Green Building Law Update

The Intersection of Real Estate, Science, and Law

Happy Fourth of July: Why Fireworks Get a Pass Under Environmental Law

By Stuart Kaplow on Posted in Codes and Regulations, Environmental

John Adams famously proposed in his July 3, 1776 letter to his wife, Abigail, that American independence should be celebrated “with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.”

Two hundred fifty years later, he was remarkably accurate.

This year, organizers of the Washington, D.C., Independence Day celebration have announced plans for “the largest fireworks show in history,” with 851,000 aerial shells, surpassing the current Guinness World Record of 811,000 shells. That’s roughly ten times the size of the annual Macy’s display in New York City.

Americans now ignite more than 322 million pounds of fireworks each year, nearly all imported from China (.. yes, tariffs apply). That naturally raises a question environmental lawyers appreciate:

How do Fireworks fit into Environmental Law?

Surprisingly, the answer is that they are one of the few activities that regulators have intentionally chosen to treat with remarkable restraint.

A Brief Spike in Air Pollution

The environmental impact of fireworks is real, but also very short lived.

A 2015 study by the National Oceanic and Atmospheric Administration analyzed data from 315 air quality monitoring stations across the country and found that concentrations of fine particulate matter (PM2.5) increased an average of 42% during the evening of July 4. The highest readings typically occurred between 9:00 p.m. and 10:00 p.m., with air quality generally returning to normal by midday on July 5.

Some monitors exceeded the U.S. Environmental Protection Agency 24 hour standard, but the spike is localized and fleeting, not the sort of sustained pollution that environmental regulations are typically designed to address.

The Chemistry Behind the Colors

The spectacular colors come from chemistry that every environmental lawyer recognizes.

Strontium compounds create brilliant reds. Sodium produces yellow. Barium creates green, and copper compounds, especially copper chloride, produce those vivid blues that many fireworks enthusiasts consider the most impressive.

When a shell explodes, those compounds become tiny airborne particles along with residue from potassium perchlorate, charcoal, sulfur, and black powder. Because the explosions occur hundreds of feet overhead, much of that material disperses before reaching ground level.

Environmental Law Makes Room for Tradition

What is perhaps most interesting is what environmental law does not do.

Federal regulations administered by the Consumer Product Safety Commission and the Bureau of Alcohol, Tobacco, Firearms and Explosives primarily regulate fireworks for safety, limiting explosive composition, packaging, transportation, and storage. They do not regulate fireworks because of air emissions.

At the state level, the focus is similarly on preventing injuries and fires, not reducing particulate emissions. Every state except Massachusetts allows some form of consumer fireworks, although the rules vary considerably.

In environmental law, this is unusual. We are accustomed to regulating activities that emit pollutants. Fireworks are one of the notable exceptions.

The Clean Air Act’s “Exceptional Events”

The Clean Air Act provides perhaps the best illustration.

EPA regulations recognize that certain pollution events are extraordinary and should not determine whether an area complies with federal air quality standards. Wildfires, dust storms, and volcanic activity are classic examples.

Fireworks celebrating Independence Day can qualify as well.

Under EPA’s “Exceptional Events” rule, states may exclude July 4 air quality data from regulatory determinations if they demonstrate that the elevated particulate levels resulted from holiday fireworks rather than ongoing pollution sources.

For example, EPA approved Rose Park, Utah’s request to exclude monitoring data after scientific analysis showed that more than 75% of the particulate matter originated from fireworks residue rather than ordinary emissions.

The policy reflects a practical judgment: a few hours of elevated particulate matter should not trigger long term regulatory consequences.

Water Pollution Matters Too

Environmental regulation does not disappear entirely.

Fireworks launched over bays, rivers, or oceans can create concerns under the Clean Water Act because shells, paper, and other debris eventually fall into the water.

In places such as San Diego, permits require post display cleanup and other best management practices to minimize debris entering coastal waters. Environmental organizations have successfully used the Clean Water Act to ensure permit compliance where aquatic resources could be affected.

In other words, environmental law generally targets the tangible environmental impacts, not the celebration itself.

A Rare Example of Regulatory Restraint

Environmental lawyers spend much of their time discussing expanding regulation. Fireworks offer an interesting counterexample.

The law recognizes that fireworks produce temporary emissions. Regulators know the chemistry. They understand the particulate impacts and smoke that may impact individuals with lung diseases like asthma or COPD. And the loud, explosive sounds can lead to sensory overload. Yet they have largely concluded that the environmental effects are brief enough, and the cultural significance important enough, that the proper response is measured oversight rather than sweeping regulation.

That balancing of competing interests is, after all, what good environmental law is supposed to do.

So, as you gather with family and friends this Fourth of July, enjoy the fireworks, and perhaps impress everyone by explaining why one of America’s oldest traditions is also one of the more fascinating examples of environmental regulatory restraint.

