Green Building Law Update

The Intersection of Real Estate, Science, and Law

The Right to Bee – Peru’s Recognition of Legal Rights for Stingless Bees

By Stuart Kaplow on Posted in Codes and Regulations, Environmental

The Provincial Municipality of Satipo, Peru has approved Ordinance N° 33, declaring the rights of stingless bees.

The bees within the territory of the Avireri-Vraem biosphere reserve that spans nearly 16,000 square miles (.. larger than the state of Maryland) from the Amazon rainforest to the Andes mountains, is one of the most biologically and culturally diverse landscapes on Earth.

As an environmental attorney, I view this ordinance not as a symbolic flourish, but as a jurisprudential innovation responsive to the global existential crisis of biodiversity degradation.

From “Economic Importance” to Inherent Rights

Peru took an important step in 2024 when it enacted national legislation recognizing native bees as species of economic importance and affording them protections. Until then, the law shielded only the European honeybee (Apis mellifera), a non-native species. Ordinance N° 33 builds on that foundation but goes further, recognizing stingless bees not merely as economic assets, but as rights-bearing subjects.

Stingless bees are the most ancient lineage of bees. Roughly half of the world’s 500 known species inhabit the Amazon basin, and Peru is home to at least 175 species. They pollinate more than 80% of Amazonian flora, including cacao, coffee, and avocados; crops that underpin both subsistence and export economies.

The ordinance declares that stingless bees are entitled to:

  • Exist and maintain thriving populations
  • Inhabit pollution-free environments
  • Access ecologically stable climate conditions
  • Be represented in legal proceedings if threatened or harmed

That final element, legal representation, moves beyond regulatory compliance toward enforceable ecological guardianship. In effect, the bees now have legal standing.

Biodiversity Loss Is Not Abstract

The urgency is undeniable. According to the World Wildlife Fund’s Living Planet Index, global populations of mammals, birds, amphibians, reptiles, and fish have declined by an average of 68% in less than five decades. The International Union for Conservation of Nature Red List identifies over 1,100 insect species as threatened, including more than 20 bee species.

Pollinator collapse is not a niche issue; it is a systemic risk to food security, forest regeneration, and climate resilience.

In the Peruvian Amazon, the decline of stingless bees jeopardizes not only ecosystem function but cultural survival. The Asháninka and Kukama-Kukamiria peoples have practiced meliponiculture, the traditional cultivation of stingless bees, for generations. Four key species are stewarded to ensure forest reproduction and community livelihoods. The ordinance explicitly protects both the pollinators and the ancestral knowledge intertwined with them.

Indigenous Leadership and Earth Jurisprudence

This initiative protects an estimated 22 million bees across 300,000 square meters of rainforest.

This is not performative environmentalism. The ordinance compels local authorities to:

  • Restore bee habitat
  • Regulate pesticide use
  • Support scientific research
  • Apply the precautionary principle

The precautionary principle is particularly significant in legal terms: actions potentially harmful to bees must be avoided unless proven safe. That shifts the evidentiary burden in a manner consistent with modern environmental risk management.

Importantly, this is the first time any government has recognized the rights of an insect, and the first formal recognition of bee rights anywhere in the world.

A Regional and Global Context

Peru is not acting in isolation. In 2022, Panama enacted a national Rights of Nature law recognizing the rights of ecosystems and species. In March 2023, it strengthened that framework with species specific legislation recognizing sea turtles and their habitats as subjects of rights, among the first such targeted protections globally. Panama’s model has drawn international attention as a template for biodiversity governance.

In the United States, we once blogged approvingly about Two Creeks, a Marsh and Two Lakes Sue a Florida Real Estate Developer, an early experiment in granting standing to natural features. But Peru’s ordinance is qualitatively different. It is not an isolated lawsuit; it is a democratically enacted legal framework embedded in local governance and Indigenous stewardship.

A petition urging Peru’s federal government to codify bee rights nationally has already garnered more than 386,000 signatures. Advocates in the Netherlands, Bolivia, and the United States are exploring replication.

Beyond 1970s Environmental Statutes

Most U.S. environmental statutes, such as NEPA, the Clean Water Act, and the Endangered Species Act, were enacted in the 1970s. They remain foundational but are anthropocentric and regulatory in structure. They manage harm; they do not recognize intrinsic rights.

Biodiversity degradation demands more than incremental permitting reforms. When over two  thirds of vertebrate populations have disappeared in under fifty years, and pollinators critical to 80% of flowering plants are in decline, incrementalism is malpractice.

Recognizing rights of nature, and here, the rights of bees, reframes the legal paradigm. It affirms that non human life forms possess inherent interests that the law must respect, not merely manage.

As an attorney, I understand the doctrinal challenges: standing, guardianship models, separation of powers, enforcement capacity. But the conceptual shift is indispensable. Law evolves in response to moral insight and ecological necessity.

Peru’s ordinance in Satipo is not sentimental advocacy for insects. It is a measured, culturally grounded, science informed response to a biodiversity emergency. By granting stingless bees the right “to be,” Peru has offered a legal instrument proportionate to the crisis.

And make no mistake: enabling nature to seek judicial redress is not a radical fringe theory. It is a public policy trajectory that may soon find its way into courtrooms in the United States.

The right to bee may be the right idea at precisely the right time.

Climate Change Chapter Omitted from Federal Courts Reference Manual on Scientific Evidence

By Stuart Kaplow on Posted in Climate Change, Codes and Regulations, Environmental, GHG, greenhouse gas

On February 6, 2026, the Federal Judicial Center, the research and education arm of the federal judiciary, omitted (i.e., withdrew) a chapter from the newest edition of its reference manual on scientific evidence that addressed climate change. The climate chapter had been criticized as a work that “undermines the judiciary’s impartiality and places a thumb on one side of the scale. It does so even as these issues are pending before the Supreme Court and other parts of the federal judiciary.”

The Back Story – The Reference Manual and Its Climate Chapter

By way of background, on December 31, 2025, the Federal Judicial Center, the research and education agency for the federal courts, published its first update in 15 years of the manual on scientific evidence. The 1,682 page guide, called the “Reference Manual on Scientific Evidence,” [ .. this is an unofficial link to the original document] included more than 90 pages describing climate change science.

The manual, little known to the public but of huge import in the judiciary (.. “it has been provided to more than 3,000 federal judges and even more state court judges”), begins with a foreword by Supreme Court Justice Elena Kagan, who writes that while judges are “generalists” who often learn about scientific issues “through the adversary process, . . . sometimes it also helps to have a dispassionate guide.” Judges will do their job better when they learn from the technical expertise of scientists, she writes, and “the law will become stronger as it further reflects sound science.”

The paragraph concludes this “sometimes occurs as a result of strategic manipulation from stakeholders who stand to be harmed if the public were to understand the true state of scientific consensus,” such as in the cases of “tobacco, ozone depletion, and climate change.”

So, is anyone who disagrees on climate akin to those who deny that cigarettes cause cancer? A footnote to the section refers readers to “Michael E. Mann, The New Climate War: The Fight to Take Back our Planet” and “Naomi Oreskes, The Scientific Consensus on Climate Change,” who each, in their own way, have been embroiled in controversy over criticism of ‘climate change deniers.’

The manual’s Reference Guide on Climate Science was written by Jessica Wentz and Radley Horton of Columbia University. Ms. Wentz is an associate director at the Sabin Center for Climate Change Law, whose “core mission” is to “develop and promulgate legal techniques to combat the climate crisis and advance climate justice.” They are partisans.

