A “Course Correction” for NEPA: Supreme Court Underscores the Need for Agency Deference and Limits the Scope of NEPA Reviews
On May 29, 2025, in a decision long-awaited by project developers, the Supreme Court issued Seven County Infrastructure Coalition v. Eagle County, Colorado, which clarified the proper scope of review and deference to be afforded to agency decisionmaking under the National Environmental Policy Act (NEPA). This decision reinforces longstanding Supreme Court holdings and may help improve the NEPA process by providing support for agencies to focus their NEPA reviews on impacts associated with their authorizations.
Background
In Seven County, the U.S. Surface Transportation Board (Board) prepared a 3,600 page environmental impact statement (EIS) to evaluate a proposal by seven Utah counties to construct an 88-mile railroad line connecting Utah’s oil-rich Uinta Basin to the national rail network. The EIS acknowledged the potential upstream environmental effects from additional oil drilling projects in the Uinta Basin and potential downstream environmental effects of increased oil refining along the Gulf Coast, but found that those impacts did not need to be analyzed in further detail. The D.C. Circuit vacated the EIS and the Board’s final approval of the railway, finding that the Board erred by failing to analyze those potential upstream and downstream effects in the EIS.
The Supreme Court’s Decision
In a unanimous decision authored by Justice Kavanaugh, the Court reversed the D.C. Circuit and held that (1) NEPA requires courts to afford agencies “substantial judicial deference,” and (2) NEPA does not require the Board to evaluate “effects from potential future projects or from geographically separate projects.” The Court also found it salient that the Board would have no authority over such projects. Notably, all eight Justices who took part in the decision concurred in the judgment on the basis that it was consistent with the Court’s longstanding NEPA precedent.
The Court began its analysis by reinforcing the fundamental principle that NEPA is a purely procedural statute; it does not mandate particular results, but simply prescribes the necessary process for an agency’s environmental review of a project. It proceeded to explain that the D.C. Circuit erred both on the deference afforded to the Board’s decisionmaking and on its review of the merits.
Deference
The Court stated that “when determining whether an agency’s EIS complied with NEPA, a court should afford substantial deference to the agency.” In the context of NEPA reviews, agencies are forced to make numerous determinations of fact and policy; the Court “doubly underscored” that NEPA is inherently a “rule of reason,” and lower courts may not substitute their judgement for that of the agency as to the environmental consequences of its actions. The Court noted that agencies are in the best position to “determine whether and to what extent to prepare an EIS.” When it comes to environmental effects associated with a proposed project, feasible alternatives to that project, and the scope of effects to be analyzed (i.e., indirect effects or effects from future or geographically separate projects), it is the agency’s role to draw an appropriate line, “so long as [those decisions] fall within a broad zone of reasonableness.”
The Court observed that some reviewing courts have not applied NEPA correctly and, instead, have “engaged in overly intrusive (and unpredictable) review.” The Court concluded that, absent a “course correction of sorts,” this application of NEPA will continue to hamstring new infrastructure and construction projects. When evaluating an EIS for deficiencies, reviewing courts must keep in mind that NEPA is “purely procedural,” only obligating an agency to prepare an adequate report, and does not impose any substantive constraints on the agency’s ultimate decision to approve or support a project. In short, “[t]he bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.”
The Court also found that even if an EIS is deficient in some aspects, those deficiencies do not necessarily require a reviewing court to invalidate an agency’s decision to approve a project.
Merits
On the merits, the Court concluded that NEPA does not require an agency to evaluate environmental effects from separate projects that may occur in the future or are geographically distinct, reiterating its holding in Department of Transportation v. Public Citizen that the effects of a separate project need not be considered under NEPA because the separate project breaks the chain of proximate causation. Here, the Uinta Basin Railway was the relevant project and the Court concluded that nothing in NEPA required the Board to study environmental impacts from separate upstream or downstream projects. In other words, a mere “but for” causal relationship is insufficient to make an agency responsible for a particular effect.
The Court recognized that indirect effects—i.e., environmental effects generated by the project that occur later in time or outside the project’s location—may fall within NEPA, but consideration of such effects is different than an agency considering effects of separate projects that may result. The Court concluded that NEPA does not require the latter.
Key Takeaways
Seven County is significant for numerous reasons, including:
It reinforces the longstanding principle that NEPA is a purely procedural statute, and it instructs courts to account for that principle when considering the reasonableness of the agency’s decisionmaking.
It highlights the significant deference that is to be afforded to agency decisionmaking under NEPA.
It preserves and reinforces the “proximate cause” standard articulated in Public Citizen for assessing the connection between the federal agency action and the environmental effects of a separate activity. It also confirms that “but-for” causation is not sufficient to demonstrate that an effect should be analyzed.
The decision is also noteworthy for its commentary on how NEPA litigation has negatively impacted project development. The Court noted that project opponents may not always be motivated by their concern for the environment, instead using NEPA to prevent new infrastructure projects. The end result is that “fewer projects make it to the finish line. Indeed, fewer projects make it to the starting line. Those that survive often end up costing much more than is anticipated or necessary, both for the agency preparing the EIS and for the builder of the project.” To the extent the Court’s decision helps clarify and improve the NEPA review process and makes it more difficult to set aside an agency’s NEPA review, this decision may spur additional development and innovation.
The Court’s finding that a determination that a NEPA review is inadequate in some respects does not necessarily require a reviewing court to invalidate an agency’s approval may result in more lower court decisions declining to vacate or set aside NEPA reviews, even where there may be some deficiencies.
Daniel C. Warren and Thurston Moore also contributed to this article.
*Thurston Moore is a Summer Associate at Hunton Andrews Kurth LLP and is not admitted to practice law.
USDA TO THE RESCUE! First, Immigration Policies — Will MAHA be Next?
The U.S. Department of Agriculture (USDA) has been around for more than 150 years, stressing the importance of American agriculture to a bountiful food production system since Abraham Lincoln first signed it into being in 1862. Lincoln himself, in fact, in his 1864 final annual message to Congress, christened USDA “the people’s Department,” just before commending it “to the continued attention and fostering care of Congress.” From industrialization to the mechanization of farming, through the post-industrial era and into the digital age, farmers are among the first to remind the rest of us of that universal truth: “we still gotta eat.”
Ensuring that capability has been among the most important missions of USDA, and recently that role has been tested by the new Administration’s emphasis on “controlling our borders” as a centerpiece issue for President Trump. In recent weeks, there have been mass deportation efforts specifically targeting geographic locations and industries identified as likely to house and employ significant numbers of undocumented immigrants. Among affected industries is farming, where up to 40 percent of those who work in food production occupations — as farmworkers or at food handling and processing facilities — are estimated to be undocumented.
Consequently, as the Administration’s deportation efforts ramped up in recent weeks, farm labor was reported to be impacted, either directly, with laborers being detained or arrested, or via rumors of enforcement sweeps keeping workers away from their jobs out of fear of the same. Then, to the surprise of many, in the last week, President Trump suggested that some undocumented workers have been here in the United States for years, working hard without incident, paying taxes, and breaking no laws — and should thus be allowed to stay, or at least not targeted for deportation as an enforcement priority.
