencies to expedite the leasing, permitting, siting, production, transportation, refining, and generation of energy resources, including on federal lands; and (3) invoking specific authority, like the Defense Production Act (DPA) and Section 202(c) of the Federal Power Act (FPA).
What does it all mean?

DPA grants the federal government authority to direct industrial production to address national security needs, which now include energy infrastructure. Theoretically, it could compel companies to prioritize contracts for energy infrastructure, including pipelines, refineries, and other projects. Pursuant to DPA authority, the government might offer loans, grants, or subsidies to increase the domestic manufacturing of critical energy components like turbines, batteries, and transformers. DPA could even be used to increase capacity for refining fossil fuels or producing biofuels.
FPA Section 202(c) enables the secretary of energy to direct power plants or transmission systems to operate during emergencies to ensure grid reliability, potentially keeping coal, natural gas, and nuclear power plants operational by overriding environmental or regulatory restrictions.

By leveraging emergency tools like DPA and Section 202(c), the administration could expedite projects and mitigate regulatory delays, reshaping the US energy landscape. But use of the authority in this manner is still somewhat untested.
4. There has been so much discussion on permitting reform, particularly in Congress relating to the National Environmental Policy Act (NEPA). What do the executive orders do to advance the permitting reform agenda? Does it obviate the need for congressional action?
Unleashing American Energy: The executive order entitled “Unleashing American Energy” addresses NEPA when it calls for streamlined environmental reviews and permitting processes for energy projects. It directs federal agencies to ensure that NEPA reviews are completed within specified timeframes and limits their scope to avoid delays in energy development.
The order likely improves efficiency by reducing bureaucratic hurdles and establishing clearer timelines, but its effectiveness candidly will depend on agency implementation and potential legal challenges.
The order may well expedite permitting administratively, but it does not eliminate the need for legislation to codify broader reforms or address more complex permitting barriers, such as litigation risks or inter-agency conflicts. Without Congress acting, the order’s impact may be limited to short-term procedural improvements rather than lasting, comprehensive changes. 
National Energy Emergency: Unlike past administrations prioritizing renewable energy (e.g., President Biden’s clean energy investments), this order emphasizes fossil fuels and traditional energy infrastructure as critical to national defense. The “National Energy Emergency” executive order’s directive to federal agencies to expedite the leasing, permitting, and siting of energy projects, including on federal lands, also could streamline the approval process for energy infrastructure. By invoking emergency authorities like DPA, the government can prioritize energy projects deemed critical to national security and provide financial incentives to accelerate production and infrastructure development. Additionally, FPA Section 202(c) authority could be fashioned to override environmental or regulatory constraints in certain circumstances.
5. What about the pause on federal spending under the Inflation Reduction Act?
Section 7 is the provision within the “Unleashing American Energy” executive order which purports to “terminate the Green New Deal.” We’re still thinking it through. But in any event, Section 7 appears to be about disbursement of federal funds or loan guarantees, and not about tax credits taken on a corporate income tax return to offset a tax liability. An argument could be made that if the Treasury is providing a direct payment to an entity that has no tax liability (like a tax-exempt entity), that could be regarded as a disbursement. This issue is not squarely addressed in the executive order.
Even with its limited scope, Section 7 of the executive order contains directives that may raise legal and contractual concerns, particularly under the Impoundment Control Act (ICA) and regarding federal contractual obligations.
Section 7(a) mandates the following:

Immediate Pause of Funds: All agencies are directed to pause disbursements of funds appropriated under the Inflation Reduction Act of 2022 (Public Law 117-169) and the Infrastructure Investment and Jobs Act (Public Law 117-58).
Review Process: Agencies must review their processes and programs for issuing grants, loans, contracts, or any financial disbursements to ensure alignment with the executive order’s policy.
Reporting Requirement: Agency heads must report their findings within 90 days to the National Economic Council (NEC) and the Office of Management and Budget (OMB), including recommendations for policy alignment.
Conditional Disbursement: Funds cannot be disbursed until the OMB Director and the Assistant to the President for Economic Policy approve them as consistent with the executive order.

