EPA’s PFAS Regulations: What Real Estate Professionals Need To Know
In 2024, the U.S. Environmental Protection Agency (“EPA”) took significant steps to regulate per- and polyfluoroalkyl substances (PFAS), commonly known as “forever chemicals.” These persistent compounds, once widely used in manufacturing, firefighting, and food packaging, were designated as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and became subject to maximum contaminant levels (MCLs) under the Safe Drinking Water Act (SDWA).
With increased regulatory scrutiny surrounding PFAS, understanding the evolving risks and liabilities tied to these chemicals is crucial for those involved in commercial real estate. Properties with industrial, commercial, or agricultural histories are especially vulnerable to PFAS contamination, which could affect property transactions, financial exposure, and risk management. This post outlines key EPA regulations, discusses ongoing legal challenges to those regulations, and highlights important considerations for real estate professionals navigating PFAS issues.
Key EPA Actions on PFAS in 2024
CERCLA Rule (May 2024): The EPA finalized a rule designating PFOA and PFOS, two common PFAS compounds, as hazardous substances under CERCLA. This gives the EPA authority to require investigation and cleanup at contaminated sites, potentially holding property owners liable for cleanup costs—even if they weren’t responsible for the contamination. Although the rule is currently under legal challenge, it could set a de facto standard for groundwater cleanup at federal and state Superfund sites.
SDWA Rule (April 2024): The EPA also set enforceable MCLs for six PFAS compounds, including PFOA and PFOS, at extremely low thresholds. Public water systems must comply within five years. While this rule primarily affects water systems, it could also affect properties relying on water contaminated with PFAS, potentially influencing groundwater cleanup requirements under CERCLA or equivalent state laws.
Ongoing Legal Challenges and the Trump Administration’s PFAS Policy
The EPA’s PFAS regulations are facing significant pushback. In American Water Works Association v. U.S. EPA, industry groups are challenging the EPA’s MCLs, arguing that they are technologically and economically unfeasible. Meanwhile, in Chamber of Commerce v. U.S. EPA, industry groups are challenging the designation of PFAS as hazardous under CERCLA, claiming that the EPA’s methodology was “fatally flawed” and that EPA failed to adequately consider the “enormous” costs associated with making the designations.
During his recent confirmation hearings, Lee Zeldin, President Trump’s nominee to lead EPA, was asked how he plans to address PFAS using the agency’s existing authorities. Zeldin mentioned that during his time in Congress, he served on a task force concerning PFAS regulation and voted in support of legislation that would have required EPA to actions under CERCLA and the SDWA similar to those implemented by the Biden Administration. This indicates that a complete reversal of the current rules is unlikely.
Implications for Real Estate Professionals
As PFAS contamination becomes a central environmental concern, CRE professionals need to incorporate PFAS risks into due diligence and risk management processes. PFAS contamination can result in substantial cleanup costs, even for property owners not directly responsible for the contamination. CRE professionals should consider the following when evaluating PFAS risk:
Phase I Environmental Site Assessments (ESAs): PFAS contamination is increasingly flagged during Phase I ESAs. Properties with industrial or commercial histories, particularly those in high-risk areas, are more likely to identify PFAS as a recognized environmental condition (REC).
Phase II Investigations: If Phase I ESAs flag PFAS concerns, Phase II investigations may be needed. These investigations are more invasive and often more expensive due to the specialized testing required.
Reopening Closed Sites: In some cases, regulators could revisit sites previously closed after remediation if PFAS is discovered. Property owners could be held liable for further cleanup costs, even if the contamination was missed initially.
Addressing PFAS-Impacted Sites
Remediating PFAS contamination is both challenging and costly. Traditional methods like “dig and haul” and “pump and treat” are time-consuming and expensive. However, new technologies, such as thermal treatment and supercritical water oxidation, offer promising solutions that could be more cost-effective. The costs associated with remediation will vary depending on the chosen strategy and the evolving regulatory landscape.
While the EPA is currently focusing on only a few PFAS compounds, thousands of other PFAS chemicals could be subject to future regulation. At the state level, regulations are expected to become more stringent, further complicating the legal environment for real estate professionals. These regulatory changes could impact property values, development timelines, and investment strategies.
Given the complexities surrounding PFAS, it’s essential to work with environmental consultants, attorneys, and insurance brokers specializing in PFAS. These experts can help navigate regulatory changes, assess risks, and develop strategies to manage potential liabilities effectively.
Conclusion
As the EPA reshapes its regulatory framework for PFAS, staying informed and proactive is critical for anyone involved in commercial real estate. Understanding the legal, environmental, and financial implications of PFAS contamination is key to minimizing risk and succeeding in an increasingly complex real estate market. Whether conducting due diligence, managing existing properties, or addressing contamination concerns, navigating these new rules effectively is key to protecting assets and opening new opportunities.
Apple’s PFAS Consumer Fraud Lawsuit the Latest in Growing Trend
Directly on the heels of our article this week regarding the latest PFAS consumer fraud lawsuit (this time, against Samsung for its smart watches), Apple finds itself in a similar lawsuit over its smartwatches. The number of product types targeted for these lawsuits are growing and diverse in terms of the industries targeted. While there has been at least one significant settlement in these lawsuits to date, recently a few of the lawsuits that we previously reported on related to PFAS consumer fraud allegations were dismissed by separate courts.
However, this has not deterred plaintiffs from filing these types of cases, and in fact there are other lawsuits that successfully defeated Motions to Dismiss. The latest PFAS consumer fraud lawsuit targets Apple and shows that the number of consumer fraud lawsuits is likely to continue, and consumer goods industries, insurers, and investment companies interested in the consumer goods vertical must pay careful attention to these lawsuits.
PFAS Consumer Fraud Lawsuit – Overview
The consumer fraud PFAS lawsuits filed to date follow a very similar pattern: various plaintiffs bringing suit on behalf of a proposed class allege that companies market consumer goods as safe, healthy, environmentally friendly, etc., or that the companies themselves market their corporate practices as such, yet it is allegedly discovered that certain products marketed with these buzzwords contain PFAS. The lawsuits allege that since certain PFAS may be harmful to human health and PFAS are biopersistent (and therefore environmentally unfriendly), the companies making the good engaged in fraud against consumers to entice them to purchase the products in question.
In the Complaints, plaintiffs typically allege the following counts:
Violation of state consumer protection laws and the federal Magnuson-Moss Warranty Act
Violations of various state consumer protection laws
Breach of warranty
Fraud
Constructive fraud
Unjust enrichment
The plaintiffs seek certification of nationwide class action lawsuits, with a subclass defined as consumers in the state in which the lawsuits are filed. In addition, the lawsuits seeks damages, fees, costs, and a jury trial. Representative industries and cases that have recently been filed include:
Cosmetics industry:
Brown v. Cover Girl, New York (April 1, 2022)
Anderson v. Almay, New York (April 1, 2022)
Rebecca Vega v. L’Oreal, New Jersey (April 8, 2022)
Spindel v. Burt’s Bees, California (March 25, 2022)
Hicks and Vargas v. L’Oreal, New York (March 9, 2022)
Davenport v. L’Oreal, California (February 22, 2022)
Food packaging industry:
Richburg v. Conagra Brands, Illinois (May 6, 2022)
Ruiz v. Conagra Brands, Illinois (May 6, 2022)
Hamman v. Cava Group, California (April 27, 2022)
Azman Hussain v. Burger King, California (April 11, 2022)
Little v. NatureStar, California (April 8, 2022)
Larry Clark v. McDonald’s, Illinois (March 28, 2022)
Food and drink products:
Bedson v. Biosteel, New York (January 27, 2023)
Lorenz v. Coca-Cola, New York (December 28, 2022)
Toribio v. Kraft Heinz, Illinois (November 29, 2022)
Apparel products:
Krakauer v. REI, Washington (October 28, 2022)
Hygiene products:
Esquibel v. Colgate-Palmolive Co., New York (January 27, 2023)
Dalewitz v. Proctor & Gamble, New York (August 26, 2022)
Feminine hygiene products:
Gemma Rivera v. Knix Wear Inc., California (April 4, 2022)
Blenis v. Thinx, Inc., Massachusetts (June 18, 2021)
Destini Canan v. Thinx Inc., California (November 12, 2020)
Latest PFAS Consumer Fraud Lawsuit
In Dominique Cavalier and Kiley Krzyzek v. Apple Inc., the plaintiffs alleges that they purchased various Apple smart watches designed to encourage and support personal fitness goals of consumers. The products, plaintiffs argue, were marketed as promoting human health, environmentally sustainable, and suitable for everyday use and wear. Upon testing, the watches were found to have various types of PFAS. Plaintiffs allege that they were therefore deceived by Apple, and never would have purchased the product if they knew that they contained PFAS. Plaintiffs seeks a class certification of all purchasers of the products in question for the time period in question, with a subclass of all purchasers of the products from California.