The President specifically cited how the agricultural industry (along with the hospitality industry) was dependent on such labor and would otherwise suffer, with the resulting effects impacting the nation’s food supply. It was reported that U.S. Secretary of Agriculture Brooke Rollins was pivotal in conveying the concern of farmers and agricultural groups and emphasizing the need to have immigration enforcement policies that acknowledge and consider how important the undocumented workforce is to U.S. food production. And yet the suspension of worksite enforcement operations targeting farms, hotels, and restaurants was short-lived, with the Trump Administration apparently reinstating it again mere days later.
Meanwhile, the Administration’s “MAHA Report,” released on May 22, 2025, with Secretary Rollins as one of the Make America Healthy Again (MAHA) Commission members, essentially condemns the U.S. food supply as horrible and dangerous. The word “food” appears 260 times in the 68-page report, with repeated emphasis on the modern food production system resulting in ultra-processed food as it goes from farm to table with a stop in between for corporate players to foist dangerous methods of production, products, and the manipulation of consumer tastes upon it and us.
The MAHA Report frames the United States as a whole as “unhealthy,” with little, or at least too little, regulation by government agencies that have been “captured” and otherwise manipulated by corporate interests intent on defending and continuing a woeful status quo. The food industry generally, with farmers using conventional production methods (various crop inputs such as fertilizers and pesticides, sizable farming operations), is often referred to by critics as “Big Ag” — a reference to what many consider to be the scale and methods of production which characterize modern farming and food production. The MAHA Report, while citing the wonderfulness of farmers in their ability to be so productive, effectively holds the modern food production system, including farmers (or at least current farming methods), responsible for making America unhealthy.
On May 23, 2025, just one day after the MAHA Commission’s sweeping condemnation of modern food production practices, came Executive Order (EO) 14303: “Restoring Gold Standard Science.” Issued by President Trump, the EO declares that all federal agencies (USDA included) must base decisions on “the highest standards of scientific integrity.” That sounds good on paper, but it raised eyebrows in the Ag world. While the EO calls for transparency, peer-reviewed data, and decisions insulated from ideology, farm groups may be left wondering which science the Administration wants to elevate — because the science behind large-scale food production didn’t get much airtime in the MAHA Report.
Farm groups, anticipating what was to come in the MAHA Report, released a “Statement from Farmers of Major U.S. Agriculture Groups on Pending MAHA Report” two days before the Report itself was released:
The Make America Healthy Again Commission is expected to soon release a report that will have significant bearing on America’s farmers, producers and ranchers, and the public’s trust in our food system. In anticipation, the American Soybean Association, National Corn Growers Association, National Association of Wheat Growers, International Fresh Produce Association, and in turn, the farmers these groups represent, are imploring the administration to consider the consequences of this MAHA Commission report before it is finalized.
The statement goes on to add:
Despite the effort of many of our organizations to work with the MAHA Commission to provide factual information about American food production, we have heard disturbing accounts that the commission report may suggest U.S. farmers are harming Americans through their production practices and ‘creating foods that is [sic] destroying our microbiome and bodies—leading directly to our chronic disease crisis.’ Nothing could be further from the truth. Nutrition matters, health matters, and the confidence of consumers in the food supply matters tremendously.
Where is, or was, USDA?
This statement is but one of many alarms sounded by farm groups concerned about possible fallout from the work of the MAHA Commission. And the biggest fallout of all for those with a hand in American farming could be a new effort, endorsed by the Trump Administration, echoing the concerns of critics of Big Ag over the years. With criticism aimed at large acreage farms, large animal feedlots, a reliance on synthetic inputs, and the use of current food processing techniques and the argument being that the result of these things is dangerous (or at least unhealthy) food products being widely distributed in our homes, schools, and on grocery store shelves, there is more than enough fallout to go around.
With over 250 food and agricultural groups signing onto a June 17, 2025, letter to Secretary Rollins, U.S. Secretary of Health and Human Services Robert F. Kennedy Jr., and U.S. Environmental Protection Agency Administrator Lee Zeldin, urging that food and agriculture “have a seat at the table during the development of policy recommendations” related to the MAHA Report, it is now even clearer what farmers, and many agricultural stakeholders, think — that the MAHA Report is not scientifically supported (gold-standard or otherwise) and that it is in need of some serious revision. Putting aside the question of what role USDA played, or didn’t play, in the MAHA Report, will Secretary Rollins and staff be able to persuade the President that another initiative may need modification before its impact on farming could affect his standing in a rural America which up to now has been an anchor of support for his Administration?
With 42 out of 50 states — red and blue alike — directly represented in the letters’ signatories, as well as groups representing commodities as varied as pork and mint, hazelnuts and Christmas trees, and special interest groups as diverse as American Agri-Women and the National Black Growers Association, it seems that it is once again the farmers reminding us: we all still gotta eat.
Nippon Steel Completes Acquisition of US Steel Under National Security Agreement
What Happened
On June 13, 2025, President Trump issued an Executive Order (June 13 EO) allowing Nippon Steel Corporation and Nippon Steel North America, Inc. (collectively, Nippon Steel) to acquire United States Steel Corporation (US Steel) subject to a National Security Agreement (NSA) with the US Department of Treasury (Treasury). The acquisition was completed on June 18, 2025.
The Bottom Line
The June 13 EO reverses an earlier decision by then-President Biden that blocked Nippon Steel’s acquisition of US Steel on the basis of national security concerns identified in a split recommendation to the President by the Committee on Foreign Investment in the United States (CFIUS). The NSA includes provisions requiring significant new investments in the United States and governance provisions. Investors seeking to understand what mitigation might entail following the recent changes in CFIUS policy towards national security agreements should be aware of what has been publicly disclosed about the NSA and the context of the June 13 EO.
The Full Story
In December 2023, Nippon Steel and US Steel announced a deal for the Japanese steel-maker to acquire US Steel, a high-profile icon of American industry. Public outcry ensued and the proposed acquisition was criticized by both Presidential candidates during the 2024 presidential election. On January 3, 2025, after having received a split recommendation from CFIUS, then-President Biden issued an Executive Order prohibiting the transaction under Section 721 of the Defense Production Act (Biden EO). The Biden EO cited “credible evidence” that the buyer in the transaction “might take action that threatens to impair the national security of the United States.” Following the Biden EO, Nippon Steel and US Steel filed a lawsuit challenging the Biden EO as having a political, rather than national security basis.
On April 7, 2025, President Trump issued a Presidential Memorandum on the Review of Proposed United States Steel Corporation Acquisition, which directed CFIUS to conduct a de novo, confidential review of the transaction and to submit a recommendation to the President describing whether any measures proposed by the parties would be sufficient to mitigate any national security risks identified by CFIUS. The June 13 EO notes that CFIUS submitted its recommendation to the President on May 21, 2025.
