Supreme Court Limits Clean Water Act Permit Requirements in San Francisco v. EPA
On March 4, 2025, the U.S. Supreme Court in City and County of San Francisco v. Environmental Protection Agency held that “end-result” permit requirements are not allowed under the Clean Water Act (“CWA”). The Supreme Court characterized end-result requirements as “permit provisions that do not spell out what a permittee must do or refrain from doing,” but instead make a permit holder responsible for receiving water quality. Many individual and general National Pollutant Discharge Elimination System (“NPDES”) permits contain such “end-result” requirements—and the Supreme Court’s ruling is expected to have significant impacts on NPDES permitting going forward.
Background
The CWA prohibits anyone from discharging “pollutants” through a “point source” into a “water of the United States” without a NPDES permit. “Pollutants” and “point source” are broadly defined in the CWA. The Supreme Court recently addressed what constitutes a “waters of the United States,” which we discussed here.
NPDES permits authorizing discharges of pollutants are issued by authorized states, tribes, and/or the EPA, depending on which agency has jurisdiction over the discharge area. NPDES permits contain conditions to protect water quality, such as “effluent limits” that restrict the quantities, rates, and concentrations of pollutants that can be discharged by the permittee. They also include monitoring, reporting, and “best management practice” requirements.
San Francisco v. EPA Decision
In 2019, EPA and the California Regional Water Quality Control Board issued a renewed NPDES permit for a San Francisco wastewater treatment facility that discharged treated wastewater into the Pacific Ocean. The renewed permit contained two new “end-result” provisions that:
“prohibit[ed] that facility from making any discharge that ‘contributes to a violation of any applicable water quality standard’ for receiving waters” and
“provide[d] that the city cannot perform any treatment or make any discharge that ‘creates pollution, contamination, or nuisance as defined by California Water Code section 13050.’”
On appeal, the Ninth Circuit Court of Appeals upheld these end-result provisions. The Court reasoned that such open-ended conditions were authorized by CWA Section 1311(b)(1)(C), which states that EPA may impose “any” limitation necessary to meet applicable water quality standards.
In a 5-4 decision, the Supreme Court reversed the Ninth Circuit and held that the CWA does not authorize the inclusion of “end-result” provisions in NPDES permits. Rather, the agency issuing the permit is responsible for determining and spelling out specifically “what steps a permittee must take to ensure that water quality standards are met.”
To support its interpretation, the Court focused on the text of Section 1311(b)(1)(C) and the broader statutory scheme. The Court pointed to the CWA’s so-called “permit shield” provision, which deems a permit holder to be in compliance with the CWA if it follows all permit terms. Noting the importance of the permit shield given the CWA’s imposition of strict liability and harsh penalties for violations, the Court held that the permit shield’s benefit be “eviscerated” by a decision to allow end-result requirements.
The Court also emphasized differences between the CWA and the “Water Pollution Control Act” (“WPCA”), the CWA’s predecessor statute. The WPCA which included a provision expressly allowing end-result requirements, an approach the Court called “backward-looking” and “impractical” –especially in situations where multiple permittees discharge pollutants into a single water body, requiring regulators to “unscramble the polluted eggs after the fact.”
In issuing its decision, the majority heavily relied on the amicus briefs of regulated entities. The dissent believed end-result provisions benefit regulated entities by providing a regulatory tool that can avoid permit delays or denials, but the majority disagreed, stating that the “long list of municipalities and other permittees” supporting San Francisco’s position are “sophisticated entities” who are “better positioned than the dissent to judge what is good for them.”
Impact of San Francisco v. EPA
The Supreme Court’s decision puts an end to “end-result” requirements, which have been used routinely in NPDES permits issued by states and the EPA. The Supreme Court’s ruling means agencies issuing NPDES permits must translate water quality standards into specific, measurable discharge limitations, rather than simply prohibiting contributions to water quality violations.