Recent Rulings In Consumer Fraud PFAS Lawsuits
In California, the Yeraldinne Solis v. CoverGirl Cosmetics et al. case made allegations that cosmetics were marketed as safe and sustainable, yet were found to contain PFAS. The defendants in the lawsuit filed a Motion to Dismiss, arguing in relevant part that the plaintiff had no standing to file the lawsuit because she did not sufficiently allege that she suffered any economic harm from purchasing the product. The plaintiff put forth two theories to counter this argument: (1) the “benefit of the bargain” theory, under which the plaintiff alleged that she bargained for a product that was “safe”, but received the opposite. The court dismissed this argument because the product packaging did not market the product as safe, and the ingredient list explicitly named the type of PFAS found in testing; and (2) an overpayment theory, under which plaintiff alleged that if she knew the product contained PFAS, she would not have paid as much for it as she did. The Court dismissed this argument because the product packaging specifically listed the type of PFAS at issue in the case.
In Illinois, the Richburg v. Conagra Brands, Inc. alleged that popcorn packaging was marketed as containing “only real ingredients” and ingredients from “natural sources”, yet the popcorn contained PFAS (likely from the packaging itself), which was allegedly false and misleading to consumers. The defendant moved to dismiss the lawsuit on several grounds and the Court found in defendant’s favor on one important ground. The Court held that the statements on the popcorn packaging would not mislead an ordinary and reasonable consumer because a consumer would understand “ingredients” to mean those items that are required to be disclosed by the FDA and not materials that may have migrated to the food from the product packaging. In fact, the Court ruled that the FDA “exempts substances migrating to food from equipment or packaging;” and those “do not need to be included in the ingredients list.” The defendant argued that reasonable consumers would not consider PFAS to be an “ingredient” under this regime. In other words, whether or not PFAS migrated into the popcorn, the representations that the popcorn contained “only real ingredients” and “100% ingredients from natural sources” were “correct as a matter of law.” The court dismissed plaintiffs claims on this basis.
Conclusion
Several major companies now find themselves embroiled in litigation focused on PFAS false advertising, consumer protection violations, and deceptive statements made in marketing and ESG reports. The lawsuits may well serve as test cases for plaintiffs’ bar to determine whether similar lawsuits will be successful in any (or all) of the fifty states in this country. Companies must consider the possibility of needing to defend lawsuits involving plaintiffs in numerous states for products that contain PFAS. It should be noted that these lawsuits would only touch on the marketing, advertising, ESG reporting, and consumer protection type of issues. Separate products lawsuits could follow that take direct aim at obtaining damages for personal injury for plaintiffs from consumer products. In addition, environmental pollution lawsuits could seek damage for diminution of property value, cleanup costs, and PFAS filtration systems if drinking water cleanup is required.
While the above rulings are encouraging for companies facing consumer fraud PFAS lawsuits, it is far too early to tell if the trend will continue nationally. As the recent California case shows, plaintiffs continue to file PFAS consumer fraud cases despite the recent dismissals. Different courts apply legal standards differently and these cases are very fact specific, which could lead to differing results. This has been the case in several jurisdictions, where PFAS consumer fraud cases have been permitted to proceed to litigation after initial challenges were made.
It is of the utmost importance that businesses along the whole supply chain in the consumer products industry evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate PFAS at an ever-increasing pace. Similarly, state level EPA enforcement action is increasing at a several-fold rate every year. Now, the first wave of lawsuits take direct aim at the consumer products industry. Companies that did not manufacture PFAS, but merely utilized PFAS in their manufacturing processes, are therefore becoming targets of costly enforcement actions at rates that continue to multiply year over year. Lawsuits are also filed monthly by citizens or municipalities against companies that are increasingly not PFAS chemical manufacturers.
US Fair Access and Anti-Debanking Laws: What to Expect During the New Administration
Federal and state “fair access” or “anti-debanking” laws and regulations have been evolving quickly over the last five years, closely tracking the changing U.S. political climate. These laws and regulations are designed to ensure that financial institutions make their services available without discriminating against individuals or businesses engaged in lawful activity that may be viewed as controversial or politically sensitive. The “fair access” requirements generally prohibit financial institutions from denying or cancelling services to customers based on factors such as political opinions, religious beliefs, and environmental, social and governance (ESG) standards. While the intent of such laws and regulations is to promote impartiality, they introduce significant challenges to the financial sector.
Financial institutions should prepare for revived activity on fair access laws at both the federal and state levels under the new administration.
Background on Federal Fair Access Initiatives
During the first Trump Administration, the Office of the Comptroller of the Currency (OCC) released its “fair access” final rule (OCC Final Rule), requiring “covered banks” (i.e., national banks and federal savings associations (FSAs) with at least $100 billion in assets) to:
a.
Make financial services available to all persons in their geographic market on “proportionally equal terms;”
b.
not deny any person a financial service unless the denial is justified by such person’s quantified and documented failure to meet quantitative, impartial, risk-based standards established in advance by the covered bank; and
c.
not deny, in coordination with others, any person a financial service the covered bank offers.
The OCC noted that the OCC Final Rule: (a) codified prior OCC guidance providing that banks should conduct a risk assessment of individual customers, rather than make broad-based decisions affecting whole categories or classes of customers, when providing access to services, capital, and credit; and (b) implemented language in Title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, charging the OCC with “assuring the safety and soundness of, and compliance with laws and regulations, fair access to financial services, and fair treatment of customers by, the institutions and other persons subject to its jurisdiction.” The OCC Final Rule was set to take effect on April 1, 2021, but on Jan. 28, 2021 (shortly after former President Biden took office and imposed a regulatory freeze), the OCC paused the rule’s publication in the Federal Register. Regarding this pause, the OCC noted that its “long-standing supervisory guidance stating that banks should avoid termination of broad categories of customers without assessing individual customer risk [would] remain…in effect.”
During the Biden administration, a bill titled “Fair Access to Banking Act” was introduced in both the U.S. House and Senate.1 The Fair Access to Banking Act aimed to require banks with assets of more than $10 billion provide fair access to financial services “without impediments caused by a prejudice against or dislike for a person or the business of the customer.”2 Failure to do so could result in restrictions on the bank relating to the use of electronic funds transfer systems and lending programs, termination of depository insurance, and civil penalties.3
State Fair Access Law Initiatives
While federal efforts to enact legislation and rulemaking stalled under the Biden administration, states such as Florida and Tennessee enacted their own “fair access” or “anti-debanking” legislation.
A.
Florida
In May 2023, the state enacted its “fair access” law through 2023 Florida House Bill No. 3 (FL HB 3). FL HB 3 created new “unsafe and unsound practice” standards for certain financial institutions in Florida,4 prohibiting them from denying, canceling, suspending, or terminating services to current or prospective customers, or otherwise discriminating against customers, on the basis of:
a.
the customer’s political opinions, speech, or affiliations;
b.
the customer’s religious beliefs, religious exercise, or religious affiliations;
c.
any factor if it is not a quantitative, impartial, and risk-based standard, including any factor relating to the customer’s business sector; or
d.
any rating, scoring, analysis, tabulation, or action that considers a social credit score based on certain factors.
Since July 1, 2023, these affected financial institutions have been required to attest their compliance with the fair access law on an annual basis under penalty of perjury.
In May 2024, Florida expanded its fair access law through 2024 Florida House Bill No. 989 (FL HB 989). FL HB 989: (a) expanded the applicability of the state’s fair access law to bring into scope federal and non-Florida licensed financial institutions conducting business in the state that do not hold status as Florida “qualified public depositories;” (b) created a customer complaint process with the Florida Office of Financial Regulation (OFR) for customers who suspect that a “financial institution” violated the “unsafe and unsound practice” standard established in the fair access law; and (c) created an investigatory process with the OFR for customer complaints.
