Maine Updates PFAS in Products Web Page, Includes Instructions for Submitting a CUU Proposal
The Maine Department of Environmental Protection (MDEP) updated its web page on per- and polyfluoroalkyl substances (PFAS) in products on May 2, 2025. The updated page includes links to the April 2025 final rule on products containing PFAS, instructions for submitting a currently unavoidable use (CUU) proposal, and frequently asked questions (FAQ). The FAQs address several questions related to CUU determinations, including:
Does my product sold in Maine qualify for a CUU determination?
How and when do I submit a CUU proposal?
What are the timelines for MDEP’s decision making on CUU proposals?
How will MDEP communicate the results of a proposal for CUU determination?
Will CUU determinations be public information?
What will the status of the pending CUU proposals be while MDEP is actively reviewing them and has yet to reach a decision?
As reported in our April 11, 2025, blog item, CUU proposals are due June 1, 2025, for products containing intentionally added PFAS that are within a prohibited category beginning January 1, 2026. Those categories are cleaning products; cookware; cosmetics; dental floss; juvenile products; menstruation products; textile articles (with exception); ski wax; upholstered furniture; and products listed that do not contain intentionally added PFAS but that are sold, offered for sale, or distributed for sale in a fluorinated container or in a container that otherwise contains intentionally added PFAS.
Legislative Developments Could Impact Environmental and Energy Sectors
In recent weeks, the House Committees on Energy & Commerce and Natural Resources considered several legislative proposals that, if enacted, could have substantial impacts on the environmental and energy sectors. On April 30, 2025, the Subcommittee on Energy held a hearing on several pieces of draft legislation, including the Reliable Power Act, which would amend the Federal Power Act (FPA) to provide the Federal Energy Regulatory Commission (FERC) authority to review certain federal regulations that may affect the reliable operation of the bulk power system. On May 1, 2025, the Committee on Natural Resources announced that it was scheduled to mark up draft legislation that, among other things, would amend the National Environmental Policy Act (NEPA) and provide for certain changes to federal fossil fuel leasing as part of the budget reconciliation bill.
Subcommittee on Energy Hearing
On April 30, 2025, the Subcommittee on Energy reviewed several legislative proposals bearing upon the nation’s energy sector during a hearing entitled “Assuring Abundant, Reliable American Energy to Power Innovation,” including the draft “Reliable Power Act,” which would grant FERC authority to review and block regulations proposed by other agencies that “relate to, or otherwise direct affect, any generating facility in the bulk power system” if FERC finds that the regulation would be likely to have a “significant negative impact on the state of generation adequacy or the reliability of the bulk-power system.” Such authority would enable FERC, for example, to restrict the US Environmental Protection Agency’s authority to promulgate rules imposing emissions restrictions on fossil fuel-powered generation facilities. The Subcommittee also reviewed several additional legislative proposals. Some of the provisions include:
GRID Power Act – This legislation would direct FERC to issue a rulemaking requiring transmission providers to prioritize and expedite interconnection queue requests for dispatchable generation projects and projects that enhance grid resilience and reliability.
Power Plant Reliability Act of 2025 – This legislation would allow affected parties to contest the retirement of generation resources for a 5-year period in the event that a retirement causes harm to reliability of the bulk power system. The bill would also require power plants to provide a 5-year advance notice of plans to retire.
Promoting Cross-Border Energy Infrastructure Act – This legislation would replace the existing Presidential Permit process for authorizing border-crossing facilities for the import and export of oil and natural gas and the transmission of electricity with a statutorily directed process whereby FERC would be authorized to review applications for cross-border oil and gas pipelines, and the Department of Energy would be authorized to review applications for cross-border electric transmission facilities.
Unlocking our Domestic LNG Potential Act of 2025 – This legislation would amend the Natural Gas Act (NGA) to repeal all restrictions on the import and export of natural gas.
Improving Interagency Coordination for Review of Natural Gas Pipelines Act – This legislation would seek to improve coordination among federal and state agencies reviewing applications for the construction of interstate natural gas pipelines and strengthen FERC’s lead agency role under the NGA by requiring schedules, concurrent reviews, and provisions to resolve disputes among permitting agencies.
Committee on Natural Resources Proposed Legislation
On May 6, 2025, the House Committee on Natural Resources met to consider legislative proposals pursuant to the reconciliation directive in Concurrent Resolution on the Budget for Fiscal Year 2025. Among other things, the draft bill would amend NEPA by conferring the following benefits on a project sponsor that elects to pay a fee equivalent to 125 percent of the anticipated costs to prepare an environmental assessment (EA) or environmental impact statement (EIS):
Deadline for Preparation – EAs will be prepared in six months or less, and EISs will be prepared in one year or less; and
Administrative and Judicial Review – There will be no administrative or judicial review for an EA or EIS. Any action challenging a finding of no significant impact or record of decision that is associated with such an EA or EIS may not be predicated on an alleged issue with the EA or EIS.
The draft bill would also have implications for federal fossil fuel leasing, including directing the Secretary of the Interior to hold not fewer than 30 lease sales in the Gulf of America during the 15-year period beginning on the date of the statute’s enactment, expanding drilling and mining on public lands, and reducing the Inflation Reduction Act’s oil and gas royalty increase from 16.67percent to 12.5 percent.
Counsel will continue to monitor the progression of these legislative proposals.
Regulation Round Up: April 2025
Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK and EU financial services regulation.
Key Developments in April 2025:
29 April
ESG: The FCA updated its webpage on its consultation paper on extending the sustainability disclosure requirements (“SDR”) and investment labelling regime to portfolio managers (CP24/8). In the light of feedback received, it has decided that it is not the right time to finalise rules on extending the regime to portfolio managers.
Cryptoassets: The European Securities and Markets Authority (“ESMA”) published its final report on guidelines relating to supervisory practices for national competent authorities to prevent and detect market abuse under Article 92(2) of the Regulation on markets in cryptoassets ((EU) 2023/1114).
24 April
Regulatory Capital: The FCA has published a consultation paper on the definition of capital for investment firms (CP25/10). CP25/10 outlines the FCA’s proposals to simplify and consolidate the rules as they relate regulatory capital.
17 April
Listing Regime: The FCA has published Primary Market Bulletin No 55 which addresses proposed changes to the listing regime.
