Will Bipartisan Legislation Be Possible After Reconciliation?
After President Trump’s address to Congress on Tuesday, March 4, 2025, it is unclear if there will be much desire or willingness on behalf of the Democrats and Republicans to collaborate on legislation during the 119th Congress. President Trump and Congressional Republicans are moving toward “one big, beautiful” reconciliation bill (that is possible to enact without Democratic support) that will reflect most of President Trump’s priorities. The question is: what happens after reconciliation? The answer to that question has implications for issues such as reauthorizing user fees and reforming the Toxic Substances Control Act (TSCA), enacting a Farm Bill that has been extended twice already, and online security — all of which will require bipartisan support to be enacted.
Legislating is difficult. Our system of government is designed in a way that makes legislating quickly challenging, even if one party controls both Houses of Congress and the Executive Branch. (See Obama, Barack). Presidents have increasingly turned to Executive Orders or passing legislation with only the majority party. These routes have limitations. True, durable, legislation takes agreement, negotiation, and ultimately bipartisan support for meaningful legislation to be enacted. Anything that can be developed and deployed quickly can be overturned quickly. Each new administration believes it has a mandate to govern and desires to leave its mark on America. One of the first actions of any new President is to freeze regulatory actions of his predecessor and, in some instances, issue an order repealing a previous Executive Order.
Some of the problems and issues facing the United States require both parties to work together. Unfortunately, the electorate does not reward getting things done (especially if it requires working with the other party to do so) as much as it rewards “standing up” to the other side. Failing to fight or support the party line is punished these days by being primaried. This is one of several unfortunate changes that have come to Washington, D.C. during the past several decades. Partisanship has always existed. There were times when elected officials were able to work together, despite party, and craft policy that was good for the country. When both parties have “skin in the game” they are more likely to protect what they created. When one party “goes it alone,” it sets up a dynamic that encourages the other party to seek to undo that policy at all costs, as happened with the Affordable Care Act.
Republicans control the Executive Branch and both Houses of Congress and are seeking to implement large parts of President Trump’s agenda through a legislative maneuver called budget reconciliation. This process enables legislation to pass with majority only votes, which helps in the Senate where a procedure called cloture requires 60 votes, usually meaning that bipartisan support is required. Under reconciliation, the majority party, in this case Republicans, can pass legislation without a single vote from the minority party. There are some downsides to using the reconciliation process. For one thing, reconciliation legislation has an expiration date. It is not durable. Reconciliation can only affect revenues or expenditures. Republicans will spend much of 2025 attempting to pass reconciliation legislation. This is going to require time, effort, and lots of negotiating among Republicans. At the end of the day, Republicans will pass something, but the scope and cost of it will be limited by the rules of reconciliation.
What all this means for legislation that Congress needs to address post-reconciliation remains to be seen. After what is likely to be a year-long partisan exercise, how much will Democrats be willing to work with Republicans to enact any policies that will be perceived as Republican victories? During the Biden Administration, the dynamic was the same. Another complicating factor is history — the party in power almost always loses seats in the House of Representatives in the mid-year elections. With such a narrow majority in the House, history indicates that Democrats are likely to take control of the House after the 2026 elections. If the past is a predictor of the future, you should rewind your DVR to watch 2023-2024 (the 118th Congress) play out in reverse, with Democrats in the House seeking to stymie any legislation desired by Republicans in the Senate or President Trump.
Buckle up and stay tuned. It is going to be a bumpy ride.
EPA Announces Expansive Deregulatory Plan
On March 12, 2025, U.S. Environmental Protection Agency Administrator Lee Zeldin announced a sweeping plan to “undertake 31 historic actions in the most consequential day of deregulation in U.S. history.” The announcement states that the deregulatory plan is intended to “advance President Trump’s Day One executive orders and Power the Great American Comeback.” EPA states that these actions “will roll back trillions in regulatory costs and hidden ‘taxes’ on U.S. families,” making it “more affordable to purchase a car, heat homes, and operate a business.”
The ambitious plan identifies numerous past EPA regulations or actions that will be reconsidered or reviewed. The regulations identified in the deregulatory plan, which were promulgated under the Clean Air Act, Clean Water Act, and the Resource Conservation and Recovery Act, apply to a wide range of industrial sectors and regulated parties. Although described as “31 actions,” the EPA’s primary announcement lists 22 different items, with some mentioning more than one regulation or past action set to be reconsidered or otherwise addressed as part of the plan. EPA’s list is also separated by headings that appear to correspond to separate Day One executive actions by President Trump. For each of the planned deregulatory actions, EPA issued an accompanying press release providing additional information, including, in a few cases, anticipated timelines for completing the deregulatory actions and planned interim actions.
The Babst Calland team has summarized the identified deregulatory actions and information provided by EPA in the table below:
EPA’s Description
Key Points from EPA Press Release
EPA’s Target Timeline
Unleashing American Energy
EPA Announces Reconsideration of Clean Power Plan 2.0
Reconsidering the “Clean Power Plan 2.0” based on the Biden administration’s rule requiring “unlawful fuel-shifting” and “overreaching”
Citing U.S. Supreme Court’s stay of the Clean Power Plan and subsequent decision overturning it in West Virginia v. EPA
No stated timeline
EPA Announces Reconsideration of OOOO b/c
Reconsidering regulations for the oil and gas industry under Clean Air Act (CAA) § 111 (40 CFR Part 60, Subparts OOOOb/c) and revisions to 40 CFR Part 98, Subpart W of the Greenhouse Gas Reporting Program as “ideologically driven regulations” that prevent U.S. “energy dominance”
Referring to “major recent Supreme Court precedent” related to federal agencies’ interpretation and implementation of governing statutes
No stated timeline
EPA Announces Reconsideration of Mercury and Air Toxics Standards (MATS)
Reconsidering the MATS rule based on noted costs for compliance, past mercury emissions reductions, and significant regulatory uncertainty for coal plants in several states, including Pennsylvania and West Viriginia
Considering 2-year compliance exemption via CAA § 112(i)(4) for affected power plants during EPA’s rulemaking process
No stated timeline for completing reconsideration
EPA is considering 2-year compliance exemption
EPA Announces Reconsideration of Greenhouse Gas Reporting Program
Reconsidering the mandatory Greenhouse Gas Reporting Program based on noted costs of calculating and submitting annual emissions reports
Noting that mandatory GHGRP is “not directly related to” developing regulations and could be better used to drive improvements at reporting facilities
No stated timeline
EPA Announces it Will Reconsider 2024 Water Pollution Limits for Coal Power Plants (ELG: Steam Electric)
Revising 2024 wastewater regulations for coal burning power plants on flue gas desulfurization wastewater, bottom ash transport water, combustion residual leachate and legacy wastewater
Reconsidering technology-based ELGs and evaluating immediate relief from leachate requirements
Stating that EPA will consider how it might provide “immediate relief from some of the existing leachate requirements,” and “in a series of related actions,” EPA will provide clarifying updates on leachate requirements and reevaluate availability and cost of membrane technology
No stated timeline
EPA Will Revise Wastewater Regulations for Oil and Gas Extraction
Modernizing regulations on wastewater discharges for oil and gas extraction facilities to “provide regulatory flexibility” and support environmentally sustainable water reuse with “modern technologies and management strategies”
Reviewing and evaluating technologies and strategies for produced water to be treated for beneficial reuse, including for AI and data center cooling, rangeland irrigation, fire control, power generation, and ecological needs
Considering expanding the geographic scope of where treated wastewater can be used and discharged in the U.S.