B.
Tennessee
Tennessee enacted its fair access law in April 2024, through 2024 Tennessee House Bill No. 2100 (TN HB 2100), imposing fair access requirements on: (a) state and national banks, savings and loan associations, savings banks, credit unions, industrial loan and thrift companies, and mortgage lenders that have more than $100 billion in assets; and (b) insurers.
Like Florida, Tennessee’s fair access law requires these institutions to make determinations about the provision of services based on an analysis of risk factors unique to the current or prospective customer, and prohibits them from denying or cancelling services, or otherwise discriminating against a person in making available such services or in the terms or conditions of such services, on the basis of5
a.
the person’s political opinions, speech, or affiliations;
b.
the person’s religious beliefs, religious exercise, or religious affiliations;
c.
any factor if it is not a quantitative, impartial, and risk-based standard, including any factor relating to the person’s business sector; or
d.
the use of a rating, scoring, analysis, tabulation, or action that considers a social credit score based on certain factors.
While TN HB 2100 does not provide for a customer complaint process, it gives customers a right to request a statement from the financial institution detailing the specific reasons for the refusal, restriction, or termination within 90 days of receiving notice.
In 2024, at least 10 other states introduced fair access legislation, including Arizona, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Nebraska, South Dakota, and West Virginia.
Federal Regulatory Agencies Express Preemption Concerns
In November 2023, the OCC issued a letter expressing concern about state fair access law initiatives and the impact these may have on the national banking system, noting that the OCC is “carefully monitoring the proliferation of competing and potentially inconsistent requirements…[and that it is] concerned about their impact on the ability of national banks and FSAs to provide banking services consistent with safety, soundness, and the fair treatment of customers.” The letter cites to the Supremacy Clause of the U.S. Constitution, highlighting that “federal law preempts state laws that conflict with the exercise by national banks and FSAs of their federally authorized powers” and that the OCC is committed to “preserving the legal framework for preemption established by Congress, including in the Dodd-Frank Wall Street Reform and Consumer Protection Act.”
On July 17, 2024, following the Supreme Court decision in Cantero v. Bank of America,6 Michael Hsu, the Acting Comptroller of the Currency, stated that the OCC will continue to “fortify and vigorously defend core preemption” of federal law over state banking laws. A debate has also evolved as to whether state fair access laws interfere with a financial institution’s ability to comply with federal anti-money laundering laws. On July 8, 2024, a bipartisan group of congressmen issued a letter to the OCC, Department of the Treasury, and Treasury’s Financial Crimes Enforcement Network (FinCEN) to express concerns that state fair access laws “may conflict with federal laws intended to combat money laundering and terrorist financing…[and] pose significant challenges to compliance with critical regulations such as the Bank Secrecy Act (BSA), and the Anti-Money Laundering (AML) Act, potentially threatening national security.” On July 18, Treasury responded, noting it shared the congressmen’s concerns, including concerns that state laws similar to FL HB 989 “may materially undermine compliance with the important AML/CFT and sanctions requirements administered by [FinCEN] and Office of Foreign Assets Control (OFAC).”
Looking Forward
As the second Trump administration takes office, Republicans take control of Congress, and leadership at the federal banking regulatory agencies changes, financial institutions should prepare for a shift in regulatory priorities. On Jan. 20, 2025, when Travis Hill became Acting Chairman of the Federal Deposit Insurance Corporation (FDIC), he immediately issued a statement outlining the matters the FDIC expects to focus on in “the coming weeks and months.” He included among these matters “work[ing] to ensure law-abiding customers have, and do not lose, access to bank accounts and banking services.” The Acting Chairman previously indicated in a speech he gave as Vice Chairman on Jan. 10 that access to a bank account is essential for participation in the modern economy and that regulators should reevaluate their approach to implementing the BSA, noting that “[w]hile we all share the goal of ensuring criminals and terrorists are not using the banking system to fund drug trafficking, terrorism, and other serious crimes, the current BSA regime creates an incentive for banks to close accounts rather than risk massive fines for inadequate BSA compliance.” He further noted that “[t]hese issues, along with others in the BSA realm, warrant attention and scrutiny during the [new] Administration.”
The FDIC appears to be positioning itself to evaluate “debanking” and fair access to banking services, and we anticipate that the other prudential federal banking agencies will follow suit.7 The Comptroller of the Currency has not been nominated to date, but the new nominee may reconsider the OCC Final Rule to determine whether to proceed with its implementation. Additionally, with Republican majorities in both the U.S. House of Representatives and the U.S. Senate, we may see renewed attempts to enact the Fact Access to Banking Act or similar fair access or “debanking” laws in the new Congress.
Financial institutions should be prepared for increased federal regulatory scrutiny and rulemaking efforts regarding fair access.
In addition to federal actions, state-level fair access law initiatives continue shaping the regulatory landscape, further complicating the patchwork of compliance requirements for financial institutions. This dual regulatory framework underscores the importance of financial institutions continuing to monitor developments at both federal and state levels, and for those that have not done so, begin to consider potential changes to current policies, procedures, and controls to prepare for the new regulatory environment.
1 The legislation was introduced in 2021 (H.R. 1729, 117th Cong. (2021); S. 563, 117th Cong. (2021)) and again in 2023 (H.R. 2743, 118th Cong. (2023); S. 293, 118th Cong. (2023)). The most recent Senate bill had 37 Republican cosponsors, while the House bill had 127 Republican cosponsors.
2 H.R. 1729, 117th Cong. § 8 (2021); S. 563, 117th Cong. § 8 (2021); H.R. 2743, 118th Cong. § 8 (2023); S. 293, 118th Cong. § 8 (2023).
3 H.R. 1729, 117th Cong. §§ 4-5 (2021); S. 563, 117th Cong. §§ 4-5 (2021); H.R. 2743, 118th Cong. §§ 4-5 (2023); S. 293, 118th Cong. §§ 4-5 (2023).
4 FL HB 3 imposed these new “unsafe and unsound practice” standards on state-chartered and state-authorized financial institutions such as Florida-chartered banks, trust companies, credit unions, international bank agencies, branches, representative offices, and administrative offices of foreign banks, banks authorized as “qualified public depositories” in the state, consumer finance lenders, and money services businesses.
5 TN HB 2100 excludes loans from the definition of “services.” TN HB 2100 § 1 and Tenn. Code Ann. § 45-1-128(a)(2)(B).
6 Cantero v. Bank of America, N.A., 602 U.S. 205 (2024). In Cantero, the U.S. Supreme Court reviewed the issue of whether the National Bank Act preempted state laws that purported to impose a minimum rate of interest on mortgage escrow accounts. The Court indicated that, to reach preemption decisions, lower courts should make a “practical assessment” of whether the state law “prevents or significantly interferes with” a national bank’s power and instructed lower courts to make this determination by comparing state laws at issue to those the Court had analyzed in previous preemption decisions. The Court noted, but did not address, the OCC’s role in making determinations about whether a state law regulating a national bank is preempted.
7 The U.S. prudential bank regulators generally attempt to align policies and supervisory approaches to ensure, among other things, consistent application of regulatory standards across jurisdictions.
Additional Author: Tiffanie Monplaisir
Considerations for Connecticut’s New Environmental Cleanup Rules
Connecticut is transitioning to a new approach to environmental cleanup and property transactions. The Release-Based Cleanup Regulations (RBCRs) will replace the Transfer Act[1], which impacted property sales and redevelopment. Effective March 1, 2026, this shift seeks to align Connecticut with other states’ practices and may create opportunities and challenges for property owners, developers, and environmental professionals.
For nearly 40 years, the Transfer Act linked environmental inspections and cleanups to property transfers. While well-intentioned, the system created barriers and could delay transactions or deter sales. As properties languished under the weight of complex regulations, contamination issues frequently went unaddressed. A 2019 study examined the economic effects, noting potential impacts on employment and state and local revenue between 2014-2018.[2]
The RBCRs aim to flip this script by focusing on contamination as it is discovered, rather than tying remediation to property sales. By doing so, the new rules seek to encourage proactive cleanup while freeing up properties for timely transactions.