In the interest of full disclosure, I don’t represent any fireworks manufacturers. But I do appreciate a well executed copper chloride blue. Happy Fourth of July!

California’s Packaging EPR Law Faces Constitutional Challenge from Seventeen States

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

California’s experiment with extended producer responsibility (EPR) has finally met significant resistance.

Seventeen states, joined by the National Association of Wholesaler Distributors, have filed suit in federal court challenging California’s Plastic Pollution Prevention and Packaging Producer Responsibility Act, which was SB 54. The case, State of Nebraska et al. v. Heller et al., Case No. 2:26-at-01047 (E.D. Cal.), seeks to block enforcement of one of the most aggressive and far reaching environmental laws ever enacted by a state.

The plaintiffs include Nebraska, Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, and West Virginia, along with NAW. Their central argument is straightforward: California cannot use access to its market to impose its preferred environmental policies on the rest of the nation.

This lawsuit begins, “In a blatant and unprecedented attempt to impose its own policy preferences on the entire nation, California has enacted the Plastic Pollution Prevention and Packaging Producer Responsibility Act, .. In essence, the Act conditions access to California markets on revolutionary changes to the way manufacturers, distributors, and companies (large and small) design and package their products, as well as how plastic or plastic-containing packaging waste is disposed of.”

And then there’s the other lawsuit filed by environmental groups in state court contending the implementing regulations do not go far enough to carry out the Act’s environmental mandates.

More Than an EPR Law

We have previously blogged about the expansion of EPR laws across the United States. In their simplest form, EPR programs shift responsibility for managing waste from taxpayers and local governments to the producers of products and packaging.

California’s law, however, goes much further.

SB 54 requires producers selling products into California to participate in an extensive regulatory regime covering packaging and single use food service ware. The law seeks to reduce plastic packaging, increase recyclability and compostability, and dramatically reshape packaging design and distribution practices throughout the supply chain of nearly everything.

The regulations became effective on May 1, 2026, and immediately triggered registration and reporting obligations for affected businesses. Producers were required either to register with California’s designated Producer Responsibility Organization, Circular Action Alliance (CAA), comply independently, or seek an exemption.

For many businesses operating nationally, redesigning packaging for California alone is not economically practical. As a result, California’s standards effectively become national standards. That is precisely the concern underlying this lawsuit.

The Constitutional Issues Are Significant

The complaint alleges that the new law violates multiple provisions of the U.S. Constitution, including the Commerce Clause, the Import Export Clause, the First Amendment, and the Due Process Clause.

The strongest claim may be that California is attempting to regulate conduct occurring entirely outside its borders. According to the complaint, the law conditions access to California markets on how products are designed, manufactured, packaged, and distributed throughout the country, if not the world.

The U.S. Supreme Court has repeatedly recognized limits on a state’s ability to project its regulatory preferences beyond its borders. California’s size does not grant it the authority to establish national environmental policy.

Nebraska Attorney General Mike Hilgers summarized the issue: “California cannot reach across state lines and force businesses in Nebraska, or any other state, to adopt California’s preferred environmental policies.”

Whether one agrees with California’s environmental goals is beside the point. The constitutional question is whether a single state can effectively dictate nationwide business practices.

Delegating Government Power to a Private Organization

Perhaps the most troubling aspect of the Act is California’s delegation of substantial authority to the Circular Action Alliance.

CAA was designated as California’s sole Producer Responsibility Organization and is responsible for administering much of the program. Producers must register, report data, and fund the system through the organization. CAA is also charged with developing the program plan that will govern implementation.

The plaintiffs argue that the Act is an unconstitutional delegation of regulatory authority to a private organization, in violation of the Fourteenth Amendment’s Due Process Clause and the California Constitution’s nondelegation doctrine.

Regardless of where one stands on environmental policy, businesses should be concerned whenever regulatory power is exercised by private organizations that are insulated from traditional governmental checks and balances.

Challenge by Environmental Groups

Two environmental groups filed a complaint against the California Department of Resources Recycling and Recovery and Director Zoe Heller, in California state court, arguing that the Act’s implementing regulations are unlawful because they weaken or contradict the statute. The plaintiffs allege the “final regulations are invalid because or to the extent they are inconsistent with the .. Act.”

Of import this challenge targets regulatory under reach, not the statute itself, so it is more about reshaping compliance obligations in out years when the plaintiffs’ requested relief is “a writ of mandate or injunction directing Respondents/Defendants Department of Resources Recycling and Recovery and the Director of Resources Recycling and Recovery to correct the invalid final regulations forthwith ..”

Oregon May Be a Preview

The state plaintiffs enter this federal litigation with some momentum.