Controversy and Calls for Withdrawal

This attempt at what was characterized as one sided advocacy caught the attention of many, including this author. Significantly on January 14, 2026, U.S. House Judiciary Committee members Jim Jordan (R., Ohio) and Darrell Issa (R., Calif.), wrote to the Administrative Office of the Courts the “scientific” contributions to the manual “appear to have the underlying goal of predisposing federal judges in favor of plaintiffs alleging injuries from the manufacturing, marketing, use or sale of fossil fuel products,” they wrote, questioning what they termed an exercise in judicial indoctrination. They further describe, “improper attempts by the Environmental Law Institute (“ELI”) and its Climate Judiciary Project (“CJP”) to influence federal judges ..”

Article III’s Promise of an Impartial Tribunal

On February 2, 2026, twenty seven state Attorneys General, including those from West Virginia, Florida, Idaho, Montana, New Hampshire, Texas, and Wyoming, signed a letter objecting to the manual’s bias and asked that the chapter be withdrawn. The Ag’s wrote, “Article III guarantees every litigant – whether a State, an energy company, or an environmental group – the right to an independent and impartial tribunal. When the judiciary’s own research arm predetermines contested questions in active litigation, that guarantee becomes meaningless.”

On February 6, 2026, Judge Robin Rosenberg, director of the Federal Judicial Center, wrote to West Virginia Attorney General John McCuskey saying, “I write to inform you that the Federal Judicial Center omitted the climate science chapter ..” from the manual’s fourth edition. The letter did not explain. A footnote in the appendix only says that “The FJC omitted ‘Reference Guide on Climate Science’ on 2/6/2026.”

Real Word Implications and Ongoing Legal Matters

And lest one think this is simply an academic debate among attorneys or judges for that matter, to the contrary when the current Administration announced last Thursday, after EPA’s Reconsideration of the GHG Endangerment Finding, it is now moving to repeal the Obama Administration scientific findings that serve as the legal basis for federal regulation of greenhouse gases, one may be assured that repeal will be challenged in the courts (.. quite possibly in front of a judge that will have the reference manual on his desk?).

It should be lost on no one that while the climate change chapter was removed, the foreword to the manual, authored by Justice Elena Kagan, remains with its nod to the now excised chapter.

The Role of the Judiciary and Final Thoughts

The judiciary’s role is not to cede to political currents but to ensure that when science enters the courtroom, it does so through processes that respect both its complexity and its contested nature. In reaffirming that principle, the Federal Judicial Center’s action in omitting the partisan chapter is not just defensible; it is an affirmation of judicial integrity at a time when integrity is being questioned in many of society’s institutions.

The Wall Street Journal editorial board wrote in “A Failed Climate Coup in the Courts” that “public accounting of how that [chapter] happened would be useful.” Maybe so?

Scientists should be outraged at the attempt to hijack science. Lawyers and judges should be heard to complain about this effort that would have eroded confidence in the judiciary’s neutrality. And all Americans should want an explanation of how the judiciary tried to place a thumb on one side of the scale.

The now revised final Reference Manual on Scientific Evidence, reduced to 1,662 pages, is here.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Everything You Always Wanted to Know about Environmental Law (But Were Afraid to Ask)” on Tues, Feb 17 at 9 am. The webinar is complimentary, but you must register here.

Why Land Subsidence Matters More Than Sea Level Rise

By Stuart Kaplow on Posted in Climate Change, Environmental, resilience, Sustainability

When we talk about “sea level rise,” most people immediately think of melting polar ice and warming oceans. But along much of the United States’ Atlantic coast, especially in and around the Chesapeake Bay, that narrative only tells part of the story. Emerging science shows that land subsidence, the sinking or lowering of the land surface, has been and continues to be a dominant driver of relative sea level change and coastal flood risk in many regions. It is time to appreciate that the ground sinking beneath us can matter more than the ocean rising above us.

The Chesapeake Bay Story – A Legacy of Sinking Land

In the southern Chesapeake Bay region, scientists have documented persistent land subsidence since the 1940s, with measured rates between 1.1 and 4.8 millimeters per year. These amounts may sound small, but they accumulate over decades, and when combined with rising ocean levels, they explain why this part of the Atlantic coast currently exhibits some of the highest relative sea level rise rates in the United States.

In fact, new data from the U.S. Geological Survey corroborates older studies in the region, concluding that “land subsidence causes more than half of the observed relative sea level rise,” not melting ice thousands of miles away at the poles.

Subsidence happens when the Earth’s surface lowers over time. In the Chesapeake Bay area, a mixture of factors contributes to this sinking: historical groundwater pumping, aquifer compression, and natural geological adjustments after the last ice age all play roles. But the key point is this: the land itself is slipping down, and as it does, tides and flood waters appear to rise faster than they otherwise would.

A Global Perspective – Deltas Sinking Faster Than the Seas Rise

As described in a January 14, 2026 article published Nature, Global Subsidence of River Deltas, land subsidence is a global issue, in a study that spanned 29 countries “we find that contemporary subsidence surpasses absolute (geocentric) sea level rise as the dominant driver of relative sea level rise for most deltas over the twenty-first century.”

Although the Chesapeake Bay is an estuary, not a river delta, the point remains significant for coastal planners and environmental lawyers alike: relative sea level rise is a compound phenomenon, and subsidence can dominate the geologic formation that is the coastal plain abutting the Piedmont Plateau, even when global sea levels may be rising due to climate change.

Human Activity and Subsidence – Beyond Groundwater

Historically, environmental policy has linked land subsidence in the U.S. to groundwater withdrawals and extractive activities. For example, the Houston Galveston region, a frequently cited extreme case, lost more than 9 feet of land elevation over roughly 50 years due largely to intensive groundwater pumping and petroleum extraction. The community eventually changed water management: switching to surface water supplies, limiting coastal groundwater wells, and implementing aquifer recharge strategies, measures that slowed subsidence, and flood vulnerability.

But new research makes clear we have underestimated another major human influence: stormwater management practices.

While earlier flood control efforts in the 19th century focused on conveying water through pipes and beginning in the 20th century, constructing a separate sewer system dividing sanitary waste from stormwater, modern Stormwater management emerged in the U.S. in the 1970s as a regulatory response to The Clean Water Act, focusing on how rainfall runoff is conveyed, stored, and treated to prevent flooding, erosion, and water quality degradation. Historically, stormwater infrastructure (detention basins, inlets, pipes) intercepts and reroutes rainwater that had soaked into the ground.

By altering the natural hydrology of landscapes, reducing infiltration and directing water quickly to drains and outfalls, stormwater systems can lower the time water spends in soil and diminish groundwater recharge. While stormwater policy goals such as runoff reduction, and erosion control are important, we now understand that these engineered changes also modify subsurface water balances in ways that can worsen subsidence. Moreover, the misguided expansion of traditional rain water falling on the surface management to now include “pollutant treatment” has dramatically altered surface water hydrology, having the unintended consequence of exacerbating land subsidence. This is an emerging area of research at the intersection of hydrology, land use planning, and environmental law.

Defense Interests and the Real – World Costs

Recognizing the practical implications of subsidence isn’t academic. The U.S. Navy has observed subsidence rates around its key facilities that rival or exceed sea level rise itself. In the Hampton Roads region of Norfolk, Virginia, home to the largest naval base in the world, land is sinking at an estimated 0.236 inches per year, a rate roughly double local sea level rise figures. These trends exacerbate flood risk and have driven infrastructure hardening and strategic adaptations. Similarly, places like the U.S. Naval Academy in Annapolis are experiencing measurable land subsidence that worsens tidal flooding, prompting multi million dollar coastal defense measures.