The June 13 EO amends the Biden EO to permit Nippon Steel’s acquisition of US Steel to proceed, subject to entering into the NSA with Treasury. According to a press release from the companies, the NSA includes commitments related to domestic production and trade matters as well as governance. Specifically, under the NSA:
Nippon Steel will make approximately $11 billion in new investments in US Steel by 2028, which includes an initial investment in a greenfield project that will be completed after 2028;
US Steel will remain a US-incorporated entity and will maintain its headquarters in Pittsburgh, Pennsylvania;
A majority of the members of US Steel’s board of directors will be US citizens;
US Steel’s key management personnel, including its CEO, will be US citizens;
US Steel will maintain capacity to produce and supply steel from its US production locations to meet market demand in the US, and will not transfer production or jobs outside of the United States; and
Nippon Steel will not prevent, prohibit, or otherwise interfere with US Steel’s ability to pursue trade action under US law.
The NSA also includes a Golden Share in US Steel to be issued to the US government, allowing the government to participate in certain aspects of the governance of US Steel. The Golden Share rights include:
The right of the holder to appoint one independent director to US Steel’s board; and
Consent rights of the President of the United States, or his designee, on specific matters, including:
reductions in the committed capital investments under the NSA;
changing US Steel’s name and headquarters;
redomiciling US Steel outside of the United States;
material acquisitions of competing businesses in the United States; and
certain decisions on closure or idling of US Steel’s existing U.S. manufacturing facilities, trade, labor, and sourcing outside of the United States.
This “Golden Share” approach is unique in CFIUS practice to date and contrasts with the policy directives announced in the National Security Memorandum on America First Investment Policy issued in February 2025 (2025 NSM). The 2025 NSM generally called for an end to open-ended national security agreements in favor of concrete actions that companies can complete within specific time frames. Our prior coverage of the 2025 NSM is available here.
Investors seeking to understand what the Nippon Steel NSA means for national security agreements going forward should note the unique factors present in this case. As noted above, the acquisition was the subject of significant public scrutiny and political discourse, with intersecting issues around domestic manufacturing capabilities, labor, and foreign trade. Accordingly, it may not be representative of a general approach to national security agreements or CFIUS reviews for the vast majority of filers. However, the case highlights the importance of government relations to high profile transactions and illustrates how CFIUS, and a national security agreement, can shape the economics of a deal.
California Continues to Promote Clean Energy Transition Despite Federal Backstepping on Clean Energy and Hydrogen Funding
The first quarter of 2025 has been marked by a turbulent transition between presidential administrations as indicated by regulatory course reversals, and clean energy regulations have been no exception. On January 20, 2025, President Trump issued an executive order entitled Unleashing American Energy, which instructed federal agencies to immediately pause disbursement of funds provided by the Inflation Reduction Act of 2022 and the Infrastructure Investment and Jobs Act and to submit a report to the Director of the National Economic Council analyzing its consistency with the order, which included funds set aside for clean energy projects. In the wake of the executive order, there is a widespread sense of uncertainty in the regulatory future of the clean energy industry under the current administration.
Amidst federal backstepping on clean energy, the state of California remains committed to promoting a clean energy transition. California has set ambitious greenhouse gas emissions reduction goals with the overarching goal to shift away from reliance on fossil fuels and towards increased reliance on renewable energy resources. Specifically, California has a goal of cutting greenhouse gas emissions by 48% below 1990 levels by 2030 and 85% below 1990 levels by 2045. Progress towards these decarbonization goals on the state level will require the passage of new laws to incentivize renewable energy projects, encourage research into the viability of cleaner sources of energy, and promote a just transition. One source of energy that has become increasingly prominent is hydrogen, particularly green hydrogen, which is the process by which hydrogen is produced by using renewable energy sources to drive the electrolysis process by which water is broken down into its component parts — hydrogen and oxygen.
Senate Bill (SB) 1420 (Caballero) is a relatively new state law, which Governor Newsom signed into law on September 25, 2024, intended to incentivize green hydrogen projects. The bill was introduced by Senator Anna Caballero during the 2024 Legislative Session. Senator Caballero is currently serving her second term representing the 14th State Senate district, which includes the majority of Merced, Madera, and Fresno Counties. Senator Caballero also serves as the Chair of the Appropriations Committee and a member of the Housing, Public Safety, Insurance, Judiciary, Energy, Utilities, and Communications Committee. SB 1420 aims to incentivize clean hydrogen projects and renewable energy projects by making more qualifying projects eligible for permit streamlining benefits, expedited review under the California Environmental Quality Act (CEQA), and expedited judicial review of CEQA challenges.
The bill adds qualifying hydrogen projects as eligible for centralized permitting by the California Energy Commission (CEC) under its Opt-In Certification Program by expanding the definition of a “facility” to include qualifying hydrogen production or storage and processing facilities.
The bill makes more qualifying hydrogen projects eligible for expedited judicial review of CEQA litigation by expanding the definition of “energy infrastructure project” as defined in the Public Resources Code in two significant ways. First, SB 1420 expands the definition of “energy infrastructure project” by excluding “resources that combust biomass fuels” rather than all “resources that use biomass fuels.” Second, SB 1420 extends the definition of “energy infrastructure project” to include qualifying hydrogen production facilities and associated storage and processing facilities among the projects eligible for expedited review under CEQA. Prior to this bill, all “projects utilizing hydrogen as a fuel” were specifically excluded.
Under SB 1420, to qualify for expedited judicial review or the centralized permitting under the CEC Opt-In Certification Program, the hydrogen production or storage and processing facility must meet the following two criteria: the Facility must “not derive hydrogen from a fossil fuel stock” and the Project must have received funding from a listed funding source. The first requirement reflects the fact that the overall environmental impact of hydrogen as an energy source largely depends on the source of energy that drives its production. Modern technological advancements have led to the development of production processes that utilize renewable resources — instead of fossil fuels — in the hydrogen production process.
The second requirement is that the project must have received funding from one of the following three sources: (1) the state-funded Hydrogen Program under Public Resources Code Section 25664.1; (2) the 2024 climate bond approved by voters in the November 2024 election; or (3) the Alliance for Renewable Clean Hydrogen Energy Systems (ARCHES) as awarded by the United States Department of Energy (DOE).
The latter of these funding sources has been in the news and is, as of the date of this article, in jeopardy as the current administration reconsiders funding awarded by the prior administration. In 2022, the federal government passed the Bipartisan Infrastructure Law, which set aside $7 billion in funding for the creation of the Regional Clean Hydrogen Hubs Program (H2Hubs) to be awarded by the DOE. The purpose of the program funding was to encourage the creation of regional clean hydrogen hubs to create a national network that will ultimately lead to the formation of a national hydrogen economy. The California Hydrogen Hub, which proposed various hydrogen projects across the state, was among the projects selected to receive the H2Hubs designation and a $1.2 billion slice of the federal funding. On March 26, 2025, Politico reported that a list circulating within the DOE indicates that the California Hydrogen Hub is among the four H2Hubs that may face funding cuts related to the President’s executive order.
FORWARD LOOKING: PENDING BILLS IN THE 2025 LEGISLATIVE SESSION
AB 35 (Alvarez) would allow for limited CEQA review of an application for a discretionary permit or authorization for a clean hydrogen transportation project, which is defined as “a pipeline project composed of a system that transports hydrogen, and any associated facilities necessary for the system’s operation,” that meets stated criteria in the bill. The limited CEQA review involves completing a clean hydrogen environmental assessment rather than a full environmental impact report or mitigated negative declaration as is typically required by CEQA. The bill would also expedite the review process by requiring that the lead agency make its determination about whether to approve the clean hydrogen environmental assessment and issue the discretionary permit or authorization within 270 days of when the application is deemed complete. AB 35 has becme a two-year bill and will be re-considered by the Legislature in 2026.