Earlier this year, a federal court issued an injunction blocking enforcement of Oregon’s structurally similar EPR law after finding serious constitutional questions involving due process and interstate commerce. The merits trial in that case is scheduled for July 13, 2026, in Portland.

While the California case presents its own unique facts, the Oregon ruling demonstrates that courts are willing to scrutinize these emerging EPR programs rather than simply accepting them as the latest environmental trend.

The Stakes for Business Owners

Extended producer responsibility has become the environmental policy fad of the moment, embraced by lawmakers eager to appear innovative while shifting costs onto private enterprise and consumers. Yet a recent study of two decades of EPR programs in the EU found waste levels have still risen, recycling rates stagnated, and reuse rates have actually fallen drastically over this time, all at lower rates than in the U.S. (which did not have EPR at the time).

Despite the fact that EPR is bad environmental public policy, Maryland, Colorado, Maine, Minnesota, Oregon, Washington, and others are phasing in their own EPR programs, some of which, like Maryland’s (.. including its reliance on the same CAA as the single Producer Responsibility Organization), are as egregious as California’s Act.

California’s SB 54 may prove to be a bridge too far.

Protecting human health and the environment is, of course, an important public policy goal. But good intentions do not excuse constitutional overreach and otherwise bad public policy. California’s Act is not simply an anti plastic law; it is an attempt by a single state to reshape packaging, manufacturing, and distribution practices across the entire country. The courts exist in part to prevent exactly that type of extraterritorial regulation.

This dynamic legal environment will no doubt impact the emergent space of ERP. Business owners should watch these cases closely because the outcome may determine whether these state environmental mandates remain local laws or become de facto national regulations.

Fourth Circuit Raises the Bar for PFAS Injunctions in Citizen Suits

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

Businesses facing PFAS compliance challenges received an important victory in a court decision this month when the U.S. Court of Appeals for the Fourth Circuit vacated a preliminary injunction that had barred The Chemours Company from discharging PFAS compounds above permit limits into the Ohio River.

In West Virginia Rivers Coalition, Inc. v. The Chemours Company FC, LLC, decided June 3, 2026, the Fourth Circuit made clear that even in cases involving PFAS “forever chemicals” and admitted permit violations, environmental plaintiffs seeking a preliminary injunction must satisfy the same rigorous burden of proving irreparable harm that applies in all federal litigation.

For business owners, manufacturers, real estate developers, and operators of properties regulated under the Clean Water Act (i.e., far more than only those with PFAS issues), the decision is markedly important because it rejects the notion that a permit exceedance automatically justifies injunctive relief.

The Background

The dispute arose from operations at Chemours’ Washington Works facility in Parkersburg, West Virginia. The facility manufactures polymers and uses hexafluoropropylene oxide dimer acid (HFPO-DA), a PFAS compound commonly associated with the trade name GenX, as a processing aid.

Chemours operates under a Clean Water Act permit that authorizes discharges of HFPO-DA into the Ohio River subject to specific concentration limits established by West Virginia regulators, at two outfalls, with limits of 2,300 parts per trillion of HFPO-DA per day at both outfalls, as well as average monthly concentration limits of HFPO-DA of 1,100 ppt at one outfall and 1,400 ppt at the other. There was no serious dispute that Chemours exceeded those permit limits on multiple occasions beginning in 2022. Chemours had entered into an administrative consent order with the U.S. Environmental Protection Agency to address compliance issues.

In December 2024, the West Virginia Rivers Coalition filed a citizen suit under the Clean Water Act seeking to stop ongoing permit violations and requested a preliminary injunction requiring Chemours to immediately cease exceedances.

The federal district court granted that injunction. Chemours appealed.

The Fourth Circuit’s Decision

Writing for a unanimous panel, Judge Julius Richardson Quattlebaum Jr. agreed that the environmental organization had demonstrated a substantial likelihood of standing through one of its members who alleged that concerns about PFAS contamination caused her to avoid boating on the Ohio River.

The real issue on appeal was not standing, but whether the plaintiffs had demonstrated the “irreparable harm” required for a preliminary injunction under the Supreme Court’s decision in Winter v. Natural Resources Defense Council.

The Fourth Circuit concluded they had not.

The court identified three significant legal errors in the District Court’s analysis.

1. Harm to the Public Is Not the Same as Harm to the Plaintiff

The District Court considered alleged harm to the public and the environment as part of its irreparable harm analysis.

The Fourth Circuit rejected that approach, emphasizing that the irreparable harm inquiry focuses on harm to the party seeking the injunction. Public harm is addressed separately under the “public interest” factor of the preliminary injunction test.

In the court’s words, considering public harm during the irreparable harm analysis improperly “double counts” that factor.

2. Clean Water Act Violations Do Not Create a Presumption of Irreparable Harm

Perhaps the most important aspect of the decision is the court’s rejection of a presumed harm standard.

