Category: Litigation / Enforcement / Court Cases

FERC Affirms Texas LNG Export Project on Remand and Rejects Attempts to Enlarge Diminished Scope of Environmental Review

Mark R. Haskell, Brett A. Snyder, and Camila Thorpe ●

The Federal Energy Regulatory Commission (“FERC” or the “Commission”) issued an Order[1] addressing the United States Court of Appeals for the District of Columbia Circuit’s (“D.C. Circuit”) second remand concerning Texas LNG Brownsville LLC’s (“Texas LNG”) proposed liquefied natural gas (“LNG”) terminal project (“Texas LNG Project”) on August 21, 2025. The Commission’s Order affirms its prior determination that the Texas LNG Project is not inconsistent with the public interest and grants Texas LNG a five-year extension of time, to November 22, 2029, to construct and make available for service the Texas LNG Project.

BACKGROUND

Proceedings Before FERC

The Texas LNG Project, authorized by the Commission on November 22, 2019, under section 3 of the Natural Gas Act (“NGA”), involves the construction and operation of an LNG export terminal, with a capacity of approximately four million metric tonnes per annum (“MTPA”). The Commission determined, based on the findings presented in the final Environmental Impact Statement (“EIS”), that construction and operation of the project, as described in the final EIS, would be an environmentally acceptable action.[2]

To read the full client alert, please visit our website. 

[1]Texas LNG Brownsville LLC, 192 FERC ¶ 61,170 (2025).

[2] Authorization Order, 169 FERC ¶ 61,130 at P 86.

Climate Change Environmental Groups Challenge President’s Executive Orders to Expand Energy Development

Margaret Anne Hill, Frank L. Tamulonis III, Stephen C. Zumbrun, and Melissa A. Scacchitti ●

We previously reported that President Trump issued a series of executive actions to fulfill his pledge to advance the United States’ domestic energy economy. These executive actions, such as President Trump’s Executive Orders Unleashing American Energy, Declaring a National Energy Emergency, and Reinvigorating…[the] Coal Industry…., now face legal challenges from environmental groups, led by Our Children’s Trust, a nonprofit law firm that exclusively represents youth plaintiffs against state and federal governments.[1] Presently, Our Children’s Trust seeks to enjoin these orders from taking effect because of their potential impact on climate change in the youths’ future. This post will provide a brief overview of the litigation and its pending timeline.

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PFAS Bans Go into Effect; Manufacturers Attempt to Push Back on Regulations

Michael C. Lupton, Frank A. Dante, and Kevin R. Doherty ●


Many states have enacted or plan to enact new regulations regarding the manufacturing of products containing per- and polyfluoroalkyl substances (“PFAS”), also known as “forever chemicals,” because they do not easily break down in the environment and human body. For example, on January 1, 2025, both New York[1] and California[2] banned the sale of any new, not previously used, apparel and certain other products containing added PFAS, while Minnesota[3] banned broad categories of products containing PFAS. More specifically, the Minnesota statute, titled Amara’s Law, prohibits the sale or distribution of the following products if the product contains intentionally added PFAS: (1) carpets or rugs; (2) cleaning products; (3) cookware; (4) cosmetics; (5) dental floss; (6) fabric treatments; (7) juvenile products; (8) menstruation products; (9) textile furnishings; (10) ski wax; and (11) upholstered furniture. The law makes no exceptions for products in these categories, provides no extensions, even if no PFAS alternatives are available, and allows expansion to include additional products if the products contain intentionally added PFAS that are likely to harm Minnesota’s environment and natural resources. Violations of the statute can result in fines, civil penalties, or criminal prosecution. Other states have similar bans set to take effect over the next several years.[4]

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PFAS and Consumer Class Actions: The New Wave of PFAS Litigation