SB 88 (Caballero) would require the State Energy Resources Conservation and Development Commission to consider the potential of using biomass to produce low and negative carbon fuels, including hydrogen, in its reports and documents.
SB 714 (Archuletta) would state the intent of the Legislature to enact legislation to establish a Clean Energy Workforce Training Council to analyze the workforce and infrastructure needs as well as the needs of hydrogen and other clean energy technologies and a Zero-Emission Vehicle Workforce Development Pilot Project for use at community colleges. These programs would be under the purview of the Deputy Secretary for Climate within the Labor and Workforce Development Agency. SB 714 has become a two-year bill and will be re-considered by the Legislature in 2026.
EPA Will Extend Postponement of Effective Date of Certain Provisions of Final TCE Risk Management Rule
The U.S. Environmental Protection Agency (EPA) provided on update on June 18, 2025, on the status of the December 2024 Toxic Substances Control Act (TSCA) risk management rule for trichloroethylene (TCE). According to EPA, it is postponing until August 19, 2025, certain requirements already postponed in March 2025. EPA notes that these requirements relate only to the TSCA Section 6(g) exemptions in the final TCE rule. According to EPA, “[t]his will ensure that the timing of EPA’s administrative stay aligns with the court’s timeframe for this action.” As reported in our April 15, 2025, blog item, the final rule is being challenged in the U.S. Court of Appeals for the Third Circuit. According to a Federal Register notice scheduled to be published on June 23, 2025, on May 27, 2025, EPA moved to hold the case in abeyance because it intends to reconsider the final rule, including provisions subject to EPA’s Initial Notice, through notice-and-comment rulemaking. EPA notes that for the same reason, it filed a response to Industry Petitioners stating that it did not oppose a stay of the provisions subject to EPA’s Initial Notice. The judicial proceedings are ongoing. More information on the final TCE rule is available in our January 13, 2025, memorandum.
Steel Wars: Foreign Steel Can Dodge U.S. Tariffs, but Not U.S. Control. A New Era for Investing in American Steel Begins
The doubling of steel and aluminum tariffs by the Trump administration—from 25% to 50% within just three months—is a significant escalation in trade policy and the fulfillment of a Trump campaign promise.
The U.S. also removed country and product exemptions and imposed stricter definitions to ensure tariff coverage and enforcement. The main objective for the shift in U.S. policy—increase domestic supply to meet defense and critical infrastructure demands.
In April 2025, Bradley’s Corporate & Securities Practice Group offered insights on how foreign steel and aluminum producers can navigate the new landscape: U.S. Tariffs on Steel and Aluminum: Navigating the Changing Landscape in 2025 | Insights & Events | Bradley.
Higher tariff rates have prompted some foreign producers to look to make substantial investments in U.S. assets as a possible strategy for reducing their overall tariff burden.
Tariff Workaround Attempt Stifled
The most significant example of a tariff workaround strategy is Nippon Steel’s attempted acquisition of U.S. Steel Corporation. In early comments on the deal, the parties said they aimed to improve global steelmaking by producing more efficient, eco-friendly products and advancing industry technology. If successful, the acquisition would also have granted Nippon tariff-free access as a U.S.-based producer.
Almost immediately, the proposed transaction encountered bipartisan resistance—primarily for national security concerns—as well as an outcry from American steelworker groups, like the United Steelworkers Union, who expressed concern that American jobs would be lost in the acquisition.
Trump changes “acquisition” to “partnership” to make room for government control.
President Donald Trump intervened and pressured Nippon and U.S. Steel to reframe the terms of the transaction in a manner more favorable to United States’ interests. Nippon Steel was eventually permitted to enter into a “partnership” with U.S. Steel under the close eye of the U.S. government, but not purchase U.S. Steel outright. The partnership was consummated on June 18, 2025—shortly after Trump’s approval. A key component of the final approval was the execution of a National Security Agreement (NSA) providing for the following:
Nippon Steel will invest $14 billion in U.S. Steel ($11 billion to be invested by 2028).
The bulk of Nippon Steel’s investment will be used for renovating and upgrading existing U.S. Steel facilities and building new and improved facilities in the United States.
The headquarters of U.S. Steel will remain in Pittsburgh, Pennsylvania.
An independent director of the board of U.S. Steel must be appointed or approved by the U.S. government.
The CEO, the management team and a majority of the board of U.S. Steel must be U.S. citizens.
The United States government must be able to exercise veto power over certain corporate functions, including reincorporating U.S. Steel overseas and company name changes.
Nippon Steel must not initiate layoffs of U.S. Steel employees, shutdowns of existing U.S. Steel facilities, or other offshoring of U.S. jobs.
Nippon Steel is prohibited from conducting trade activities adverse to the best interests of U.S. Steel.
Nippon Steel must refrain from importing steel products that compete with American suppliers and must otherwise comply with government recommendations.
Nippon Steel must uphold all union agreements with the United Steelworkers Union.
Lessons Learned from the Nippon Steel–U.S. Steel transaction:
The U.S. government has signaled its intentions to play an increasingly proactive role as gatekeeper in shaping and even dictating the terms of foreign investment in critical sectors, such as steel and aluminum.
Direct investment in U.S. assets can provide a path to tariff-free status — but it comes with the “cost” of political alignment and regulatory entanglement. Companies must decide if such an investment is a lucrative entry strategy.
A shift is underway: Rather than pure acquisitions, future deals may take the form of joint ventures, alliances, or co-developed assets, especially in areas like infrastructure, shipbuilding, and green steel.
Public statements from Nippon and U.S. Steel echoing Trump-era slogans (“make American steelmaking and manufacturing great again”) show that embracing U.S. political rhetoric may be increasingly necessary to gain approval. A broader trend toward economic patriotism, where deals must align with administration policy goals, not just market economics, seems to be in full swing.
For companies with sufficient capital, building new U.S. plants may be preferable to acquisitions burdened by national security agreements. This option allows companies to retain control and shape operations from inception while still benefiting from U.S. presence—though at a higher upfront cost.
Conclusion
The Nippon Steel deal is not a universal template, but it proves foreign steelmakers can still enter the U.S. market—if they are willing to align with national interests. The model is promising but intricate, requiring each company to weigh its risk tolerance, strategic priorities, and willingness to navigate regulatory trade-offs.
EU Commission Proposes the Simplification of EU Chemicals Rules for Defence Applications
On 17 June 2025, the European Commission issued a Defence Readiness Omnibus in the form of a Communication accompanied by several legislative proposals (see full list).
The Commission’s proposal aims to speed up defence investments and thereby increase the Member States’ and industry’s capabilities and infrastructures. It notably acknowledges the unfitness of the current regulatory environment of the EU in times of international tensions, including hindrance by environmental legislations.