At least three recent studies conducted for the U.S. Navy at both of those facilities, while not completely released to the public, conclude “land subsidence has contributed as much or more than half of the relative sea level rise measured along portions of the Chesapeake Bay (i.e., it is not melting polar ice caps).”  

Measurement and Emerging Evidence

Subsidence isn’t just theorized, it’s measured. A suite of techniques, including extensometers, GPS, satellite radar interferometry, and long term leveling records provide precise data on how land elevations change over time. These methods have been deployed in critical coastal environments for decades, offering a rich dataset for lawyers, regulators, and planners who assess compliance with resilience planning laws, infrastructure standards, and hazard mitigation regulations.

It is now becoming clear that altering the rain with stormwater management is the largest single contributor to land subsidence.

Turning Data into Policy

For environmental lawyers, these scientific realities raise important questions about regulatory focus. Should coastal policy continue to prioritize sea level rise mitigation (e.g., greenhouse gas reductions), even though there is no rational basis for it, without parallel attention to subsidence causing practices (e.g., land use laws from stormwater management regulation to unduly burdensome offstreet parking requirements that result in unnecessarily large impervious areas)? Evidence reveals that, in many regions, subsidence is a more immediate and larger driver of relative sea level risk than climate driven ocean rise. Addressing subsidence calls for revisiting misguided stormwater practices and infrastructure design, alongside climate mitigation.

Final Thought

Land subsidence isn’t just an arcane geological term. It is a substantial, measurable, and often human driven contributor to coastal flood exposure. In the Chesapeake Bay and beyond, sinking ground that is land subsidence, is much more of a part of rising seas than carbon emissions.

And until policy and practice reflect that reality of land subsidence, from stormwater ordinances to offstreet parking regulations, people will continue to build sea walls, literally and figuratively, for a threat (sea level rise) while underestimating the more formidable one (land subsidence).

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Everything You Always Wanted to Know about Environmental Law (But Were Afraid to Ask)” on Tues, Feb 17 at 9 am. The webinar is complimentary, but you must register here.

A More Efficacious Way to Measure Greenhouse Gas Emissions

By Stuart Kaplow on Posted in Climate Change, Federal, GHG, greenhouse gas

As an environmental attorney who spends much of my time advising business owners, I have learned an immutable truth: markets work best when the rules are clear, fair, and grounded in reality. Environmental policy is no exception. Contrary to the prevailing narrative in popular media, the global business community has not uniformly shifted away from efforts to reduce greenhouse gas emissions, and now there is a better way to track those emissions.

Bad metrics lead to bad incentives. Good metrics unlock innovation, competition, and capital. That is why the emergence of Carbon Measures, a global coalition of major businesses committed to a more accurate emissions accounting framework, deserves close attention from the business community.

Carbon Measures is calling for a new way to track greenhouse gas emissions, one that moves beyond abstract projections and toward verifiable, product level accounting in E- ledgers. The premise is straightforward but powerful: if businesses are rewarded in the marketplace for producing lower carbon products, they will invest in the technologies and processes that make those products possible. Markets, not mandates alone, can then do much of the heavy lifting.

Why the Current System Isn’t Working

The world has not monolithically pivoted away from emissions reduction. Quite the opposite. In 2026, however, emissions tracking has become a bifurcated landscape. In the United States, the federal government has dismantled or deemphasized national GHG tracking programs, relieving many businesses of what they viewed as bureaucratic and stigmatizing compliance obligations. At the same time, mandatory carbon reporting is now a strict corporate necessity for many companies operating in the European Union, California, Maryland, and other places.

Yet across the globe, there is broad agreement on one point: the current Scope 1, 2, and 3 reporting regime is not workable, particularly when it comes to Scope 3. Scope 1 (direct emissions) and Scope 2 (purchased energy) are relatively straightforward, but modest in impact. Scope 3, covering upstream (purchased goods) and downstream (use of sold products) value chain emissions and often representing up to 90% of a company’s reported footprint, is another matter entirely.

Scope 3 reporting frequently relies on guesstimations, assumptions, and generalized emissions projections that have little, if any, connection to operational reality (nothing is actually being counted). Business leaders, legal experts, and scientists alike have come to question the utility of such data. To be blunt, asking a company to precisely account for the emissions of its customers and customers’ customers is, at best, immensely challenging and, at worst, a compliance exercise untethered from meaningful emissions reduction.

The dominant methodology, the GHG Protocol, developed by the World Resources Institute decades ago (the same year Pac-Man was released in arcades), is widely used, perhaps because the problem is hard and alternatives have been scarce. But it has also been criticized for misallocating responsibility and encouraging double counting. As Exxon CEO Darren Woods, a founding member of Carbon Measures, aptly put it: holding a supplier accountable for Scope 3 emissions is “like holding McDonald’s responsible for the weight of its customers.” The calories matter, but accountability has limits. “We don’t tell McDonald’s that they can’t sell a hamburger to somebody who has a weight problem,” said Woods.

Enter Carbon Measures: A Business Led Solution

If carbon is going to be reduced, we need a better system. Carbon Measures represents an effort by businesses to propose one. Its membership includes leading companies from diverse industries and geographies, many operating large, complex supply chains. That matters because the industrial sector accounts for a significant share of global emissions and must play a central role in decarbonization.

At its core, Carbon Measures advocates for ledger based, product level carbon accounting, rooted in the same principles that govern financial accounting, now on an artificial intelligence framework. Instead of enterprise level disclosures that blur responsibility, this “cradle to gate” approach tracks emissions where they are generated and assigns them to the products being made.

Just as financial accounting requires that an asset or liability be held by only one entity at a time, a sound carbon accounting framework ensures that each tonne of carbon is counted once, accurately, and attributed to the right place. An artificial intelligence carbon e-ledger enables companies and suppliers to calculate and transfer emissions data at each step of a product’s lifecycle.

Consider a car. The emissions associated with producing and transporting each component are transferred into the emissions value of the finished vehicle. The result is a complete, nonduplicative carbon profile for that product; no gaps, no double counting.

E-ledgers Carbon Accounting is the creation of Robert S. Kaplan, Harvard Business School and Karthik Ramanna, University of Oxford.

From Accounting to Artificial Intelligence

Carbon Measures’ work goes beyond reporting. The initiative envisions product level carbon intensity standards, such as CO₂ per ton of steel or per watt of electricity. These standards are intended to be voluntary, but they have real market force. Purchasers can compare products based on carbon intensity, rewarding lower carbon options. Governments can “put their finger on the scale” by applying stricter standards in public procurement.

Over time, as technology improves, allowable emissions per unit can decline systematically, driving real reductions while still meeting demand. This approach levels the playing field, rewards innovation, and ensures that progress is measurable.

The framework itself will be developed by an independent Technical Expert Panel, co-launched with the International Chamber of Commerce. Drawing on expertise from academia, industry, financial accounting, engineering, and civil society, the AI rooted work will focus on scientific rigor and real world feasibility.

Coexisting With Existing Reporting Regimes

Critics argue that introducing any new framework risks confusion. But in practice, multiple methodologies already exist. Maryland, for example, does not rely on the GHG Protocol for its statutory “Net Direct” GHG measure. Carbon Measures is not proposing to abolish Scope 3 reporting overnight. Scope 3 may continue to play a role in voluntary disclosure, even as companies adopt ledger based product accounting for operational and market purposes.