Are there legal limits on this? Yes. This provision could run afoul of the Impoundment Control Act which requires congressional acquiescence for refusal to allocate appropriated funds. Also, the federal government can be subject to legal remedies associated with violation of contracting rules. If challenged, this section of the executive order might be subject to scrutiny by Congress, the GAO, inspectors general, or federal courts, as it arguably encroaches on Congress’s power of the purse and may undermine federal obligations.
6. What is DOGE and its range of motion?
The executive order establishing DOGE tasks it with modernizing federal technology and enhancing governmental efficiency. The order restructures the United States Digital Service (USDS) within the Executive Office of the President, renaming it the United States DOGE Service. Additionally, a temporary organization — the US DOGE Service Temporary Organization — was created to execute the president’s 18-month agenda, set to conclude on July 4, 2026. Federal agencies are also required to establish DOGE Teams to collaborate with USDS in implementing this agenda.
The structure evades lots of oversight, but not all. For example:

Freedom of Information Act (FOIA): FOIA applies to federal agencies as defined in 5 U.S.C. § 551, which excludes the Executive Office of the President and its components. Since DOGE operates within the Executive Office, it is generally not subject to FOIA.
Administrative Procedure Act (APA): The APA governs federal agencies’ rulemaking and adjudication processes. Entities within the Executive Office of the President that solely advise and assist the President are exempt from the APA. DOGE’s advisory role likely places it outside the scope of the APA.
Open Meetings Requirements: The Sunshine Act mandates open meetings for federal agencies headed by a collegial body. Since DOGE is led by an administrator rather than a multimember body, this act does not apply.
Federal Register Publications: Agencies must publish certain information in the Federal Register. However, components of the Executive Office of the President that solely advise and assist the President are typically exempt from these requirements. DOGE is not obligated to publish its findings or recommendations in the Federal Register.
Annual Federal Appropriations: DOGE’s activities depend on funding through annual appropriations. The implementation of its initiatives is subject to the availability of appropriated funds, as stated in the executive order.
Other Legal Limitations: DOGE must operate within the bounds of existing laws and regulations. The executive order specifies that its provisions should not impair or affect the authority granted by law to executive departments or agencies, nor the functions of the Office of Management and Budget. Implementation is subject to the availability of appropriations and applicable law.

While DOGE may claim exemptions from FOIA or the APA, any action that directly impacts individuals or organizations outside the Executive Office could be subject to judicial review. This could expose DOGE to lawsuits that compel disclosures or constrain its activities.
Questions remain, too, related to rules governing conflicts of interest for agency officials. For example, senior officials must file public financial disclosure reports under the Ethics in Government Act (EGA) to identify potential conflicts of interest between their financial interests and official duties. Meanwhile, the Conflict of Interest Statutes (18 U.S.C. §§ 201-209) prohibit officials from participating personally and substantially in government matters affecting their financial interests and from receiving outside compensation for government-related matters. Finally, the Office of Government Ethics may require divestitures, recusals, or waivers to address conflicts of interest for senior officials.
At the same time, if DOGE were to rely on external advisors, rules requiring disclosure of relevant financial interests would apply. Further, if DOGE forms a formal advisory group, the Federal Advisory Committee Act (FACA) then applies, which similarly requires public disclosure of members’ financial interests, open meetings unless exceptions apply, and publication of reports and advice in the Federal Register, among others. Informal consultations or individual advisors generally do not trigger FACA, but structured advisory groups would. In fact, on the same day as President Trump’s inauguration, various public interest groups filed lawsuits that alleged DOGE’s structure and operation violated FACA. 
Can DOGE avoid congressional oversight?
While DOGE may have some structural features that limit direct congressional oversight, it cannot entirely avoid scrutiny due to the checks and balances inherent in US governance. Oversight mechanisms and potential limitations include budget and appropriations, congressional hearings, investigations or audits by the Government Accountability Office, or congressional legislation targeting DOGE’s structure, functions, or findings.
Frank V. Maisano, Paul Nathanson, George D. Felcyn, Joseph A. Brazauskas, Anna B. Karakitsos, Liam P. Donovan, Dylan Pasiuk, and Kyle J. Spencer also contributed to this article.