The Supreme Court’s decision, which applies equally to federal and state NPDES permits, will likely prompt more specific permit requirements. The decision could benefit some permittees by easing permit compliance, providing more certainty as to potential CWA liability, and reducing the number and scope of enforcement actions. However, the decision is also likely to cause delays in permit issuance, while states and the EPA work to implement the new standard announced by the Court.
Delaware Court of Chancery Reminds Delaware Counsel of the Court’s Expectations
The Delaware Court of Chancery is the nation’s preeminent business court due to the large number of businesses that call Delaware home. Both Delaware state and federal courts require Delaware counsel to be actively involved in all aspects of the case. For example, Delaware Court of Chancery Practice Guidelines state that “The concept of ‘local counsel’ whose role is limited to administrative or ministerial matters has no place in the Court of Chancery. The Delaware lawyers who appear in a case are responsible to the Court for the case and its presentation.” While these guidelines are a good start, clients who find themselves in this Court should rely on local counsel for expectations related to Delaware practice that will not be found within the Guidelines.
An example of this unwritten guideline is a Delaware practice touchstone—civility. Clients unfamiliar with Delaware should be aware that although zealous litigation is expected, the Court will not tolerate a deviation from the Delaware practice of civility. The head of the Court of Chancery recently reminded parties in a letter filed on the docket to both parties of the Court’s expectations. In In re SwervePay Holdings Acquisition, LLC, C.A. No. 2021-0447-KSJM, Chancellor McCormick reminded the Parties:
You all have been less than understanding with each other, and that is regrettable. You can do better. Dig deep and hit reset, please. Allow the Delaware attorneys to advise on all aspects of this matter, including the relevant deadlines, the need to meet them, and the need to extend basic courtesies like brief extensions when requested. I am not sure what happened in these circumstances, but it also bears reminding that non-Delaware attorneys should not dump a brief on their Delaware friends at the last minute. If that admonition is irrelevant to the parties here, all the better.
The Court of Chancery has had a steady increase in expedited actions, which leaves little patience for the Court’s involvement in trivial scheduling or discovery disputes. According to the most recent Court of Chancery Annual Report of the Judiciary, the request for expedition increased 8% and the overall caseload increased 10%.
If your client is in Delaware, rather than run to the Court to work it out for you, the parties should work it out when possible. Delaware is not a jurisdiction for gamesmanship, especially in the Court of Chancery where your fact-finder is the Chancellor or Vice Chancellor, as there are no jury trials in the Court of Chancery.
Make sure you keep local counsel actively involved, as they can advise on best practices in the Delaware Court of Chancery.
Unified Patent Court Publishes First Annual Report
The Unified Patent Court (UPC) and the Unitary Patent, which launched on June 1, 2023, marked a historic milestone, allowing for the enforcement of patents across borders via a single court. The UPC has now issued its first Annual Report.
Of note, since its inception, the UPC has handled a significant number of cases, with 633 actions filed by the end of 2024. This large influx of filings has enabled the Court to already develop a baseline comprehensive body of case law, enhancing legal certainty and predictability.
Of further note, looking ahead, the UPC plans to implement a new Case Management System by mid-2025, in collaboration with the European Patent Office, to address current system limitations. The Court also aims to establish the Patent Mediation and Arbitration Centre to enhance its dispute resolution capabilities, with a goal of allowing it to become operational this year. We will continue to monitor these new developments as the UPC continues to evolve as a pillar of the European patent system.
Venezuela TPS Update: 18 State Attorneys General File Amicus Brief Supporting Plaintiffs Challenging TPS Termination
On Feb. 19, 2025, the National TPS Alliance, an advocacy group for immigrants who have been granted Temporary Protected Status (TPS), and seven Venezuelans living in the United States, filed a lawsuit in U.S. District Court for the Northern District of California challenging the decision of Department of Homeland Security (DHS) Secretary Kristi Noem to terminate Venezuela TPS. Noem had decided not to extend the 2023 Venezuela TPS designation. That designation will expire April 7, 2025.