Ultimately, a gate to gate, ledger based system can account for emissions across the full value chain, without the indeterminacy and multiple counting that plague current approaches.

What About Cost and Affordability?

Business owners rightly ask how this will affect pricing, particularly for energy and other essentials. Affordability is critical. Many lower carbon solutions cost more today. But costs decline as technology advances and markets scale. What markets need is a way to quantify both emissions and costs accurately, so capital flows to the lowest cost transition pathways.

That is what Carbon Measures seeks to enable.

As an environmental attorney, I see this initiative as a pragmatic, market aligned evolution from the current 1980 era carbon guesstimating method to a new and improved AI rooted climate policy. Better measurement will not solve climate change by itself, but without better measurement, we will continue to misallocate effort, capital, and accountability.

We will continue to write about Carbon Measures and other innovations in environmental matters.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Everything You Always Wanted to Know about Environmental Law (But Were Afraid to Ask)” on Tues, Feb 17 at 9 am. The webinar is complimentary, but you must register here.

United States Sues Morgan Hill and Petaluma over All Electric Building Laws

By Stuart Kaplow on Posted in Codes and Regulations, Energy, Federal

On January 5, 2026, the U.S. Department of Justice filed a lawsuit against the cities of Morgan Hill (Santa Clara County) and Petaluma (Sonoma County), California, challenging local ordinances that effectively ban natural gas infrastructure and gas powered appliances in new buildings. The complaint, docketed as Case 5:26-cv-00056 in the U.S. District Court for the Northern District of California, frames the dispute as a clash between local climate policy initiatives and longstanding federal energy law.

This case concerns the prevailing national consensus that the country’s long term prosperity should be advanced through ever our increasing sustainable technology and amazing economic abundance, rather than by prohibiting the use of lawful energy sources by banning fossil fuels.

That the plaintiff is the United States government should be considered as of import.

What the Lawsuit Is About

Both cities adopted their respective all electric building rules, Morgan Hill in 2019 and Petaluma in 2021, as part of broader efforts to reduce greenhouse gas emissions and transition building energy systems away from fossil fuels. These ordinances limit or prohibit the installation of natural gas piping and appliances like gas stoves, furnaces, and water heaters in most new construction.

The DOJ’s complaint asserts that these local bans violate the Energy Policy and Conservation Act of 1975, a federal statute that empowers the U.S. government to establish national energy conservation and efficiency standards for covered products and expressly preempts state and local regulations “concerning the energy use” of those products. EPCA’s preemption provision was interpreted by the Ninth Circuit in California Restaurant Association v. City of Berkeley, 89 F.4th 1094 (9th Cir. 2024), to apply to local restrictions that ban or effectively eliminate the use of natural gas for covered appliances by prohibiting the necessary infrastructure. We have blogged about that case and the Broad Failure in Attempts to Ban Natural Gas.

According to the DOJ complaint, the Morgan Hill and Petaluma ordinances fall squarely within this preemptive scope because they “concern the .. energy use” of covered products by preventing natural gas from serving as an energy source, a result the Ninth Circuit found preempted when Berkeley’s ordinance was challenged.

The complaint also alleges that the bans impose what it describes as “crushing costs” on residents and businesses, framing the local rules as detrimental to consumer choice and inconsistent with a unified federal approach to energy regulation, not to mention flying in the face of increasing electricity demand that will only be made more dire with mandates for more electricity usage.

DOJ’s Legal and Policy Argument

The Department of Justice contends that Morgan Hill’s and Petaluma’s prohibitions create a patchwork of inconsistent regulation in an area where federal law mandates uniform national standards for energy related products. Under the EPCA’s express preemption clause, once a federal standard covering an energy using product becomes effective, no state or local regulation “concerning the energy use” of that product may remain effective unless it falls within specified exceptions, none of which the DOJ argues applies here.

The DOJ’s legal strategy in this case explicitly draws on the Berkeley precedent, where the Ninth Circuit held that EPCA preempts a local ban on natural gas piping to new buildings because the ordinance, regardless of form, regulated the energy use of natural gas appliances.

Beyond legal doctrine, the lawsuit reflects the federal energy policy emphasis articulated by the current Attorney General, Pamela Bondi, who in press statements, characterized the bans as unlawful and harmful to the nation and to consumers. DOJ officials have tied the action to broader federal objectives articulated in two Executive Orders Unleashing American Energy (EO 14154) and Protecting American Energy from State Overreach (EO 14260), which prioritize American energy dominance and seek to challenge state and local actions deemed to undermine that priority.

DOJ’s complaint seeks a judgment declaring the ordinances preempted, invalidating them, and securing permanent relief preventing their enforcement.

Context and Background

Both Morgan Hill and Petaluma adopted their all electric codes in a bygone era when many local governments in California were exploring aggressive policies to reduce building emissions (.. how a Presidential election changes national energy policy). These ordinances were joined by similar actions in cities such as Berkeley, which became the first jurisdiction to enact a strict natural gas ban, later struck down by the Ninth Circuit and repealed.)

Following the Berkeley decision, numerous governments across the country, including Los Angeles and other California cities, recognizing the legal challenge posed by EPCA, have repealed or suspended similar ordinances.

Morgan Hill and Petaluma reportedly have not actively enforced their bans since the Berkeley ruling, and the DOJ’s lawsuit signals a proactive federal approach to asserting EPCA preemption and deterring future local ordinances of similar character.

Today the emphasis nationwide is reliability of the electric power grid and the generation of enough electricity to meet growing needs (.. nearly the opposite emphasis of these climate concerned laws).

Potential Impact

For business leaders and policymakers outside California, particularly in jurisdictions like Maryland, the implications of this litigation are significant. Governments nationwide,  including Maryland and Montgomery County, Maryland, have adopted laws aimed at phasing out fossil fuels in favor of all electric buildings. Unlike the ordinances at issue here that impact new construction, the Maryland laws extend to retrofitting existing buildings, a much broader regulatory scope that arguably raises even more complex preemption issues and has prompted litigation asserting similar conflicts with federal law.

If the federal court in Northern California follows the Ninth Circuit’s reasoning and grants the DOJ’s requested relief, the decision could deter other governments from adopting or enforcing bans on natural gas infrastructure and appliances. Legal analysts and environmental attorneys widely expect that the federal government’s position, supported by Berkeley precedent, will prevail, reinforcing the principle that energy conservation and energy use standards for covered products are matters of national, not local, regulatory authority.

This case may thus become a legal bellwether for future disputes over the balance between local climate objectives and federal statutory preemption.

It will also be a predictor of the national will for maximizing a great future for civilization through sustainable technology and amazing abundance addressing the reality of electricity demand of data centers and affordability of electricity, not being anti innovation and banning fossil fuels.

Business executives with interests in construction, real estate development, utility infrastructure, and energy policy should closely monitor developments, as similar legal frameworks are being considered nationwide, including, by way of example, the Department of Justice intervening in the cases challenging the Maryland all electric building laws. Watch future posts on this blog for updates as the litigation unfolds.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Everything You Always Wanted to Know about Environmental Law (But Were Afraid to Ask)” on Tues, Feb 17 at 9 am. The webinar is complimentary, but you must register here.

WARNING: This Product Contains an Ingredient Not Recommended for Human Consumption …

By Stuart Kaplow on Posted in Codes and Regulations, Environmental, State

Businesses across the country face a consequential legal and commercial crossroads as Texas Senate Bill 25, branded the Make Texas Healthy Again Act, thrusts state level food labeling regulation into uncharted constitutional and regulatory territory. The stakes are high: companies that manufacture, market, or sell food products may soon confront unprecedented warning requirements that could upend longstanding federal standards and expose them to severe penalties.