Lead Contamination in Water: Flint Water Crisis Update

The existence of lead pipes in municipal water systems and service lines connecting residential and commercial properties to water mains throughout the United States continues to generate litigation and regulatory action. The U.S. government reported in 2023 that more than 9.2 million American households connect to water through lead pipes and lead service lines.[1] The water crisis in Flint, Michigan, that arose a decade ago and gained national prominence involved water allegedly contaminated both by a change in water source and the presence of old lead service lines. That case, involving over 25,000 individual lawsuits as well as class actions, is approaching an important milestone as a partial settlement nears conclusion.
Background
The Flint water crisis began in April 2014 when the City of Flint switched its source of municipal water to the Flint River. For decades previously, Flint had received water from Lake Huron that was pre-treated by the Detroit Water and Sewerage Department.[2] Following the switch, residents soon reported that “there was something wrong with the way the water looked, tasted, and smelled, and that it was causing rashes.”[3] Tests showed the presence of bacterial contamination. In response, the City treated the water with additional chlorine, which was alleged to have exacerbated the corrosion in the old water lines and allegedly the “corrosion contaminated the water with hazardous levels of lead.”[4] Subsequently, it was alleged that lead monitoring showed results exceeding the Lead and Copper Rule’s action levels for lead, and that a published study showed a spike in the percentage of children in Flint with elevated blood lead levels.[5]
Litigation
Litigation involving the Flint water crisis (the Flint Water Cases) began in 2015, with numerous cases filed in both federal and state court including both class actions and individual cases involving thousands of plaintiffs. The complex procedural history included scores of motions to dismiss, extensive discovery, hundreds of opinions and orders, and various appeals both to the United States Court of Appeals for the Sixth Circuit and to the United States Supreme Court.[6] Plaintiffs—who include children, adults, property owners, and business owners—allege that they were exposed to lead, legionella, and other contaminants from the municipal water supply.[7] The defendants include City and State government officials, hospitals, and private engineering companies.
Settlements
On November 10, 2021, the United States District Court granted final approval of a partial settlement with many of the defendants, including the State of Michigan and individual state officials; the City of Flint, Flint’s City Emergency Managers, and several City employees; and certain other defendants.[8] The unique comprehensive settlement involves a “hybrid structure”—addressing individually represented persons and minors, unrepresented claimants, and also a class resolution component for unrepresented adults.[9] Appeals challenging the settlement were resolved on March 17, 2023, when the United States Court of Appeals for the Sixth Circuit affirmed the district court’s decisions.[10]
The settlement establishes an administrative compensation program that provides settlement opportunities to 30 categories of individuals and entities for a wide range of injuries and damages if claimants meet the eligibility criteria. Eligible claimants include:

every person demonstrating exposure to Flint water while a minor child—with award amounts varying based largely on lead levels demonstrated by blood or bone testing or by exposure at residences with documented lead or galvanized service lines or high lead levels as recorded in water testing;
exposed adults with qualifying lead levels based on blood or bone lead testing or qualifying injuries;
qualifying residential property owners, renters, or others responsible for paying Flint water bills; and
qualifying business owners impacted during the relevant period.[11]