On March 7, 2025, the attorneys general of 18 states, including California, Massachusetts, and New York, filed an amicus brief in support of the plaintiffs. The attorneys general contend that Secretary Noem’s decision to terminate Venezuela TPS was “baseless and arbitrary” and founded on unsubstantiated claims that Venezuelans with TPS cost the United States billions in tax dollars and threaten the nation’s economy, safety, and public welfare.
The attorneys general argue, “The vacatur and termination at issue in this litigation, which aim to strip legal protection from a community that comprises more than 50 percent of all [temporary protected status] holders, rest largely on such erroneous and unsubstantiated assertions. … Far from being a burden or threat to our States, Venezuelan TPS holders are a resounding benefit.”
In response, DHS argues that the court lacks the authority to review its discretion to terminate Venezuela’s TPS designation and that the plaintiffs have failed to provide evidence demonstrating Secretary Noem’s decision to terminate the designation was motivated by discrimination or animus.
FTC Requests Input from Tech Platform Users About Speech
The Federal Trade Commission recently requested public comment from users of tech platforms. In particular, the impact the platforms may have on user speech. Input is sought -by May 21- on the extent to which tech firms are engaging in potentially suppressing free speech.
Using terms like “censorship,” “demonization,” and “shadow banning,” this request for public comment signals a new direction of the agency under Andrew Ferguson. The direction being taken reflects the concern expressed before the new administration: that tech platforms were using their roles to censor speech (see Murthy v. Biden).
The request is unlike those we had seen in the past from the FTC, insofar as it requests comment about the tech platforms not from the platforms themselves, but instead directly from users. As of this writing, the agency had received over 1,000 comments. Among other things, the agency has asked people to provide input on:
Impact: Whether tech platforms banned users from the platform because of the content of their speech, or took other adverse actions and the extent to which those actions adversely impacted them. Relatedly, the request asks if people were given a “meaningful” way to challenge adverse decisions.
Moderation: Whether there were moderation policies in place, and if the platform told people (even implicitly) that they could appeal the platforms’ decisions. Also asked was whether the platforms used “opaque” or “unpredictable” processes to restrict access.
Pressure: Interestingly, the request asks potential commenters to speculate on “factors [that] motivated platforms’ decisions.” Included in these might be measures that resulted in them getting banned from the platform. This includes suggestions like pressure from advertisers, state or local governments, or foreign governmental action.
Competition: If the tech platforms were coordinating directly or through trade associations about policy and adverse actions.
Putting it into Practice: Private platforms’ moderation policies date to the early days of the Internet, and the Digital Millennium Copyright Act and the Communications Decency Act. These policies typically indicate that content that violates the policy will be removed (the alternative -modifying content- would run the risk of the platform participating in the creation of the content, losing the shield of the DMCA or CDA). We anticipate comments from industry groups, in addition to the many already received from users themselves. The comment period closes May 21.
James O’Reilly also contributed to this article.
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Appellate Court Paves Way for Launch of Alabama Medical Cannabis Program: Watch What Happens Now
It takes a big person to admit when they are wrong. But I’ll raise my hand and say I was wrong when I predicted that the Alabama Court of Civil Appeals would rule in favor of the Alabama Medical Cannabis Commission in late March or early April. That prediction was at least two weeks early, and I owe it to our handful of readers to own up to that mistake.
The Opinion
Last Friday, the Alabama Court of Civil Appeals ruled that the Montgomery County Circuit Court lacked jurisdiction to hear the complaints of Alabama Always – an applicant for a medical cannabis license that has not been awarded a license during any of the three rounds of awards – because Alabama Always (and, presumably by extension, any other disappointed applicant for an integrated facility license) had not exhausted its administrative remedies before filing suit. As a result, the Alabama Court of Civil Appeals instructed the circuit court to lift the injunction prohibiting the AMCC from issuing integrated licenses.