The package encompasses a proposal accommodating certain requirements of the EU’s chemicals legislation to defence needs by way of amendments to REACH (Regulation (EU) 1907/2006), the CLP (Regulation (EU) 1272/2008 on classification, labelling and packaging) and the BPR (Regulation (EU) 528/2012 on biocidal products).
The proposal foresees the possibility for Member States to exempt certain substances from the requirements of the above cited Regulations “where necessary in the interests of defence”. While such a possibility already exists under all three Regulations, the proposal appears to provide further facilitation, by withdrawing the requirement that the exemption shall only be granted in “specific cases”. This aims to respond to the Member States’ particular caution so far in the use of the exemption.
It further amends the POPs Regulation (Regulation (EU) 2019/1021 on persistent organic pollutants) to ensure that defence readiness be considered in the preparatory stages of substances restriction and prohibition processes.
The package also includes a Commission Notice providing companies with guidance on the application of the sustainable finance framework, the Taxonomy Regulation, the Corporate Sustainability Reporting Directive (‘CSRD’) and the Corporate Sustainability Due Diligence Directive (‘CSDDD’) to the Defence industry.
This new package is issued in a context of intensified calls for simplification by Member States and certain political groups, to which the Commission has already responded via a series of proposals. A broader simplification initiative addressing the requirements of the CLP Regulation is notably expected to be issued on 2 July. Intel suggests that the initiative may be followed by the issuance of a second part later this year.
While this will generate further uncertainties for the industry in the next months, the Commission has shown a strong interest towards input from the industry. Involvement in ongoing discussions with stakeholders is thus key for any industry actor willing to weigh in in the process before the finalization of the proposals this year.
A Headliner Upholding a State Ban on Transition Care for Transgender Minors Leads the Latest Five Decisions – SCOTUS Today
To anyone who has followed the case of United States v. Skrmetti, especially those who attended or listened to the oral argument, the U.S. Supreme Court’s 6–3 holding that a Tennessee law prohibiting certain medical procedures for transgender minors was not subject to heightened or strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment should have come as no surprise.
Although there was an array of concurring and dissenting opinions, the majority opinion, written by the Chief Justice, was joined by the Court’s other five jurisprudentially conservative Justices, while the three “liberals,” Justices Sotomayor, Kagan, and Jackson, dissented.
Joining more than 20 states that have restricted sex transition treatments for minors, Tennessee enacted a statute entitled “Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity” (SB1) that:
[P]rohibits healthcare providers from prescribing, administering, or dispensing puberty blockers or hormones to any minor for the purpose of (1) enabling the minor to identify with, or live as, a purported identity inconsistent with the minor’s biological sex, or (2) treating purported discomfort or distress from a discordance between the minor’s biological sex and asserted identity. At the same time, SB1 permits a healthcare provider to administer puberty blockers or hormones to treat a minor’s congenital defect, precocious puberty, disease, or physical injury.
Three transgender minors, their parents, and a physician challenged SB1 as violative of the Equal Protection Clause of the Fourteenth Amendment. Reversing a holding by the U.S. District Court for the Middle District of Tennessee, the U.S. Court of Appeals for the Sixth Circuit held that the law did not necessitate heightened scrutiny and otherwise satisfied rational basis analysis, and the Supreme Court affirmed.
The Supreme Court held that SB1 is not subject to heightened scrutiny under the Equal Protection Clause because its classifications are not sex-based. The two classifications that it does make are based upon age (restricting minors’ access to treatments available to persons over age 18) and upon medical use (permitting puberty blockers and hormones for minors for some conditions, but excluding gender dysphoria, gender identity disorder, or gender incongruence). Neither of these classifications turns on sex, and neither requires anything more than rational basis scrutiny.
The Court found no “invidious discriminatory purpose” or impermissible stereotypes that might trigger heightened scrutiny. In particular, SB1 doesn’t exclude anyone from medical treatments on the basis of transgender status. It simply removes one set of diagnoses—gender dysphoria, gender identity disorder, and gender incongruence—from the range of treatable conditions. “It distinguishes between minors who seek puberty blockers or hormones to treat the excluded treatments, and those minors who seek puberty blockers or hormones to treat other conditions. Although only transgender individuals seek treatment for gender dysphoria, gender identity disorder, and gender incongruence—just as only biological women can become pregnant—there is a ‘lack of identity’ between transgender status and the excluded diagnoses.”
The Supreme Court also rejected a comparison with Bostock v. Clayton County, 590 U. S. 644 (2020), where the Court had held that an employer who fires an employee for being gay or transgender violates the prohibition in Title VII of the Civil Rights Act of 1964 (“Title VII”) on discharging an individual “because of” their sex. Title VII’s “because of” test directs courts to “change one thing at a time and see if the outcome changes.” Applying that test, the Court held that the employer has penalized a member of one sex for a trait or action that it tolerates in members of the other. In the instant case, the Supreme Court declined to address whether Bostock’s reasoning reaches Title VII because the application of SB1 would be unaffected by a change in a minor’s sex or transgender status.
The Court went on to hold that SB1 satisfies the relaxed standard of rational basis review, under which the Court will uphold a statutory classification so long as there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” And here, there were many. While controversial, the state reasonably determined that administering puberty blockers or hormones to minors to treat gender dysphoria, gender identity disorder, or gender incongruence risks irreversible physical and mental consequences that minors lack the maturity to understand fully and often regret. In the end, the Court recognized that there is a cognizable debate about the science and policy concerning these medical treatments in an evolving field. Indeed, as the Chief Justice noted:
The voices in these debates raise sincere concerns; the implications for all are profound. The Equal Protection Clause does not resolve these disagreements. Nor does it afford us license to decide them as we see best. Our role is not “to judge the wisdom, fairness, or logic” of the law before us, . . . but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment. Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.
A final note on the case: The Court’s decision in Skrmetti left open questions concerning the role of parents with respect to the treatment of their transgender children who are minors, and of the permissible range of physician conduct given law enforcement risks. My colleagues consider these and related questions here.
Continuing our reporting of the most recent action in the Supreme Court, we turn to Perttu v. Richards, another case in which the Chief Justice delivered the opinion of the Court. Here, the lineup was decidedly different from that in Skrmetti, with the Chief being joined by the three liberals plus Justice Gorsuch, while Justice Barrett was joined in dissent by the other three conservatives. The case concerned the requirement of the Prison Litigation Reform Act (PLRA) for prisoners with complaints about prison conditions to exhaust available grievance procedures before filing suit in federal court. Such exhaustion is not required, however, when a prison administrator threatens an inmate in order to prevent their use of these grievance mechanisms.
In this case, Kyle Richards alleged that Thomas Perttu, a prison employee, had sexually harassed him and others, and when Richards attempted to file grievance papers, Perttu destroyed them and threatened to kill Richards if he refiled. The issue in the case was whether prisoners are entitled to a jury trial on the issue of PLRA exhaustion of remedies when that question is intertwined with a merits issue subject to jury trial under the Seventh Amendment.
The Court’s opinion was lengthy, but, resolving a split in the circuit courts, the answer was brief. Going back to cases that were taught when I was in law school in the 1960s, the Court held that while a court may resolve factual disputes when determining whether it has subject-matter jurisdiction, the PLRA prevents a court from doing so when the factual disputes are intertwined with the merits.