16 April
ESG: The Omnibus I Directive (EU) 2025/794 amending Directives (EU) 2022/2464 and (EU) 2024/1760 as regards the dates from which member states are to apply certain corporate sustainability reporting and due diligence requirements was published in the Official Journal of the European Union. Please refer to our dedicated article on this topic here.
15 April
AIFMD 2.0: ESMA has published final reports setting out the final guidelines and draft technical standards on liquidity management tools under the Directive amending the Alternative Investment Fund Managers Directive (2011/61/EU) (“AIFMD”) and the UCITS Directive (2009/65/EC) ((EU) 2024/927) (“AIFMD 2.0”). Please refer to our dedicated article on this topic here.
14 April
Regulatory Initiatives Grid: The Forum members (the Bank of England, the Prudential Regulatory Authority, the FCA, the Payment Systems Regulator, the Competition and Markets Authority, the Information Commissioner’s Office, the Pensions Regulator, and the Financial Reporting Council) published a joint regulatory initiatives grid relevant to the financial services sector.
11 April
FCA Regulatory Perimeter: HM Treasury has published a policy paper containing a record of the meeting between the Economic Secretary to the Treasury and the Chief Executive of the FCA. The purpose of the meeting was to discuss the FCA’s perimeter and the issues set out in its December 2024 report.
Trading Platforms: The FCA has published a webpage summarising the findings from its multi-firm review of trading apps (also more commonly known as “neo-brokers”).
10 April
ESG: ESMA has published a risk analysis report on the increased incorporation of ESG terms into fund names and its impact on investment flows.
MiFID II: ESMA has published a final report on regulatory technical standards supplementing the Markets in Financial Instruments (“MiFID II”) Directive (2014/65/EU) to specify the criteria for establishing and assessing the effectiveness of investment firms’ order execution policies.
9 April
Artificial Intelligence: The Financial Policy Committee published a report on artificial intelligence in the financial system.
ESG: ESMA has published a final report setting out its analysis and conclusions on a common supervisory action exercise conducted with the national competent authorities on ESG disclosures under the Benchmarks Regulation ((EU) 2016/1011).
8 April
MiFID II: ESMA has published a final report containing technical advice to the European Commission on amendments to the research provisions in the MiFID II Directive in the context of changes introduced by the Listing Act (ESMA35-335435667-6290).
FCA Strategy: The FCA has published it annual work programme for 2025/26, which sets out how it will deliver its four strategic priorities (to be a smarter regulator that is more efficient and effective, supporting growth, helping consumers navigate their financial lives and fighting financial crime).
7 April
UK AIFMD: The FCA has published a call for input and HM Treasury has published a consultation on the future regulation of alternative investment fund managers. Please refer to our dedicated article on this topic here.
3 April
ESG: The European Parliament plenary session formally adopted at first reading the stop-the-clock proposal for a Directive amending Directives (EU) 2022/2464 and (EU) 2024/1860 with respect to the dates from which member states are expected to align to corporate sustainability reporting and due diligence requirements.
ESG: The FCA has published a summary of the feedback it has received in relation to its discussion paper on finance for positive sustainable change (DP23/1) together with its response and next steps. Please refer to our dedicated article on this topic here.
1 April
Short Selling: The FCA published an updated version of its webpage on the notification and disclosure of net short positions.
Motor Finance: The FCA has published its written submissions to the Supreme Court in the appeal of the Court of Appeal decision in Johnson v FirstRand Bank Ltd (London Branch) t/a Motonovo Finance [2024] EWCA Civ 1282.
ESG: The EU Platform on Sustainable Finance has published a report on its first review of the Taxonomy Climate Delegated Act and the development of technical screening criteria for a list of new economic activities.
Additional Authors: Sulaiman Malik and Michael Singh
Illinois Moves Closer to First-Ever Energy Storage Procurement
The Illinois Commerce Commission staff (ICC Staff) announced recommendations laying the groundwater for Illinois’ first procurement of energy storage resources expected to occur this summer.
The state is preparing for an August 26 statutory deadline. In this post, we summarize the ICC Staff’s recommendations for project eligibility requirements, contract structure, and future procurements.
Background
Earlier this year, Illinois enacted the Electric Transmission Systems Construction Standards Act, which we covered in detail here. The Act required the ICC to conduct a workshop process to design the initial energy storage procurement. Under the law, the Illinois Power Agency (IPA) must receive bids by August 26.
According to the ICC Staff, energy storage is an important tool for Illinois to meet its goal of 40% renewable energy by 2030 and 50% renewable energy by 2040. Because solar and wind energy are intermittent, these resources do not always generate energy when consumers want to use electricity. Energy storage can help bridge this gap. Storage can also help make the energy system more reliable and efficient by charging when there is surplus, cheap energy on the grid and dispatching power when electricity is scarce or expensive.
Program Recommendations
The ICC Staff confronted three core questions in recommending the design of Illinois’ maiden storage procurement, which projects are eligible, what contract structure to use, and how much capacity to procure.
The ICC Staff recommended six required criteria for eligible projects:
Projects must be standalone, not storage combined with electricity generation. This is a statutory requirement for the initial procurement.
Projects must be at least 20 megawatts (MW).
Projects must have four-hour duration, meaning they are capable of continuously dispatching power for four hours.
Projects must be at least 85% efficient, meaning they discharge at least 85% of the power it takes to charge them.
Projects must be currently in the grid interconnection queue or demonstrably in late-stage development.
Projects must meet the Minimum Equity Standard and project labor requirements used in Illinois’ renewable energy certificate (REC) program.
For contract structure, the ICC Staff selected a 20-year indexed storage credit (ISC) contract instead of a tolling contract. An ISC works like a hedge or option contract. The storage developers bid a “strike price,” which is a guaranteed price for the energy dispatched from the storage unit, and the electric utility contracts with the lowest-priced bidders. If market conditions are such that the storage unit makes less money for its storage services than the strike price, then the utility pays the difference to the developer. If market conditions allow the storage unit to make more money than the strike price, the developer pays the excess to the utility. The purpose of this arrangement is to provide a guaranteed income to the developer so the developer can obtain financing to construct the storage. An ISC works by essentially transferring some of the risk of market fluctuations from the developer to the utility.