Because the court concluded that the circuit court did not have jurisdiction to hear Alabama Always’ claims, the court expressly declined to issue a holding as to whether the circuit court abused its discretion in various ways in entering the injunction. While as a general matter of judicial philosophy, I believe that the appellate court’s decision to resolve the case on jurisdictional grounds and not offer what would amount to dicta on other issues, the court’s decision to do so leaves open the possibility that Alabama Always and other disappointed applicants could seek additional relief on those grounds.
Why the Court of Civil Appeals’ Opinion Should Matter
I would be lying to you if I told you this decision was the definitive ruling that will allow integrated licenses to be issued in short order. I strongly suspect there will be requests for injunctive relief on separate grounds as soon as the current injunction is lifted.
Having said that, I attended the oral argument, which totaled three hours – the longest I have personally witnessed – and I am confident that the Court of Civil Appeals would treat any effort to re-raise the issues raised in the arguments with similar thoughtful dismissiveness. There is absolutely nothing in the opinion – nor was there anything at oral argument – to suggest that the court will offer the type of relief sought by the disappointed applicants. In fact, there is every reason to believe otherwise.
Instead, I believe the appellate court’s opinion should (1) put an end to serious discussions of legislative intervention in the program and (2) motivate the trial court to move more quickly to dispose of the serial challenges being brought by disappointed applicants.
I’d be remiss not to offer this word of caution. There’s a great line in Mad Men when Don Draper, having been challenged by Conrad Hilton to make a pitch for the global Hilton advertising portfolio, responds: “There are snakes that go months without eating and then they finally catch something, but they’re so hungry that they suffocate while they’re eating. One step at a time.”
Friday was a big win for the AMCC, as the consequences for losing may have been existential. I would caution supporters of the opinion not to overstate the holding, which was expressly limited to jurisdiction, but to instead point to the substance and tone of the questions at oral argument and the language in the opinion strongly suggesting that further challenges along similar lines would receive an equally unwelcome reception.
Conclusion
I’ve used this one before and I hate to recycle content, but I will break tradition when it is on point and involves Tom Hanks and the late, great Philip Seymour Hoffman, at the conclusion of Charlie Wilson’s War.
As Hanks’ character celebrates the Afghan defeat of the Soviets, the hardened CIA analyst played by Hoffman offers this parable:
On his sixteenth birthday the boy gets a horse as a present. All of the people in the village say, “Oh, how wonderful!”
The Zen master says, “We’ll see.”
One day, the boy is riding and gets thrown off the horse and hurts his leg. He’s no longer able to walk, so all of the villagers say, “How terrible!”
The Zen master says, “We’ll see.”
Some time passes and the village goes to war. All of the other young men get sent off to fight, but this boy can’t fight because his leg is messed up. All of the villagers say, “How wonderful!”
The Zen master says, “We’ll see.”
Last week’s decision was a win for the AMCC and possibly for those seeking an efficient resolution to the years-long delay in launching Alabama’s medical cannabis program. But we’ll see. There are miles to go before we sleep.
And before I sleep, I’ll say a prayer that all involved will proceed with only the best of intentions and in furtherance of Alabama’s goal of getting medicine into the hands of people who need it.
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A New Alice Plot Twist – Can a Composition of Matter Be an Abstract Idea?
Federal Circuit Holds that “Polycrystalline Diamond Compact” Claims Are Not Directed to an Abstract Idea
The patent world tends to think that the Supreme Court’s framework in Alice1 is a template for determining the eligibility of software and business method inventions2. Under 35 U.S.C. § 101, abstract ideas are not eligible for patent protection.3 Ineligible abstract ideas have included claims directed to mathematical equations, certain business methods, and mental processes.4 Interestingly, the Federal Circuit recently evaluated claims directed to a diamond compact and determined that they were not directed to an ineligible abstract idea under § 101. While these composition of matter claims survived, we see implications for patent practitioners in the chemical and materials arts.