No stated timeline
EPA Announces Reconsideration of the Risk Management Plan
Reconsidering 2024 Risk Management Plan (RMP) rule due to “significant concerns relating to national security and the value of the prescriptive requirements within the rule”
Stating that the 2024 RMP rule makes oil and natural gas refineries and chemical facilities less safe and less competitive
No stated timeline
Lowering The Cost of Living for American Families
EPA Announces Action to Implement POTUS’s Termination of Biden-Harris Electric Vehicle Mandate
Reconsidering Model Year 2027, Later Light-Duty, Medium-Duty, and Heavy-Duty Vehicle regulations based on noted regulatory and compliance costs and effort to bring back American auto jobs
Reevaluating Biden administration’s “Clean Trucks Plan” and “2022 Heavy-Duty Nitrous Oxide (NOx) rule”
No stated timeline
EPA Kicks Off Formal Reconsideration of 2009 Greenhouse Gas Endangerment Finding with Agency Partners
Reconsidering the 2009 Greenhouse Gas Endangerment Finding in collaboration with Office of Management and Budget and other agencies based on costs of regulations that flow from the finding
Reconsidering all of EPA’s prior regulations and actions that rely on the 2009 Endangerment Finding
Stating that “EPA will follow the Administrative Procedure Act and Clean Air Act, as applicable, in a transparent way for the betterment of the American people and fulfillment of the rule of law”
Stating in a separate one-page document that “EPA does not prejudge the outcome” of the reconsideration
No stated timeline
EPA Announces Reconsideration of the Technology Transition Rule
Reconsidering the technology transition rule based on noted costs of refrigerant systems required under rule
Stating that the rule harms semiconductor manufacturing and raises the cost of food at grocery stores
No stated timeline
EPA Announces Path Forward on NAAQS for PM2.5 to Aid Manufacturing, Small Business
Reconsidering the PM2.5 National Ambient Air Quality Standards (NAAQS) based on “serious concerns” from states and the standards serving “as a major obstacle to permitting”
Releasing guidance “soon” to increase flexibility on NAAQS implementation, reforms to New Source Review, and direction on permitting obligations
No stated timeline for completing reconsideration
Guidance to be released “soon”
EPA Announces Reconsideration of Air Rules Regulating American Energy, Manufacturing, Chemical Sectors (NESHAPS)
Reconsidering initially the National Emission Standards for Hazardous Air Pollutants (NESHAPS) for integrated iron and steel manufacturing, rubber tire manufacturing, synthetic organic chemical manufacturing industry, commercial sterilizers for medical devise and spices, lime manufacturing, coke ovens, copper smelting, and taconite ore processing
Considering a 2-year compliance exemption via CAA § 112(i)(4) for affected facilities during EPA’s rulemaking process
Evaluating other NESHAPs and New Source Performance Standards to determine whether they should be reconsidered
No stated timeline
Administrator Zeldin Begins Restructuring Regional Haze Program
Reconsidering implementation of program based on noted significant costs to power plants in the past
Reviewing Regional Haze Program regulations “to ensure that it fulfills Congressional intent, is based on current scientific information, and reflects recent improvements in air quality”
No stated timeline
EPA Announces Action to Address Costly Obama, Biden “Climate” Measurements (Social Cost of Carbon)
Revisiting Biden administration’s “social cost of carbon” based on “significant regulatory costs”
Executive Order requires guidance issued within 60 days of order
Administrator Zeldin Directs Enforcement Resources to Align with Executive Orders and EPA’s Core Mission
Immediately revising National Enforcement and Compliance Initiatives “to ensure that enforcement does not discriminate based on race or socioeconomic status” or “shut down energy production”
Stating that enforcement discretion will provide predictability “as EPA considers changes to regulations” and “cost savings”
EPA states it “will immediately revise” initiatives
EPA Terminates Biden’s Environmental Justice, DEI Arms of Agency
Terminating DEI and Environmental Justice arms of EPA
No stated timeline
Advancing Cooperative Federalism
EPA Announces Plan to Work with States on SIPs and Reconsider “Good Neighbor Plan”
Tackling “troubled” “Good Neighbor Plan” to advance cooperative federalism and work with states on Statement Implementation Plans to improve air quality
No stated timeline
Administrator Zeldin Takes Action to Prioritize Cooperative Federalism, Improve Air Quality Faster
Announcing commitment to address backlog of State/Tribal Implementation Plans
Noting EPA will assist states to ensure air quality is protected while growing economy
Referencing states’ concerns “related to being punished for emissions” outside of their control and “air quality monitors not being located in most logical locations”
Specifically mentioning development of semiconductor manufacturing and artificial intelligence
EPA’s goal to clear backlog “as soon as possible”
Administrator Zeldin Takes Action to Decrease Risk of Future Catastrophic Wildfires
Prioritizing allowance of prescribed fires within State/Tribal Implementation Plans to decrease risk of future wildfires
No stated timeline
EPA to Accept Nominations for Science Boards
Reconstituting Science Advisory Board and Clean Air Scientific Advisory Committee
Stating changes are critical to EPA receiving scientific advice “consistent with its legal obligations to advance core mission of protecting human health and the environment”
Accepting nominations for 30 days following publication in Federal Register
EPA Announces Action on Coal Ash Program
Prioritizing a number of “timely” actions on coal ash, “including state permit program reviews and update to coal ash regulations”
Reviewing Legacy-Coal Combustion Residuals Management Units Rule (CCRMU Rule) and “evaluating whether to grant short- and long-term relief such as extending compliance deadlines”
EPA will propose determination on North Dakota program within 60 days
EPA aims to complete CCRMU Rule changes within “a year”
EPA Announces Use of Enforcement Discretion to Further North Carolina’s Recovery from Hurricane Helene
Granting an extension of the no action assurance that North Carolina requested to “use large air curtain incinerators to clear debris without Title V permits to allow more efficient burning of debris with lower emissions”
Immediate
Administrator Zeldin Announces EPA Will Revise Waters of the United States Rule[1]
Revising Clean Water Act (CWA) Waters of the United States definition to reduce red tape, cut permitting costs and lower costs of doing business
Undertaking rulemaking process guided by Sackett and providing guidance to states while rulemaking proceeds
EPA will “move quickly” on review and “expeditiously” obtain input from stakeholders
With limited exceptions, EPA provides few details on the timing and steps it will take for each of the identified actions. In multiple announcements, EPA states or implies that it will undertake notice and comment rulemaking under the Administrative Procedure Act. Notably, EPA does not address steps it may take in pending litigation regarding several of the identified regulations. Nor does EPA mention whether the planned deregulatory actions satisfy directives under President Trump’s other Executive Orders, such as the “Ensuring Lawful Government and Implementing the President’s ‘Department of Government Efficiency Regulatory Initiative’” and “Unleashing Prosperity Through Deregulation” orders.