In Nuclear Regulatory Commission v. Texas, the Court considered proceedings under the Atomic Energy Act of 1954, which generally prohibits the private possession of nuclear materials, including spent nuclear fuel, without a license that the Nuclear Regulatory Commission (the “Commission”) has the power to issue.
Here, a private company, Interim Storage Partners (ISP), applied for such a license to build a facility in West Texas to store such spent nuclear fuel. During the licensing proceedings, a Texas government agency submitted comments on a draft environmental impact statement prepared by the Commission. Fasken Land and Minerals, another private company, also submitted comments and sought to intervene. That petition was denied, and Fasken unsuccessfully challenged that ruling before the whole Commission and then before the D.C. Circuit. When the Commission issued a license to ISP, Texas and Fasken sought review in the Fifth Circuit, which vacated ISP’s license.
The Supreme Court reversed. Justice Kavanaugh wrote for the Court (with Justices Gorsuch, Thomas, and Alito dissenting) that, under the Hobbs Act, Congress specified that only a “party aggrieved” by a Commission licensing order may seek judicial review. And because both Texas and Fasken were not parties to the Commission’s licensing proceeding, they were not entitled to review of ISP’s award. Fasken, in particular, was barred because it had not sought en banc review in the Circuit Court or relief from the Supreme Court. With regard to both, the Court rejected the argument that they didn’t need to be parties to challenge ultra vires agency action under an exception that the Court held is to be applied narrowly. Because it held that neither Texas nor Fasken had the right of judicial review, the Court declined to decide whether the Commission had statutory authority to issue a license to ISP.
In Environmental Protection Agency v. Calumet Shreveport Refining, L.L.C., Justice Thomas delivered the opinion of the Court and was joined by both conservative and liberal colleagues, save for Justice Gorsuch, who, with the Chief Justice, dissented. Again, the decisions were lengthy, but the holding was simple. Under the Clean Air Act’s (CAA’s) venue provisions, challenges to “nationally applicable” Environmental Protection Agency (EPA) actions belong in the D.C. Circuit, while challenges to “locally or regionally applicable” EPA actions ordinarily belong in a regional circuit. However, the CAA makes an exception for local or regional actions that are “based on a determination of nationwide scope or effect” and accompanied by an EPA finding of this basis, which also must be challenged in the D.C. Circuit.
The Court applied this framework to the EPA’s 2022 denials of certain small refineries’ exemption petitions, holding that the refineries’ challenges belonged in the D.C. Circuit. While the EPA’s denials were only locally or regionally applicable, they fell within the “nationwide scope or effect” exception. In deciding whether an action is “nationally applicable” or only “locally or regionally applicable,” the Court acknowledged that the governing statute does not define the terms. So, the Court sensibly gave them their ordinary meaning, citing various dictionary definitions. The Gorsuch dissent conceded much in common with the majority but took issue with its multistep approach to determining whether the EPA’s actions were properly based on a determination of nationwide scope or effect.
I’ll confess limited interest in this EPA case itself, but I wonder whether the Court’s venue analysis will somehow predict the outcome of a future Court decision where a nationwide injunction is under challenge. That remains to be seen.
Finally, at least for this round, Justice Thomas and the EPA came back on stage with an opinion in another CAA case, Oklahoma v. Environmental Protection Agency. As noted previously, the CAA directs challenges to EPA actions to the D.C. Circuit if they are “nationally applicable” and to a regional circuit if they are only “locally or regionally applicable.” And again, the CAA has an exception for certain “locally or regionally applicable” actions “based on a determination of nationwide scope or effect,” which also must be brought in the D.C. Circuit.
In 2015, the EPA mandated more stringent national ambient air quality standards (NAAQS) for ozone. Each state submitted a state implementation plan (SIP) with regard to compliance with a “Good Neighbor” provision that requires SIPs to “contain adequate provisions” “prohibiting” in-state emissions activity that would interfere with other states’ NAAQS compliance. The EPA ultimately disapproved 21 states’ SIPs for failure to comply with the Good Neighbor provision. These states had asserted they did not need to propose new emissions-reduction measures, but the EPA disagreed based on independent consideration of each of the states’ submissions “on its own merits” and making individual determinations for each SIP.
Having stated in the Federal Register how it applied a “4-step framework” for evaluating SIP submissions, the “EPA asserted in the rule that its disapprovals would be reviewable only in the D.C. Circuit as either nationally applicable actions or, alternatively, as locally or regionally applicable actions falling within the ‘nationwide scope or effect’ exception based on EPA’s use of ‘the same, nationally consistent 4-step . . . framework’ and its evaluation for ‘national consistency.’”
States and industry petitioners challenged the EPA’s SIP disapprovals in regional circuits. Four of five circuits that ruled on the EPA’s motions to dismiss or transfer held that regional circuit review was proper. The Tenth Circuit, however, disagreed, granting the EPA’s motion to transfer suits by Oklahoma and Utah. The Tenth Circuit order was based upon the view that the EPA’s omnibus rule constituted a single, nationally applicable action, given its multistate application of “a uniform statutory interpretation and common analytical methods.”
Reversing the Tenth Circuit, the Supreme Court held that the EPA’s disapprovals of the Oklahoma and Utah SIPs are locally or regionally applicable actions reviewable in a regional circuit. In so holding, the Supreme Court applied the methodology discussed above in Calumet Shreveport Refining, L.L.C. Thus, a venue determination under the CAA “requires a two-step inquiry. First, courts identify the relevant EPA ‘action’ and ask whether it is ‘nationally applicable’ or only ‘locally or regionally applicable.’ If nationally applicable, challenges belong in the D.C. Circuit. If locally or regionally applicable, courts proceed to the second step to determine whether the ‘nationwide scope or effect’ exception applies to override the default rule of regional Circuit review.”
Here, the SIP disapprovals were based on state-specific plans, and the disapprovals were “undisputedly locally or regionally applicable actions.” Accordingly, the judgment of the Tenth Circuit was reversed and the case remanded. A sidenote: In this case, as in Calumet Shreveport Refining, Justice Thomas’s opinion was joined by all the other Justices except Justice Gorsuch, who, along with the Chief Justice, dissented, while Justice Alito recused himself.
Another interesting day, with the Court getting into the tough ones with pronounced divisions among the Justices. We’re in a race to the finish of the term, so stay tuned.
IDEM Seeks Public Input on Environmental Regulations — Comments Due by June 30
The Indiana Department of Environmental Management (IDEM) is actively soliciting public input on existing environmental regulations and policies that may be outdated, overly burdensome, or unsupported by current science or law. This comment period presents a rare and time-sensitive opportunity for businesses, municipalities, trade associations, and individuals across Indiana to highlight environmental rules that may be impacting operations or creating burdensome compliance costs.
Deadline to Submit Comments: June 30, 2025
Comments should be submitted via email to: [email protected]
More information: IDEM Public Notice
Why This Matters
On March 12, 2025, Governor Braun issued Executive Order 25-38, Creating Opportunity through Reduction of Excessive Environmental Regulation. The order mandates that Indiana agencies review existing environmental rules and identify those that are:
More stringent than corresponding federal requirements (unless mandated by Indiana law or approved by the Governor’s Office);
Unduly burdensome to businesses or communities;
Increasing costs without delivering environmental benefit; or
Unsupported by current law or the best available science.
