Potential Rollback of Biden’s Climate Policies Targets Billions in Clean Energy Projects
According to media reports, Energy Department officials are compiling a list of clean energy projects, awarded billions of dollars, that could be overturned by the Trump administration in what may become the most significant rollback of the Biden administration’s climate policies to date.
The list, requested by Trump administration officials and expected to be completed any day, includes projects funded through the Inflation Reduction Act, bipartisan infrastructure law, and regular appropriations, according to the Politico report. Projects or programs that have spent less than 45 percent of their allocated or awarded funding reportedly are subject to review.
According to the published report, the initial list of projects recommended for elimination includes:
$8 billion for hydrogen hubs;
$7 billion for carbon capture hubs;
$6.3 billion for industrial demonstrations;
$500 million for long-duration energy storage;
$133 million for the Liftoff program for accelerating new technology development; and $50 million for distributed energy programs.
While we are watching the situation closely, the Trump Administration has yet to comment on the Politico report or the specifics of such a list of targeted projects. However, the administration and Congressional Republicans already have targeted Environmental Protection Agency (EPA) grants and funding allocated by the Biden Administration. Days ago, a Congressional committee asked interim EPA Administrator Lee Zeldin for a briefing on grants and funding awarded by the agency under the Biden Administration.
If you are a private company, nonprofit or university that has received a guaranteed loan, grant, or contract that has been identified for elimination:
FIRST – Look to the four corners of the agreement with the Federal government to understand the terms that define available remedies.
SECOND – Take administrative action as directed by the agreement or other legal provisions (the Code of Federal Regulations, Federal Acquisition Regulations).
THIRD – Consider challenging it in court, while weighing the political considerations against business realities.
FOURTH – Maintain detailed documentation of the cost and time impacts associated with any modifications or terminations of agreements.
FIFTH – Communicate with your subcontractors and suppliers about potential impacts.
Additionally, it may be prudent to consider direct advocacy before Congress and the Administration, leveraging memberships in trade associations or directly engaging with elected officials.
PFAS Bans Go into Effect; Manufacturers Attempt to Push Back on Regulations
Many states have enacted or plan to enact new regulations regarding the manufacturing of products containing per- and polyfluoroalkyl substances (“PFAS”), also known as “forever chemicals,” because they do not easily break down in the environment and human body. For example, on January 1, 2025, both New York[1] and California[2] banned the sale of any new, not previously used, apparel and certain other products containing added PFAS, while Minnesota[3] banned broad categories of products containing PFAS. More specifically, the Minnesota statute, titled Amara’s Law, prohibits the sale or distribution of the following products if the product contains intentionally added PFAS: (1) carpets or rugs; (2) cleaning products; (3) cookware; (4) cosmetics; (5) dental floss; (6) fabric treatments; (7) juvenile products; (8) menstruation products; (9) textile furnishings; (10) ski wax; and (11) upholstered furniture. The law makes no exceptions for products in these categories, provides no extensions, even if no PFAS alternatives are available, and allows expansion to include additional products if the products contain intentionally added PFAS that are likely to harm Minnesota’s environment and natural resources. Violations of the statute can result in fines, civil penalties, or criminal prosecution. Other states have similar bans set to take effect over the next several years.[4]
Like many similar regulations, Amara’s Law is currently being challenged. The Cookware Sustainability Alliance (“CSA”), a national conglomerate of members who manufacture, offer, and sell cookware containing PFAS, recently filed a complaint in the United States District Court for the District of Minnesota.[5] CSA alleges that Amara’s Law violates the Constitution’s commerce clause and dormant commerce clause, imposes an undue burden on interstate commerce, and that its disclosure requirement (which goes into effect in 2026 and requires reporting PFAS products to the Minnesota Pollution Control Agency) violates the First Amendment in addition to being preempted by federal trade secret law. CSA filed a motion seeking a preliminary injunction to enjoin the enforcement of Amara’s Law, which was denied February 26, 2025. CSA has until March 28, 2025, to appeal the Judgment.
Thousands of lawsuits have already been filed across the country focused on the alleged harm caused by PFAS exposure, while state regulators, such as those noted above, attempt to limit their use. Some have called the proliferation of PFAS litigation the “next asbestos,” with significant potential liability to insurers and their corporate policyholders. With similar PFAS bans set to take effect in other states in the coming years, mounting litigation surrounding the use of PFAS, and an insurance landscape that is seeing a spike in PFAS-related claims leading to new PFAS-specific exclusions in policies, all eyes will surely be tracking these hot-button topics in 2025 and beyond.
[1] NY ECL §§ 37-0121, 71-3703.
[2] CA HLTH & S §§ 108970, 108971.
[3] Minn. Stat. § 116.943.
[4] See, e.g., Colo Rev Stat §§ 25-15-601 to 25-15-605, Me Rev Stat T. 38 § 1614, RI Gen Laws § 23-18.18-1, et seq.
[5] Cookware Sustainability Alliance v. Kessler, Civ. No. 0:25-cv-41, ECF No. 1.
EU CSDDD Under US Pressure: Some Insights on the PROTECT USA Act
The European Commission’s (EC) recent announcement of the Omnibus Simplification Proposals signals that it has heard the challenges and objections raised by companies affected by the new requirements of the Corporate Sustainability Reporting Directive (CSRD) and Corporate Sustainability Due Diligence Directive (CSDDD). But in the US, Senator Bill Hagerty (R-TN), a member of the Senate Banking Committee, has introduced legislation that could impose substantial challenges to CSDDD compliance for US companies.