The deregulatory plan will require significant resources and time to implement at a time when EPA’s new political leadership is seeking to drastically cut costs and staff. Although several of the identified deregulatory actions may take years to complete, stakeholders subject to the identified deregulatory actions must evaluate and consider developing strategies for productively engaging with EPA during the expected rulemakings and related actions. Major environmental groups have denounced EPA’s deregulatory plan and are vowing to challenge the EPA.
Two New Procedural Wrinkles That May Disincentivize Challenges to Federal Policies
The first weeks of the Trump Administration have been defined by executive orders and new policies that were immediately challenged on constitutional or statutory grounds.
Recently, the US Environmental Protection Agency indicated its intent to “launch” the “biggest deregulatory action in U.S. History” under which it will undertake 33 separate actions impacting regulations ranging from emissions limits for power plants to internal calculations for the “social cost of carbon.” Even preceding this effort, more than 100 legal challenges to other Trump Administration actions have been filed.
As these disputes move through the litigation process (including appeals and, for at least some cases, likely US Supreme Court review), district courts have issued numerous preliminary injunctions to pause or delay the effects of executive orders until litigation is complete. While some of the new efforts will be challenged in appellate courts due to venue provisions in statutes including the Clean Air Act or Clean Water Act, other challenges will proceed in district courts.
Litigating these challenges can be expensive for both sides, but two recent developments could make litigation costs — particularly in challenges lodged in district courts — higher for challengers. First, the Trump Administration issued a Memorandum titled “Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c),” and subsequently a related Executive Order on the same subject, seeking to require challengers to post bond before seeking preliminary injunctions. Second, the Supreme Court recently decided Lackey v. Stinnie, which — separate and apart from the Memorandum — makes it harder for some challengers to recover attorneys’ fees after a preliminary injunction is granted.
Below, we discuss these developments and how they might apply in the litigation context.
How to Challenge Executive Branch Actions
We have outlined some of the Trump Administration’s initial actions: initial Executive Orders; initial environmental policies; initial efforts to pause government grants; and policies in the energy space. We have also addressed the new Administration’s trade policies here and here.
Individuals and entities generally initiate a challenge to the legal basis for an executive order or other action by filing a complaint in a federal district court. Depending on what is at stake and whether the facts of the case require rapid resolution, the court may use briefings, hearings, or a trial to evaluate whether the order or action should be upheld, struck down, or modified. Parties that lose in district courts may appeal, and some disputes make their way to the Supreme Court, which has the final say on most constitutional issues.
Often, challengers ask for injunctive relief, which is a legal remedy in the form of a court order compelling a party to do, or not do, a particular thing. Injunctive relief is warranted when an award of a money judgment would be insufficient to resolve the harm. Injunctive relief can be temporary — a “preliminary injunction” — or permanent, requiring a party in perpetuity not to do a particular thing.
Courts will often use preliminary injunctions to temporarily preserve the “status quo” while litigation is ongoing. This means that a challenger may win a preliminary injunction, but ultimately lose the case (or have the case mooted if the government changes course on its own before a final judgment).
The White House Memorandum on Fed. R. Civ. P. 65(c)
On March 6, after district courts had issued numerous restraining orders and preliminary injunctions temporarily delaying or reversing executive orders, the Trump Administration issued a new memorandum titled “Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c),” seeking to require plaintiffs to post a bond before requesting preliminary relief. (The White House fact sheet on the Memorandum is here.)
The memo asserts that the slate of lawsuits and preliminary injunctions constitutes an “anti-democratic takeover … orchestrated by forum shopping organizations that repeatedly bring meritless suits … without any repercussions when they fail.” The memo argues that taxpayers are harmed when program cuts are enjoined and substantial government resources are spent “fighting frivolous suits instead of defending public safety.”
In response to the issues it identifies, the memo invokes Federal Rule of Civil Procedure 65(c), which requires parties seeking a preliminary injunction to post security in an amount the court determines is sufficient to cover the costs and damages of the enjoined party if the enjoined party ultimately wins the case on the merits. The memo directs all federal department and agency heads to formally request security under Rule 65(c) in every case where plaintiffs seek a preliminary injunction against the government. It requires that the requests remind the court that Rule 65(c) is mandatory, reiterate that the government’s requested bond amount is “based on a reasoned assessment,” and demand that any party failing to comply with Rule 65(c) should lead to the “denial or dissolution of the requested injunctive relief.”
But despite its strong language, the memo is largely just a reminder of an already existing procedural rule. Judges have discretion to determine the appropriate amount for any Rule 65(c) bond, and, in the context of challenges to executive actions, many courts have determined that amount is zero. Federal judges are presumably aware of Rule 65(c), and many of the judges enjoining the Trump Administration already determined that Rule 65(c) did not require a bond in those cases. Two weeks before the memo, a federal district judge in Maryland granted a college diversity officer’s request for a preliminary injunction against executive orders cancelling diversity, equity, and inclusion (DEI) grants and contracts, but set the Rule 65(c) bond at $0 because the plaintiff’s constitutional rights were at issue and “a bond of the size Defendants appear to seek would essentially forestall Plaintiffs’ access to judicial review.”