On February 13, 2025, the Federal Circuit reversed a ruling from the ITC holding claims directed to a polycrystalline diamond compact (PDC) from U.S. Patent No. 10,508,502 invalid as directed to an abstract idea.5 The PDC claims comprise “a polycrystalline diamond table . . . including: a plurality of diamond grains . . . and a catalyst including cobalt;” and “a substrate bonded to the polycrystalline table.” The claims also recite certain magnetic property ranges. The specification of the patent explains that these magnetic properties correlate to low levels of cobalt in the PDC, and low levels of cobalt are associated with stronger PDCs.6
At the ITC, the presiding ALJ applied the two-step framework of Alice7 to the claims at issue. The ALJ found that the claims recited some structural features (grain size and a catalyst), and the magnetic properties were “side effects.” The ALJ further reasoned that “[t]here may be some causal connection” between the recited magnetic properties and structures, but it “is so loose and generalized” that the “claimed limitations appear to be little more than side effects.”8 The ITC largely agreed and determined that the magnetic properties were merely the “the result of sintering conditions and input materials that went into manufacturing the PDC.”9
The Federal Circuit held that the “claims are directed to a specific, non-abstract composition of matter—a PDC—that is defined by its constituent elements . . ., particular dimensional information . . ., and quantified material properties . . . .”10 The court disagreed with the ITC’s reliance on the patent specification’s use of “may” to support its position that the correlation between the magnetic properties and structural features is “too weak and equivocal.” Rather, the paragraphs employing “may” also have sentences that unequivocally use “indicates” to establish the correlation.11 Further, the patent includes several working PDC table examples illustrating that the claimed magnetic properties are indicative of low levels of cobalt in comparison to prior art PDC tables.12 Ultimately, “no perfect proxy” is required to tie the recited properties to the recited structure.13
US Synthetic offers takeaways for patent practitioners who draft composition of matter claims. There is at least some risk that a recited property in a composition of matter claim could be held an ineligible abstract idea under § 101. One can substantially reduce this risk by working with inventors to draft patent applications that: (a) identify actual examples and comparative examples that illustrate a relationship between the recited properties and structure; (b) include specification passages that discuss proven or believed relationships between each of the claimed properties and structure; (c) avoid the use of the term “may” in the patent specification when correlating properties to structure; and (d) avoid equivocation when supporting claimed elements in the specification. At the same time, patent drafters should avoid couching these property/structure connections as the invention or as being critical to the invention because these constructions might be construed by a court as limitations in claims that do not expressly recite these properties and/or structures.
If you have any questions about the impact of US Synthetic or patent issues more generally, please contact your Miller Canfield attorney or the authors of this alert.
Footnotes
1 Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014).
2 See generally U.S.P.T.O. Manual of Patent Examining Procedure (MPEP) § 2106.04(a).
3 E.g., Diamond v. Diehr, 450 U.S. 175, 185 (1981).
4 See MPEP § 2106.04(a).
5 US Synthetic Corp. v. Int’l Trade Comm’n, __ 4th__, 2025 WL 478762, No. 2023-1217 (Fed. Cir. Feb. 13, 2025).
6 Id. at *1-4.
7 In the first step, the court must assess the claims in their entirety to determine “whether their character as a whole is directed to excluded subject matter.” Alice, 573 U.S. at 218. If the claims are directed to an abstract idea, step two requires the court to assess “the elements of each claim both individually and as an ordered combination to determine whether the additional elements transform the nature of the claim into a patent-eligible application.” Id. at 217.
8 US Synthetic, 2025 WL 478762, at *4.
9 Id. at *5.
10 Id. at *6.
11 Id. at *7.
12 Id. at *8.
13 Id. at *7.
Appraisal of Amount of Loss is a Predicate to Article III, Injury-In-Fact Standing for a Suit Alleging Wrongful Withholding of Policy Benefits
50 Exchange Terrace LLC suffered losses from frozen burst pipes that caused water damage to its property and tendered a claim to its insurer, Mount Vernon Specialty Insurance Company. The parties disputed the cost of repairs (i.e., the amount of the loss) and Mount Vernon demanded appraisal to resolve the dispute. Rather than proceeding with appraisal, 50 Exchange filed suit in California state court, asserting that Mount Vernon had wrongfully withheld policy benefits pending the appraisal. Mount Vernon removed the case to federal court based on diversity jurisdiction. The federal district court then dismissed the suit for lack of ripeness and Article III standing.