As a reminder, the EC proposed amendments for the implementation and transposition deadlines of the CSRD and CSDDD, as well as amending the scope and requirements of the CSRD and CSDDD. But the Prevent Regulatory Overreach from Turning Essential Companies into Targets Act of 2025 (PROTECT USA Act)[1] proposed by Senator Hagerty targets “foreign sustainability due diligence regulation” such as the CSDDD, and would prohibit US companies from being forced to comply with the CSDDD. If enacted as currently drafted, US companies will be faced with a significant conflict in complying with the PROTECT USA Act and the CSDDD.
Further, the PROTECT USA Act intends to protect US companies from any enforcement action by the EU or its member states for non-compliance with the CSDDD. Section 5(a) of the PROTECT USA Act states: “No person may take any adverse action towards an entity integral to the national interests of the United States for action or inaction related to a foreign sustainability due diligence regulation.”[2] And § 5(b) prevents U.S. federal or state courts from enforcing any judgment by a foreign court relating to any foreign sustainability due diligence regulation “unless otherwise provided by an Act of Congress.”[3]
The PROTECT USA Act could apply to a significant number of US companies, defining “an entity integral to the national interest of the United States” as “any partnership, corporation, limited liability company, or other business entity that does business with any part of the Federal Government, including Federal contract awards or leases.”[4] It also includes entities:
[O]rganized under the laws of any State or territory within the United States, or of the District of Columbia, or under any Act of Congress or a foreign subsidiary of any such entity that—
(i) derives not less than 25 percent of its revenue from activities related to the extraction or production of raw materials from the earth, including—
(I) cultivating biomass (whether or not for human consumption);
(II) exploring or producing fossil fuels;
(III) mining; and
(IV) processing any material de-rived from an activity described in subclause (I), (II), or (III) for human use or benefit;
(ii) has a primary North American Industry Classification System code or foreign equivalent associated with the manufacturing sector; or
(iii) derives not less than 25 percent of its revenue from activities related to the mechanical, physical, or chemical transformation of materials, substances, or components into new products;
(iv) is engaged in—
(I) the production of arms or other products integral to the national defense of the United States; or
(II) the production, mining, or processing of any critical mineral.[4]
And the PROTECT USA Act has a catch-all that will apply to any entity “the President otherwise identifies as integral to the national interests of the United States.”[5]
The PROTECT USA Act builds on opposition to the CSDDD raised during the Biden Administration and, given the Republican majorities in both the US House and Senate, advances the argument that the CSDDD challenges US sovereignty. In a February 26, 2025 bicameral letter to Scott Bessent, the Secretary of the US Department of the Treasury and Kevin Hassett, the Director of the White House National Economic Council, legislators described the CSDDD as “a serious and unwarranted regulatory overreach, imposing significant economic and legal burdens on U.S. companies.”[6] Thus, the PROTECT USA Act may serve as an incentive to further limit the scope of the CSDDD.
We recently reviewed how companies should address CSRD requirements while the EC works through the Omnibus Simplification Proposals.[7] The PROTECT USA Act adds an additional layer of complexity for US companies in navigating the uncertainty of the EC’s legislative process along with the significant limits the PROTECT USA Act might present. SPB’s policy experts in the US and EU can support companies in making prudent business decisions in a rapidly changing legislative environment.
[1] https://www.hagerty.senate.gov/wp-content/uploads/2025/03/HLA25119.pdf
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] https://www.banking.senate.gov/imo/media/doc/csddd_letter_to_treasury-nec_draft_22525_zg.pdf.pdf
[7] https://natlawreview.com/article/what-should-companies-do-csrd-while-they-wait-eu-make-its-mind
Executive Order Mandates Immediate Action to Accelerate Funding for Domestic Mineral Production and Processing
On March 20, 2025, President Trump signed an executive order titled Immediate Measures to Increase American Mineral Production identifying immediate actions to boost the production of critical minerals within the United States. This executive order builds on the Unleashing American Energy executive order issued on January 20, 2025, which emphasized, among other things, a priority to establish the United States’ position as the leading producer and processor of non-fuel minerals, including rare earth minerals. This executive order outlines concrete steps to facilitate domestic mineral production and processing as part of a broader strategy to enhance national security, reduce reliance on foreign mineral supplies, reduce regulatory barriers, and promote domestic job creation and industry. In addition to key measures intended to streamline permitting outlined in our post last week, this executive order mandates coordination among various federal agencies to facilitate and support private and public capital investment in domestic mineral production and processing projects. The order:
Taps DFC loan authority to advance domestic mineral production under DPA: The order delegates to each of the Secretary of Defense and the CEO of the United States International Development Finance Corporation (DFC), in consultation with other relevant agencies, various authorities under the Defense Production Act (DPA) to facilitate domestic production and development of strategic resources essential for advancing mineral production. Notably, the DFC is authorized to issue “loans that create, maintain, protect, expand, or restore domestic mineral production” and to adopt related rules and regulations. The order mirrors the grant of similar authorities to the DFC CEO under the first Trump administration to support industrial base capabilities in response to the COVID-19 emergency.
Highlights domestic mineral funding opportunities under EXIM: Highlighting the existing Supply Chain Resiliency Initiative and the Make More in America Initiative, the order directs the President of the Export-Import Bank of the United States (EXIM) to release guidance for using mineral and mineral production financing tools under these programs to support domestic mineral production and lock in guaranteed access to critical minerals from oversea suppliers by securing offtake agreements of global raw mineral feedstock for domestic minerals processing.
Mandates disclosure relief to streamline funding applications: Agencies empowered to make loans, loan guarantees, grants, equity investments, or offtake agreements in connection with securing vital mineral supply chains are directed to take steps to rescind policies requiring applicants to submit disclosures required by Regulation S-K part 1300 for funding applications.