Going forward, Rule 65(c) bonds will likely become a more actively contested issue and challengers to any executive action will need to provide arguments why they should not be required to pay.
Lackey v. Stinnie and Plaintiffs’ Attorney Fees
Separately but relatedly, the challengers who have successfully obtained preliminary injunctions blocking Trump Administration executive actions may have a harder time recovering their attorneys’ fees — after the recent Supreme Court decision in Lackey v. Stinnie, plaintiffs will need to see their cases through to final judgment before recovering legal fees.
42 U.S.C. § 1988 provides that civil rights plaintiffs may win reimbursement of their attorneys’ fees if they are the “prevailing party.” Historically, this fee-shifting mechanism has helped advocacy groups and law firms shoulder the substantial cost of civil rights lawsuits. For example the Lackey plaintiffs estimated that the federal appellate litigation in the case cost $800,000. In a procedurally similar case, the New York Civil Liberties Union was seeking $200,000 in attorneys’ fees against two upstate New York counties.
The Supreme Court has addressed when exactly a plaintiff becomes a “prevailing party” (and thus eligible for reimbursement) on several occasions. In Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, the Court ruled that a party prevails only when it achieves a “judicially sanctioned changed in the legal relationship of the parties.” 532 U.S. 598, 601 (2001). If a plaintiff files a lawsuit and the defendant voluntarily does what the plaintiff asked for, the plaintiff does not “prevail” for purposes of attorneys’ fees. To prevail, the plaintiff must win a merits judgment from a court.
What if a plaintiff wins a preliminary injunction but loses a final merits judgment? That plaintiff also does not prevail, the Supreme Court has held, because the victory was only temporary, not enduring. Sole v. Wyner, 551 U.S. 74, 86 (2007). The Sole decision left open what happens when a plaintiff wins a preliminary injunction and then the defendant voluntarily provides the relief plaintiff was seeking.
That issue has now been resolved. Until last month, 11 federal appeals courts held that a plaintiff that wins a preliminary injunction can be a “prevailing party” under some circumstances. Not so, said the Supreme Court in Lackey. The Court held that a plaintiff “prevails” when it wins permanent, on-the-merits judicial relief that materially alters the legal relationship of the parties. A plaintiff that wins only a preliminary injunction, which would include several plaintiffs suing the Trump Administration at this juncture, is not yet entitled to reimbursement of its attorneys’ fees. As a result, it’s not yet clear whether plaintiffs challenging the Trump Administration’s policies will receive attorneys’ fees. It will depend on how they are ultimately resolved.
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EPA and the Army Make More Waves on WOTUS
On March 12, the Environmental Protection Agency and the Office of the Assistant Secretary of the Army took steps to address lingering questions about the meaning and implementation of “waters of the United States” (WOTUS) following the US Supreme Court’s 2023 decision in Sackett v. United States. Although the Sackett decision narrowed the types of features that could be WOTUS, there are several implementation questions that remain on particular issues related to identifying WOTUS. Further, subsequent litigation over the prior administration’s WOTUS rule has resulted in the 2023 WOTUS rules (as amended after Sackett) applying in 24 states, while the pre-2015 rules, as consistent with Sackett, are applied in 26 states.
As the agencies begin a new effort to promote clarity and uniformity for Clean Water Act implementation across the country, EPA Administrator Lee Zeldin announced the availability of new guidance for implementing the “continuous surface connection” requirement outlined in Sackett. Administrator Zeldin also announced that the agencies will conduct listening sessions in March and April to solicit feedback and hear public comment on implementation issues that remain post-Sackett. The agencies hope that the guidance and the listening sessions will assist their efforts to arrive at both (a) legally comprehensible and durable provisions for identifying jurisdictional features governed by the Clean Water Act, and (b) effective, transparent, and predictable field implementation of the principles for identifying WOTUS.
The Guidance
Whether a wetland is jurisdictional under the Clean Water Act depends on the connection that the wetland has to another jurisdictional water — a traditional navigable water or a relatively permanent body of water connected to a navigable water. When the Supreme Court confirmed in Sackett that a wetland needed to have a continuous surface connection with other covered waters, it seemed to provide additional clarity with respect to wetland jurisdiction. But guidance documents issued by the prior administration continued to generate controversy by concluding that “continuous surface connection” did not only mean that a wetland had to abut a covered water, but that it could be connected by a “discrete feature,” like a non-jurisdictional ditch, to a jurisdictional waterway.
The new guidance clarifies that wetlands must be “adjacent” to, or “directly abut” a jurisdictional water like a river or tributary and prohibits non-jurisdictional intermediate features from qualifying as a continuous surface connection. The guidance emphasizes that, after Sackett, the test for the jurisdictional status of adjacent wetlands is twofold. First, the wetland must be adjacent to a body of water that is itself a traditionally navigable water or a “relatively permanent” body of water that is connected to a traditionally navigable water. Second, the wetland (which must meet the existing regulatory definitions of wetlands) must have a continuous surface connection to a jurisdictional water such that it is difficult to determine where the jurisdictional water ends and the wetland begins. This eliminates the “discrete feature” test.
This continuous surface connection guidance supersedes all other guidance documents on the issue. The agencies recognize that the second prong of the test, the “line-drawing problem” that exists between waters and wetlands, may present case-by-case challenges in identifying a continuous surface connection in the field. The agencies commit to working with stakeholders to resolving these line-drawing problems on a case-by-case basis and may provide additional guidance on the line-drawing problem in the future.
Listening Sessions
The agencies have announced a series of six listening sessions to take place in late March and April to receive public input on several WOTUS topics:
Relatively Permanent Waters. To determine whether a tributary is a WOTUS, the agencies look to whether the tributary is a “relatively permanent water.” The agencies are soliciting feedback on what kinds of characteristics, like flow regime, flow duration, seasonality, or others should inform a definition of “relatively permanent.”
Continuous Surface Connection. Although the new guidance is clear that discrete features connecting a wetland to a traditionally navigable water is not a basis for treating a wetland as jurisdictional, there are lingering questions on what it means for a wetland to “abut” a jurisdictional water. The agencies are seeking input on whether wetlands behind natural (not artificial) berms or other landforms would be considered “abutting,” and whether artificial flood control structures, pumps, and other features would remove a wetland behind the feature from Clean Water Act jurisdiction.