The Ninth Circuit affirmed, reasoning that 50 Exchange had not sustained any actionable injury pending resolution of the amount of loss dispute through appraisal. That is because the extent of 50 Exchange’s loss could not be determined in court until the parties had completed appraisal. Until then, “[a]ny alleged injury before appraisal is too speculative to create an actionable claim.” 2025 WL 666363 at *2.
The Ninth Circuit did “not break new ground here.” Recognizing several non-precedential decisions of the Court and district court orders requiring appraisal before allowing an insured to sue for the wrongful delay or withholding of policy benefits, the Ninth Circuit explained:
We have chosen to issue this decision as a precedential opinion in the hope of deterring or at least short-circuiting other similarly premature cases where the agreed insurance appraisal process has not yet been completed.
2025 WL 666363 at *2.
IT WAS A MATTER OF TIME: Another Company Allegedly Violated TCPA Time Restrictions.
Businesses must avoid sending solicitations before 8 a.m. or after 9 p.m. (local time at the called party’s location), especially if they have not obtained prior express written consent. The number of allegations for violations of 47 U.S.C. § 227(c)(5) and 47 C.F.R. § 64.1200(c)(1) continue to pile on.
In a complaint filed against Grenades, LLC, a seller of “explosively, strong” gum, the plaintiff raises these same allegations. Specifically, in Toscano v. Grenades, LLC, No. 2:25-CV-02049 (C.D. Cal. Mar. 7, 2025), Toscano (“Plaintiff”) alleges that Grenades, LLC, (“Defendant”) violated 47 C.F.R. § 64.1200(c)(1) by initiating three telephone solicitations to Plaintiff’s phone before 8 a.m. or after 9 p.m. (local time at the called party’s location). The first message Plaintiff claimed to have received at 7:02 a.m. reads as follows:
Grenades Gum: The 4-PACK is Back, just $9.99! That’s a savings of 37%!
https://kvo2.ioEMKJbW
Id. at ¶ 14. On a separate Sunday, Plaintiff claims to have received another 7:02 a.m. message, stating:
Grenades Gum: SINGLES ARE BACK AGAIN! 12% OFF individually wrapped singles, Assorted Variety Pack FIVE flavors! https://kvo2.io/UAYRbn
Plaintiff seeks to represent the following class:
Proposed Class. All persons in the United States who from four years prior to the filing of this action through the date of class certification (1) Defendant, or anyone on Defendant’s behalf, (2) placed more than one marketing text message within any 12-month period; (3) where such marketing text messages were initiated before the hour of 8 a.m. or after 9 p.m. (local time at the called party’s location).
Id. at ¶ 23.
Don’t forget to stay compliant with both federal and state regulations, as many states have layered their own restricted timeframes on top of the TCPA.
Removal of NEPA Implementing Regulations to Alter Landscape of Federal Environmental Review
On February 25, 2025, the Council on Environmental Quality (CEQ), the advisory agency within the Executive Office of the President meant to assist and advise the President on certain environmental matters including the administration of the National Environmental Protection Act (NEPA’), issued an interim final rule removing all of CEQ’s NEPA implementing regulations from the Federal register. This rule goes into effect on April 11, 2025, and has a public comments period running until March 27, 2025. This comes in response to two court rulings and two executive orders (E.O.s) that have challenged CEQ’s regulatory authority in the past few months.