Changes Under the RBCRs
Under the new rules, owners must report contamination upon discovery and adhere to specific cleanup timelines. This shift could change the landscape of Connecticut property transactions, particularly in areas with historical contamination, like urban and coastal sites.
For buyers, the rules may offer greater flexibility. Inspections are no longer mandatory before a sale, which may expedite some transactions. However, this freedom comes with heightened risk. Buyers should consider the potential liabilities of purchasing contaminated properties, especially without pre-transaction inspections, and consider clearly defining environmental responsibilities in sale agreements.
The RBCRs also introduce new allowances, such as thresholds for minor contamination and exemptions for incidental releases. For example, contamination from routine roadwork or utility projects may no longer trigger immediate regulatory action. Similarly, single-family homeowners are exempt, but landlords of multifamily properties face stricter obligations regarding tenant safety.
For urban properties, which often face environmental challenges, there may be renewed interest under the RBCRs. The Transfer Act’s soil removal requirements, which mandated replacing four feet of soil in contaminated areas, could make redevelopment cost prohibitive. The new regulations provide more flexible remediation options, which may enable developers to manage contamination without excessive costs.
Possible Regional Implications of Connecticut’s Regulatory Shift
Connecticut’s transition from the Transfer Act to Release-Based Cleanup Regulations (RBCRs) exemplifies a shift toward decoupling environmental remediation from property transactions, a model that may influence regulatory frameworks in neighboring states. New Jersey’s Site Remediation Reform Act (SRRA) already reflects a release-based approach by emphasizing site-specific cleanup responsibilities, but the RBCRs may further encourage New Jersey to refine its existing policies. The broader principles underlying the RBCRs—streamlining remediation and balancing environmental and economic priorities—may serve as a model for other states in the region as they consider reforms to improve efficiency in addressing historical contamination.
[1] Connecticut General Statutes §§ 22a-134 through 22a-134e
[2] Connecticut Economic Resource Center, Study on the Impact of the Transfer Act (2019) (finding the Act caused the loss of approximately 7,000 jobs and $178 million in tax revenue from 2014 to 2018), available at Hartford Business Journal.
Trump Administration Day One Executive Orders: Regulatory Freeze
Among the flurry of executive orders that President Trump issued in the hours following his inauguration on January 20th was a memorandum titled Regulatory Freeze Pending Review (2025 Trump Regulatory Freeze Memorandum), which directs agencies to:
Refrain from proposing or issuing any rule[1] in any manner until a President Trump-appointed agency head reviews and approves the rule;
Immediately withdraw any rules that have been sent to the Office of Federal Register (OFR) but not published in the Federal Register so that they can be reviewed and approved by a President Trump-appointed agency head; and
Consider[2] postponing for 60 days the effective date for any rules that have been published or issued but have not taken effect, for the purpose of reviewing any questions of fact, law, and policy that the rules may raise.
This memorandum closely mirrors regulatory freeze memoranda issued by the first Trump administration in 2017 (2017 Trump Regulatory Freeze Memorandum) and the Biden administration in 2021, but the immediate impact of the memorandum will likely be different from what we have seen in the past. Six days after the Trump administration issued the 2017 Trump Regulatory Freeze Memorandum, EPA published in the Federal Register a final rule delaying the effective date of 30 final EPA regulations that the agency had published between October 28, 2016 and January 17, 2017. 82 Fed. Reg. 8499 (Jan. 26, 2017). These rules had original effective dates after January 20, 2017, the date that President Trump issued the 2017 Trump Regulatory Freeze Memorandum. Several agencies in the Biden administration, however, including EPA, appear to have been prepared for a regulatory freeze memorandum and avoided issuing final regulations at the end of 2024 that would go into effect after President Trump’s inauguration. For example, EPA’s rule implementing the requirements of the Waste Emissions Charge in the Clean Air Act’s Methane Emissions Reduction Program, enacted as part of the Inflation Reduction Act, went into effect on January 17, 2025. 89 Fed. Reg. 91094 (Nov. 18, 2024).
Nonetheless, some environmental and energy-related regulations may be affected by the freeze. For example, on January 21st, EPA’s final rule regarding Revisions to the Air Emission Reporting Requirements and proposed rule regarding Clean Water Act Effluent Limitations Guidelines and Standards for PFAS Manufacturers Under the Organic Chemicals, Plastics and Synthetic Fibers Point Source Category were both identified on the White House’s Office of Management and Budget’s (OMB) website as under review, but as of January 22nd are no longer identified as under OMB review and do not appear on OFR’s website. EPA may have withdrawn these rules from OMB’s consideration in accordance with the 2025 Trump Regulatory Freeze Memorandum, but their status remains unclear.
In addition, the Pipeline and Hazardous Materials Safety Administration (PHMSA) made available on its website pre-publication versions of proposed and final rules that have been submitted to the OFR but are not yet available for public inspection or published in the Federal Register. See Proposed Rule: Safety of Carbon Dioxide and Hazardous Liquid Pipelines; Final Rule: Gas Pipeline Leak Detection and Repair. These proposed and final rules are subject to the regulatory freeze in accordance with the memorandum’s directive that agencies “[i]mmediately withdraw any rules that have been sent to the [OFR] but not published in the Federal Register” so that they can be reviewed and approved by a President Trump-appointed agency head. Both of these rules appear to have been withdrawn from publication in the Federal Register. However, we also note that EPA published a proposed rule on January 22nd that was seemingly subject to the freeze. See National Emission Standards for Hazardous Air Pollutants: Chemical Manufacturing Area Sources Technology Review, 90 Fed. Reg. 7942 (Jan. 22, 2025). In sum, there appears to be some open questions on the status of certain rules not yet published in the Federal Register.
Lastly, final environmental regulations that have been published in the Federal Register as final but that have not yet gone into effect include the following EPA final rules:
Review of the Secondary National Ambient Air Quality Standards for Oxides of Nitrogen, Oxides of Sulfur, and Particulate Matter, 89 Fed. Reg. 105692 (Dec. 27, 2024) (eff. Jan. 27, 2025);
Integrating e-Manifest With Hazardous Waste Exports and Other Manifest-Related Reports, PCB Manifest Amendments, and Technical Corrections, 89 Fed. Reg. 60692 (Sept. 26, 2024) (eff. Jan. 22, 2025); and
Hazardous Waste Generator Improvements Rule, the Hazardous Waste Pharmaceuticals Rule, and the Definition of Solid Waste Rule; Technical Corrections, 89 Fed. Reg. 99727 (Dec. 11, 2024) (eff. Feb. 10, 2025).
Per the 2025 Trump Regulatory Freeze Memorandum, EPA is to consider postponing for 60 days the effective date of these rules for the purpose of reviewing any questions of fact, law, and policy that the rules may raise.
How quickly agencies will be able to initiate review and approval of these regulations depends on the Trump administration’s immediate priorities and how quickly agency roles are filled with President Trump appointees.
[1] The 2025 Trump Regulatory Freeze Memorandum defines “rule” to include both final rules and “any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.”
[2] The use of the word “consider” is one notable difference between the 2017 and 2025 memoranda issued by the Trump administration. The postponement directive in the 2017 Trump Regulatory Freeze Memorandum was not optional.
Will 2025 Continue Circuit Court Harmony in Nationwide Litigation Involving State Law Hemp Legislation, or Will a Circuit Split Emerge?
You’ve probably seen the reports of the United States Fourth Circuit Court of Appeals’ January 7, 2025 opinion upholding a Virginia law that regulates consumable hemp products. I planned to put up a blog post soon after the opinion was handed down, and I will still summarize the holding here. But the delay in writing allowed me to take a step back (and another step back), and view this in proper perspective: 2025 is going to be a huge year in the state law hemp legislation vs. hemp industry Farm Bill disputes that have been simmering over the last couple of years. Let me explain how this will soon boil over.