Activates other agencies to support domestic mineral production and supply chain resiliency: Other agencies are also directed to take urgent steps to support and facilitate domestic mineral production, including:
Use of the National Security Capital Forum to connect private capital with commercially viable domestic mineral production projects;
Addition of mineral production as a priority area for the Industrial Base Analysis and Sustainment Program;
Establishment of a dedicated mineral and mineral production fund using Department of Defense investment authorities to support domestic investments in mineral production;
Convening buyers of minerals and working toward an announced request for bids to supply minerals; and
Soliciting recommendations from the Small Business Administration for legislation to enhance private-public capital activities supporting small businesses in mineral production.
Additional guidance from DFC, EXIM, and other agencies regarding these programs and initiatives is expected to be issued within 30-45 days after the order was published on March 20. Hunton’s leading Agency Finance team, which regularly advices on DFC and EXIM loans and was instrumental in implementing transactions for DFC under the precedent DPA loan program, is watching these developments closely.
Canada Releases Final State of PFAS Report and Proposed Risk Management Approach
On March 5, 2025, Environment and Climate Change Canada (ECCC) announced the availability of its final State of Per- and Polyfluoroalkyl Substances (PFAS) Report (State of PFAS Report) and proposed risk management approach for PFAS, excluding fluoropolymers. The State of PFAS Report concludes that the class of PFAS, excluding fluoropolymers, is harmful to human health and the environment. To address these risks, on March 8, 2025, Canada published a proposed order that would add the class of PFAS, excluding fluoropolymers, to Part 2 of Schedule 1 to the Canadian Environmental Protection Act, 1999 (CEPA). ECCC states in its March 5, 2025, press release that it will prioritize the protection of health and the environment while considering factors such as the availability of alternatives. Phase 1, starting in 2025, will address PFAS in firefighting foams to protect better firefighters and the environment. Phase 2 will focus on limiting exposure to PFAS in products that are not needed for the protection of human health, safety, or the environment. ECCC notes that this will include products like cosmetics, food packaging materials, and textiles. ECCC states that it will publish a final decision on the proposed addition of 131 individual PFAS to the National Pollutant Release Inventory (NPRI) with reporting to take place by June 2026 for PFAS releases that occurred during the 2025 calendar year. ECCC states that these data will improve its understanding of how PFAS are used in Canada, help it evaluate possible industrial PFAS contamination, and support efforts to reduce environmental and human exposure to harmful substances. Comments on the proposed risk management approach and the proposed order to add the class of PFAS, excluding fluoropolymers, to CEPA Schedule 1 Part 2 are due May 7, 2025.
State of PFAS Report
The State of PFAS Report provides a qualitative assessment of the fate, sources, occurrence, and potential impacts of PFAS on the environment and human health to inform decision-making on PFAS in Canada. The term PFAS refers to the Organisation for Economic Co-operation and Development’s definition, which is: “fluorinated substances that contain at least one fully fluorinated methyl or methylene carbon atom (without any H/Cl/Br/I atom attached to it), that is, with a few noted exceptions, any chemical with at least a perfluorinated methyl group (–CF3) or a perfluorinated methylene group (–CF2–) is a PFAS.” The class of PFAS is comprised of substances meeting this definition. ECCC states that the definition captures substances with a wide range of structures and properties, from discrete chemicals, such as perfluorocarboxylic acids, perfluorosulfonic acids, and fluorotelomer alcohols, to side-chain fluorinated polymers, perfluoropolyethers, and fluoropolymers. According to ECCC, some PFAS on the market also possess structural attributes other than perfluoroalkyl chains (for example, inclusion of ether linkages or chlorine atoms in the fluorinated hydrocarbon chains).
The State of PFAS Report notes that there is evidence to suggest that fluoropolymers may have significantly different exposure and hazard profiles when compared with other PFAS in the class. ECCC defines fluoropolymers as “polymers made by polymerization or copolymerization of olefinic monomers (at least 1 of which contains fluorine bonded to 1 or both of the olefinic carbon atoms) to form a carbon-only polymer backbone with fluorine atoms directly bonded to it.” According to ECCC, given information suggesting their differences from the other PFAS in the class, additional work on fluoropolymers is warranted. ECCC does not address PFAS meeting the definition of fluoropolymers within the State of PFAS Report. ECCC plans to consider them in a separate assessment.
According to the State of PFAS Report, the following is known on the basis of current information:
The broad use of PFAS, their transport in the environment, and their ubiquitous presence have resulted in continuous environmental and human exposure to multiple PFAS, a finding that is supported by both environmental monitoring and human biomonitoring studies, including higher exposures in certain human subpopulations;
Given that PFAS are extremely persistent and have a broad range of uses leading to continued releases to the environment, the amount of PFAS in the environment is expected to increase;
Exposure to well-studied PFAS can affect multiple systems and organs in both humans and wildlife. Recent information demonstrates that effects on human health occur at lower levels than indicated by previous studies;
Some well-studied PFAS have demonstrated the potential to bioaccumulate and biomagnify in food webs to an extent that can cause adverse effects in biota, even at low environmental concentrations; and
Potential for cumulative exposure and effects are important considerations as most humans and wildlife exposures occur to unknown mixtures of PFAS.