NEPA
NEPA requires federal agencies to review the environmental impact of “Major Federal actions” such as issuing permits, providing federal funding, and issuing regulations. In 1978, in response to an executive order issued by President Carter, the Council on Environmental Quality issued regulations that created a system that required all federal agencies to complete an environmental impact statement, an environmental assessment, or to determine that the action qualifies for a “categorical exclusion” whenever undertaking a of “Major Federal actions.” This system has
Backdrop
On November 12, 2024, the D.C. Circuit Court of Appeals ruled in Marin Audubon Society v. Federal Aviation Authority t that CEQ’s NEPA implementing regulations are beyond the scope of their powers because the agency lacks congressional authorization to promulgate binding regulations. On February 3, 2025, the District Court for the District of North Dakota decided Iowa v. CEQ, adopting the reasoning of Marin Audubon Society found that CEQ lacks statutory authority to promulgate binding rules implementing NEPA.
Further, the Trump administration signed E.O. 14154, Unleashing American Energy, which revoked prior E.O.s dating back to the Carter administration granting CEQ authority to promulgate regulations to implement procedures for the NEPA process and directed CEQ to issue guidance on implementing NEPA and to propose rescinding the NEPA implementing regulations.
Finally, on February 19, 2025, CEQ issued a new Memorandum on the Implementation of NEPA to all federal departments and agencies pursuant to E.O. 14154’s directive to issue new guidance “expedit[ing] and simplify[ing] the permitting process” and the NEPA process.
Effects
The Memorandum on the Implementation of NEPA “encourages” agencies to use the CEQ regulations issued during the first Trump Administration as “an initial framework” or “consider voluntarily relying” on CEQ regulations for ongoing NEPA reviews and lawsuits on NEPA reviews completed while the regulations were still in effect until agencies individually revise or establish their own NEPA implementing procedures by February 19, 2026. This lack of concrete guidance on whether an agency should voluntarily follow the 2020 CEQ NEPA regulations or rely on the statutory text and any agency-specific NEPA regulations as the basis for their NEPA reviews combined with the differences between the level of detail in individual agency NEPA regulations, could result in inconsistent approaches across agencies.
Similarly, that uncertainty will likely provide additional grounds for challenges to forthcoming NEPA reviews and the validity of the Interim Final Rule itself. Until courts establish a new regime of NEPA review in the post-CEQ NEPA regulations world, the future for NEPA lawsuits will likely be fact and court-specific, potentially leading to greater uncertainty.
Additionally, while CEQ’s Memorandum expressly states that “[a]gencies should not delay pending or ongoing NEPA analyses while undertaking these revisions,” the removal of a regulatory structure that has been in place for nearly 50 years may cause delays in the NEPA review process in the short-term.
China’s Supreme People’s Court Work Report – Number of Punitive Damages Awards Up 44%
On March 8, 2025, at the third session of the 14th National People’s Congress, Zhang Jun, President of the Supreme People’s Court (SPC), delivered the SPC’s annual work report. President Zhang highlighted the increase in punitive damages awarded in intellectual property cases including the 640 million RMB award in an electric vehicle trade secret case (although only the non-monetary portion of the judgement has been satisfied as the unnamed defendant is bankrupt). Punitive damages were awarded in 460 cases of malicious infringement with serious circumstances, an increase of 44.2% year-on-year. Overall, 494,000 intellectual property cases were concluded, an increase of 0.9% year-on-year.
Excerpts related to intellectual property from the work report follow.
II. Serving high-quality development with strict and fair justice
Serve the construction of a unified national market. Strengthen anti-monopoly and anti-unfair competition judicial work. The SPC issued judicial interpretations on anti-monopoly civil litigation, and identified 31 cases of monopoly, a year-on-year increase of 2.1 times. 10,000 cases of unfair competition such as infringement of trade secrets and collusion in bidding were concluded, a year-on-year increase of 0.7%. In one case, Sun and others set up a peer company in anonymity and misappropriated the technical secrets of the original unit for more than 10 years. The court applied punitive damages and ordered the company and Sun and others to pay joint compensation of 160 million RMB.