IDEM, as a key implementing agency, has been tasked with compiling public feedback to inform its regulatory review process. All comments will be considered as part of the agency’s formal report due to the Governor and Legislative Council by year-end.
Key Considerations for Stakeholders
IDEM encourages commenters to be specific. Stakeholders should reference applicable sections of the Indiana Administrative Code, provide supporting data (e.g., cost impacts, compliance burdens), and offer concrete recommendations for repeal, replacement, or modification of regulations.
This call for input follows a broad shift in administrative priorities. The Braun administration has appointed new senior leadership at IDEM — including a new commissioner, chief of staff, and general counsel — and created a new state Secretary of Energy and Natural Resources, underscoring the administration’s stated goal of practical regulation and limited agency overreach.
The environment for regulatory feedback has meaningfully changed. This is an opportunity for organizations to present meaningful, constructive input — whether on major systemic issues or narrower rules impacting daily operations.
Timothy J. Junk, Jessica Reiss, Anthony C. Sullivan, and Kathleen Waak also contributed to this article.
The Shifting Nature of the PFAS Regulatory Landscape
Per- and polyfluoroalkyl substances (PFAS) are a class of thousands of human-made chemicals used across a number of industries. Their durability makes them ideal for various uses like stain protection in textiles, machine lubricants, and fire suppression. That same durability has led to their more common name, forever chemicals, as they do not break down easily in the environment and can persist in the human body for long periods. PFAS have been associated with an increased risk of certain cancers, hormone disruption, reproductive harm, and abnormal fetal development but the science is severely limited. The slow pace of study has made enforcement of rules regarding PFAS inconsistent (and the subject of legal challenges) and has caused a substantial amount of confusion and uncertainty among industry, municipalities, and consumers.
The two most studied PFAS, perfluorooctonesulfonate (PFOS) and perfluorooctanoic acid (PFOA), are now subject to federal and state drinking water maximum contaminant levels (MCLs) but the landscape is frequently shifting as the winds of politics blow and our understanding of this class of chemicals grows. The United States Environmental Protection Agency’s (USEPA’s) current Administrator, Lee Zeldin, made PFAS a clear priority and has acted quickly to make his mark on the regulatory landscape. While we have gained some regulatory clarity regarding PFAS, uncertainty still rules the day and will continue to frustrate decisionmakers for the foreseeable future. Municipalities, in particular, will be burdened with significant costs and potential liabilities as our state and federal governments continue developing the PFAS regulatory scheme.
The particular pain visited upon municipalities
Drinking water standards now exist and seem only to be getting more stringent as the science develops. The Wisconsin Department of Natural Resources (WDNR) and USEPA tend to give local governments considerable leeway, but the push to address PFAS is considerable and the need to protect drinking water is monumental. It’s only a matter of time before municipalities start being put on compliance schedules and potentially penalized for failing to act or to act timely. PFAS presents confusion across the board, but it will be felt most acutely by municipalities charged with providing safe drinking water to their communities.
What can Wisconsin municipalities do now to begin planning for compliance requirements?
Get a clear picture of the PFAS status in their water systems by conducting PFAS-specific sampling. Next, conduct a full top-to-bottom diagnosis of the technological shortcomings of the water treatment systems to identify where the current system falls short of meeting the oncoming standards. Next, assess system upgrades and identify revenue sources for these upgrades. There may be state and federal financial assistance available to help with those upgrades. Finally, make sure to assess whether any class action settlement resources are being maximized. But don’t ignore this problem and hope it goes away. If it feels like too high a hill to climb, then strategize with your team, consultants, and attorneys to identify the best path forward to safeguard your constituents and your resources.
The particular pain visited upon manufacturers and importers
Hazardous substance law—particularly the Superfund law—tends to be objectively unfair to manufacturers and importers as it can place strict and retroactive liability on parties guilty of simply producing goods with certain constituents at a time when no one knew those constituents posed any risks. Furthermore, the strict and joint and several liability schemes of most hazardous substance laws essentially shift the burden of proof to potentially responsible parties making them either prove they had no part in the contamination or their part was minimal enough to be let off the hook. As PFAS regulations continue to be developed, manufacturers and importers need to be prepared to defend themselves in lengthy and costly battles with state and federal authorities and among their peers in contribution actions. It is abundantly clear that PFAS liability is not going away and all parties would do well to gird themselves against unexpected consequences of the regulatory landscape by not only preparing the reports detailed below, if required, but by reviewing company, property, and other historical records for potential PFAS liability. Just like municipalities, industry would do well to strategize with their team, consultants, and attorneys to identify the best path forward to minimize risk and limit liability.
Status of PFAS in Wisconsin
In Wisconsin, PFOS and PFOA are subject to a 70 parts per trillion standard for drinking water. This might seem like a fairly low maximum, but it is far more liberal than the federal 4 parts per trillion standard. Now that the USEPA has established a limit of 4 parts per trillion, Wisconsin must change its enforcement standard to align with federal standards, as required by the Safe Drinking Water Act. The DNR is working to implement the federal standard, but rulemaking is a slow process. Our governments are working as fast as the bureaucracy allows to provide clarity and consistency.
Wisconsin has primary enforcement authority under most Clean Water Act programs, including our Wisconsin Pollutant Discharge Elimination System (WPDES). Facilities discharging to surface water or groundwater in Wisconsin need a permit to do so, and those permits are reviewed and granted by WDNR, subject to USEPA review and possible veto. The WDNR is still in the early stages of permitting PFAS discharges but it has promulgated a surface water quality standard. The application of that standard is complex and includes a measured rollout to minimize unnecessary and heavy-handed enforcement actions. The initial phase of that rollout is a permit requirement to monitor PFOS and PFOA effluent in select new and modified WPDES permits. If a discharge causes or contributes to an exceedance of a PFAS surface water quality standard, the permittee will be put on a pollution minimization plan typically requiring substantial investment in new technology. WPDES permittees or hopeful permittees should be thinking about PFAS now as their permit or renewal applications will require a consideration of PFAS in discharges.
As of now, however, Wisconsin has not promulgated groundwater standards—despite groundwater contamination being one of the main drivers for WDNR decisions whether to issue a “No Further Action” Letter to close a cleanup action. Property owners need to start preparing for the day groundwater standards are established by considering and implementing risk mitigation strategies now such as conducting groundwater testing to determine the extent of their potential risk and proactively addressing contamination where feasible.
Status of PFAS in Surrounding States
Minnesota
Minnesota has been executing its PFAS Blueprint since 2020, beginning with prohibiting PFAS-laden firefighting foam in testing or training, then prohibiting intentionally added PFAS in 11 categories of products, and soon with reporting requirements for manufacturers selling products containing intentionally added PFAS. Minnesota’s PFAS Blueprint will continue to be rolled out through 2032. The January 2026 reporting requirements introduce a new heavy burden on manufacturers selling products in Minnesota. Manufacturers failing to submit a timely report would be barred from selling products in Minnesota until the report is submitted. Defined “covered manufacturers” would do well to prepare for those requirements now before they are prohibited from selling products in Minnesota until the report is submitted.