On the basis of what is known about well-studied PFAS and the potential for other PFAS to behave similarly, and on the expectation that combined exposures to multiple PFAS increase the likelihood of detrimental impacts, ECCC states that it concludes that the class of PFAS, excluding fluoropolymers, meets the criteria under CEPA Section 64(a) as these substances are entering or may enter the environment in a quantity or concentration or under conditions that have or may have immediate or long-term harmful effects on the environment or its biological diversity. ECCC concludes that the class of PFAS, excluding fluoropolymers, does not meet the criteria under CEPA Section 64(b), however, as these substances are not entering the environment in a quantity or concentration or under conditions that constitute or may constitute a danger to the environment on which life depends.
According to the State of PFAS Report, on the basis of what is known about well-studied PFAS and the potential for other PFAS to behave similarly, and on the expectation that combined exposures to multiple PFAS increase the likelihood of detrimental impacts, ECCC concludes that the class of PFAS, excluding fluoropolymers, meets the criteria under CEPA Section 64(c) as these substances are entering or may enter the environment in a quantity or concentration or under conditions that constitute or may constitute a danger in Canada to human life or health.
ECCC therefore concludes that the class of PFAS, excluding fluoropolymers, meets one or more of the criteria set out in CEPA Section 64.
According to the State of PFAS Report, well-studied PFAS meet the persistence criteria set out in the Persistence and Bioaccumulation Regulations of CEPA. Based on available information and structural similarities, ECCC expects that other substances within the class of PFAS are also highly persistent or transform to persistent PFAS. ECCC states that it therefore determines that the class of PFAS meets the persistence criteria as set out in the Persistence and Bioaccumulation Regulations of CEPA. ECCC notes that given that fluoropolymers have been excluded from this assessment, they are also excluded from this determination with regard to the Persistence and Bioaccumulation Regulations of CEPA.
ECCC states that there is a high concern identified for the biomagnification (BMF) and trophic magnification (TMF) potential of well-studied PFAS in air-breathing organisms; the numeric criteria for bioaccumulation, outlined in the Persistence and Bioaccumulation Regulations, however, are based on bioaccumulation data for freshwater aquatic species that do not account for biomagnification potential. Therefore, application of the criteria would not reflect the concern for dietary-based biomagnification, the primary route of food web exposure identified for well-studied PFAS. As a result, according to ECCC, the bioaccumulation potential of PFAS cannot reasonably be determined according to the regulatory criteria set out in the Persistence and Bioaccumulation Regulations of CEPA.
Proposed Risk Management Approach
ECCC concludes that the class of PFAS, excluding fluoropolymers, meet the criteria under CEPA Sections 64(a) and (c), as these substances are entering or may enter the environment in a quantity or concentration or under conditions that have or may have immediate or long-term harmful effects on the environment or its biological diversity, and that constitute or may constitute a danger in Canada to human life or health.
For the purpose of CEPA Section 77(6)(c)(i), ECCC proposes the following new risk management actions through a phased prohibition under CEPA:
Phase 1: Prohibition of the use of PFAS, excluding fluoropolymers, not currently regulated in firefighting foams, due to high potential for environmental and human exposure.
Phase 2: Prohibition of the uses of PFAS, excluding fluoropolymers, not needed for the protection of health, safety, or the environment, which includes consumer applications. ECCC states that prioritization of uses for prohibition is based on, and will take into account, costs and benefits, availability of suitable alternatives, and other socio-economic considerations. Proposed uses to be regulated in Phase 2 include:
Cosmetics;
Natural health products and non-prescription drugs;
Food packaging materials, food additives, and non-industrial food contact products such as paper plates, bowls, and cups;
Paint and coating, adhesive and sealant, and other building materials available to consumers;
Consumer mixtures such as cleaning products, waxes, and polishes;
Textile uses (including in personal protective equipment (PPE) such as firefighting turnout gear); and
Ski waxes.
Phase 3: Prohibition of the uses of PFAS, excluding fluoropolymers, requiring further evaluation of the role of PFAS for which currently there may not be feasible alternatives and taking into consideration socio-economic factors, including:
Fluorinated gas applications;
Prescription drugs (human and veterinary);
Medical devices;
Industrial food contact materials;
Industrial sectors such as mining and petroleum; and
Transport and military applications.
ECCC states that at each phase of risk management it will consider exemptions, when necessary, with attention to feasible alternatives and socio-economic factors. To inform ECCC’s risk management decision-making, information on the following topics should be provided by May 7, 2025):
Availability of alternatives to PFAS, or lack thereof, in products and applications in which they are currently used;
Estimated timeframe to transition to alternatives to PFAS, including any challenges;
Socio-economic impacts of replacing PFAS, including costs and feasibility of elimination or replacement; and
Quantities and concentrations of PFAS (including Chemical Abstracts Service Registry Number® (CAS RN®), units of measurement, and applications) in products manufactured in, imported into, and sold in Canada (if not already provided through the July 27, 2024, Section 71 notice).
Commentary
Canada’s release of the State of PFAS Report, proposed risk management approach, and proposed order to add PFAS, excluding fluoropolymers, to Part 2 of CEPA Schedule 1 follows soon after the January 29, 2025, deadline for mandatory reporting for 312 PFAS. In its July 27, 2024, Canada Gazette notice, Canada stated that it required information for the purpose of assessing whether the 312 PFAS listed in the notice “are toxic or are capable of becoming toxic, or for the purpose of assessing whether to control, or the manner in which to control the listed substances.” The March 8, 2025, proposed order acknowledges that “[t]he annual quantity of PFAS used in Canada is unknown, as the information required to estimate this parameter (for example type and concentrations of PFAS in products available to consumers and in commercial and industrial applications) was not identified at the time of this analysis.” Canada states that it anticipates that the mandatory survey will “provide insight on annual quantities of PFAS used in Canada,” but it may be more likely that the survey will highlight the complexity of the supply chain and the difficulty in obtaining information from suppliers.