A tolling contract, which the ICC Staff did not recommend for this procurement, operates like a lease. The storage developer essentially leases operation of the storage resource to the utility in exchange for a fixed payment. Under this structure, the utility operates the storage unit and receives the benefit of using it. This structure transfers even more risk from the project developer to the utility than an ISC. The ICC Staff recommended against a tolling structure because (1) Illinois’ REC program already uses an ISC model and (2) a tolling contract is treated as a liability on utility balance sheets, making it harder for utilities to get favorable loan terms.
Last, the ICC Staff recommended that the IPA procure 1,038 MW of storage resources, less than the up to 1,500 MW authorized by the Act. The ICC Staff recommended procuring 450 MW from Ameren’s utility territory and 588 MW from ComEd’s territory based on stakeholder feedback. Other than this division, the ICC Staff generally recommended against locational preferences in selecting projects, with the exception that projects located in an Enterprise Zone or Energy Transition Community area be given a preference in the event of a tied bid price.
The ICC Staff also recommended that the IPA conduct up to three additional procurements between 2025 and 2027 to obtain at least 3 gigawatts of storage resources. It also recommended that the IPA plan to conduct additional procurements in 2028 and 2029 to meet Illinois’ needs in the 2030s.
Navigating the Legal Soup: A New “Short-Form” Recipe for Prop 65 Warnings on Food and Beverages
Until this year, food companies—often the target of Proposition 65 enforcement actions—have been limited to specific “full-length” language for Prop 65 warnings, without explicit guidance regarding whether short-form warnings could be used as a safe harbor warning for food products and non-alcoholic beverages. Prior to the implementation of amended regulations this year, Prop 65 regulations required the following full-length warnings for food products containing a listed carcinogen or reproductive toxicant:
WARNING: Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov/food.
WARNING: Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food.
Similar variations may be used for exposure to both listed carcinogens and reproductive toxicants, and for exposure to chemicals that are listed as both a carcinogen and a reproductive toxicant.[1] Where a warning is being provided for an exposure to a single chemical, the words “chemicals including” may be deleted from the warning. These warnings can still be used for food exposures.
Although these prior warnings are still allowed under the new regulations, effective January 1, 2025, California adopted new guidelines for Prop 65 short-form warnings.[2] Notably for food companies, the new regulations make explicit that short-form warnings may be used to provide safe harbor warnings on food product labels. Since the Office of Environmental Health Hazard Assessment’s (“OEHHA”) 2016 Prop 65 rulemaking—when the OEHHA first adopted a “short-form” warning option for consumer product exposures—OEHHA has received numerous inquiries from businesses seeking clarification as to whether the short-form warning could be used as a safe harbor warning for food products because the tailored warning for food products did not expressly provide for short-form warnings. The new regulations address these inquiries by clarifying that short-form warnings containing newly approved language may be used to provide safe harbor warnings for food products.
Below are examples of allowed short-form warnings for listed carcinogens and reproductive toxicants on food product labels under the new regulations:
WARNING: [or CA WARNING: or CALIFORNIA WARNING:] Cancer risk from exposure to [name of chemical]. See www.P65Warnings.ca.gov/food.
WARNING: [or CA WARNING: or CALIFORNIA WARNING:] Can expose you to [name of chemical], a carcinogen. See www.P65Warnings.ca.gov/food.
WARNING: [or CA WARNING: or CALIFORNIA WARNING:] Risk of reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov/food.
WARNING: [or CA WARNING: or CALIFORNIA WARNING:] Can expose you to [name of chemical], a reproductive toxicant. See www.P65Warnings.ca.gov/food.
Similar variations may be used for exposure to both listed carcinogens and reproductive toxicants, and for exposure to chemicals that are listed as both a carcinogen and a reproductive toxicant.[3] The full regulatory text, as amended, can be viewed here.
We expect food manufacturers to switch over to the short-form warnings for a variety of reasons, including saving valuable space on labels. Additionally, the full-length warning for food products already required identification of the chemical exposure, so making the switch to the short-form warning (which also requires identification of the chemical) should not present significant difficulty.
Footnotes
[1] See Cal. Code Regs., tit. 27, § 25607.2(a)
[2] Companies that sell consumer products using a Prop 65 short-form warning (or that are considering the use of short-form warnings) should be aware that the new regulations require that short-form warnings identify at least one listed chemical for which the warning is being provided. Although the effective date was January 1, 2025, the regulation preserves the option to use the existing short-form warnings for consumer products without identifying a chemical until December 31, 2027. A full write up regarding the new requirements for short-form warnings can be found here.
[3] See Cal. Code Regs., tit. 27, § 25607.2(b).
ESG in 2025: Finding the Sweet Spot in a Complex World
With ESG regulation now well embedded across all major jurisdictions, the trend we see for 2025 is about increasingly sophisticated triangulation by private fund managers between the regimes that apply by default (such as mandatory corporate sustainability reporting), those that apply by choice (such as becoming an Article 8 fund within the meaning of the EU’s SFDR or the new for 2024 ESMA ESG Fund Name Guidelines – see summary here) and those that apply by third party request or expectation (such as reporting obligations within side letters). As regimes evolve, the ESG-approach of any fund once identified, chosen and defined must also take into account tracking developments and monitoring compliance.
The best advice to counter claims and penalties for greenwashing remains to “say what you do and do what you say” (as the SEC has advised). This, however, requires a manager to have a full record of what was said (including in historic side letters) and done (in policies and processes, both current and historic) and to appreciate what that means in the eyes of all relevant regulators and the eyes of investors. To support this, we often recommend that managers have a tailored definitions and concepts bank to ensure compliance across all relevant jurisdictions and an in-house understanding of what, for example, “sustainability” means for them.
Greenwashing has recently come to the fore with several high-profile targeted regulatory enforcement claims and actions, including Aviva Investments which was fined in Luxembourg – see blog here. This is noteworthy because it is the first penalty under SFDR imposed by the Luxembourg Commission de Surveillance du Secteur Financier (the CSSF) with Luxembourg continuing to be a very popular location for EU fund formation. Other asset managers are finding themselves the subject of campaigns by the third sector, for example by ClientEarth, designed to capture the focus of local regulators, with the French regulator, the Autorité des marchés financiers (the AMF), being a target as it positions itself as a thought leader in the EU, including in ESG matters.