Jurisdictional Ditches. The agencies are also seeking public response on whether flow regime, physical features, excavation location, biological indicators like the presence of fish, or other characteristics would make a ditch jurisdictional.
Listening sessions will be public and conducted in-person, as well as streamed. Individuals or organizations seeking to present comments will be selected on a first-come, first-served basis and will be required to limit their remarks to three minutes.
Two New Procedural Wrinkles That May Disincentivize Challenges to New Federal Policies
The first weeks of the Trump Administration have been defined by executive orders and new policies that were immediately challenged on constitutional or statutory grounds.
Recently, the US Environmental Protection Agency indicated its intent to “launch” the “biggest deregulatory action in U.S. History” under which it will undertake 33 separate actions impacting regulations ranging from emissions limits for power plants to internal calculations for the “social cost of carbon.” Even preceding this effort, more than 100 legal challenges to other Trump Administration actions have been filed.
As these disputes move through the litigation process (including appeals and, for at least some cases, likely US Supreme Court review), district courts have issued numerous preliminary injunctions to pause or delay the effects of executive orders until litigation is complete. While some of the new efforts will be challenged in appellate courts due to venue provisions in statutes including the Clean Air Act or Clean Water Act, other challenges will proceed in district courts.
Litigating these challenges can be expensive for both sides, but two recent developments could make litigation costs — particularly in challenges lodged in district courts — higher for challengers. First, the Trump Administration issued a Memorandum titled “Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c),” and subsequently a related Executive Order on the same subject, seeking to require challengers to post bond before seeking preliminary injunctions. Second, the Supreme Court recently decided Lackey v. Stinnie, which — separate and apart from the Memorandum — makes it harder for some challengers to recover attorneys’ fees after a preliminary injunction is granted.
Below, we discuss these developments and how they might apply in the litigation context.
How to Challenge Executive Branch Actions
We have outlined some of the Trump Administration’s initial actions: initial Executive Orders; initial environmental policies; initial efforts to pause government grants; and policies in the energy space. We have also addressed the new Administration’s trade policies here and here.
Individuals and entities generally initiate a challenge to the legal basis for an executive order or other action by filing a complaint in a federal district court. Depending on what is at stake and whether the facts of the case require rapid resolution, the court may use briefings, hearings, or a trial to evaluate whether the order or action should be upheld, struck down, or modified. Parties that lose in district courts may appeal, and some disputes make their way to the Supreme Court, which has the final say on most constitutional issues.
Often, challengers ask for injunctive relief, which is a legal remedy in the form of a court order compelling a party to do, or not do, a particular thing. Injunctive relief is warranted when an award of a money judgment would be insufficient to resolve the harm. Injunctive relief can be temporary — a “preliminary injunction” — or permanent, requiring a party in perpetuity not to do a particular thing.
Courts will often use preliminary injunctions to temporarily preserve the “status quo” while litigation is ongoing. This means that a challenger may win a preliminary injunction, but ultimately lose the case (or have the case mooted if the government changes course on its own before a final judgment).
The White House Memorandum on Fed. R. Civ. P. 65(c)
On March 6, after district courts had issued numerous restraining orders and preliminary injunctions temporarily delaying or reversing executive orders, the Trump Administration issued a new memorandum titled “Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c),” seeking to require plaintiffs to post a bond before requesting preliminary relief. (The White House fact sheet on the Memorandum is here.)
The memo asserts that the slate of lawsuits and preliminary injunctions constitutes an “anti-democratic takeover … orchestrated by forum shopping organizations that repeatedly bring meritless suits … without any repercussions when they fail.” The memo argues that taxpayers are harmed when program cuts are enjoined and substantial government resources are spent “fighting frivolous suits instead of defending public safety.”
In response to the issues it identifies, the memo invokes Federal Rule of Civil Procedure 65(c), which requires parties seeking a preliminary injunction to post security in an amount the court determines is sufficient to cover the costs and damages of the enjoined party if the enjoined party ultimately wins the case on the merits. The memo directs all federal department and agency heads to formally request security under Rule 65(c) in every case where plaintiffs seek a preliminary injunction against the government. It requires that the requests remind the court that Rule 65(c) is mandatory, reiterate that the government’s requested bond amount is “based on a reasoned assessment,” and demand that any party failing to comply with Rule 65(c) should lead to the “denial or dissolution of the requested injunctive relief.”
But despite its strong language, the memo is largely just a reminder of an already existing procedural rule. Judges have discretion to determine the appropriate amount for any Rule 65(c) bond, and, in the context of challenges to executive actions, many courts have determined that amount is zero. Federal judges are presumably aware of Rule 65(c), and many of the judges enjoining the Trump Administration already determined that Rule 65(c) did not require a bond in those cases. Two weeks before the memo, a federal district judge in Maryland granted a college diversity officer’s request for a preliminary injunction against executive orders cancelling diversity, equity, and inclusion (DEI) grants and contracts, but set the Rule 65(c) bond at $0 because the plaintiff’s constitutional rights were at issue and “a bond of the size Defendants appear to seek would essentially forestall Plaintiffs’ access to judicial review.”
Going forward, Rule 65(c) bonds will likely become a more actively contested issue and challengers to any executive action will need to provide arguments why they should not be required to pay.
Lackey v. Stinnie and Plaintiffs’ Attorney Fees
Separately but relatedly, the challengers who have successfully obtained preliminary injunctions blocking Trump Administration executive actions may have a harder time recovering their attorneys’ fees — after the recent Supreme Court decision in Lackey v. Stinnie, plaintiffs will need to see their cases through to final judgment before recovering legal fees.
42 U.S.C. § 1988 provides that civil rights plaintiffs may win reimbursement of their attorneys’ fees if they are the “prevailing party.” Historically, this fee-shifting mechanism has helped advocacy groups and law firms shoulder the substantial cost of civil rights lawsuits. For example the Lackey plaintiffs estimated that the federal appellate litigation in the case cost $800,000. In a procedurally similar case, the New York Civil Liberties Union was seeking $200,000 in attorneys’ fees against two upstate New York counties.