Stakeholders should carefully review the proposed risk management approach. Canada requests information on the availability of PFAS alternatives, the estimated timeframe to transition to alternatives, the costs and feasibility of elimination or replacement, and the quantities and concentrations of PFAS in products manufactured in, imported into, and sold in Canada (if not already reported through the mandatory survey). It is unlikely many entities will volunteer such specific information on PFAS in their products and companies that were not subject to the mandatory survey may not know. Yet without evidence on the critical use of PFAS in products and the lack of alternatives, Canada may begin prohibiting uses.
Most agree that ultimately the proposal will succeed, and PFAS will be deemed CEPA toxic and listed on Part 2 of CEPA Schedule 1. Given the PFAS risk evaluations of many other authoritative bodies, it is more likely than not that ECCC’s scientific determination is defensible. That the proposal seeks to exempt fluoropolymers is noteworthy, however, and stakeholders may wish to support the exemption.
EPA Provides Update on Status of TSCA Risk Management Rule for TCE
On March 24, 2025, the U.S. Environmental Protection Agency (EPA) provided an update on the effective date of the Toxic Substances Control Act (TSCA) final risk management rule for trichloroethylene (TCE). As reported in our January 13, 2025, memorandum, on December 17, 2024, EPA issued a final rule prohibiting all uses of TCE, most of which would be prohibited within one year, including TCE manufacture and processing for most commercial and all consumer products. As reported in our January 30, 2025, blog item, EPA delayed the January 16, 2025, effective date to March 21, 2025. EPA notes in its March 24, 2025, announcement that it received multiple petitions for review of the final rule. On January 13, 2025, the Fifth Circuit Court of Appeals granted a motion to stay temporarily the rule’s effective date. The petitions were then consolidated by the Judicial Panel for Multidistrict Litigation and transferred to the Third Circuit Court of Appeals. The Third Circuit issued a January 16, 2025, order leaving the temporary stay of the effective date in place pending briefing on whether the temporary stay of the effective date should remain in effect. EPA notes that because of the court decisions, the TCE rule never went into effect and is therefore also covered by the terms of President Trump’s “Regulatory Freeze Pending Review” memorandum. EPA states that it expects to publish soon a Federal Register notice further postponing the effective date of all the requirements associated with TSCA Section 6(g) exemptions in the final TCE rule for 90 days until June 20, 2025, pending judicial review.
Additionally, EPA asked the court for more time to determine next steps and to extend the deadline to respond to the stay for another 60 days. EPA awaits the court’s response and will provide more information as it becomes available.
President Trump Issues Executive Order to Increase American Mineral Production
On March 20, 2025, President Donald J. Trump issued an Executive Order calling for immediate measures to increase American mineral production. The order outlines several initiatives to streamline permitting processes and prioritize domestic mineral production projects. Some of the key implications for project permitting and development are summarized below. Additional provisions intended to accelerate private and public capital investment in mineral production and processing projects will be discussed in a separate blog post.
Identification of Priority Minerals: The order prioritizes the production of the following minerals: gold, uranium, copper, potash, and the “critical materials” currently defined at 30 U.S.C. § 1606(a)(3). The order also states that the National Energy Dominance Council (NEDC) may identify additional elements, compounds, or materials for prioritization.
Priority Projects: The heads of agencies “involved in the permitting of mineral production in the United States” have been instructed to provide to NEDC within 10 days “a list of all mineral production projects for which a plan of operations, a permit application, or other application for approval has been submitted to such agency.”
The agency heads and NEDC have been instructed within an additional 10 days to “identify priority projects that can be immediately approved or for which permits can be immediately issued, and take all necessary or appropriate actions within the agency’s authority to expedite and issue the relevant permits or approvals.”
Federal Land Use for Mineral Projects: The Secretary of the Interior has been instructed to “identify and provide … a list of all Federal lands known to hold mineral deposits and reserves” within 10 days and to “prioritize mineral production and mining related purposes as the primary land uses in these areas, consistent with applicable law.”
The order also states that “[l]and use plans under the Federal Land Policy and Management Act shall provide for mineral production and ancillary uses, and be amended or revised as necessary, to support the intent of this order.”
A copy of the Executive Order is available here.
EPA Releases New TSCA and FIFRA Enforcement Policies
On January 17, 2025, days before the end of President Biden’s term, the U.S. Environmental Protection Agency (EPA) released two new enforcement documents: (1) Expedited Settlement Agreement (ESA) Pilot Program Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (FIFRA Settlement Pilot Program or Pilot Program); and (2) Interim Consolidated Enforcement Response and Penalty Policy (Interim CERPP) for the Toxic Substances Control Act (TSCA) New and Existing Chemicals Program. Their relevance is unclear.
FIFRA Settlement Pilot Program
EPA states that the “purpose of this Pilot Program is to provide an additional enforcement tool that encourages resource prioritization and violation deterrence through expedited resolution of cases involving minor violations that are easily correctible and do not cause significant health or environmental harm.”
Although “easily correctible” is not defined, from a timing perspective, it appears that EPA considers a violation easily correctible if FIFRA compliance can be achieved within 30 days, although EPA may, “at its discretion, grant an extension for corrective action in limited circumstances upon submission of a written extension request detailing why achieving compliance within 30 calendar days of receipt of this letter is infeasible or impracticable.”
EPA also provides the following “general parameters” that EPA considers when determining whether a case involves “minor violations” that are suitable for resolution under this Pilot Program, including but not limited to:
The case involves domestically produced or imported pesticides or device products.