The counter temptation – to greenhush (or play down ESG credentials) – may therefore seem appealing, as ESG strategies in investment decision-making become increasingly divisive, especially in certain US jurisdictions. Alongside this, the market has grown more sophisticated in its expectations and analysis of ESG disclosures and commitments. However, it is not always an option to greenhush when advisers or investments fall within scope of mandatory corporate sustainability reporting or sustainable finance requirements. One example is the Corporate Sustainability Reporting Directive, which if in scope is a complex disclosure exercise that can attract penalties for non-compliance at Member State level – including in some cases holding individual board members liable.
While the reports of the death of ESG in the US have been greatly exaggerated, as Mark Twain might say, 2025 may well be the year in which we see increased divergence between the EU, UK and US approaches. In the US, on one hand, the dedicated ESG task force within the SEC has been disbanded, but only because the topic is now largely embedded as core within the SEC divisions so that advisers should still expect to see ESG-related disclosures as a key examination topic, and several Blue State pension funds are honing in on increased ESG-related investment criteria. On the other hand, the predicted approach of the new Republican administration could be to follow President Trump’s lead, or he has previously described ESG investing as ‘radical left garbage’. A recent finding by a Texas federal court that an American Airlines 401(k) plan breached its duty of loyalty to investors by offering ESG investments – even if participants weren’t required to invest in such investments, appears to endorse this sentiment. Conversely in the UK, Chancellor Rachel Reeves, has committed to “sustainable finance” as one of the UK’s five priorities for the country Financial Services Growth and Competitiveness Strategy. In the EU, there is further divergence of approach with momentum to deepen sustainable finance disclosures under a SFDR 2.0, yet also calls from EU leaders to streamline sustainability requirements on financial market participants and businesses more broadly.
Private fund managers operating on an international level need to assess and understand their position in this global, interlocking and overlapping – and occasionally conflicting – web of rules and politics. With advisers, LPs, the fund vehicles and portfolio companies hailing from many different jurisdictions, this assessment is not necessarily simple or available off the shelf. However, a tailored and suitable assessment of risk, and appropriate use of ESG approaches can reap significant rewards in mitigating downsides and attracting investment.
Additional Authors: Seetha Ramachandran, Robert Sutton, Jonathan M. Weiss, William D. Dalsen, Rachel Lowe, Adam L. Deming, Adam Farbiarz and Hena M. Vora
EU Commission Consultation on ETS Expansion – Municipal Waste Incineration Among Areas of Consideration
On April 14, 2025, the European Commission launched a 12-week public consultation, inviting stakeholders to provide input on potential revisions to the Directive 2003/87/EC (EU ETS Directive). This consultation is a key step towards a comprehensive overhaul of the EU ETS framework, which is scheduled for revision in the third quarter of 2026.
The Commission has set a deadline of July 8, 2025, for stakeholders to submit their feedback.
This consultation is part of a broader impact assessment, which will evaluate the effectiveness, efficiency, relevance, and coherence of the EU ETS, as well as its EU added value in reducing greenhouse gas emissions. It also addresses the functioning of the Market Stability Reserve, which plays a crucial role in managing the supply-demand balance within the ETS.
The Commission’s consultation focuses on several key areas under review, including aviation and maritime emissions, carbon leakage, carbon removals, and, notably, the potential inclusion of municipal waste incineration within the ETS. These topics represent significant potential changes for industries subject to ETS regulations.
Municipal Waste Incineration
One of the most significant and contentious elements of the consultation is the potential inclusion of municipal waste incineration within the ETS. Under Article 30 of the EU ETS Directive, the Commission is required to present a report by July 31, 2026, assessing the feasibility of including waste incineration plants in the ETS starting from 2028. In this context, the Commission will also evaluate the potential inclusion of additional waste management processes within the scope of the EU ETS, specifically focusing on landfilling, which contributes to methane and nitrous oxide emissions. Such an assessment will consider the alignment with the established waste hierarchy.
This proposal has raised concerns within the waste industry, particularly in France, where several national federations, including Fnade, have voiced opposition. These stakeholders argue that the ETS is not suited for waste-to-energy facilities and other waste treatment operations, which they believe serve a public sanitation function. Unlike traditional energy producers, incineration plants cannot choose the waste they process, making it difficult to reduce direct greenhouse gas emissions. These concerns underscore the potential challenges of incorporating waste incineration into the ETS framework.
Implications for Industry Stakeholders
Since the forthcoming proposed changes could have far-reaching implications for various industries, it is critical for stakeholders, particularly those in the waste and energy sectors, to actively participate in the consultation. The potential inclusion of waste incineration in the EU ETS, in particular, is a matter of significant concern for companies operating in the waste-to-energy and waste treatment sectors. For businesses involved in these industries, it is essential to consider how these changes might impact their operations, compliance obligations, and overall environmental strategy.
At this stage, the consultation offers an opportunity to shape the future of the EU ETS framework before any final decisions are made. Stakeholders should assess the potential impact of these changes on their business and provide constructive feedback to the Commission. Furthermore, those wishing to propose amendments or seek representation during the public consultation phase should consider engaging counsel with expertise in these matters. We can provide this assistance and help ensure that your interests are effectively represented.
EGLE Expected to Lower PFAS Maximum Contaminant Levels in or before 2026
Regulations of PFAS (per- and polyfluoroalkyl substances) have been evolving quickly, and more changes are on the way in Michigan.
In 2020, Michigan established some of the nation’s first drinking water standards for PFAS, setting limits with Maximum Contaminant Levels (MCLs).[1] For example, the MCL for PFOA (perfluorooctanoic acid) is 8 parts per trillion (ppt) and PFOS (perfluorooctanesulfonic acid) is 16 ppt.
However, federal regulations will cause EGLE (Department of Environment, Great Lakes, and Energy) to lower Michigan’s MCLs even more. In April 2024, the U.S. Environmental Protection Agency (EPA) passed a national drinking water MCL under the Safe Drinking Water Act, establishing a threshold for PFAS in drinking water of 4 ppt for five kinds of PFAS (including PFOA and PFOS), as well as regulating four PFAS collectively when present as a mixture.[2] These national MCLs will take effect in 2027.[3] In 2029, the national MCLs become enforceable, triggering penalties and increased monitoring frequencies.