What the Texas Law Will Require

Under Section 9 of the Act, any packaged food product sold in Texas that contains one or more of 44 listed ingredients must bear this statement on its label:

“WARNING: This product contains an ingredient that is not recommended for human consumption by the appropriate authority in Australia, Canada, the European Union, or the United Kingdom.”

This requirement applies to food labels developed or copyrighted on or after January 1, 2027, and carries the threat of civil penalties up to $50,000 per day per product and potential criminal sanctions for noncompliance. Such sweeping label mandates would apply even if products comply with federal labeling requirements under the Federal Food, Drug, and Cosmetic Actand related federal standards.

To many in the food and beverage sector, the text of the warning itself raises concerns: it purports to tie regulatory judgments to foreign jurisdictions’ rules where no such blanket “not recommended for human consumption” classification exists for many of the listed substances. Plaintiffs in the ensuing litigation argue this renders the warning inaccurate and misleading, a point we return to below.

But key to others is that as a Make America Healthy Again (MAHA) inspired law, it champions a regulatory shift that emphasizes strict ingredient disclosure and transparency rather than any banning of products or specific additives.

The 44 Ingredients Subject to the Warning Requirement

Based upon information in the legislative history file, ingredients include: Acetylated esters of mono- and diglycerides (acetic acid ester), Anisole, Azodicarbonamide (ADA), Butylated hydroxyanisole (BHA), Bleached flour, Blue 1 dye, and more ..

The Federal Court Challenge: First Amendment at the Forefront

On December 5, 2025, four food industry associations filed a federal lawsuit, American Beverage Association et al. v. Paxton, seeking to invalidate Section 9 on multiple constitutional and statutory grounds.

Central to the complaint is the contention that the required warning constitutes an unconstitutional compelled speech requirement under the First Amendment. The associations argue that Texas is forcing businesses to disseminate a government scripted message that is content based and misleading, without any actual factual determination by a U.S. regulatory authority like the FDA. They are heard to complain the cited authority is foreign regulatory policy not U.S. science nor U.S. law, but would science in Boston be better that from Brussels?

On December 12, 2025, the associations moved for a preliminary injunction to halt enforcement of the warning label requirements while litigation proceeds, citing irreparable harm from forced speech and the operational costs of redesigning packaging and websites to comply with the statute.

Federal Preemption and Vagueness

Beyond First Amendment challenges, the lawsuit asserts that Section 9 is preempted by federal food labeling law. Federal law already mandates specific ingredient disclosures and governs the content of food labels to achieve nationwide uniformity. Plaintiffs argue that Texas’s add on warning disrupts this uniform scheme and creates confusion over which standards govern labeling in interstate commerce.

Further, the complaint claims Texas’s language is unconstitutionally vague because it fails to delineate clearly when federal preemption applies and provides no workable framework for companies to determine whether a given product falls under the statute or existing federal requirements.

Commerce Clause Implications

The plaintiffs also assert that Section 9 violates the dormant Commerce Clause by forcing national or regional food producers to alter labels or formulations on a nationwide basis to avoid a patchwork of state laws. This is a familiar concern for businesses operating across state lines: a label requirement that applies only in Texas may effectively dictate manufacturing and marketing decisions elsewhere due to the economic impracticality of producing separate SKU variants.

Amicus Support and Broader Significance

The legal challenge has attracted support from the U.S. Chamber of Commerce, Pacific Legal Foundation, and Goldwater Institute, amplifying the case’s potential implications for commercial speech doctrine, federal preemption, and the limits of state authority in regulating food labeling.

What is Next

Why should business leaders outside the food sector care? Because this is not just about ingredients, it is about regulatory strategy. The Make Texas Healthy Again Act is explicitly aligned with the broader “Make America Healthy Again” movement, which a recent YouGov poll found that among those aware of MAHA, large majorities (72% to 78%) felt MAHA’s values on food, medicine, and agriculture reflected their own. A similar bill has already been drafted for introduction in the 2026 Maryland legislative session. Other states will follow, each adding its own variations and political gloss.

This Texas warning label law represents a pivotal collision of state regulatory ambition with entrenched federal authority and constitutional protections. For business leaders, this moment demands close legal and strategic attention: from First Amendment principles to federal preemption, the outcomes of these early challenges will resonate well beyond Texas, potentially shaping how and where food ingredients and other matters are disclosed to consumers in the United States.

Despite all of that, at this time of value alignment, including health policy views, because this MAHA inspired law involves ingredient disclosure and transparency rather than outright banning products or specific additives, it is widely popular and will likely survive judicial challenges.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Everything You Always Wanted to Know about Environmental Law (But Were Afraid to Ask)” on Tues, Feb 17 at 9 am. The webinar is complimentary, but you must register here.

Microplastics – The Next Environmental Crisis We Can No Longer Ignore

By Stuart Kaplow on Posted in Environmental

For decades, environmental law has been built around visible harms: smokestacks, discharge pipes, landfills, and oil spills. We regulate what we can see. Microplastics represent the opposite problem, an environmental threat that is largely invisible, already ubiquitous, and increasingly understood to be biologically active. In many contemporary risk assessments, microplastics now rank among the top emerging environmental threats. That alone should command attention. The science behind it makes inattention indefensible.

Microplastics are generally defined as plastic fragments smaller than five millimeters. Some are intentionally manufactured at that size, microbeads, industrial pellets known as nurdles, and plastic glitter. Others are “secondary” microplastics, the inevitable byproduct of larger plastic items breaking down through sunlight, abrasion, and weathering: packaging, bottles, synthetic textiles, tires, fishing gear, and even disposable masks. Smaller still are nanoplastics, which are measured in billionths of a meter and are correspondingly harder to detect and study.

Exactly how much plastic humans have manufactured so far is not known. But scientists have guesstimated more than 18 trillion pounds, more than two times the weight of all living animals on the planet.

What makes microplastics different from earlier pollution problems is not merely their scale, but their reach. They are now found across land, sea, and air. They pass through water treatment systems. They travel in the atmosphere and fall back to earth in what some have aptly called “plastic rain,” a modern analogue to acid rain, but far more persistent. Sampling in national parks and protected areas in the American West found microplastics in roughly 98 percent of air and rain samples. Even these numbers likely understate the problem, because current methods cannot reliably count clear or white particles and fibers.

They are also in us. Microplastics have been detected in human blood, lungs, liver, joints, placentas, and brains. Estimates suggest that people may inhale tens of thousands of microplastic particles per day. The full health implications are not yet known, but the direction of the evidence is profound. Recent studies associate micro and nanoplastics with inflammation, cardiovascular disease, and increased risk of heart attack and stroke. Research has found higher concentrations of microplastics in placentas from premature births, raising concerns about fetal development and hormone disruption. Animal studies have shown microplastics moving through the brain and blocking blood vessels. Other work suggests a link to cognitive decline. While no responsible scientist will claim the case is closed, it is increasingly clear that we are running a large, uncontrolled experiment on ourselves.

The food chain provides another route of exposure. Microplastics have been found in seafood at astonishing rates, as well as in honey, tea, sugar, fruits, and vegetables. They enter farmland through sewage sludge used as fertilizer and then wash into waterways through runoff. In the ocean, they are ingested by organisms from plankton to shellfish to fish. The phrase “if you eat mussels, you eat microplastics” is not rhetoric; it is a literal description of current conditions (a study last year in Oregon found microplastics in 98.9% of seafood sampled).