Serve the development of new quality productivity. 494,000 intellectual property cases were concluded, an increase of 0.9% year-on-year. Serve the key core technology research and industrial development. Strengthen judicial protection of intellectual property rights in the fields of new generation information technology, high-end equipment, biomedicine, new materials, etc., and promote the transformation of innovative achievements. In the six years since its establishment, the Intellectual Property Court of the Supreme People’s Court has concluded nearly 20,000 technical intellectual property appeals, among which the number and proportion of cases involving strategic emerging industries have increased year by year, reaching 1,233 in 2024, accounting for 32.3%. Properly handle cases involving artificial intelligence disputes in accordance with the law, support the legal application of artificial intelligence; punish infringements using artificial intelligence technology, and promote standardized and orderly development. Strictly protect innovation in accordance with the law. Punitive damages were applied to 460 cases of malicious infringement with serious circumstances, an increase of 44.2% year-on-year. The “new energy vehicle chassis” technical secret infringement case was heard in accordance with the law, and punitive damages of 640 million RMB were awarded. The infringer was ordered to stop the infringement, and the calculation standard of delayed performance fee was clarified to encourage its automatic performance. Explore the information disclosure mechanism of related cases and punish those who disrupt the innovation order in the name of rights protection. A company maliciously registered and hoarded trademarks in large quantities based on the business names and main identifying parts of trademarks that were used previously by others, and made profits by suing others for infringement. The Hunan Court ruled to dismiss the lawsuit and imposed a fine of 100,000 RMB as punishment.
Serving the expansion of high-level opening-up.
…In a patent infringement case, based on an urgent application by a domestic science and technology enterprise, the court made the first behavior preservation ruling in the field of intellectual property rights in China in accordance with the law with an anti-antisuit injunction, supporting the right holder’s legitimate rights protection. Subsequently, Chinese and foreign parties reached a package settlement on 16 lawsuits involving 6 courts at home and abroad.
Work Plan for 2025
First, seek progress while maintaining stability, and perform duties and responsibilities in line with the promotion of Chinese-style modernization.
…Strengthen anti-monopoly and anti-unfair competition justice. Guarantee innovation and creation in accordance with the law, and help develop new quality productivity.
Third, strict management and loving care, forging a loyal, clean and responsible iron army of the courts in the new era.
…Build a professional trial personnel pool for intellectual property, finance, bankruptcy, foreign-related, maritime, environmental resources, etc., improve the medium- and long-term training plan for outstanding personnel, and jointly cultivate socialist rule of law talents with universities.
The full text is available here (Chinese only).
China’s Supreme People’s Procuratorate Releases 2025 Work Report – 21,000 People Prosecuted For IP Crimes
On March 8, 2025, China’s Supreme People’s Procuratorate (SPP) released its 2025 Work Report at the 14th National People’s Congress. Regarding intellectual property, the SPC states that 21,000 people we prosecuted for IP crimes in 2024 and highlighted the trade secret case of Zhang, who was prosecuted under China’s version of the Economic Espionage Act. Other significant criminal IP cases were surprisingly not highlighted, like the 9-year prison sentence for criminal copyright infringement of Lego bricks.
The opening ceremony of the third session of the 14th National People’s Congress was held in the Great Hall of the People in Beijing.
The IP section from the SPP’s work report follows:
Serve innovation-driven development. Strengthen judicial protection of intellectual property rights, promote the cultivation and growth of emerging industries such as artificial intelligence and biomedicine, assist in the transformation and upgrading of traditional industries, and protect the development of new quality productivity in accordance with local conditions. We prosecuted 21,000 people for crimes such as infringement of trademark rights, patent rights, copyrights and trade secrets. In one case, Zhang and others illegally obtained a company’s core chip technology, and the Shanghai Procuratorate filed a public prosecution for suspected infringement of trade secrets. We handled 4,219 civil, administrative and public interest litigation cases involving intellectual property rights, protect the legitimate rights and interests of scientific and technological innovation entities in accordance with the law, and serve high-level scientific and technological self-reliance.
The full text is available here (Chinese only)