The Supreme Court has addressed when exactly a plaintiff becomes a “prevailing party” (and thus eligible for reimbursement) on several occasions. In Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, the Court ruled that a party prevails only when it achieves a “judicially sanctioned changed in the legal relationship of the parties.” 532 U.S. 598, 601 (2001). If a plaintiff files a lawsuit and the defendant voluntarily does what the plaintiff asked for, the plaintiff does not “prevail” for purposes of attorneys’ fees. To prevail, the plaintiff must win a merits judgment from a court.
What if a plaintiff wins a preliminary injunction but loses a final merits judgment? That plaintiff also does not prevail, the Supreme Court has held, because the victory was only temporary, not enduring. Sole v. Wyner, 551 U.S. 74, 86 (2007). The Sole decision left open what happens when a plaintiff wins a preliminary injunction and then the defendant voluntarily provides the relief plaintiff was seeking.
That issue has now been resolved. Until last month, 11 federal appeals courts held that a plaintiff that wins a preliminary injunction can be a “prevailing party” under some circumstances. Not so, said the Supreme Court in Lackey. The Court held that a plaintiff “prevails” when it wins permanent, on-the-merits judicial relief that materially alters the legal relationship of the parties. A plaintiff that wins only a preliminary injunction, which would include several plaintiffs suing the Trump Administration at this juncture, is not yet entitled to reimbursement of its attorneys’ fees. As a result, it’s not yet clear whether plaintiffs challenging the Trump Administration’s policies will receive attorneys’ fees. It will depend on how they are ultimately resolved.
Utilities Petition FCC for Updates to TCPA Guidelines to Allow “Demand Response” Calls and Texts
Edison Electric Institute (EEI), an association that represents all U.S. investor-owned electric companies, petitioned the Federal Communications Commission (FCC) to permit calls and texts under the Telephone Consumer Protection Act (TCPA) without prior express consent for “demand response” communications. A prior FCC ruling clarified the FCC’s policies towards the types of calls and texts from utilities that require prior express consent; EEI now urges the FCC to provide additional guidance on allowable “demand response” calls and texts. “Demand response” refers to non-marketing communications related to “temporary, strategic adjustments to electricity usage during peak demand periods.” EEI has asked the FCC to “recognize how essential demand response programs are to ensuring customer safety and to managing increasing demand for electricity more effectively.” EEI seeks FCC clarification on whether such calls and texts are permissible without prior express consent from customers so that utilities can save customers money and prevent outages.
Violations of the TCPA could result in fines and lawsuits against utilities. Thus, in 2016, the FCC clarified that when a customer provides a telephone number to a utility, such provision constitutes prior express consent for certain communications “closely related” to the utility service. EEI is asking that the FCC’s ruling be expanded to include non-telemarketing, information demand response calls, and texts. EEI’s petition states, “Demand response programs target short-term, intentional modification of electricity usage by end-user customers during peak times or in response to market prices. They help keep the electricity grid stable and efficient and can save customers money.” EEI further states that customer survey data “indicates widespread satisfaction among participants in demand response programs utilizing calls or texts, demonstrating positive impacts on customer experience with low opt-out rates.” EEI hopes that the FCC can clarify the language regarding the applicability of the utility customer presumption of consent and allow utilities to engage customers in these essential demand and response programs.
Cuts, Closures, and Confusion: A Quick Update on U.S. EPA
It has been 50 days since the Trump administration took office, and there remains a tsunami of activity surrounding executive actions and announcements across the federal government. The Environmental Protection Agency (EPA) has not been spared from deep cuts, office and grant program closures, and a fair amount of confusion.
On March 11, 2025, EPA Administrator Lee Zeldin directed the agency to eliminate all offices focusing on environmental justice. The move comes in the wake of executive orders signed on inauguration day declaring the end to the “whole of government” approach and the “Justice40” initiative and directed all federal agencies to terminate all environmental justice offices and positions. The recent action ends over 30 years of environmental justice work at the EPA by closing the national environmental justice office, along with each of the ten regional environmental justice offices. For the foreseeable future, the environmental justice considerations in environmental permitting and regulations will be starkly absent at the federal level.
Meanwhile, as a result of the February 19, 2025, executive order, the EPA has until April 20, 2025, to review all of their regulations and identify regulations that, among other criteria, are unconstitutional, impose significant costs that outweigh public benefit, or harm the national interest. This comprehensive regulatory review will likely have broad implications for nearly all environmental regulatory programs. For example, just yesterday, Administrator Zeldin announced the EPA’s plan to eliminate 31 separate major environmental regulations. Among the regulations on the chopping block are the greenhouse gas emissions endangerment finding, the “Good Neighbor Plan,” and several other climate-related standards. As for enforcement priorities, the same executive order instructed all federal agencies to “preserve their limited enforcement resources by generally deprioritizing” enforcement where such enforcement is not based on the “best reading of a statute,” or it goes “beyond the powers vested in the Federal Government by the Constitution.”
As for staffing, in February, the EPA had to correct a comment from the President that the EPA would be cutting 65% of its workforce; instead, it clarified that the figure was referencing spending cuts. Undoubtedly, much of those cuts will come from reductions to, or wholesale terminations, of many of the EPA’s traditionally successful and highly lauded grant programs. Just earlier this week the EPA announced its fourth round of cuts, including the cancellation of over 400 grants across nine programs. Then, the next day, the EPA announced it was canceling $20 billion in grants for climate and clean energy programs that had already been frozen. These broad cuts, which came with little or no notice, have left loan and grant applicants and recipients confused and concerned. While not tallied yet, there are sure to be thousands of potential brownfield, resiliency, and energy projects put on hold or terminated. It is anticipated that these cuts will also significantly impact on state and local government funding. It is too early to know whether and how much those gaps will be filled on a state or local level.
There is no sign that the pace of change will be slowing down anytime soon. With these changes, regulatory uncertainty will continue. More so than ever, keeping abreast of these developments and how they may impact operations, projects, or transactions is vitally important to businesses.
A Big Day at EPA – Agency Announces Reconsideration of 31 Major Agency Actions
On February 29, 2025, President Trump issued an executive order requiring agencies to identify suspect regulations for regulatory roll back within 60 days. Today, the U.S. Environmental Protection Agency (EPA) announced it will reconsider 31 EPA actions, including the Agency’s 2009 Clean Air Act finding that greenhouse gas emissions endanger public health and welfare along with many of the Agency’s flagship Clean Air Act regulations. These efforts will have far-reaching impacts on American businesses.
Womble Bond Dickinson can help your business keep up with these changes in the days ahead and advocate for your interests as this process plays out. In the meantime, we address what’s happening right now and what it could mean for your business.