There will be no putting this particular genie back in the plastic bottle.

From a legal and policy perspective, the problem is that we have designed our environmental control systems to capture large, visible waste streams. We do a decent job intercepting bottles and bags. We do almost nothing about fibers, fragments, and particles measured in microns. Two recent studies indicate that conventional American style stormwater systems actually accelerate the delivery of microplastics into water bodies. We celebrate devices like Baltimore’s Mr. Trash Wheel, and rightly so, but they are designed to catch what floats. The real problem is increasingly what cannot be seen.

There are some promising technological ideas: experimental filtration systems, magnetic extraction techniques, even robotic collectors (.. Sichuan University has developed a tiny robot fish that can collect microplastics). But these are, at best, partial measures. Once plastic has fragmented to this scale, there is no practical way to “clean up” the environment. The defining feature of plastic, its durability, is precisely what makes it so dangerous when it becomes pollution. Plastic never truly goes away; it just becomes smaller, more mobile, and more biologically available.

Compounding the problem is scale. Global plastic waste is projected to grow dramatically over the next decade, from 250 million tons a year to 460 million tons by 2030, driven by rising consumption. More plastic inevitably means more microplastics. Even bans that make sense, such as the U.S. ban on microbeads in cosmetics, illustrate the limits of single sector regulation. Researchers now find microbead like particles in remote areas and suspect industrial paints and coatings as a source. If that is correct, one industry’s solution simply becomes another’s problem, and in a global atmosphere, national bans have obvious limits.

From an environmental law perspective, microplastics expose a regulatory gap. They do not fit neatly into existing categories of air pollution, water pollution, or waste. They are all of those at once. They are a product, a byproduct, and a contaminant. They are emitted diffusely, transported globally, and persist indefinitely. That combination should sound familiar to anyone who has studied earlier failures to control substances like lead, PCBs, or PFAS, only this time, the volume is orders of magnitude larger.

We are, in all likelihood, in the lull before the storm. The science is moving quickly, and the early signals are not reassuring. What is needed now is not just more research, though we certainly need that, but a serious policy shift toward source control: product design, materials substitution, filtration at home clothing washing machines and municipal treatment plants, and a hard look at how much single use plastic we are willing to accept as the price of convenience.

“I Have One Word for You: Plastics.” This quote from the 1960s film, “The Graduate,” is a perfect encapsulation of the times, then and now. 

Today, microplastics are no longer just a scientific or environmental concern; they are rapidly becoming a MAHA (Make America Healthy Again) political issue, and for understandable reasons. At its core, MAHA is about reframing environmental and regulatory policy around human health outcomes, not just abstract ecological protection. Microplastics fit that narrative almost perfectly. Unlike many traditional pollutants, this is not a distant or theoretical risk. The evidence now shows that microplastics and nanoplastics are inside all of us. That transforms plastic pollution from a “save the whales” issue into a direct personal health exposure issue, which is exactly the kind of framing that drives MAHA style politics.

And for a legal profession that exists to anticipate and mitigate risk, microplastics should already be treated as the next major environmental and public health challenge. The legal question is not whether microplastics will become a central environmental issue, but how quickly our laws, policies, and business practices adapt to confront a pollutant that is everywhere, forever, and increasingly inside us.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Exposomics is the Environmental Issue Your Business Should Take Seriously” on Tues, Jan 20 at 9 am. The webinar is complimentary, but you must register here.

Why Electricity Will Be the Number One Environmental Issue of 2026

By Stuart Kaplow on Posted in Energy, Environmental, Solar Panel, wind turbine

As environmental attorneys, we spend much of our time advising clients on regulatory risk, compliance, and strategic opportunities. Increasingly, those conversations converge on a single issue: energy, specifically electricity. Looking ahead to 2026, electricity is shaping up to be not only the defining environmental issue but also one of the most consequential economic and geopolitical matters of the year.

Importantly, this is not a pessimistic observation. It is an opportunity for prosperity while at the same time improving the human condition, if approached with realism, balance, and a renewed commitment to reliability.

Energy Demand is Accelerating

At its core, 2026 represents an inflection point. Energy demand is accelerating rapidly, the infrastructure required to support that demand is lagging, and the desire to transition to cleaner sources remains tepid and constrained. All of these forces are colliding at once. How policymakers, utilities, and businesses respond will define environmental outcomes for years to come.

The underlying driver is scarcity. For decades, the U.S. energy sector has been operated by mandated government monopolies in an environment of relatively flat demand growth. Planning horizons were conservative, permitting timelines were long, and incremental change was the norm. That world no longer exists. The exponential growth of artificial intelligence and data centers, coupled with dramatic demand from enhanced HVAC and increased intake of fresh air, has fundamentally altered the demand curve. Electricity supply has not kept pace and cannot do so quickly under the current regulatory and permitting frameworks.

For the climate focused among us, this matters enormously. The production and consumption of energy, especially electricity, remain the single largest source of global greenhouse gas emissions. For those who view climate change as the paramount environmental issue, electricity generation sits at the center of the problem and, therefore, the solution. Reducing emissions without addressing how we generate, transmit, and consume power is not plausible.

All of the Above

At the same time, it is impossible to ignore a major trend heading into 2026: the stifled and substantially slowed growth of renewable energy. Solar and to a lesser extent wind remain components of a cleaner energy future, but supply chain constraints, interconnection backlogs, land use conflicts, local opposition, and more have slowed deployment, not to mention that the economies of renewable energy only work with government subsidies. This reality does not undermine the role of renewables; it underscores the need for a diversified, “all of the above” resilient energy portfolio that prioritizes reliability and affordability alongside emissions reduction.

Maryland is an Energy Desert

Nowhere are these tensions more apparent than in Maryland. The state is, quite simply, an energy desert, and the situation is deteriorating. Maryland consistently imports more than 40 percent of its electricity from neighboring states, and that reliance is growing. State government forced coal and gas plant closures, economic shifts, and aggressive environmental legislative mandates have reduced in state generation while mandating all electric buildings, a Clean Heat standard, and a Zero Emissions Heating Equipment standard, and the like, at a time when electricity demand continues to rise across the broader PJM region.

This dependence on imported power has real negative consequences. It exposes Maryland consumers to higher electricity prices, including those who can least afford to subsidize bad political decisions, transmission bottlenecks, and increased risk of grid instability. Infrastructure investments to move power across state lines are costly, and those costs are borne by ratepayers. Reliability concerns are not hypothetical; capacity shortfalls, brownouts, and blackout risks are increasingly part of serious planning discussions at PJM and expected to begin in earnest in summer 2026. The state’s planning relies almost exclusively on one new energy source that is not going to happen, as we blogged, Offshore Wind Projects are Now ‘Really’ Dead.

The Most Expensive Utilities in the Country

It is also critical to distinguish between the cost of electricity and the reliability of electricity. Maryland’s electricity rates tell a cautionary tale. In 1972, the U.S. EIA reported the state ranked among the half dozen least expensive states for energy in the nation. Today, according to Doxo, utilities in Maryland are the most expensive in the country. While these issues are related, they are not identical.