The case does not require EPA review and approval of registration changes, including but not limited to labeling changes.
The total proposed penalty should not exceed $24,000, with a penalty matrix provided at Attachment B.
The company is not a “repeat violator” (noting that in the Pilot Program, EPA discusses when a repeat violator may be eligible under the Pilot Program depending on the type of violation and when the violation occurred and provides a hypothetical timeline when a ESA may be permissible).
The case does not involve criminal or fraudulent behavior (e.g., intentionally falsifying information).
For additional clarity, EPA lists at Appendix A the violations that are eligible for resolution under this Pilot Program.
If EPA determines that a case qualifies under the Pilot Program, EPA has developed a template cover letter and final order that it can provide to the company as an opportunity to resolve the violations. Upon receipt, if the company does not respond within 30 calendar days, the ESA is automatically withdrawn. EPA states that an “adequate response” from the ESA recipient would include the following:
Returning a signed agreement;
Paying the full penalty per the ESA terms offered; and
Submitting a signed, certified statement that Respondent no longer engages in violative activities, that the violations have been corrected, or that lists the steps Respondent has or will take to prevent recurrence of the violation(s), as applicable.
If an ESA is withdrawn, EPA without prejudice retains its ability to file any other enforcement action for the cited violation(s) and to seek up to the statutory maximum penalty for each violation.
Interim CERPP
EPA states that the Interim CERPP guidance is intended to help ensure that enforcement actions and the assessment of civil administrative penalties are “appropriate, nationally consistent and promote compliance among TSCA-regulated entities.” The CERPP contains the following Parts:
CERPP Part One provides cross-cutting background information: Introduction; TSCA Legal Background; Enforcement Response Options; and Regulatory Responses.
CERPP Part Two provides a cross-cutting overview of the process for determining penalties: Introduction; General Principles; Steps in Computing Civil Penalties; Factors as to Violation; and Factors as to Violator.
CERPP Part Three encompasses Modules for computing Gravity-based Penalties for specific Core TSCA programs, including: Module A for the Section 6(a) Rules.
CERPP Part Four presents the cross-cutting Gravity-based Penalty Matrix, which states the “initial” (per violation) Gravity-based Penalty dollar amount applicable in all Core TSCA programs.
CERPP Part Five provides cross-cutting guidance for adjusting (or remitting) the Gravity-based Penalty to derive the final civil administrative penalty in a case: Overview; Preliminary Information; Ability to Pay/Continue in Business; Prior Violation; Culpability; Other Matters Justice May Require; and Penalty Remittance.
Currently, there are several enforcement response policies (ERP) applicable to different statutory violations under TSCA:
Guidelines for Assessment of Civil Penalties Under Section 16 of the Toxic Substances Control Act, 45 Fed. Reg. 59770 (Sept. 10, 1980) (TSCA Penalty Policy), https://www.epa.gov/sites/default/files/documents/tscapen.pdf.
Final TSCA GLP Enforcement Response Policy, https://www.epa.gov/enforcement/final-tsca-glp-enforcement-response-policy.
Enforcement Response Policy for TSCA Section 4 Test Rules, https://www.epa.gov/enforcement/enforcement-response-policy-tsca-section-4-test-rules.
Amended TSCA Section 5 Enforcement Response Policy, https://www.epa.gov/enforcement/amendment-tsca-section-5-enforcement-response-policy-penalty-limit-untimely-noc.
Issuance of Revised Enforcement Response Policy for TSCA Sections 8, 12 & 13, https://www.epa.gov/enforcement/issuance-revised-enforcement-response-policy-tsca-sections-812-13.
EPA intends to consolidate and update these TSCA ERPs with this CERPP, but states that “until a module for a specific Core TSCA program is added to the CERPP, use the current ERP for that Core TSCA program.” When a module is available for a particular TSCA provision, the CERPP will be immediately effective and supersede any prior TSCA ERP.
At this time, the Interim CERPP appears to address only penalties for TSCA Section 6(a) violations, as described under “Module A,” and for which there is no current ERP counterpart.
As with all ERPs, the initial gravity-based penalty is determined based on three factors: nature, circumstances, and extent. Since there is no existing ERP for Section 6, the program-specific Module A provides EPA’s guidance for how it will consider Section 6(a) violations:
Nature: The Nature classification for all Section 6(a) violations is Chemical Control (CC), excluding recordkeeping violations. The Nature classification for recordkeeping violations under Section 6(a) is Control-associated Data-Gathering (CADG).
Circumstance: The Circumstance Level depends on the type of requirement that was violated, and EPA provides a chart to explain the “high,” “medium,” and “low” range Circumstance Levels.
Extent: The Extent Level Matrix establishes three classifications: Major, Significant, or Minor. For Section 6 violations, EPA describes how a violation will be classified based on two factors relevant to the unreasonable risks from Section 6(a) chemicals: (1) Potential Injury, meaning “the scope of the violation in relation to the potential injury from noncompliance;” and (2) Potentially Impacted Entity (PIE), meaning “the population or environment that could be subject to the potential injury from the violation.” The Interim CERPP provides additional guidance explaining how these classifications will be derived.
Commentary
EPA states that in issuing this FIFRA Settlement Pilot Program, its intent is to “decrease transaction costs and achieve speedy compliance.” This would seem to align with the recent Trump Administration’s Executive Order (EO) titled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative” that instructs agencies to “preserve their limited enforcement resources by generally de-prioritizing actions to enforce regulations that are based on anything other than the best reading of a statute” and “direct the termination of all such enforcement proceedings that do not comply with the Constitution, laws, or Administration policy.” The list of violations that are eligible for ESAs is limited, however. The Pilot Program is expected to be available for three years, so it will be interesting to see whether and how this Pilot Program is implemented.