What’s happening?
In a flurry of activity, EPA issued twelve press releases yesterday, March 12, 2025. Among those releases is an announcement that EPA will reconsider the following major regulatory programs:
New Source Performance Standards (NSPS) OOOOb/c regulations for the oil and gas industry;
The 2009 greenhouse gas endangerment finding under the Clean Air Act and actions that rely on that finding;
Greenhouse Gas Reporting Program;
Various regulations on power plants, including Clean Power Plan 2.0 and Mercury and Air Toxics Standards (MATS)
Light-duty, medium-duty, and heavy-duty vehicle regulations;
Hydrofluorocarbon (HFC) regulations in the Technology Transition Rule under the American Innovation and Manufacturing Act;
National Ambient Air Quality Standards (NAAQS) for PM 2.5;
Various National Emission Standards for Hazardous Air Pollutants (NESHAP) including for integrated iron and steel manufacturing, rubber tire manufacturing, synthetic organic chemical manufacturing industry, commercial sterilizers for medical devices and spices, lime manufacturing, coke ovens, copper smelting, and taconite ore processing, although this list could grow;
Regional Haze Program; and
Good Neighbor Plan.
In addition to the actions listed above, EPA issued a separate press release announcing its intent to again revisit the definition of “waters of the United States” (WOTUS) under the Clean Water Act. This definition was revised in 2015, 2019, 2020, and 2023. That rulemaking history and intervening court decisions have left 24 states and the District of Columbia implementing the 2023 rule and the remaining 26 states applying the pre-2015 regulatory regime and the Supreme Court’s 2023 decision in Sackett v. EPA. This renewed effort is sure to add yet another layer of regulatory complexity to project development and permitting.
While the definition of WOTUS is under review, EPA Administrator Lee M. Zeldin, published today a six-page Memorandum to offer further clarification of how WOTUS should be applied under both regulatory regimes currently operative in the U.S.
What could it mean for your business?
This is an incredible amount of regulatory activity to keep track of. But it is important to note that these press releases are not themselves regulatory actions. Many (if not most) of these actions will require rulemaking notices from EPA. The press releases do not include a timeline for each action, but we can expect the Agency to move quickly if it wants to accomplish this long list in the next four years.
It’s important to note that EPA does not say in these various press releases that it is staying compliance deadlines and obligations under existing regulations pending reconsideration. That’s because, at least for the announced actions that have origins under the Clean Air Act, EPA cannot stay existing rules unless authorized under the Administrative Procedures Act or the Clean Air Act.
In litigation involving EPA’s attempt during the first President Trump administration to stay NSPS for methane from the oil and gas sector for two years while it reconsidered the rule, the D.C. Circuit ruled that such stays are only authorized in limited circumstances—when reconsideration is mandatory under the Clean Air Act because issues of central relevance were impracticable to raise during the public comment period. Even then, the length of the stay is limited to 90 days.
That means all of the listed regulations remain on the books, unless otherwise stayed through judicial processes, and businesses will need to continue complying. EPA also announced that it will immediately revise its National Enforcement and Compliance Initiatives to align with the Administration’s priorities. These revisions will dictate where EPA spends its time inspecting and enforcing regulated facilities and industries. Importantly, however, even if the regulations noted are not among the revised priorities, it is no guarantee that noncompliance will go ignored while the EPA revises regulations.
Looking to the future, regulatory rollbacks are sure to face litigation. And even if these regulatory programs are rolled back significantly, businesses still face state regulation.
Businesses would be wise to identify the actions announced today that will impact their work and pay close attention as these actions are implemented by the EPA. In particular, participation in notice and comment rulemaking is foundational to both building a record and preserving issues should litigation ensue.
EPA Reschedules SACC Meetings to Consider 1,3-Butadiene Draft Risk Evaluation, Will Issue Supplement
The U.S. Environmental Protection Agency (EPA) announced on March 11, 2025, the rescheduled meeting dates of the Science Advisory Committee on Chemicals (SACC) that had been previously scheduled for February 2025 to consider and review the draft risk evaluation for 1,3-butadiene. 90 Fed. Reg. 11737. The rescheduled preparatory meeting for the SACC to consider the scope and clarity of the revised draft charge questions for the peer review will now be held on March 25, 2025, and the rescheduled peer review meeting for the SACC to consider the draft documents and public comments will now be held on April 1 – 4, 2025. EPA will accept comment on the scope and clarity of the revised draft charge questions for the peer review and the draft risk evaluation and related documents, including a new supplement of preliminarily refined risk estimates for 1,3-butadiene released from facilities in advance of and during the peer review meeting. SACC will consider the comments during its discussions. To request time to present oral comments during the preparatory meeting, stakeholders must register by 12:00 p.m. (EDT) on March 21, 2025. For those not making oral comments, registration will remain open through the end of this preparatory meeting. Written comments, including written versions of oral comments, on the scope and clarity of the charge questions are due March 21, 2025. To request time to present oral comments during the peer review meeting, stakeholders must register by 12:00 p.m. (EDT) on March 28, 2025. For those not making oral comments, registration will remain open through the end of this peer review meeting. Written comments on the draft risk evaluation and related documents, including preliminarily refined risk estimates for 1,3-butadiene released from facilities, are due March 20, 2025. Written versions of oral comments are due March 28, 2025.
Defence – A Sustainable Investment? A View From The UK’s Financial Conduct Authority
On 11 March 2025, the Financial Conduct Authority (the “FCA”) published a statement clarifying that their rules, including with regards to sustainability, do not prevent investment in or financing of defence companies. The FCA confirmed that it is at the discretion of investors or lenders as to whether they provide capital to defence companies.
The UK’s Sustainability Disclosure Requirements (“SDR”) introduced in 2023 aim to ensure that information about investments claiming to be sustainable can be trusted and readily understood. The SDR has never explicitly addressed the defence sector in SDR.
However, asset managers commonly apply exclusionary screening of investments related to weapons, typically limited to “controversial weapons” whose production and use have been deemed unacceptable under international conventions and even illegal within certain jurisdictions. Examples of such weapons include cluster munitions, anti-personnel landmines and chemical weapons. The clarity on weaponry exclusions came into sharp focus following the Russian invasion of Ukraine, prompting many to tighten their exclusionary criteria on cluster munitions in particular.