Constellation Energy data is instructive. Since 2010, energy related price increases in Maryland have been driven overwhelmingly by transmission costs, not generation costs. Transmission costs in the PJM region have increased more than 300 percent over 15 years, while power generation costs in Maryland have remained essentially flat and have even declined slightly. A significant driver of these transmission costs is state regulation, most notably, according to Constellation is the Building Energy Performance Standard, which is accelerating the electrification and move to net zero large buildings without any commensurate expansion in local generation or transmission. Testimony at a recent hearing included that “Maryland is among the last jurisdictions that has not retreated from what is now recognized as impossible to reach net zero emissions.”

Most ratepayers, not just in Maryland, but across the country, are paying more for electricity this January than they did one year ago. Data centers appear to be getting much of the blame in the mass media, but they are not yet the energy hog they are made out to be and they are not part of the equation in Maryland despite plans for multiple data centers elsewhere in the PJM territory.

The subject of much dinosaur media attention last week, Bjorn Lomborg of the Copenhagen Consensus, cited data from 70 countries and multiple U.S. states from New York to Texas, concluding “the evidence is clear: Adding more solar and wind to the energy supply pushes up the price of electricity.”

Reliable Electricity

Energy security compounds these challenges. Reliable, affordable electricity is no longer just a local issue; it is a geopolitical one necessary to improve the human condition of the poorest among us. States and nations alike are reassessing vulnerabilities exposed by supply constraints and geopolitical tensions. In Maryland, this has led to extraordinary outcomes: the state’s largest government electricity user halting workforce expansion despite constructing its own generation, and the largest private sector user is constructing generating facilities for self supply. These are not signs of a healthy, resilient grid.

Against this backdrop, symbolic government gestures and litigation driven strategies offer little practical benefit. Announcements of accepting dark money to study potential climate litigation against energy suppliers may satisfy certain constituencies, but they do not produce electrons. They do not stabilize the grid. They do not lower rates.

Occam’s razor is instructive here. When faced with competing explanations, the simplest solution is often the correct one. Maryland and the nation (.. and for that matter the globe) need to generate more electricity. Cleanly, reliably, and at scale. That means permitting reform, pragmatic policy, and an honest assessment of trade offs. It means embracing innovation while acknowledging engineering and economic realities.

The solution in Maryland is not Luddite local laws, like Bill 54-24, enacted in Baltimore County, which restricts data centers in the name of conservation of electricity.

Closely associated with this issue, and with reliability, we blogged earlier this year about Battery Storage: The New “Must Have” Amenity in Commercial Leases. Beyond only emergency backup, battery energy storage systems improve day to day operational stability. If the one word advice in the 1967 film The Graduate was “plastics,” the one word advice in 2026 may be “batteries.” But today’s batteries, which have their own negative externalities, will only take us so far.

Beyond 2026

Thinking bigger and beyond 2026, it should be lost on no one that Bitcoin is based on energy. Energy is becoming the true currency. Or stated otherwise, power generation is going to be the de facto currency.

That may be a future view, but it will start in the short term, maybe within 3 years, with solar powered AI satellites.

Energy, especially electricity, will define environmental law and policy in 2026. If approached constructively, it will portend a more prosperous and more resilient era. The challenge is not whether electricity will be the central issue; it already is. The question is whether we will meet that challenge with seriousness, balance, and the resolve to keep the lights on while building a reliable, affordable, and sustainable future for all of us.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Exposomics is the Environmental Issue Your Business Should Take Seriously” on Tues, Jan 20 at 9 am. The webinar is complimentary, but you must register here.

2025 Year in Review of Environmental Blog Posts

By Stuart Kaplow on Posted in Climate Change, Energy, Environmental, greenwashing, Legal, wind turbine

As 2025 draws to a close, environmental law once again proved to be less about ideology and more about adaptation.

The environmental issues that resonated most this year, from political, cultural to economic, reflected in our Top 10 most read blog posts, were those that sat squarely at the intersection of regulation, innovation, and market opportunity, acknowledging that “sometimes I am a conspiracy theorist, but I only believe in conspiracy theories that are true,” quoting Vice President J.D. Vance.

Framed in a David Letterman style countdown, this retrospective highlights an amazing year shaped by technological acceleration, litigation risk, and a new Presidential administration that rewarded businesses and policymakers who prioritized flexibility, embraced market based solutions, and treated environmental change as a competitive advantage rather than a compliance burden.

Yes, the U.S. Mint stopped production of the penny this past November, after 232 years, but given that pennies have, since 1982, been mostly zinc with a thin copper plating, economic chaos is not expected, although there is much else to obsess over from this unpredictable year.

Top 10 List of Blog Posts

As we prepare for 2026, let’s revisit the blog posts that defined environmental change in 2025:

10.  Stablecoin to Access Capital to Accelerate Green Building Market Transformation

9.  Battery Storage: The New “Must Have” Amenity in Commercial Leases

8.  Federal Bank Regulators Withdraw Climate Mandates

7.  EPA Moves to Overturn California’s Motor Vehicle Emission Standards

6.  Maryland Should Allow Off Grid Electricity Providers, as Should the Whole Country

5.  Greenwashing Lawsuits Surge in 2025: Navigating the Expanding Risk

4.  Offshore Wind Projects are Now ‘Really’ Dead

3. Mold Testing in Maryland Real Estate under the New Law

2.  Mandatory GHG Disclosures in Maryland Real Estate Contracts

1.  From Boilerplate to Benchmarking: The New Era of Climate Smart Leases

Two Bonus Blog Posts

While not among the Top 10 most read by our blog readers, I commend to your reading:

11.  Exposomics Is the Environmental Issue Business Should Take Seriously

12.  Potable Water Bankruptcy as Environmental Crisis

Awaiting Us in 2026

Year end retrospectives often look backward, but environmental law has never been a backward looking discipline. As 2025 closes, our most read blog posts tell a story about where environmental policy is heading, not where it has been.

Unsurprisingly, our readers gravitated toward content focused on innovation, market driven solutions, and the disruption of traditional public policy approaches.

The common thread is telling. In a year shaped by a new U.S. President, evolving technologies, and persistent regulatory friction, our most read posts consistently favored innovation, rapid adaptation, and market based solutions over incremental change. In short, they reflect an audience focused less on preserving the status quo and more on reshaping it for a profit.

Next week’s blog will dive into what we are confident will be “the” defining environmental issue and opportunity of 2026 (.. and no, we are not going to write about the emergence of Artificial General Intelligence). Until then, thank you for being part of our journey this year! If you are not currently a subscriber, please visit www.greenbuildinglawupdate.com to subscribe and receive email notifications of our weekly posts.

Wishing you a successful and prosperous New Year!

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Exposomics is the Environmental Issue Your Business Should Take Seriously” on Tues, Jan 20 at 9 am. The webinar is complimentary, but you must register here.

Extended Producer Responsibility – A Rapidly Changing Environmental Landscape in Maryland and Elsewhere

By Stuart Kaplow on Posted in Codes and Regulations, recycling

Extended Producer Responsibility laws, often referred to simply as EPR, represent one of the most consequential shifts in U.S. environmental policy affecting businesses from manufacturers and multi family residential building owners to distributors and retailers. These laws fundamentally change who pays for, manages, and is accountable for the end of life of consumer product packaging, paper, e-waste, and paint.

EPR has its origins in a 1990 academic paper penned at Lund University in Sweden by Thomas Lindquist.

For businesses, it is no longer an academic public policy debate; it is an immediate compliance obligation with real financial, operational, and reputational consequences. This is where we, as experienced environmental counsel, can play a critical role.