If you are still reading this, I suspect I don’t need to provide an overview of the 2018 Farm Bill and its impact on the hemp industry, notably on the consumable hemp product industry. If you want a refresher on that, you can read some of our older articles on the subject here and here. With that backdrop, more and more states have in recent years passed laws restricting the production and sale of consumable hemp products with each passing legislative session. And with each new piece of legislation comes a new legal challenge. Most of these cases start in a federal trial court, and over the last few years, we have seen those courts reach varying decisions although the majority uphold the restrictive state legislation. Appeals have followed, and this year, kicked off by the Fourth Circuit’s January 7 decision, should go a long way towards molding this little pocket of jurisprudence and potentially influencing how the Farm Bill is ultimately modified.
Fourth Circuit Upholds Consumable Hemp Restrictions
As the Fourth Circuit put it in its Northern Virginia Hemp & Agriculture, LLC v. Virginia opinion, Virginia “took action” to address its “marijuana problem” by passing a 2023 law that regulates the retail sale of hemp products based on their total THC level and limits the concentration of that level in products in a more restrictive manner than what was legal under federal law. — F.4th —-, 2025 WL 37238 (4th Cir. 2025). A lawsuit soon followed that sought injunctive relief under the usual constitutional arguments – the Supremacy Clause and Dormant Commerce Clause. The district court rejected the plaintiffs’ arguments, and the Fourth Circuit appeal followed.
Conceptually following the Seventh Circuit’s 2020 C.Y. Wholesale, Inc. v. Holcomb, 965 F.3d 541 (7th Cir. 2020) opinion, the Fourth Circuit affirmed the district court’s dismissal of the suit, detailing why each constitutional challenge failed. As for the Supremacy Clause, the court addressed each applicable preemption doctrine in turn (express, field, and conflict). Rejecting plaintiffs’ express preemption argument, the court concluded that “the plaintiffs’ argument overread” the Farm Bill’s notes stating that a state can’t prohibit the transportation or shipment of hemp or hemp products. Focusing on the Farm Bill’s plain language authorizing states to regulate the production of hemp more stringently than federal law, the court held that the plaintiff’s express preemption argument “crumbles.” And, based on that Farm Bill provision and further due to that law expressly designating states as the “primary regulatory authority over the production of hemp,” the court rejected plaintiffs’ field preemption argument. As for conflict preemption, the court disregarded plaintiffs’ argument that the total THC standard set forth in the Virginia bill conflicted with the Farm Bill’s definition of what constitutes legal hemp, concluding that “[w]hen the actual language of the statutes is considered, S.B. 903 is [neither] in direct conflict with the purpose of the Farm Bill [nor] does it pose an obstacle to its purpose.”
Plaintiffs’ dormant commerce clause faced the same fate. Holding that the Virginia law did not favor in-state entities to the detriment of out-of-state ones, the court noted that the total THC standard applied equally to resident and nonresident entities. The court also found that allegations of cost increases were both speculative and equally applicable to all entities, no matter where domiciled. This decision follows the Seventh Circuit (the only other circuit court addressing these precise challenges) in upholding state laws that regulate hemp products more restrictively than the Farm Bill.
Eighth Circuit Ruling Looms
We have discussed the Bio Gen LLC et al. v. Sanders case before here and here, which now awaits a ruling from the Eighth Circuit. The court heard arguments on September 24, 2024, and the Arkansas attorney general sent the court a letter on January 8 informing it of the Fourth Circuit’s decision. That letter follows a December 3, 2024 letter the AG sent informing the Eighth Circuit of an October 10, 2024 New Jersey federal court decision (Loki Brands, LLCv. Platkin, No. 24-9389, 2024 WL 4457485 (D.N.J. Oct. 10, 2024)) upholding a New Jersey law regulating hemp products in the state, in which the AG noted:
With that decision, one court of appeals [now two after the 2025 Fourth Circuit opinion] and a total of eight district courts spanning five other circuits – in Alaska, California, Hawaii, Iowa, South Dakota, Virginia, Wyoming, and now New Jersey – have rejection [sic] implied preemption challenges to laws like the one at issue here, with the district court below the sole outlier.
Will the Eighth Circuit affirm the lower court’s outlier ruling that sided with the hemp industry plaintiffs and enjoined the Arkansas law, or will the court follow the Fourth and Seventh circuits and reverse? We should have an answer very soon.
10th Circuit Ruling Expected in 2025
After a Wyoming court rejected constitutional challenges to a Wyoming law that prohibited hemp from containing “synthetic substances,” added certain psychoactive isomers to the definition of THC, and added delta-8 to the list of controlled substances, the plaintiff hemp businesses filed suit. Similar to the Fourth Circuit’s ruling discussed above, the U.S. district court in Wyoming concluded that the Farm Bill did not preempt the Wyoming law and that the law did not violate the Dormant Commerce Clause. The court also rejected a regulatory takings argument. The hemp companies appealed that ruling to the 10th Circuit where briefing concluded on January 2, 2025. Like the Arkansas attorney general, Wyoming’s AG informed the 10th Circuit of the Fourth Circuit’s recent opinion. The 10th Circuit case is Green Room, LLC v. Wyoming, Nos. 24-8053 & 24-8054.
Will the Fifth Circuit See a Similar Appeal in 2025?
During the 2024 legislative session, the Louisiana Legislature amended its hemp laws to restrict where certain hemp-derived products can be sold and their potency. The hemp industry quickly responded with litigation. That matter, Hemp Assoc. of La. v. Landry, No. 3:24-cv-00871, in the U.S. District Court for the Middle District of Louisiana, was filed on October 18, 2024. The plaintiffs alleged that the 2018 Farm Bill preempts the legislation and is unconstitutional on other grounds. The state disagreed and moved to dismiss, but on November 19, 2024, the state informed the court that it would stay the effective date of the new legislation so that the parties could fully brief the pending motions and the court could reach a decision. Under a January 8, 2025, order, briefing on defendants’ motion to dismiss the plaintiffs’ challenge to the Louisiana law will conclude on February 10, 2025, and a hearing on the motion is set for March 27, 2025.
What Does this All Mean?
With Congress again extending the reauthorization process for the Farm Bill, the judiciary branch is helping shape the future of the consumable hemp product industry. And, while we may not see any U.S. Circuit Courts of Appeals beyond those discussed above decide these issues in 2025, federal courts in other jurisdictions, including New Jersey, Iowa, and South Dakota, issued notable rulings on these same issues last year. Also, with new legislative sessions just ramping up in states across the country, we expect new state laws that, if history repeats itself at all, will lead to new court challenges that raise the same constitutional challenges that have been and are currently being adjudicated.
Geothermal: Another Source of Renewable Energy
Background
With ongoing concerns about fossil fuel emissions, focus continues to intensify on forms of renewable energy, most notably solar and wind, with proposed new solar and wind energy farms on the rise. Another form of renewable energy that is receiving more attention is geothermal energy.
Geothermal heating, which uses water from hot springs, has been used for bathing since Paleolithic times and for space heating since Roman times. Simply stated, geothermal energy is heat from within the earth. Below the earth’s crust is magma, a layer of hot and molten rock. Heat is continually produced in this layer, mostly from the decay of naturally radioactive materials such as uranium and potassium, making geothermal energy renewable. Unlike wind and solar energy, geothermal can produce power at a constant rate, without regard to weather conditions.
Geothermal Plants and Geothermal Heat Pumps
Geothermal energy can be viewed from at least two perspectives:
Geothermal energy plants that produce geothermal energy on a large-scale basis, and
(2) Geothermal systems that use ground source or geothermal heat pumps (“GHP”) to heat and cool commercial and residential buildings individually or in a geothermal heating and cooling “district,” i.e., multiple buildings within a specific area such as college campus, a military base, or a cluster of residential buildings (a “H&C District”).
Geothermal power plants have existed for more than 100 years. Today’s geothermal plants have multiple design options, but the main technique is to extract steam and hot water from the ground, use it to drive turbines, and then return it to the ground as warm water. The high costs of geothermal energy, plus the limited locations where plants can be installed, deterred the construction of geothermal energy plants, particularly in the eastern U.S.
For example, no known conventional geothermal resources suitable for power production exist in Pennsylvania. But even though the western U.S. is more conducive to the construction of geothermal power plants, issues such as earthquake risk, impacts on water quality and consumption, air contamination, and land subsidence present challenges. Nevertheless, geothermal energy use is increasing worldwide as an alternative to fossil fuel use.