In Michigan, the EPA has delegated its authority to the state to enforce the Safe Drinking Water Act.[4] This means that EGLE is the primary agency in charge of creating and enforcing drinking water regulations. Because this authority is delegated, state limits on contaminants in drinking water must be at least as restrictive as federal limits.[5] Thus, Michigan will need to enact new MCLs on or before 2027.
In recent conversations, EGLE has stated it intends to update the state’s MCLs on or before 2026, which will be at or below the EPA’s level of 4 ppt for each type of PFAS. However, EGLE will not start the process until the Michigan Supreme Court decides a case filed by 3M against the state, which challenges the state’s current MCLs. According to the state, the outcome of the case could dictate the process that the State needs to use for implementing the new MCLs and affect the timeline for the new rules. Either way, new rules are forthcoming.
[1] Michigan PFAS Action Response Team
[2] U.S. Environmental Protection Agency
[3] Id.
[4] U.S. Environmental Protection Agency
[5] Id.
Securing Timely Notification and Benefits for Laid-Off Employees Act
As reported in our March 31, 2025, blog item, on March 21, 2025, the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in a case challenging the U.S. Environmental Protection Agency’s (EPA) May 3, 2024, final rule amending the procedural framework rule for conducting risk evaluations under the Toxic Substances Control Act (TSCA). United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) v. EPA, Consolidated Case No. 24-1151. On April 30, 2025, the court issued an order denying EPA’s motion for voluntary remand and granting EPA’s motion to hold the case in abeyance. In its order, the court states that “serious question arose regarding the propriety of the court retaining jurisdiction over this case and issuing any judgment on the present record.” The court notes that as matters now stand:
EPA has advised the court that it does not intend to defend the 2024 rule. As reported in our March 14, 2025, memorandum, EPA intends to initiate further rulemaking to reexamine multiple aspects of the 2024 rule. During oral argument, EPA stated that it prefers the case be held in abeyance pending reconsideration.
Industry Petitioners (Texas Chemistry Council, American Chemistry Council, American Fuel & Petrochemical Manufacturers, and American Petroleum Institute) and Olin Corporation (as intervenor) advised the court during oral argument that they do not seek a judgment on the merits and that the parties lack adversity with respect to the 2024 rule. They also prefer that the case be held in abeyance.
Alaska Community Action on Toxics and Sierra Club, appearing as intervenors in support of EPA’s 2024 rule, asked the court to uphold the rule.
The court states that it “ha[s] substantial doubts about whether Labor Petitioners — United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, International Association of Machinists and Aerospace Workers, AFL-CIO, and Worksafe, Inc. — have demonstrated Article III standing in accordance with our precedent and D.C. Circuit Rule 28(a)(7).”
The court granted EPA’s motion to hold the case in abeyance and directed the parties to file status reports by July 29, 2025, and at 90-day intervals thereafter. The court denied EPA’s motion for voluntary remand. Senior Circuit Judge Edwards dissented from the grant of abeyance, stating that the case “is ready for hearing and disposition by this court and any further delay is unjustified.” According to Edwards, “[i]t is quite extraordinary that nine years after the Lautenberg Amendments, questions remain as to the agency’s obligations under the statute, and no clear framework has emerged for how the agency is to assess for risk.”
Proposed Revisions to Draft Joshua Tree Conservation Plan
The California Fish and Game Commission (Commission) held its second meeting on the Western Joshua Tree Conservation Plan (Draft Conservation Plan) on April 16, 2025. Though no formal action was taken, the Commission received a presentation from the California Department of Fish and Wildlife (CDFW), discussed potential revisions to the Draft Conservation Plan, and heard additional public comments. In addition, CDFW presented a summary of changes it plans to incorporate into the Draft Conservation Plan based on feedback received to date. Key changes include:
Action Avoidance and Minimization. Adding a discussion on siting large development projects in low-conflict areas to minimize impacts to western Joshua tree habitat.
Land Conservation and Management. Adding a management action that allows for the deliberate, short-distance (
EPA Announces Release of Final Insecticide Strategy
On April 29, 2025, the U.S. Environmental Protection Agency (EPA) announced the release of its final Insecticide Strategy (Strategy), available here. EPA states in the Strategy that it is “intended to create a consistent, reasonable, transparent, and understandable approach to assess potential impacts and identify mitigations to reduce potential population-level impacts to listed species from the use of agricultural insecticides.” Specifically, EPA states that the Strategy identifies mitigations aimed at protecting more than 900 species listed by the U.S. Fish and Wildlife Service (FWS) that EPA considers when it registers a new insecticide or reevaluates an existing one.
According to EPA, the Strategy includes a three-step framework that EPA will use when reviewing pesticide applications or when a pesticide is undergoing registration review, including how to apply mitigations when needed. Generally, the three-step framework is as follows:
Step 1. Establish the potential for population-level impacts to the listed species in categories — not likely, low, medium, or high. These categories indicate a potential concern for population-level impacts that may need mitigation.
Step 2. – Use the potential of population-level impacts to invertebrates from Step 1 to identify levels of mitigations that reduce spray drift and runoff/erosion to non-target habitats.
Step 3. Identify where in the conterminous United States the mitigations identified in Step 2 would apply.
EPA notes that it made several changes to the draft Insecticide Strategy that was released in July 2024 after review of public comments, and states its belief that the Strategy provides greater flexibility and options for the agricultural community, while ensuring that endangered species are protected. Some of the modifications include:
Reducing buffer distances across all application methods;
Separating spray drift and runoff exposure estimates to identify mitigation specific to each route of exposure, so that the level of mitigation is more consistent with the exposure calculation;
Providing credit for any reduction in the proportion of a treated field for ground applications;
Expanding mitigation menu options to allow credit for a reduction in boom length for aerial applications, artificial screens for airblast and ground applications, skipping last downwind row, use of axial deflectors, and targeted application equipment;
Increasing mitigation points for higher sand soils;
Developing a process to qualify conservation programs or standards that will give growers credit for the implementation of those programs for runoff and erosion mitigation needs;
Developing a process to qualify external parties that would assess a grower’s farms and determine the existing mitigation points that could be achieved;
Adding anionic polyacrylamide (PAM) as a new runoff and erosion mitigation option;
Clarifying language on subsurface applications including alignment of language on subsurface chemigation with the mitigation menu website;
Updating key data sources and identification of invertebrate species that may occur on agricultural fields; and
Adding a Pesticide Use Limitation Area (PULA) group for generalist species that reside in wetlands to reduce mitigations applied outside of wetland habitats.