Illinois
On March 25, 2025, Governor J.B. Pritzker signed a law which requires the Illinois Pollution Control Board to adopt rules to establish PFAS drinking water standards “identical in substance” to the USEPA standards. Municipalities and manufacturers alike should be aware of these oncoming standards and keep an eye on the rulemaking process as we all learn what precisely “identical in substance” means. On April 11, 2025, Illinois also established groundwater quality standards for six PFAS (PFOA, PFOS, PFNA, PFHxS, PFNS, and GenX). Public water systems in Illinois should be aware of these new standards and any obligations they impose. Manufacturers should similarly be aware of these standards as they could trigger costly and burdensome groundwater cleanup requirements.
Michigan
Michigan established drinking water standards for public drinking water supplies in 2020. Those standards cover 7 PFAS (PFOA, PFOS, PFNA, PFHxA, PFHxS, PFBS, and GenX) and are subject to ongoing litigation. These standards, if allowed to stand by the Supreme Court of Michigan, would trigger a groundwater cleanup requirement that could burden numerous responsible manufacturers with costly cleanups.
USEPA Developments
TSCA Reporting
Under the federal Toxic Substances Control Act (TSCA), USEPA must promulgate a rule to require each person who manufactures or manufactured PFAS in any year since 2011 to report information regarding PFAS uses, production volumes, disposal, exposures, and hazards. In October 2023, USEPA promulgated that rule with an original reporting deadline of November 12, 2024, which was extended to July 2025. Last month, however, USEPA extended the reporting deadline once again. The reporting deadline is now October 13, 2026, with an alternate deadline of April 13, 2027, for small businesses reporting solely on PFAS articles imported. The delay gives manufacturers more time to review records and gather necessary data to meet reporting requirements.
Water Standards
A Biden-era rule set drinking water standards for six PFAS, including PFOA and PFOS. On May 14, 2025, USEPA Administrator Zeldin announced USEPA would be keeping the MCLs for PFOA and PFOS but would initiate rulemaking to repeal the MCLs for the four additional PFAS (PFHxS, PFNA, GenX, as well as the novel hazard index mixture of these three plus PFBS).
These changes are consistent with Administrator Zeldin’s emphasis on substantiated science and a desire to roll back what the administration views as regulatory overreach leftover from the Biden administration. As science continues studying this class of chemicals, we can expect to see new drinking water quality standards as well as the first enforceable standards under the National Pollutant Discharge Elimination System.
CERCLA and the Spill Law? Who knows.
The PFAS regulatory scheme under CERCLA and the Wisconsin Spill Law continues to be hard to pin down. PFOA and PFOS were designated hazardous substances by the Biden administration—a necessary definition under CERCLA, but as of this writing Administrator Zeldin has not signaled whether that designation will remain. It’s likely any movement on PFAS under CERCLA will wait until Congress has acted to limit liability for passive receivers of PFAS. Under CERCLA’s strict liability scheme, passive receivers of PFAS, like landfills and water utilities, would be on the hook for clean-up costs. Groups representing these entities have been lobbying Congress to carve out an exemption for years.
The status of PFAS under Wisconsin’s Spill Law is the subject of a much-anticipated Wisconsin Supreme Court decision. WDNR has long enforced the Spill Law with a novel approach, sometimes determining what is a “hazardous substance” under Wisconsin law essentially on a case-by-case basis. At issue before the Court is a March 6, 2024 decision by the Wisconsin Court of Appeals determining that DNR failed to follow proper rulemaking procedure when it decided to regulate PFAS as a hazardous substance. Should the Wisconsin Supreme Court affirm that decision, WDNR’s historic flexible use of the Spill Law would be neutered. However, if the Court reverses the decision we can expect to see more Spill Law actions undertaken to address PFAS contamination. The Wisconsin Supreme Court is expected to hand down that decision any day.
EPA Releases Draft Charge Questions for SACC Meeting on Phthalates and Memorandum on Proposed Refinement for Estimating DBP Skin Exposures
On June 16, 2025, the U.S. Environmental Protection Agency (EPA) announced the release of the draft charge questions for discussion at the upcoming Science Advisory Committee on Chemicals (SACC) meeting to review all documents released thus far on the risk evaluations of five phthalates. SACC will review the draft risk evaluations for dibutyl phthalate (DBP), di(2-ethylhexyl) phthalate (DEHP), and dicyclohexyl phthalate (DCHP), as well as cross-cutting documents related to DBP, DEHP, DCHP, butyl benzyl phthalate (BBP), and diisobutyl phthalate (DIBP). In addition, EPA also released a memorandum describing a proposed refinement of the approach for estimating skin exposures for DBP.
EPA will hold the virtual public meeting of SACC on August 4-8, 2025, where the charge questions will guide the discussion. EPA will also hold a preparatory virtual public meeting on July 21, 2025, for SACC and the public to consider and ask questions regarding the scope and clarity of the draft charge questions. EPA states that it will publish registration links for the August SACC meeting and July preparatory meeting on the SACC website approximately one month prior to each meeting. If the public would like their comments on the documents related to the phthalates to be considered by the SACC during the peer review meeting, they must be submitted by July 21, 2025.
EPA Proposes RFS Standards for 2026 and 2027, Will Hold Hearing on July 8, 2025
The Clean Air Act (CAA) requires the U.S. Environmental Protection Agency (EPA) to determine the applicable volume requirements for the Renewable Fuel Standard (RFS) for years after those specified in the statute. On June 17, 2025, EPA proposed the applicable volumes and percentage standards for 2026 and 2027 for cellulosic biofuel, biomass-based diesel (BBD), advanced biofuel, and total renewable fuel. 90 Fed. Reg. 25784. EPA notes that the proposed rule also includes a number of regulatory changes, including reducing the number of Renewable Identification Numbers (RIN) generated for imported renewable fuel and renewable fuel produced from foreign feedstocks and removing renewable electricity as a qualifying renewable fuel under the RFS program (eRIN). EPA requests comment on the proposals and supporting rationales, including on the proposed changes to the RFS program and “any legitimate reliance interests that EPA should consider” during the rulemaking. EPA states that the proposed volume requirements and regulatory changes “would strengthen the RFS program and sharpen the program’s focus on a central goal of the policy: supporting domestic production of renewable fuels.” According to EPA, the proposed modifications and requirements “are responsive to input from key agricultural and energy stakeholders on ways to bolster the RFS program.” Comments are due August 8, 2025. Additional resources are available on EPA’s website.
In a separate June 17, 2025, notice, EPA announced a virtual public hearing to be held on July 8, 2025, on the proposed rule. 90 Fed. Reg. 25614. EPA will hold an additional session on July 9, 2025, if necessary, to accommodate the number of people who sign-up to testify. To attend the virtual public hearing, all attendees (including those who will not be presenting verbal testimony) must register by sending an e-mail to [email protected]. A separate registration form must be submitted for each person attending the hearing. Registration is due no later than July 1, 2025.