How GHPs Work
While some eastern U.S. states lack the resource capacity for large scale geothermal systems, GHPs present a viable alternative to fossil fuels in eastern U.S. states such as Pennsylvania, New Jersey, and New York. The Earth’s temperature in these states remains constant, which is conducive to the use of GHPs. GHP systems were first developed in the late 1940s. Using a heat exchanger, a geothermal heat pump can move heat from one space to another. In summer, the geothermal heat pump extracts heat from a building and transfers it to the ground for cooling. In a ground loop system, U-shaped pipes called ground loops are buried either vertically or horizontally in the ground and circulate a mix of water and antifreeze from the heat pump through the soil, and then back to the heat pump. This thermally conductive mix releases heat into or absorbs heat from the ground as it moves through the underground loop, facilitating the heat transfer that the ground-source heat pump needs to lower indoor temperatures in the summer or raise them in the winter. Once the geothermal heat pump conditions the air, the distribution system delivers it throughout the building.
Visuals from Department of Energy (energy.gov) “Geothermal Heat Pumps”
An open loop geothermal system uses groundwater as a heat exchange fluid. The system pumps groundwater from a well or a body of water. The groundwater passes through a heat exchanger, transferring heat to or from the building. The water is then discharged back into the ground or a surface water source like a pond.
A closed loop geothermal system circulates a mixture of water and antifreeze through a closed network of pipes buried in the ground. The three main types of closed loop systems are horizontal loop, where pipes are laid out horizontally in trenches, where pipes are installed in vertical boreholes, and pond/lake loop where pipes are submerged in a nearby body of water. This is possible only if there is a suitable water source.
Notably, GHP systems offer renewable, efficient temperature control solutions for H&C Districts, can reduce energy consumption by more than 70% compared to standard air-conditioning equipment, and can significantly reduce carbon emissions. Further, geothermal systems can be used in new construction and in retrofitted existing buildings.
Current Initiatives
Given the potential benefits of geothermal energy systems, the federal government, Pennsylvania, New Jersey, and New York have undertaken efforts to promote geothermal energy to varying degrees:
Federal
The Inflation Reduction Act of 2022 provides investment tax credits on capital expenditures (30%) and for certain “energy communities,” e.g., brownfield sites or closed coal mines (10%).
Pennsylvania
The Renewable Energy Program provides financial assistance in the form of grant and loan funds that will be used by eligible applicants to promote the use of alternative energy including geothermal energy.
Hundreds of thousands of oil and gas wells have been drilled in the state, many before modern regulations, and lost over time in fields, forests, and neighborhoods. Evaluation is underway to determine whether the infrastructure can be repurposed for the recovery of low-grade geothermal energy.
There are between 10,000 and 15,000 abandoned underground coal mines and numerous abandoned underground metal and non-metal mines in Pennsylvania. Many of these sites are flooded. The use of geothermal energy systems capable of exchanging heat with underground mine pools existing beneath sites such as a college campus offers significant potential. One such example is Marywood University in Dunmore, PA.
Pennsylvania’s 2004 Alternative Energy Portfolio Standards Act defines geothermal energy as a Tier I energy source.
New Jersey
According to the guide for New Jersey’s Clean Energy Program™ initiative, NJ’s “SmartStart Buildings® is a statewide energy efficiency program available to qualified commercial, industrial, institutional, government, or agricultural customers planning to construct, expand, renovate, or remodel a facility, or to replace electric or gas equipment. Incentives are available for prescriptive measures or for custom measures that are selected and incorporated into the project to help offset the added cost to purchase qualifying energy-efficient equipment.” These prescriptive measures include geothermal energy.
New York
In July 2022, Senate Bill S9422 was signed into law, establishing “the Utility Thermal Energy Network and Jobs Act to promote the development of ‘thermal energy networks’ throughout the state and to provide jobs to transitioning utility workers who have lost or are at risk of losing their employment.” Thermal Energy Networks, similar in concept to H&C Districts, are utility-scale infrastructure projects that connect multiple buildings into a shared network with sources of thermal energy like geothermal boreholes, surface water, and wastewater. Rather than each building needing its own borehole, multiple buildings in a network can share the same thermal sources. Buildings are linked via underground pipes, and each building is equipped with a heat pump that provides heating or cooling by exchanging thermal energy with pipes containing circulating water. The water in the pipes maintains a temperature within the needed range by exchanging heat with geothermal boreholes or other thermal resources.
New York in particular offers some excellent examples of geothermal energy projects:
A new 463-unit residential complex near Coney Island, completed in 2024, is heated and cooled by New York City’s largest geothermal heating and cooling system. However, in 2025, Greenpoint’s 1 Java Street development, comprising 830 rental units in five buildings, will be the largest all-electric multi-family geothermal project in the state.
Autumn Gardens, a 72-unit apartment complex in Lakeport (western New York state) is heated and cooled using nine separate closed-loop geothermal heat pump systems.
A new development comprising 108 rental apartments plus ground-floor commercial and community space is underway in Ossining. The development will be heated and cooled by a closed loop geothermal system using boreholes deeper than 500 feet because of the legislation discussed below.
In late December 2024, the New York State Energy Research and Development Authority (NYSERDA) announced that more than $29 million has been awarded to 15 innovative projects that will reduce statewide carbon emissions. Included in the awards is a project involving the design and development of the largest geothermal heating and cooling system in the Northeast for Fordham University’s Rose Hill Campus in the Bronx.
Legal Concerns
As with wind and solar, geothermal energy production involves numerous legal issues that must be addressed, particularly at the state and local level. Notably, Pennsylvania does not have state laws relating specifically to heat pumps, and the process of enacting legislation and related regulations could be a multi-year process. Further, ownership of surface rights and subsurface rights in Pennsylvania are often severed, and ownership of geothermal resources would likely have to be clarified by statute.
Well Drilling
Title 7 of the New Jersey Administrative Code sets forth the permitting requirements and the construction requirements and contains specific requirements to all Category 5 vertical closed loop geothermal wells. Boreholes must be drilled by a licensed driller.
Article 23 of New York’s Environmental Conservation Law provides that owners of open loop or standing column geothermal wells deeper than 500 feet are subject to the same well permitting and reporting requirements as owners of other wells. Due to September 2023 and February 2024 legislation changes, closed loop geothermal wells deeper than 500 feet are not currently subject to the same requirements..
As noted below, municipalities in Pennsylvania have enacted ordinances governing GHP geothermal energy systems.
Discharges
The EPA National Pollutant Discharge Elimination System (NPDES) regulations apply to the surface water discharge of GHP wastewater that may occur from an open loop geothermal system. The requirement to obtain a permit may also apply GHP wastewater discharges to a stormwater system that discharges to a jurisdictional surface water body regardless of whether or not a NPDES Permit has been issued for the stormwater discharge.
Land Use
As with other projects, local land development and zoning ordinances may impact the installation of geothermal energy systems. Pennsylvania’s Municipalities Planning Code, on which local zoning ordinances are based, includes “geothermal energy” in the definition of “renewable energy source.” Various municipalities in Pennsylvania have amended their zoning ordinances to address the location, installation, and other aspects of geothermal energy systems, with a particular focus on preventing groundwater contamination.
The amount of land on which a project involving the use of a geothermal energy system will affect the design and cost of the system, e.g., vertical loop vs. horizontal loop, as well as setback and other zoning-related requirements.
Conclusion
In the eastern U.S., GHP energy systems offer the potential to heat and cool buildings, particularly in a district, at potentially significant cost savings and carbon emissions reduction. The savings realized over the life cycle of the HP system would exceed any higher initial construction costs compared to conventional systems.
Trump Administration Day One Executive Orders: Key Environmental Regulatory, Permitting, and Enforcement Implications
President Trump’s first-day executive actions prioritize the development of a wide-range of domestic energy resources and take direct aim at the climate initiatives and environmental justice priorities of the Biden administration. With the declaration of a national energy emergency, President Trump has required the U.S. Environmental Protection Agency (EPA) and other federal agencies to review numerous agency actions and authorities with the goal of “unleashing American energy.” These first-day executive actions do not themselves implement the desired changes, but the environmental ripple effects and legal challenges stemming from these initial actions will unfold in the weeks, months, and years ahead and are likely to involve nearly every major federal environmental law. In this Alert, we summarize key federal environmental regulatory, permitting, and enforcement implications from President Trump’s initial executive actions.