EPA notes that the Strategy does not impose any requirements on pesticide users and is not a rulemaking action. Instead, it represents a framework that EPA will use as it registers and re-registers pesticides. EPA may depart from the guidance in the Strategy “where circumstances warrant and may amend this strategy or its supporting documents when appropriate.”
Several trade associations voiced approval of the Strategy, stating that EPA’s coordination with the agricultural community allowed for “incorporating common sense improvements” to the Strategy. EPA states it will continue to work with stakeholders to modify and update the Strategy and related documents as additional information becomes available. In addition, EPA anticipates continued engagement with stakeholders to ensure effective implementation of the Strategy. Specific areas where EPA intends to undertake further engagement include the following:
Developing a process to qualify individual conservation programs that could achieve nine mitigation points, and a process to qualify external parties that would assess a grower’s farm and determine the existing mitigation points that could be achieved during the growing season;
Reconsidering using descriptions of protected areas or habitats, as opposed to (or to supplement) the descriptions of managed areas (e.g., what is not a protected area) in the Strategy;
Developing refined PULA maps to limit the spatial extent of off-target mitigations to specific areas to protect listed species and to minimize impacts to applicators;
Continuing to work with stakeholders to evaluate drift-reducing adjuvants as a mitigation measure for insecticides;
Working with stakeholders to identify additional mitigation options including potential offset opportunities for insecticides and other types of pesticides; and
Developing a mobile-friendly application tool for growers and other applicators that provides efficiencies in compiling the label information and helps pesticide users consider their options and understand how their current practices, location, and field properties relate to any required mitigations.
The Strategy and accompanying support documents, including a Response to Comments document and an updated Ecological Mitigation Support Document describing mitigations and supporting data that inform implementation of both the herbicide and insecticide strategies, is available at EPA-HQ-OPP-2024-0299.
Commentary
For some, the biggest surprise in this latest “strategy” for implementing Endangered Species Act (ESA) restrictions on pesticide decisions is that after a new Administration arrived in January, the fundamental outline of the approach EPA plans to use to evaluate insecticides is parallel to its earlier (that is, pre-election) approaches for evaluating herbicides. Following long-standing ecological assessment methods, EPA will require a certain number of “mitigation points” dependent on the review of ecological risks to species and their habitats as part of the risk assessment of the insecticide. The scheme is designed to prevent off-site migration through the air or soil, or as EPA has called it, “avoidance and minimization” of off-site movement toward habitats of threatened and endangered species (TES). The Strategy follows the outline, first announced in 2022, of how EPA planned to protect species, adding much more detail regarding how EPA will implement the avoidance and minimization approach that incorporates comments received generally on its overall plans and the herbicide strategy formulated before now.
This document continues to roll out EPA’s plans for categories of pesticides (e.g., insecticides, herbicides, rodenticides) with more detail regarding how the mitigation points system will be used on labels to protect species. Depending on the nature of the pesticide (e.g., estimated likelihood of off-site movement through the air or soil) and the possible risk to TES, a pesticide application would have to apply mitigation strategies, each of which could “earn” a number of points to avoid unacceptable exposure (movement) into species habitat according to EPA’s assessment. Examples of mitigation strategies could include, for example, applications using heavy droplet size to reduce drift to earn two points, contour plowing of the cropping area to earn three points, and different application buffers from species habitat worth various number of points. (Points are an important subject much discussed in the Strategy; in this 141-page document, the word “points” appears 227 times.)
This latest Strategy incorporates many changes from the first version applicable to herbicides, with more detail regarding how EPA incorporated comments received on the earlier strategy documents and as the results of meetings with stakeholders (e.g., growers, state agencies, academics, environmental groups, registrants).
While much more detailed and responsive to criticism than past iterations, there remains a number of outstanding issues about how these strategies will be applied and evaluated on specific crops and pesticides. Mitigation options which may be viable for a particular crop and pesticide will vary widely by geographic region and site-specific growing conditions (e.g., sandy soils, seasonal rainfall, time of year). The issue of the accuracy of species maps and the opportunity for refinements before mitigations are imposed remains controversial. Insecticide (or herbicide) use in orchards versus row-crops, irrigated or not irrigated crops, and even owned or leased land will have important differences affecting the feasibility of EPA’s point system. (For example, an applicator growing crops on leased land does not control the land use which otherwise may present mitigation options such as constructing wind breaks).
Overall, this document is much more detailed and refined about many issues identified in previous strategy documents. At the same time, there remain numerous questions about how or whether the approach can be effectively implemented. Not all growers using their current production systems and pest control strategies may be able to “get enough points.” EPA expects most to be able to do so, but the complexity of the labels may be daunting if not overwhelming, especially considering that growers often use more than one pesticide (an herbicide, and an insecticide, at different points in the growing cycle).
EPA, registrants, and state agencies are developing training materials and messaging to prepare the user community about the approach generally and what some of the requirements may be specifically. EPA may want to implement a phase-in or pilot period for some requirements in order to field-test label requirements and effectiveness. (Some observers cite an analogy to the imposition of enhanced Worker Protection Standards which increased farmworker protection requirements in the early 1990s.) This long-awaited integration of ESA and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requirements will be an important program milestone, but its uncertain feasibility and production impacts may not avoid litigation or legislative challenges from stakeholders who remain dissatisfied.
Environmental Justice Update
Federal
In the first few months of the second Trump presidency, the Administration has taken steps to roll back environmental justice (EJ) considerations in federal decision making. This included a flurry of executive orders (EOs) issued in his first hours and days in office, which effectively rescinded all federal EJ initiatives. A more in-depth review of these EOs can be found here. The Trump Administration followed these EOs by moving to terminate the Environmental Protection Agency’s (EPA) Office of Environmental Justice and External Civil Rights (OEJECR) after placing 160 employees on paid administrative leave at the beginning of February.