The FCA announcement follows lobbying from several Members of Parliament seeking clarity on defence investments and FCA sustainability rules. It also follows on from the statement from the previous government that directly confirmed “investing in good, high-quality, well-run defence companies is compatible with ESG considerations as long-term sustainable investment is about helping all sectors and all companies in the economy succeed”. Whilst the current Prime Minister has committed to increase defence spending recently, so far there is no statement from him or the Chancellor, Rachel Reeves, on their perspective on whether defence investments could be sustainable investments.
We wait to see if other regulators will make similar pronouncements as defence spending, and increases in it, becomes more and more in relevant to countries around the world.
EPA Extends Comment Period on Draft TSCA Risk Evaluation for DCHP
The U.S. Environmental Protection Agency (EPA) announced on March 7, 2025, that it is extending the comment period on the draft risk evaluation for dicyclohexyl phthalate (DCHP) under the Toxic Substances Control Act (TSCA). EPA released the risk evaluation for DCHP on January 7, 2025, with a comment period that closed March 10, 2025. EPA states that it will soon publish a Federal Register notice extending the public comment period for an additional 60 days. Upon publication of the Federal Register notice, EPA will accept public comments until May 9, 2025.
According to EPA’s January 6, 2025, press release announcing the availability of the draft risk evaluation, DCHP is used primarily as a plasticizer or stabilizing agent in polyvinyl chloride (PVC) products and in adhesives, sealants, paints, coatings, rubbers, and other applications. EPA preliminarily determined that DCHP presents an unreasonable risk of injury to human health for workers. EPA states that nine conditions of use (COU) significantly contribute to the unreasonable risk to workers. The draft risk evaluation preliminarily shows that DCHP does not pose unreasonable risk to the environment, the general population, or consumers. EPA notes that there are other uses of DCHP that are generally excluded from TSCA’s definition of chemical substance, such as food contact materials, and EPA did not evaluate risk associated with these uses.
Workers may be exposed to DCHP when making products or otherwise using DCHP in the workplace. According to EPA, when it is manufactured or used to make products, DCHP can be released into the water where most of it will end up in the sediment at the bottom of lakes and rivers. EPA states that if released into the air, DCHP will attach to dust particles and be deposited on land or into water. Indoors, DCHP has the potential over time to come out of products and adhere to dust particles that could be inhaled or digested.
No Harm, No Foul: Greenwashing Lawsuit Dismissed for Lack of Article III Standing
It is well-settled that under Article III of the Constitution, United States federal courts are limited to trying “cases and controversies.” Moreover, a case or controversy exists only if a plaintiff has standing to file the suit, requiring the plaintiff to demonstrate injury in fact, causation, and redressability. On February 19, 2025, the United States District Court for the Southern District of Florida issued a noteworthy decision and dismissed a putative class action lawsuit filed against lululemon athletica inc., and lululemon usa inc. (“Lululemon”) without leave to amend for lack of Article III standing.
A group of consumers filed the lawsuit alleging that Lululemon made “false, deceptive, and misleading representations” regarding the company’s products and actions as they relate to environmental initiatives in accordance with the company’s “Be Planet” campaign. Gyani v. Lululemon USA Inc., et al., 2025 WL 548405, *1 (S.D. Fla.). For example, the plaintiffs alleged that Lululemon’s website stated that it is “committed to making products that are better in every way-for…the planet.” Id. at *2. In fact, according to the plaintiffs, “Lululemon is responsible for significant GHG gas emissions, landfill waste, and release of microplastics into the environment.” Id. The plaintiffs claimed that they relied on various misrepresentations from the “Be Planet” campaign in deciding to purchase Lululemon products. Id.
The court dismissed plaintiffs’ claims, which were premised on alleged violations of various states’ consumer protection statutes. First, the court found the plaintiffs failed to adequately plead an injury in fact to support claims for monetary damages. The court highlighted that “mere allegations of having paid a price premium are insufficient — a plaintiff must tie the value of the product to any purported misrepresentations.” Id. at 4. On this point, the court found Valiente v. Publix Super Mkts., Inc., 2023 WL 3620538 (S.D. Fla. May 24, 2023) instructive. In Valiente, a plaintiff allegedly purchased cough drops due to the “phrase ‘honey lemon,’ the ‘pictures of these ingredients,’ and the statement that the product ‘soothes sore throats.’” The court dismissed the plaintiff’s claim for lack of injury because the plaintiff failed to allege that the cough drops were in any way “defective” or “worthless.” Id. at *5. The court in Gyani found the facts before it similar in that the plaintiffs’ complaint failed to allege Lululemon’s products were defective or worthless. 2025 WL 548405, *4. Moreover, the plaintiffs failed to allege deceptive or unfair acts as to the products themselves, failing to connect the allegedly problematic “Be Planet” statements to the price premium the plaintiffs alleged that they paid for Lululemon’s products. Id. at *5.
Next, the court held that the plaintiffs failed to plead an injury in fact to support a claim for injunctive relief. The court relied on Williams v. Reckitt Benckiser LLC, 65 F.4th 1243 (11th Cir. 2023) and Piescik v. CVS Pharmacy, Inc., 576 F. Supp. 3d 1125 (S.D. Fla. 2021), where the plaintiffs alleged that they “would like” to purchase the company’s products in the future “if” the defendant improved the products at issue. In Gyani, the complaint similarly alleged that the plaintiffs “would like” to purchase Lululemon’s products, however, “only if” the plaintiffs “can rely on Lululemon ‘to be truthful in their marketing statements regarding the sustainability and environmental impact of Lululemon’s products and actions.’” 2025 WL 548405, *5. The court held that such allegations failed to demonstrate harm that was actual or imminent.
Finally, the court refused to grant leave to amend. Id. at *6. The court held that the plaintiffs’ request was procedurally improper in that the plaintiffs embedded the request in their opposition brief rather than making the request via motion. Id.
Retailers and manufacturers concerned with risk associated with a growing number of environmental or “green” marketing claims will certainly welcome the Gyani decision. The ruling emphasizes that plaintiffs must demonstrate concrete economic injury linked to the at-issue marketing claims to pursue monetary relief as well as a real and immediate threat of future harm to seek injunctive relief; general allegations relating to a price premium and an equivocal desire to make future purchases are not enough. However, the decision certainly will not put an end to putative class actions asserting greenwashing claims. If faced with a similar lawsuit, retailers and manufacturers should consider whether to seek dismissal at the pleading stage when the complaint does not tie the alleged misrepresentations to the value of the product and/or does not adequately allege any real threat of future harm.