Review of Existing Regulations and Regulatory Freeze. EPA and other federal regulatory agencies are ordered to review and identify existing regulations and policies that unduly burden domestic energy resources and develop and begin implementing plans to expeditiously suspend, revise, or rescind the identified regulations and policies. The universe of agency actions that must be reviewed include those related to the production of oil, natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy resources.[1] Regulations and policies that unduly burden domestic mining and processing of non-fuel minerals are also covered by this mandate.[2] As is customary for a new administration, President Trump has issued a regulatory freeze designed to pause certain types of pending regulatory actions until new leadership at EPA and other agencies have an opportunity to review such actions.[3] More information regarding potential EPA rules that may be subject to the regulatory freeze can be found in this separate Alert.
Environmental Regulatory Litigation and Enforcement Implications. President Trump directed EPA and other agencies to identify unduly burdensome agency actions that are the subject of pending litigation and notify the Attorney General of these actions so that the Attorney General can seek to stay or otherwise delay these lawsuits until challenged regulations can be suspended, revised, or rescinded as ordered.[4] President Trump also ordered EPA to review and identify existing settlements and consent orders that impose an undue burden on identification, development, and use of domestic energy resources. EPA will have 30 days to report any settlements and consent orders to the Office of Management and Budget (OMB).[5] Lastly, federal agencies are directed to assess whether enforcement discretion can be utilized to advance the Trump administration’s domestic energy policy.[6]
Emergency Authorities and Streamlining Permitting for Domestic Energy Projects. President Trump has issued broad mandates to the EPA and other federal resource agencies to identify and use “lawful emergency authorities” to facilitate generation of non-wind domestic energy resources and related infrastructure, including emergency authorities under the Clean Water Act Section 404 permitting program and the Endangered Species Act.[7] President Trump revoked a 1970’s Executive Order giving the White House Council on Environmental Quality (CEQ) the authority to issue National Environmental Policy Act (NEPA) regulations and directed the CEQ to propose to rescind existing NEPA regulations to expedite and simplify permitting for energy projects.[8] EPA is directed to consider issuing emergency fuel waivers allowing for the year-round sale of E15 gasoline, and the review of applications for liquefied natural gas projects are to be restarted.[9]
Climate-Related Regulatory Underpinnings and Considerations. President Trump revoked President Biden’s Executive Orders related to climate initiatives.[10] In addition to withdrawing from the Paris Climate Agreement,[11] President Trump directed EPA to abandon the consideration of the “social cost of carbon” in regulatory determinations and submit a recommendation on the fate of the 2009 finding under the Clean Air Act that greenhouse gases threaten public health and welfare, which serves as a necessary statutory prerequisite for EPA to implement greenhouse gas emission standards for motor vehicles and other sectors.[12] All federal agencies are directed to pause clean energy and climate-related funding under the Inflation Reduction Act and Infrastructure Investment and Jobs Act, and the Trump administration has pledged to “eliminate the ‘electric vehicle (EV) mandate.’”[13]
President Trump’s first-day executive actions set the stage for reshaping the federal environmental regulatory, permitting, and enforcement landscape. The actions EPA and other agencies take to implement these new directives will be closely watched and scrutinized.
[1] Executive Order: Unleashing American Energy, Section 3 (Jan. 20, 2025).
[2] Executive Order: Unleashing American Energy, Section 9(a) (Jan. 20, 2025).
[3] Memorandum: Regulatory Freeze Pending Review (Jan. 20, 2025).
[4] Executive Order: Unleashing American Energy, Section 3(b)-(d) (Jan. 20, 2025); see also Executive Order: Ending the Weaponization of the Federal Government (Jan. 20, 2025), Sec. 3(a) (requiring the Attorney General and heads of all departments and agencies to review civil and criminal enforcement activities over the last 4 years to identify instances where such authority was used to target perceived political opponents).
[5] Executive Order: Unleashing American Energy, Section 3(b) (Jan. 20, 2025).
[6] Executive Order: Unleashing American Energy, Section 7(c) (Jan. 20, 2025).
[7] Executive Order: Declaring a National Emergency, Section 2 (Jan. 20, 2025).
[8] Executive Order: Unleashing American Energy, Section 5 (Jan. 20, 2025).
[9] Executive Order: Declaring a National Emergency, Section 2(b) (Jan. 20, 2025); Executive Order: Unleashing American Energy, Section 8 (Jan. 20, 2025).
[10] Executive Order: Unleashing American Energy, Section 5 (Jan. 20, 2025).
[11] Executive Order: Putting America First in International Environmental Agreements, Section 4.
[12] Executive Order: Unleashing American Energy, Section 6 (Jan. 20, 2025).
[13] Executive Order: Unleashing American Energy, Sections 2(e) and 7 (Jan. 20, 2025).
EPA Administrator Nominee Advances to Senate for Confirmation Vote: Nomination Hearing Highlights
The Senate Committee on Environment and Public Works (EPW) on January 23, 2025, advanced the nomination of Lee Zeldin to the full Senate for a vote to confirm him as the next Administrator of the U.S. Environmental Protection Agency (EPA). The 11-8 vote to advance the nomination was largely along party lines, with Senator Mark Kelly (D-AZ) as the only Democrat to vote in favor of advancing Zeldin’s nomination. Zeldin is expected to be confirmed by the Senate.
EPW held a hearing on the nomination of Lee Zeldin to be Administrator of EPA on January 16, 2025. The hearing provided insights into the issues of highest interest and concern to EPW members. Chairman Shelly Moore Capito (R-WV) noted several issues on which she hoped EPA would focus, including cleaning up brownfields and Superfund sites, addressing “legacy [per- and polyfluoroalkyl substances] PFAS contamination,” and reliability and affordability of electricity. Senator Sheldon Whitehouse (D-RI), ranking Democrat on EPW, stated that climate change is the number one issue for him.
Republicans raised a range of issues both for awareness and for Zeldin to focus on at EPA. Of particular interest, newly elected Senator John Curtis (R-UT) mentioned the low approval rate for new chemicals under the Toxic Substances Control Act (TSCA). Senator John Boozman (R-AR), who also Chairs the Senate Committee on Agriculture, Nutrition, & Forestry, spoke about pesticides and the need for a “predictable, science-based system.” PFAS was identified as an important issue from several perspectives, including cleanup, ongoing critical uses (e.g., defense), and the need to protect “passive receivers.” Several Republicans highlighted “cooperative federalism” as an issue.
Most Democrats emphasized climate change as a top priority issue with Zeldin. Other issues raised by Democrats included problems with cross-border pollution (both air and water), potential cuts to EPA budget and personnel, and lead in drinking water, and they flagged concerns about Clean Air Act attainment due to ongoing wildfires.
Both Republican and Democratic Senators mentioned plastics, but from differing perspectives. Senator Jeff Merkley (D-OR) stated his strong opposition to “thermal melting of plastics.” Senator Dan Sullivan (R-AK) talked about the need to clean up ocean plastics and stated that he is working on “Save Our Seas 3.0.”
Maine DEP Accepting Restoration Applications for Coastal Sand Dunes
On January 22, 2025, the Maine Department of Environmental Protection (DEP) announced that it would begin accepting applications to fund coastal sand dune restoration and protection projects.
Last year, the Legislature allocated $1 million for the 2024/2025 fiscal year for restoration, protection, and enhancement of sand dune systems. The DEP will use this money to provide funding for qualifying projects.
To qualify for funding, a project must be located in a coastal sand dune system where public access is provided to a beach or waterfront area adjacent to the coastal sand dune. Qualifying projects may include the following:
Physical projects to restore, nourish, or revegetate coastal sand dunes
Projects to protect or conserve coastal sand dunes via legal mechanisms such as conservation easements
Public education and/or technical assistance programs to restore and protect coastal sand dunes
Among the criteria the DEP will evaluate are the project’s feasibility, community benefit, cost efficiency (e.g., other funding sources), and habitat enhancement. If selected, the DEP may pay up to 50% of the project costs (except for projects that include technical assistance and public education the DEP may pay up to 100% of the cost).
The application deadline is February 24, 2025.
Trump Administration Day One Executive Orders: Energy Policy
The Trump administration issued several Executive Orders aimed at significantly altering American energy policy, which are summarized below.