On 5 February, the Department of Justice (DOJ) issued a memo implementing EO: Ending Illegal Discrimination and Restoring Merit-Based Opportunity. Specifically, Pam Bondi, the new US Attorney General, stated that by 15 March, each DOJ Department needed to submit a report including the following:
Confirming the termination, to the maximum extent allowed by law, of all DEI, DEIA, and “environmental justice” programs, offices, and positions;
Identifying agency or department DEI, DEIA, or “environmental justice” positions, committees, programs, services, activities, budgets, and expenditures in existence on 4 November 2024, and providing an assessment of whether these positions, committees, programs, services, activities, budgets, and expenditures have been misleadingly relabeled in an attempt to preserve their pre-November 4, 2024, function;
Identifying federal grantees who received federal funding to provide or advance DEI, DEIA, or “environmental justice” programs, services, or activities since 20 January 2021; and
Assessing the operational impact (e.g., the new of new DEI hires) and the cost of the prior administration’s DEI, DEIA, and “environmental justice” programs and policies.
In response, Senator Alex Padilla (D-CA) and Representative Nanette Diaz Barragan (D-CA) introduced the Empowering and Enforcing Environmental Justice Act, which would “permanently codify the Office of Environment Justice within [DOJ’s] Environment and Natural Resources Division (ENRD).” Meanwhile, the EPA (and the Department of Government Efficiency) announced the cancellation of nine contracts “related to DEI, environmental justice, and more” and the cancellation of an additional 20 grants as “the EPA puts a stop to wasteful DEI and environmental justice programs being funded by taxpayers.”
On 12 March 2025, EPA issued an internal memorandum announcing that it would shut down all EJ offices and officially end other EJ-related initiatives. Leading up to this announcement, the agency had taken down EJ-related tools such as EJScreen, an “open-source mapping and screening tool” that allowed the public to map “EJ Indexes” by combining metrics for environmental burdens with demographic indexes derived from US Census data on poverty and racial demographics.
States
Despite federal efforts to roll back Biden-era EJ initiatives, many states continue to focus on EJ. Importantly, states’ EJ laws will not be immediately impacted by the actions of the Trump administration; instead, it is expected the rollback of EJ at the federal level will likely encourage many states, particularly Democratically controlled states, to more aggressively enact and enforce EJ standards and policies. Below is a highlight of EJ updates on the state level.
Colorado
On 14 January 2025, Colorado announced the launch of its updated screening tool, “Colorado EnviroScreen 2.0.” The new EnviroScreen provides updated quantifiable measurements of combined environmental stressors, taking into account environmental exposures, environmental effects, climate vulnerability, sensitive populations, and demographics. Colorado’s EnviroScreen tool is used in a variety of contexts within the state’s regulatory programs, such as in oil and gas permitting actions. The launch of the updated tool is in tandem with the rollout of Colorado’s new tool known as the Disproportionately Impacted Communities Map, which highlights areas that meet criteria for disproportionately impacted communities, as defined by Colorado law. Permittees must include plans with their application materials that indicate whether the proposed operations are within disproportionately impacted communities, conduct outreach activities to disproportionately impacted communities, and identify potential impacts in the operators’ prepared cumulative impact evaluations for the oil and gas operators’ comprehensive area plans.
On 26 February 2025, the Colorado Department of Public Health and Environment held its final public meeting regarding the proposed Landfill Methane Rule and on 17 April 2025, the Colorado Air Quality Control Commission set a rulemaking hearing for August on the proposed rule.1 The proposed rule encompasses several modifications to landfill gas emissions requirements, to include earlier installation of gas collection and control systems than what federal requirements currently mandate, the inclusion of aerial monitoring and biofilters, and phasing out open flares. These modifications, in particular the phase out of open flares, are expected to have positive implications for protecting “fenceline” or EJ communities, that may otherwise be disproportionately impacted. However, even if the rule is adopted, its successful implementation remains tenuous, as Colorado was previously selected to receive from the EPA US$23 million in funding for the Air Pollution Control Division’s methane monitoring efforts, a grant that is now uncertain due to the Administration’s recent funding actions.
Illinois
On 24 March 2025, EPA’s OEJECR determined that the Illinois Environmental Protection Agency met its obligations under an Informal Resolution Agreement, dated 14 February 2024, which was issued to resolve allegations that Illinois EPA engaged in racial and national origin discrimination in its permitting process. This dispute arose following Illinois EPA’s approval of a construction permit that would have moved a scrap metal recycling facility from the Lincoln Park neighborhood of Chicago, a primarily white and wealthy area, to a low-income primarily minority community in southeast Chicago. The settlement required Illinois EPA to expand access to public participation across the full permitting lifecycle and affirmatively consider a permit applicant’s history of violations under the Illinois Environmental Protection Act and potentially implement permit restrictions based on same. On 13 January 2025, Illinois EPA notified OECRC that it had fulfilled its final obligations upon publishing a finalized Enhanced Public Participation Plan on its website.
In addition, following a yearslong battle with Illinois environmental public interest groups, the US Army Corps of Engineers recently announced it was rescinding a planned expansion of a toxic waste disposal site on the Southeast Side of Chicago, an overburdened EJ community. The proposed expansion along the Lake Michigan shoreline would have taken in an additional one million cubic yards of contaminated sediment dredged from the Calumet River. Opponents of the expansion said the area is already overburdened with toxic pollution, and they also cited the long-held promise of a lakefront park once the site was decommissioned. Leading up to withdrawing its plans, Illinois EPA sent a letter to the Corps in January stating that the expansion would violate state law, which prohibits construction or expansion of landfills in Cook County.
Maryland
On 7 February 2025, House Delegate Jazz Lewis introduced the CHERISH (Cumulative Harms to Environmental Restoration for Improving our Shared Health) Our Communities Act. The Act creates new permit application requirements for a broad spectrum of permits for “covered projects” issued by the Maryland Department of the Environment (MDE). Among other things, the bill requires a permit applicant for a covered project to submit an environmental impact analysis, and, under specified circumstances, an existing burden report with their permit application. The Act gives MDE authority to reject a permit application if it determines that the proposed project would cause or contribute to an increased potential for adverse environmental and public health impacts within a specified surrounding area. MDE may also grant conditions to a permit to reduce pollution impacts. The bill also expands the applicability of existing public participation requirements to projects identified as having an increased potential for adverse community environmental and public health impacts. Census tracts covered under the CHERISH Act are identified based on the Maryland EJ Screening tool.