What EPR Laws Require and Why They Matter to Business

Producer Responsibility Laws shift the financial and operational burden of managing products at the end of their useful life away from end users (.. for example, an accounting firm that pays to have its dumpster collected where the trash hauler then pays to dispose of the solid waste in a landfill), or sometimes municipalities that accept waste (.. often residential trash) without tipping fees, and onto the companies that place those products into the stream of commerce.

In practice, EPR laws typically require producers to:

  • Register with states or a designated Producer Responsibility Organization (PRO)
  • Report detailed data on materials placed on the market
  • Pay fees that fund recycling, collection, education, and infrastructure
  • Meet performance standards tied to recycling or reuse outcomes

The stated policy objective is counterintuitive; that is, when producers of products bear the cost of waste management they have an incentive to design products and packaging that are easier to recycle, less toxic, and more efficient;  as opposed to packaging that best protects the product in the stream of commerce, today often involving overnight delivery to the end user, ceding control to single large monopolistic stewardship organization (.. Maryland selected Circular Action Alliance as the single nonprofit PRO in the state), including hindering innovation and reuse. The loftier social engineering goal is the creation of a circular economy in which materials are reused rather than discarded.

From a legal and business perspective, however, EPR creates a complex, state by state (among progressive states) checkerboard compliance matrix. California, Colorado, Maine, Maryland, Minnesota, Oregon, and Washington have all enacted packaging EPR laws, each with its own definitions, thresholds, reporting timelines, and enforcement mechanisms. California’s SB 54, for example, requires most single use packaging and food service ware to be recyclable or compostable and obligates producers to fund roughly $500 million per year in system costs. Other states have adopted vastly different frameworks with meaningful differences that matter for compliance by a national producer.

Failure to comply can lead to penalties, enforcement actions, and, in some states, bans on selling noncompliant products.

Maryland’s Expanding EPR Framework

Maryland has embraced EPR across several product categories. Businesses should already be familiar with:

  • Electronics (E-Waste): Maryland’s Statewide Electronics Recycling Program requires manufacturers of covered electronics to provide free take back at retail locations where their products are sold, and charges manufacturers per unit sold.
  • Paint: Under the Maryland Paint Stewardship Act, paint manufacturers will fund and operate a statewide program beginning in 2026 for the collection and proper recycling or disposal of leftover paint, with a gallon of paint surcharge.
  • Packaging and Paper Products: The most significant recent development is the Packaging and Paper Products Producer Responsibility Plans Act, signed into law on May 13, 2025. This statute requires producers of packaging and paper products to pay fees to support recycling and waste management systems.

The Maryland Department of the Environment has just released draft regulations, which will govern how this new packaging and paper products EPR program will operate and it is dramatically larger than the E-Waste and Paint programs. These proposed regulations are expected to affect not only large brand owners, but also certain small businesses that qualify as “producers” or that provide services within the regulated system. Public comments are being accepted until December 27, 2025.

The New Proposed Maryland Regulations

Objective and Scope. The proposed regulations in COMAR 26.04.14, Extended Producer Responsibility (EPR) for Packaging and Paper Products, implement Maryland’s EPR framework authorized by Environment Article §§ 9-2501 – 9-2512 of the Maryland Code. They detail how producers must register, report, and participate in a statewide system to manage the end of life handling of covered materials.

Key Definitions and Coverage. “Covered materials” include most packaging (primary, secondary, tertiary) and paper products sold or distributed in Maryland, including beverage containers, carryout bags, and multimaterial items. Exemptions apply to certain infant formula, medical, and other regulated packaging. A “producer” is defined by a hierarchy (manufacturer, brand owner, importer, distributor) depending on how the material enters the Maryland market. The regulations also define Producer Responsibility Organizations and terms such as recycling, reuse, composting, and responsible end markets.

Producer Registration and Plans. Producers must register with the Maryland Department of the Environment and either participate in a PRO or submit an Individual Producer Responsibility Plan. Annual registration must categorize covered materials

Why Recycling Policy Is Harder Than It Looks

EPR laws are being adopted against the backdrop of a failed recycling system. Nationally, less than 24% of discarded materials are recycled or composted. Cost allocation is arguably a barrier, but not the only impediment. Recycling requires capital intensive infrastructure, specialized equipment, and labor, while the market value of recycled materials is often lower than that of virgin materials.

Contamination further undermines system efficiency. Single stream recycling programs can experience contamination rates approaching 25%, driven by “wish cycling,” improper sorting, and the inclusion of non-recyclable items such as plastic bags, batteries, or food soiled materials. These mistakes increase processing costs, damage equipment, and ultimately reduce the value of recycled outputs.

It is significant that despite Maryland’s newly proposed packaging and paper products regulations, there is not a single paper processing facility within the state. Paper products may be collected, sorted, and baled but must then be shipped to out of state mills (.. because Maryland environmental laws would not permit a recycling facility), nearly all of which are overseas, for recycling. The environmental efficacy of transporting that recycling  and processing it somewhere else is an issue.

Recycling also has environmental tradeoffs. Paper recycling consumes large amounts of potable water and chemicals; plastic recycling can release pollutants. While recycling is preferable to landfilling, solid waste collection in Maryland has been largely operated by local governments since the late 1880s; it is not a silver bullet.

Well designed EPR programs (.. possibly good examples are in battery recycling) must balance environmental benefit, economic feasibility, and practical implementation. An interesting example is the Washington Department of Ecology adopted new rule, the Battery Stewardship Program, to implement requirements under Washington’s battery EPR law that takes effect on January 16, 2026. Other states, including Maryland, are considering battery and battery containing product EPRs.

The Attorney’s Role in EPR Compliance and Strategy

We have worked in this space for more than a decade, including structuring one of the earliest Producer Responsibility Organizations. An environmental attorney does far more than interpret statutory language.

In this substantive space, we have experience working with businesses, including in the US Green Building Council’s TRUE Zero Waste Certification Program, where we have assisted organizations in developing a framework for drastically reducing waste, aiming for more than 90% diversion from landfills.

A Critical Moment for Maryland Businesses

Maryland’s proposed paper and packaging regulations will be expensive to comply with, costs that will be passed onto Maryland consumers, and will certainly not deliver commensurate environmental benefits. That makes participation in the current rulemaking process especially important. Businesses, from multi family residential to retailers, that remain silent now may find themselves locked into a regulatory structure that is costly, rigid, and difficult to unwind later.

Maryland’s EPR is actually designed to be a revenue source for government and nothing more. Does anyone think the Maryland Paint Stewardship Act has resulted in paint manufacturers changing the “design products and packaging that are easier to recycle, less toxic, and more efficient ..” or does a gallon of paint still look like a gallon of paint, just with a new 99 cent fee on every can? Moreover, the Maryland law does not have eco modulation features with bonuses for recycled content, bio based materials, or the like.

EPR is not going away, in Blue states, despite being bad public policy. For businesses, the question is whether compliance will be reactive and fragmented or strategic, informed, and legally defensible. Engaging experienced environmental counsel early may be the difference between treating EPR as an unmanaged cost center or utilizing it as an opportunity to reduce risk, influence policy, and plan intelligently.

The alternative attributed to Thomas Lindquist is embracing the concept that if a consumer product cannot be reused or recycled at the end of its life, then it should not be sold at all.

Note that the content above has been generated by an artificial intelligence language model transcribing and combining my comments as a guest on a podcast last week. My words may not be entirely error free, and should you have questions, please reach out to me.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Exposomics is the Environmental Issue Your Business Should Take Seriously” on Tues, Jan 20 at 9 am. The webinar is complimentary, but you must register here.

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