Executive Order: Declaring a National Energy Emergency
Fundamental to President Trump’s efforts to stimulate American energy production is his Executive Order declaring a national energy emergency. This is the first time that a president has declared a national energy emergency, although regional energy emergencies were declared by President Jimmy Carter in the 1970s due to shortages of fossil fuels. By declaring a national energy emergency, President Trump is allowing federal agencies to use various emergency authorities to facilitate the “identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources.” The Order defines “energy” and “energy resources” to include “crude oil, natural gas, lease condensates, natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal heat, the kinetic movement of flowing water, and critical minerals.”
The Order represents the administration’s first step in promoting domestic energy production which, according to the Order, will lower energy prices, create jobs, and strengthen national security. In furtherance of these objectives, the Order directs federal agencies to identify and use all relevant lawful emergency and other authorities to expedite the completion of all authorized and appropriated infrastructure, energy, environmental, and natural resources projects.
Among the more significant provisions in the Order to the regulated community are directives to agencies to evaluate the use of emergency measures in environmental regulations to facilitate and streamline permitting and environmental reviews. Federal agencies must identify and report on planned or potential actions to facilitate energy supply that may be subject to emergency treatment under the regulations and nationwide permits promulgated by the Army Corps of Engineers, such as projects subject to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. The Order provides similar requirements for actions that may require agency consultations under the Endangered Species Act (ESA). Agencies must identify and report on planned or potential actions that may be subject to the ESA and provide a summary report of those actions. Agencies are directed to use, to the maximum extent permissible under applicable law, the ESA regulations on consultations in emergencies.
Additionally, the Secretary of the Interior, acting as Chairman of the Endangered Species Act Committee, must convene the committee not less than quarterly to review and consider applications submitted by any applicant for a permit or license who requests an exemption from the agency consultation obligations imposed by Section 7 of the ESA. To the extent practical, the Secretary of the Interior must ensure an initial determination is made on applications within 20 days of receipt and the submission must be resolved within 140 days of the initial determination.
Executive Order: Unleashing American Energy
President Trump’s declaration of an energy emergency dovetails with his Executive Order entitled Unleashing American Energy. The Order directs federal agency heads to review all existing agency actions and identify those that unduly burden domestic energy resources and, within 30 days, develop and begin implementing action plans to suspend, revise, or rescind all such actions. It calls for a particular focus on oil, natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy resources. The Order also directs agencies to notify the Attorney General of any actions taken to review or suspend, revise or rescind regulations so that (i) notice of the Order and such actions can be provided to any court with jurisdiction over pending litigation in which such actions may be relevant and (ii) a request can be made to the court stay or otherwise delay further litigation, or seek other appropriate relief consistent with the Order.
The Order also focuses on increasing permitting efficiency across agencies, in part by revoking President Carter’s 1977 Executive Order 11991 relating to protection and enhancement of environmental quality, which authorized the Council on Environmental Quality (CEQ) to issue mandatory regulations to implement the National Environmental Policy Act (NEPA). The Order requires CEQ to provide guidance on implementing NEPA and to issue a proposed rule rescinding CEQ’s current NEPA regulations. It also encourages agencies to eliminate permitting delays in their respective processes by utilizing general permits and permit by rule and authorizes the use of emergency authorities for any project an agency head has determined is essential to the nation’s economy or national security. The Director of the National Economic Council (NEC) and the Office of Legislative Affairs are also directed to jointly prepare recommendations to Congress to streamline judicial review of NEPA applications, facilitate permitting, and construct interstate energy transportation and infrastructure.
The Order requires the Environmental Protection Agency (EPA) to issue guidance to address abandoning the social cost of carbon calculations in decision making within 60 days of the Order, and within 30 days of the Order, EPA must submit recommendations on the legality and future applicability of the 2009 Endangerment Finding for greenhouse gases under the Clean Air Act.
Significantly, the Order directs all agencies to pause the disbursement of funds appropriated through the Inflation Reduction Act and the Infrastructure Investment and Jobs Act pending review, including funds for electric vehicle charging stations, and review agency processes, policies, and programs for issuing grants, loans, contracts, or any other financial disbursements of such appropriated funds.
The Order also contains provisions pertaining to liquified natural gas, which lifted a freeze on liquified natural gas exports put in place by President Biden in early 2024. The Order directs the Secretary of Energy to restart reviews of the applications for approvals of liquified natural gas export projects, and reconsider records of decision for proposed deepwater ports for the export of liquified natural gas.
Finally, the Order contains components on mineral dominance, which directs relevant agencies to identify and rescind all agency actions that unduly burden domestic mining and processing of non-fuel minerals. It also provides for geological mapping to focus on unknown mineral deposits, tapping into the potential of uranium, allocating federal funds for critical mineral projects, and requires that policy recommendations pertaining to enhancing mining competition in the United States be submitted by relevant agencies within 60 days of the Order.
Memorandum: Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects
The Trump administration’s efforts to promote the production of energy from traditional energy sources stand in contrast to President Trump’s Memorandum aimed at curtailing wind energy production by withdrawing the Outer Continental Shelf (OCS) from offshore wind leasing and reviewing all leasing and permitting practices for wind energy projects. The Memorandum temporarily prevents consideration of any area in the OCS for any new or renewed wind energy leasing for the purposes of generation of electricity or any other such use derived from the use of wind. It directs the Secretary of the Interior, in consultation with the Attorney General, to conduct a comprehensive review of the ecological, economic, and environmental necessity of terminating or amending any existing wind energy leases, identify any legal bases for such removal, and submit a report with recommendations to the President. Finally, it directs that no new or renewed approvals, rights of way, permits, leases, or loans for onshore or offshore wind projects be issued pending the completion of a comprehensive assessment and review of federal wind leasing and permitting practices.
Executive Order: Unleashing Alaska’s Extraordinary Resource Potential
President Trump also issued an Executive Order entitled Unleashing Alaska’s Extraordinary Resource Potential. The Order’s more significant provisions include directing agencies to prioritize the development of Alaska’s LNG potential, including the permitting of all necessary pipeline and export infrastructure related to the Alaska LNG Project, and to issue permits, right-of-way permits, and easements necessary for the exploration, development, and production of oil and gas from leases within the Arctic National Wildlife Refuge.
Trump Administration Day One Executive Orders: A Transformation of American Energy and Environmental Policies
On January 20, 2025, the Trump administration issued a suite of Executive Orders and memoranda signaling a dramatic shift in American energy and environmental policy. Collectively these actions, among a historically large array of “Day One” orders issued by the administration, aim to stimulate domestic energy production (with a focus on oil, natural gas, coal, hydropower, biofuels, critical minerals, and nuclear energy resources), expand energy transmission infrastructure, enlarge refining capacity, and streamline environmental permitting and review requirements for energy production and infrastructure projects while canceling Biden-era domestic climate policies, disengaging from international climate agreements, and curtailing leasing and permitting for offshore and onshore wind energy projects.
In conjunction with these Executive Orders and memoranda, the Trump administration carried out a sweeping revocation of Biden-era Executive Orders, including orders relating to energy policy and environmental regulation, climate initiatives, promoting electric vehicles, environmental justice, the withdrawal of areas of the Outer Continental Shelf from oil and gas leasing, and the implementation of the Inflation Reduction Act and Infrastructure Investment and Jobs Act.
President Trump also issued a Day One memorandum implementing a regulatory freeze requiring agencies to refrain from proposing or issuing any new rule and withdraw rules that have been finalized but not yet been published in the Federal Register, until those rules are approved by the new agency head. The memorandum also directs agency heads to consider postponing for 60 days the effective date of any rules that have been published or issued but have not taken effect, for the purpose of reviewing any questions of fact, law, and policy that the rules may raise. Some Biden-era rules relating to energy and the environment appear to be subject to this freeze, however, the overall impact of the freeze appears to be limited.
More detailed reviews of these actions are available at the links below.
Energy Policy
Regulatory Freeze
Key Environmental Regulatory, Permitting, and Enforcement Implications
Additional actions by President Trump on energy and environmental issues are expected, and legal challenges are practically certain as federal agencies take concrete steps to implement these directives. We are tracking these matters closely and will issue future Alerts as significant developments arise.