Frank A. Dante, Margaret Anne Hill, and Melissa A. Scacchitti ●

With a new year has come a new wave of litigation involving PFAS (per- and poly-fluoroalkyl substances), also known as “forever chemicals.” While PFAS litigation up to this point has often involved either claims of personal injury or those concerning damage to natural resources and municipal water systems, an increasing trend of class actions is emerging implicating consumer protection laws. Recently, several large companies in the United States dealing in consumer goods have found themselves the targets of class action suits brought by plaintiffs asserting claims of consumer fraud involving PFAS.[1] The allegations asserted in these suits have a common thread in that the plaintiffs are arguing that the presence of PFAS in certain of the companies’ products was never disclosed to the consumer. The plaintiffs are, therefore, seeking to prohibit these companies from allegedly making misleading advertisements or selling these products without proper disclosures in the future.

“Forever Chemicals” Everywhere

These cases result from an increased awareness of PFAS, their wide range of uses and presence in daily life, and their alleged association with negative health and environmental effects. However, it is the widespread use of PFAS that could lead to a significant increase in consumer protection claims, as PFAS can be found in everything from clothing to furniture, pizza boxes and food wrappers, our cellphones, pots and pans, mattress pads, household dust, and even in every drop of rain.

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New Jersey Appellate Division Makes Clear Experts Must Demonstrate a Scientifically Recognized Methodology

Jane Thomas

Recently, the New Jersey Appellate Division, in Dorrell v. Woodruff Energy, Inc.,[1] vacated a 2018 judgment against Chevron U.S.A., Inc. (“Chevron”) that had found Chevron liable for gasoline contamination. More specifically, the Appellate Division found that plaintiff’s expert was not qualified to determine that the subject property was contaminated with gasoline because his methodology was flawed and wholly unsupported by any scientific resource.

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LNG by Rail: The D.C. Circuit Vacates a DOT Rulemaking and Outlines a Path for Challenges Yet to Come

Mark R. Haskell ●

In Sierra Club v. United States Dep’t of Transportation[1],a panel of the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) vacated and remanded a final rule[2] issued by the Department of Transportation (“DOT”) permitting the transportation of liquefied natural gas (“LNG”) in approved rail cars. The final rule was subsequently stayed and never took effect.

DOT Rulemaking & the Sierra Club Decision

The rulemaking proceeding began with an executive order published on April 10, 2019. Then President Trump directed the Secretary of Transportation to propose a rule to permit LNG to be transported in approved rail cars within 100 days from the date of the executive order and to finalize the rule within thirteen months.[3]  DOT subsequently issued a proposed rule that would permit the transportation of LNG by rail in DOT-113 rail cars. The proposed rule proposed no limit on the number of cars to be used to transport LNG on a single train and imposed no mandatory speed limit. The proposed rule also included a preliminary environmental assessment finding that the proposed rule would have no significant environmental impact.[4]   

The proposed rule was challenged by environmental organizations, states, and the National Transportation Safety Board, all citing potentially grave risks related to potential explosions or fires related to transportation of LNG by rail and separately arguing that the proposed rule failed to mitigate those risks.[5] 

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Lead Contamination in Water: Flint Water Crisis Update

Deborah Greenspan and Fredric M. Brooks ●

The existence of lead pipes in municipal water systems and service lines connecting residential and commercial properties to water mains throughout the United States continues to generate litigation and regulatory action. The U.S. government reported in 2023 that more than 9.2 million American households connect to water through lead pipes and lead service lines.[1] The water crisis in Flint, Michigan, that arose a decade ago and gained national prominence involved water allegedly contaminated both by a change in water source and the presence of old lead service lines. That case, involving over 25,000 individual lawsuits as well as class actions, is approaching an important milestone as a partial settlement nears conclusion.