While the Pilot Program might be considerably narrow, the Interim CERPP has the potential for much broader applicability. Although the current Interim CERPP only has a Module focused on Section 6(a), for which there is no current ERP, EPA has stated its interest in developing Modules for other TSCA Sections, which will then supersede those existing ERPs. The existing ERPs have many parallels and similarities, but they also address distinct differences depending on the TSCA sections at issue. There thus is the likelihood that one consolidated CERPP will impact how penalties are calculated for all TSCA violations, and stakeholders should be prepared to review carefully any additional Modules released.
In that both of these enforcement documents were prepared by the prior Administration, their enduring relevance, like so many other issues at EPA, is unclear. As new leadership populates the ranks at EPA program offices, including the Office of Enforcement and Compliance Assurance, we may learn more.
President Trump Issues Executive Order Promoting Domestic Mineral Production
On March 20, 2025, President Donald Trump signed a sweeping executive order promoting mining and processing of “critical minerals” in the United States. The order – Immediate Measures to Increase American Mineral Production – directs agencies of the federal government to prioritize and expedite permitting for mining and mineral processing projects, invoking the Defense Production Act among and other authorities. Key provisions include:
Expanded Critical Minerals List
For purposes of the order, “critical minerals” include uranium, copper, potash, and gold, in addition to the existing list of critical minerals designated by the secretary of the interior pursuant to the Energy Act of 2020 (30 U.S.C. § 1606(a)(3). Further, the order grants authority to Interior Secretary Doug Burgum, who serves as chair of the National Energy Dominance Council (NEDC), to add “any other element, compound, or material” to the critical minerals list.
Priority Projects
The order directs permitting agencies to identify all mine and mineral processing projects awaiting federal approvals, to issue permits and approvals immediately where possible, and to expedite all permitting activities. The NEDC is to identify mine and mineral processing projects for inclusion in the expedited permitting procedures available under the Fixing America’s Surface Transportation (FAST) Act (41 U.S.C. § 41003), and the Permitting Council must add the identified projects to the FAST Act Permitting Dashboard within 30 days of the order.
Mining the Primary Land Use
The Interior Secretary is instructed to provide a list of all federal lands known to contain mineral “deposits and reserves.” Mining and mineral processing are to be prioritized as the primary land use on these lands. Federal land managers are required to revise land use plans to align with the executive order’s directives.
Permitting Reform
To address regulatory inefficiencies, Interior Secretary Burgum, in his role as NEDC chair, is directed to publish a request for information seeking industry input on “regulatory bottlenecks” and “recommended strategies for expediting domestic mineral production.” The order further instructs the NEDC to develop legislative recommendations to clarify the treatment of mine waste disposal on federal lands under the Mining Law. This direction aims to address permitting delays and uncertainty stemming from Center for Biological Diversity v. U.S. Fish & Wildlife Service, 33 Fed. 4th 1202 (9th Cir. 2022) (commonly referred to as the “Rosemont” decision).
Defense Production Act
The order delegates Defense Production Act authority to the secretary of defense to facilitate domestic mineral production. Mineral production is to be added to the Defense Department’s Industrial Base Analysis and Sustainment Program as a priority area. The defense secretary is also directed to work with the International Development Finance Corporation to use financing authorities and mechanisms to advance mineral production, including the creation of a dedicated mineral production fund.
Unneeded Federal Lands for Mining Projects
The secretaries of defense, energy, interior, and agriculture are tasked with identifying sites on “unneeded” federal lands within their jurisdiction that are suitable for “leasing or development” under the authority of 10 U.S.C. § 2667 (Defense), 42 U.S.C. § 7256 (Energy), or other applicable authorities (Interior and Agriculture).
President Trump Revokes 2022 EO on Advancing Biotechnology and Biomanufacturing
On March 14, 2025, President Trump signed Executive Order (EO) 14236, rescinding 19 executive actions, including former President Biden’s September 2022 EO 14081, “Advancing Biotechnology and Biomanufacturing Innovation for a Sustainable, Safe, and Secure American Bioeconomy.” 90 Fed. Reg. 13037. According to the White House’s March 14, 2025, fact sheet, EO 14081 “funneled Federal resources into radical biotech and biomanufacturing initiatives under the guise of environmental policy.” As reported in our September 13, 2022, blog item, Biden’s EO created a National Biotechnology and Biomanufacturing Initiative to accelerate biotechnology innovation and grow America’s bioeconomy across multiple sectors in industries such as health, agriculture, and energy. EO 14081 called for the Secretary of Agriculture, the Administrator of the U.S. Environmental Protection Agency (EPA), and the Commissioner of Food and Drugs to identify areas of ambiguity, gaps, or uncertainties in the January 2017 Update to the Coordinated Framework for the Regulation of Biotechnology or in the policy changes made pursuant to the June 2019 EO 13874, “Modernizing the Regulatory Framework for Agricultural Biotechnology Products.” To update the Coordinated Framework, the U.S. Department of Agriculture (USDA), EPA, and the U.S. Food and Drug Administration (FDA) prepared The Coordinated Framework for the Regulation of Biotechnology: Plan for Regulatory Reform under the Coordinated Framework for the Regulation of Biotechnology, an ambitious plan to update, streamline, and clarify their regulations and oversight mechanisms for products of biotechnology. While the USDA, EPA, and FDA intended to release an updated Coordinated Framework in December 2024, the agencies did not do so. More information on the 2017 Update to the Coordinated Framework is available in our January 9, 2017, memorandum. More information on the 2024 Plan for Regulatory Reform is available in our May 16, 2024, memorandum.