New Jersey
Two appeals are pending before the Superior Court of New Jersey, Appellate Division, challenging many aspects of New Jersey’s first of its kind environmental justice rules (EJ Rules) published by the New Jersey Department of Environmental Protection (NJDEP) on 17 April 2023. These EJ Rules seek to implement Governor Murphy’s landmark environmental justice legislation, which was aimed at reducing pollution in historically overburdened communities that the Murphy administration says have been disproportionately impacted by environmental and public health stressors. The appeals challenge the EJ Rules as going beyond the scope of NJDEP’s statutory authority or as otherwise being arbitrary, capricious, and unreasonable. The appeals also challenge the EJ Rules and the Environmental Justice Mapping, Assessment and Protection Tool (EJMAP) on the grounds that they were promulgated in violation of the Administrative Procedure Act. The appeals are currently awaiting the scheduling of oral argument.
On 30 January 2025, the Department updated EJMAP, New Jersey’s tool that maps overburdened communities as defined by the EJ law and environmental and public health stressors impacting those communities. The updates incorporate new overburdened community determinations based on the 2023 American Community Survey and new stressor data made publicly available since the map’s previous release last year. Any permit application submitted on or after 31 January 2025 must use the new Overburdened Community/Adjacent Burden Group (OBC/ABG) and stressor data layers for analysis.
New Mexico
On 17 January 2025, the EPA OEJECR announced an investigation into civil rights violations by the City of Albuquerque, New Mexico in preventing the adoption of a pollutant-reducing rule. As one of the final actions of the Biden Administration, EPA took up a complaint alleging that the city council and county air quality control boards violated procedural state requirements in blocking a rule that would benefit an identified environmental justice community. Though the matter remains pending, it is unclear whether OEJECR will continue to investigate cases opened under the Biden administration or whether the substantial shift in EJ initiatives will impact EPA’s ability to investigate allegations of discrimination.
New York
On 29 January 2025, the New York State Department of Environmental Conservation (NYSDEC) announced the release of proposed amendments to the State Environmental Quality Review Act (SEQRA) regulations, to integrate EJ considerations into environmental reviews. These amendments, mandated by ECL Article 8, build upon what has become known as the Environmental Justice Siting Law (EJSL), signed by Governor Kathy Hochul on 31 December 2022.
EJSL mandates that EJ concerns be considered in environmental permitting decisions and the SEQRA review process. Specifically with respect to SEQRA, the EJSL requires the SEQR process to consider the “effects of any proposed action [subject to a determination of significance] on disadvantaged communities, including whether the action may cause or increase a disproportionate pollution burden on disadvantaged community” when making the determination of significance under SEQR (that is, the SEQR lead agency decision of whether to prepare or cause to be prepared an environmental impact statement). NYSDEC’s proposed regulations implement this requirement. The public comment period on the proposed amendments began on 29 January 2025, and NYSDEC will accept comments until 7 May 2025.
Pennsylvania
The Pennsylvania Department of Environmental Protection (PADEP) is working on a comment-response document for comments received on an Interim Final EJ Policy issued on 16 September 2023. The Interim Final EJ Policy is a significant modification and expansion of the Department’s prior EJ policy published in 2004. The policy impacts how and when major environmental permits are issued in Pennsylvania and also impacts enforcement of environmental laws in EJ areas. Unlike prior iterations of the policy, PADEP will determine whether an area constitutes an EJ area based on a weighted index of both environmental indicators and population characteristics. Permits covered by the policy will be analyzed for impacts to EJ areas and will be required to engage in additional outreach to local communities. Perhaps most interestingly, the Interim Final EJ Policy allows for enhanced civil penalties for violations that occur in EJ areas covered by the policy. PADEP will be using a mapping and screening tool known as “PennEnviroScreen” that identifies EJ communities using 32 environmental, health, and socioeconomic indicators. A more detailed update on the Interim Policy can be found here.
In addition, on 14 January 2025, State Rep. Greg Vitali (D-Delaware) introduced an EJ bill, H.B.109, which would require additional processes for permit applications in EJ areas—including the submittal of a cumulative environmental impact report and a more robust public hearing process—and would empower PADEP to “require additional conditions or mitigation measures” or “deny a permit application in an environmental justice area based on the cumulative environmental impacts.” The bill was most recently referred to the House Committee on Environmental and Natural Resource Protection.
Virginia
On 8 January 2025, Senator Lamont Bagby (D-14) introduced legislation, SB-1254, that would require municipalities with a population above 20,000 and counties above 100,000 to consider incorporating an EJ strategy into their comprehensive plans each time they are under review. EJ became codified in Virginia law in 2020 through the Virginia Environmental Justice Act, which makes it state policy to ensure that environmental justice is “carried out throughout the Commonwealth,” with a focus on low-income communities, communities of color, and especially those near major sources of pollution. A comprehensive plan is a policy document intended to set forth how a locality plans to grow and steer future development. Virginia law has required since 1980 that all local governments develop and adopt a comprehensive plan, and it also stipulates that the plans must be reviewed at least once every five years.
The bill provides that the locality’s strategy shall be to identify EJ and fenceline communities within the jurisdiction of the local planning commission and identify objectives and policies to reduce health risks, to promote civic engagement, and to prioritize improvements and programs that address the needs of environmental justice and fenceline communities, as those terms are defined by the bill. The bill passed both the House and Senate but was vetoed on 24 March 2025, the very last day for the Governor to act on legislation from the 2025 General Assembly session.
Conclusion
In light of these recent developments, the Trump Administration’s approach to EJ marks a significant shift from prior federal policies. Businesses, particularly those operating in overburdened communities, should closely monitor policy shifts and enforcement trends at both the federal and state levels. The firm has assembled a task force that is closely watching these developments and is ready to work with clients to understand how these and other changes may impact their businesses.
Footnotes
1 In April, the Department will submit the proposed rule to the Colorado Air Quality Control Commission.
Additional Authors: Abby Dinegar, Emily M. Poniatowski, and Brendan Lawlor