Background

The Flint water crisis began in April 2014 when the City of Flint switched its source of municipal water to the Flint River. For decades previously, Flint had received water from Lake Huron that was pre-treated by the Detroit Water and Sewerage Department.[2] Following the switch, residents soon reported that “there was something wrong with the way the water looked, tasted, and smelled, and that it was causing rashes.”[3] Tests showed the presence of bacterial contamination. In response, the City treated the water with additional chlorine, which was alleged to have exacerbated the corrosion in the old water lines and allegedly the “corrosion contaminated the water with hazardous levels of lead.”[4] Subsequently, it was alleged that lead monitoring showed results exceeding the Lead and Copper Rule’s action levels for lead, and that a published study showed a spike in the percentage of children in Flint with elevated blood lead levels.[5]

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The Supreme Court Ends Chevron Deference—What Does This Mean for Environmental Regulation and Enforcement?

Margaret Anne Hill, Frank L. Tamulonis III, and Holli B. Packer ●

The Supreme Court of the United States’ recent ruling in Loper Bright Enterprises v. Raimondo[1]dealt a significant blow to the power of federal agencies by ending the 40-year-old precedent commonly known as “Chevron deference.” Loper has now removed the judicial mandate that courts apply “Chevron deference” and defer to agencies on the interpretation of ambiguous language in laws pertaining to their authority. While it is unclear what impact this ruling will have in environmental enforcement cases as well as environmental regulations, federal judges will now have the power to decide what a law means for themselves, expanding the federal bench’s role in enforcement actions and policymaking.

The Chevron Deference Doctrine

The “Chevron deference” doctrine refers to the Supreme Court’s ruling in Chevron v. Natural Resources Defense Council,[2] which required judges to defer to federal agencies when interpreting ambiguous parts of statutes that those agencies administer. If Congress did not directly address a debated issue, a court was required to uphold the agency’s interpretation of the statute as long as it was reasonable.

The Chevron doctrine involves a two-step test.[3] In the first step, courts determine if Congress has spoken to the “precise question at issue.”[4] If the statute is ambiguous, courts move to step two.[5] However, “if the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”[6] In the second step, courts defer to the agency as long as their interpretation of the statute is reasonable.[7] Reasonableness is not a high bar. Typically, if a court finds the statute to be ambiguous, the agency’s interpretation will receive deferential preference. At the time of the holding, the Chevron doctrine marked a jurisprudential shift in the interpretive power of the courts, which have historically determined “what the law is,”[8] to agencies in the executive branch.[9]

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New SEC Climate-Related Disclosure Rule

Margaret Anne Hill and Holli B. Packer ●

On March 6, 2024, the Securities and Exchange Commission (“SEC”) adopted amendments to the disclosure rules under the Securities Act of 1933 and the Securities Exchange Act of 1934. Although the final rule is a scaled-back version of the proposal published on March 21, 2022, the new rule will require many publicly traded companies to disclose both their direct and indirect emissions, also known as “Scope 1” and “Scope 2” emissions, provided the emissions are material. Companies must also disclose to investors their climate-related risks, including information about financial harm caused by severe weather events and other natural events. The new rule will be phased in beginning with the filing of annual reports for the year ending December 31, 2025.

Of significance to the business community is the SEC’s decision to exclude the requirement to report Scope 3 emissions which would have required businesses to disclose all indirect greenhouse gas (“GHG”) emissions not otherwise included in a registrant’s Scope 2 emissions that occur in the upstream and downstream activities of the registrant’s value chain. In deciding to eliminate the requirement to report Scope 3 emissions, the SEC observed that “Scope 3 emissions typically result from the activities of third parties in a registrant’s value chain and, thus, collecting the appropriate data and calculating these emissions would potentially be more difficult than for Scopes 1 and 2 emissions.”

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Climate Change Litigation—State Tort Cases Move Ahead

Margaret Anne Hill and Stephen C. Zumbrun ●

Climate change-related litigation has been increasing in the United States for the past several years. Not only have the actual number of these types of cases increased, but the claims raised in these cases have been expanding—from state tort claims (nuisance, trespass, and negligence) to federal and state constitutional claims. These cases have been slowly working their way through the legal system, with a major consideration being: Should these cases be in state court, involving state tort claims, or federal court, involving federal statutes or federal common law, because of the major national policy implication of climate change that these cases have the potential to affect?

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