House Republicans Demand Answers on Biden-Era EPA Allocations and Financial Agreements
Congressional Republicans have asked the Administrator for the Environmental Protection Agency (EPA) Lee Zeldin for a briefing on grants and funding awarded by the agency under the Biden Administration, signaling their interest in entering the controversy.
In the letter to Administrator Zeldin, House Oversight and Government Reform Committee Chair James Comer (R-Ky.) and Rep. Eric Burlison (R-Mo.), Subcommittee on Economic Growth, Energy Policy and Regulatory Affairs Chair, asked for a briefing “to better understand what EPA is uncovering about the Biden Administration’s allocation of funding resources to outside groups and its novel agreements with financial institutions to escape oversight.”
In the letter, Comer and Burlison raised concerns about the Biden Administration depositing $20 billion to Citbank as part of the Greenhouse Gas Reduction Fund (GGRF) grant program. Earlier this month, U.S. District Judge Tanya Chutkan temporarily blocked the Trump Administration from terminating these awards. However, the ruling does not permit grantees from drawing from the funds either.
The March 20 letter appears to be part of a larger coordinated effort to claw back EPA expenditures made by the previous administration under the Inflation Reduction Act (IRA). As we previously shared, the House Energy and Commerce Committee recently revealed its oversight plan for the 119th Congress, focusing on clean energy and advanced technology programs authorized under the Energy Policy Act of 2005, the Infrastructure Investment and Jobs Act (IIJA), and the Inflation Reduction Act (IRA).
Meanwhile, four Democratic Attorneys General led by Minnesota AG Keith Ellison – are suing the EPA for the climate grant cancellations, arguing that EPA’s actions violates fundamental constitutional guarantees of liberty in the separation of powers.”
Should you receive an inquiry from Congress, be it a letter or a phone call, take notice of the due date for a response.
When Congress initiates an inquiry, an initial request letters typically provides an exceedingly short time to respond, traditionally within two weeks of receipt. While this deadline is often negotiable, the optimal time to prepare for a Congressional investigation is before you hear from Congress.
Understanding potential political risks allows a company’s leaders to proactively take steps, on their own schedule, to reduce the impact of an investigation. These steps range from implementing appropriate records retention policies to conducting tabletop exercises, to engaging proactively with advocates on Capitol Hill.
Taking these steps before you hear from Congress empowers a confident response, allows for the development of a strategy to diffuse the conflict, and avoids the consequences of receiving a Congressional subpoena.
Should Congress request records or testimony, it is still very feasible to come to the table and negotiate an optimal outcome that avoids unnecessary exposure, while also responding to Congress with integrity.
If you receive a Congressional inquiry, call us. Womble Bond Dickinson (US) LLP has a team of leading practitioners with nuanced experiences guiding and advising clients through Congressional investigations.
Click here to read our previous client alert, “Congress Puts DOE & EPA Grants/Loans Under the Microscope.”
Interpretation and Application of EU Taxonomy Delegated Acts
Open Questions Regarding the Taxonomy Regulation
While the legislative file of the EU Taxonomy Regulation has been reopened with some proposed amendments by the Commission in its recently released Omnibus Sustainability Package, and a notice providing useful guidance to companies subject to the EU Taxonomy.
Following scrutiny by the European Parliament and the Council, the Taxonomy Environmental Delegated Act, the amendments to the Taxonomy Disclosures Delegated Act and to the Taxonomy Climate Delegated Act were published in the Official Journal on 21 November 2023 and these came into force on 1 January 2024.
The EU Commission released a Commission Notice on the interpretation and application of specific EU law provisions on 5 March 2025. Notably, the notice contains technical clarifications responding to frequently asked questions (FAQs) on the Technical Screening Criteria set out in the Taxonomy Climate Delegated Act (as amended) and the Taxonomy Environmental Delegated Act, as well as on the disclosure obligations for the non-climate environmental objectives laid down in the Taxonomy Disclosures Delegated Act.
The aim of the notice is to help stakeholders comply with the regulatory requirements in a cost-effective way and to ensure that the reported information is comparable and useful also in scaling up sustainable finance. Thereby, the EU Commission attempts to assist businesses in putting the law into practice by answering 155 questions that cover both the interpretation of the law and the justification of its provisions.
Key Topics of the Notice
The EU Commission specifically addresses inquiries about the following topics:
Mitigation and adaptation to climate change
Water and marine resources
Circular economy transition
Pollution prevention and control
Biodiversity and ecosystems
Generic Do No Significant Harm (DNSH) criteria
The questions in Section IX regarding the Taxonomy Disclosures Delegated Act reporting requirements are especially pertinent to the financial industry, with specific information given on the following subjects:
Timeframe for reporting on Taxonomy eligibility and alignment of economic activities
Modified reporting templates included in the Taxonomy Environmental Delegated Act
CapEx and OpEx reporting scope
Terminology interpretation
The Omnibus Simplification Package
The Commission has prior presented on 26 February 2025 its Omnibus Simplification Package, which aims to create a consolidated sustainability framework, and simplify overlapping EU reporting and due diligence requirements. The omnibus package also proposes several changes to the Taxonomy framework. For companies within the proposed amended CSRD scope (that is, large companies with more than 1,000 employees and a net turnover up to EUR 450 million), the proposal envisages voluntary taxonomy reporting, reducing the number of companies obliged to report their taxonomy alignment. Companies that partially meet EU taxonomy requirements can voluntarily report their progress. The notice published by the Commission on 5 March remains fully relevant in that context.