The eligibility requirements, compensation process, timeline, and award amounts are based on “objective factors such as age, exposure to the water, lead test results, specific identified injuries, property ownership or lease, payment of water bills, and commercial losses”—and compensation is the same for similarly situated individuals and entities regardless of whether they are represented or not or are a member of the class.[12]
The settlement is structured such that the majority of funds (79.5 percent) goes to those who were minors at the time of their exposure to Flint water—with those minors with test results showing high lead levels receiving the highest relative awards. Under the settlement’s Compensation Grid, a qualifying blood lead test must have been taken during a specified time period during the water crisis, or a qualifying bone lead test using an X-Ray fluorescence (XRF) device optimized to measure bone lead in vivo in humans may have been taken during the period up to 90 days after the date of the Preliminary Approval Order.
In 2023 and 2024, additional settlements were reached with other defendants, adding additional funds available for distribution to qualifying claimants.
Status of the Settlement Process
The settlement administrator received approximately 46,000 claim packages (some claimants submitted more than one claim package and there are duplicates so the number of actual claimants is less). Notices to claimants advising them of the settlement category(ies) they qualify for, and/or of deficiencies found in their claims, have been distributed throughout 2023 and 2024, and the claims administration process is close to completion. The value of an approved claim is based on the number of claimants ultimately approved for each category, so final determinations of award amounts and issuance of payments will be made after the completion of the claims process.
Conclusion
The issues presented by the Flint water crisis and the resulting litigation and settlement may resonate in the coming years. Gallup reports that pollution of drinking water is Americans’ top environmental concern,[13] and lead exposure remains a significant issue in many municipalities across the country. According to the U.S. Centers for Disease Control and Prevention (“CDC”), lead “can be harmful to human health even at low exposure levels” and “[n]o safe blood level has been identified for young children.”[14] The Environmental Protection Agency (“EPA”) reports that lead pipes, faucets, and fixtures are the most common sources of lead in drinking water and that lead pipes that connect homes to the water mains (service lines), which are more likely found in older cities and in homes built before 1986, “are typically the most significant source of lead in water.”[15]
The EPA recently issued a final rule titled National Primary Drinking Water Regulations for Lead and Copper: Improvements (LCRI), which would require drinking water systems to replace lead and certain galvanized service lines, remove the lead trigger level, and lower the lead action level from 0.015 mg/L to 0.010 mg/L.[16] The rule has been challenged in court.[17]

[1] whitehouse.gov/briefing-room/statements-releases/2023/11/30/fact-sheet-biden-harris-administration-announces-new-action-to-protect-communities-from-lead-exposure; epa.gov/ground-water-and-drinking-water/lead-service-lines
[2] In re Flint Water Cases, 960 F.3d 303, 311-12 (6th Cir. 2020).
[3] Id. at 310.
[4] Id.
[5] Id. at 316, 319.
[6] In re Flint Water Cases, 499 F. Supp. 3d 399, 411-412 (E.D. Mich 2021).
[7] Id. at 408.
[8] In re Flint Water Cases, 571 F. Supp. 3d 746 (E.D. Mich. 2021).
[9] In re Flint Water Cases, 499 F. Supp. 3d 399, 409 (E.D. Mich. 2021).
[10] In re Flint Water Cases, 63 F.3d 486 (6th Cir. 2023).
[11] In re Flint Water Cases, 499 F. Supp. 3d 399, 408; Flint Water Cases (FWC) Qualified Settlement Fund Categories, Monetary Awards, and Required Proofs Grid (11/11/20) (“Compensation Schedule”), In re Flint Water Cases, 16-cv-10444, ECF No. 1319-2.
[12] In re Flint Water Cases, 499 F. Supp. 3d 399, 408.
[13] news.gallup.com/poll/643850/seven-key-gallup-findings-environment-earth-day.aspx.
[14] www.cdc.gov/lead-prevention/prevention/drinking-water.html.
[15] federalregister.gov/documents/2024/10/30/2024-23549/national-primary-drinking-water-regulations-for-lead-and-copper-improvements-lcri.
[16] Id.
[17] See American Water Works Ass’n v. United States Environmental Protection Agency, et al., No. 24-1376, (D.C. Cir. Dec. 13, 2024).