The District Court had reasoned that a continuing violation of federal environmental law should create a presumption of irreparable harm.

The Fourth Circuit disagreed, relying heavily on the U.S. Supreme Court’s decision in Weinberger v. Romero-Barcelo, which held that courts are not automatically required to issue injunctions for every Clean Water Act violation.

The appellate court made clear that Congress did not create a special rule exempting environmental plaintiffs from the ordinary requirements governing preliminary injunctions.

 3. Permit Violations Alone Are Not Irreparable Harm

The court also rejected the notion that exceeding a permit limit automatically constitutes irreparable harm.

According to the Fourth Circuit, a permit violation may be evidence relevant to a claim for relief, but it does not itself establish the type of imminent and irreparable injury necessary to justify emergency injunctive relief.

Instead, the plaintiff must prove that actual irreparable harm is likely to occur absent the injunction.

The Expert Testimony Problem

The court’s treatment of the scientific evidence may be equally important for future environmental (.. not only PFAS) litigation.

The environmental group’s expert testified that exposure to HFPO-DA increased the risk of adverse health effects. However, the Fourth Circuit emphasized that an increased risk is not necessarily enough.

The court explained that the plaintiff was required to show that irreparable harm was “more likely than not” to occur. The expert testimony, in the panel’s view, merely suggested that harm was more likely than it otherwise would have been, not that harm itself was more likely than not.

Compounding the problem, the expert acknowledged that she could not determine what specific harm the plaintiff would suffer based on the amount of exposure at issue.

The Fourth Circuit therefore concluded that the District Court clearly erred in finding that irreparable harm had been established.

Why This Matters for Businesses

This decision arrives at a time when PFAS litigation is beginning to expand across the country.

Businesses face increasing regulatory scrutiny from federal and state agencies, expanding drinking water standards, heightened permit requirements, citizen suits, toxic tort claims, and enforcement actions related to environmental matters including PFAS.

The Fourth Circuit’s decision does not lessen the importance of PFAS compliance. Chemours still faces the underlying Clean Water Act lawsuit, remains subject to EPA oversight, and continues to operate under an administrative consent order.

What the decision does accomplish is to reinforce that federal courts will not dispense with overarching legal principles simply because PFAS are involved.

For businesses, that distinction matters. Preliminary injunctions can force immediate operational changes, production curtailments, capital expenditures, or even temporary shutdowns before a case is fully litigated. The Fourth Circuit has now made clear that plaintiffs seeking such extraordinary relief must present concrete evidence demonstrating that irreparable harm to them is likely, not merely possible.

Looking Ahead

The ruling underscores the continuing tension among PFAS regulation, environmental advocacy, and traditional principles of judicial review.

As regulators continue to develop PFAS effluent limitations, drinking water standards, and cleanup requirements, citizen groups will remain active in seeking judicial intervention. At the same time, courts appear increasingly focused on ensuring that environmental cases adhere to the same procedural and evidentiary standards applied in every other category of federal litigation.

The Fourth Circuit’s message is straightforward: even where PFAS permit violations are undisputed, obtaining a preliminary injunction requires more than proof of a violation. Plaintiffs must demonstrate a likelihood of actual irreparable harm to themselves, supported by evidence sufficient to satisfy the demanding standards established by the Supreme Court.

For businesses navigating the evolving PFAS landscape, as well as other environmental matters, this decision is a profoundly impactful measure of certainty in an area of law often characterized by regulatory change and expanding litigation risk.

Why I Am Choosing Not to Eat Pizza and Bagels Made with Potassium Bromate

By Stuart Kaplow on Posted in Codes and Regulations, Environmental

For most Americans, choosing what to eat is a matter of taste, convenience, and cost. Increasingly, however, it is also a matter of informed risk management.

As an environmental attorney who spends much of his professional life evaluating scientific evidence, regulatory trends, and long term risks, I support those consumers who are making the conscious choice not to eat pizza, bagels, and other baked goods made with flour containing potassium bromate.

While voluntary action by consumers and businesses is preferable, an impending wave of state bans, in this emergent space in environmental law, may soon make that choice for many Americans.

A Ban Is Coming

The issue has gained national attention because New York lawmakers have passed Senate Bill S1239A, the Food Safety and Chemical Disclosure Act, which would prohibit potassium bromate in foods sold in the state. The New York legislature passed the bill on April 21, 2026, and it currently awaits action by Governor Kathy Hochul. If signed, the manufacture and sale of foods containing potassium bromate would become illegal one year after the law takes effect.

This is not an isolated development.

California became the first state in the nation to ban potassium bromate through AB 418, the California Food Safety Act, enacted in 2023 with a compliance date of January 1, 2027. The lengthy transition period gave manufacturers nearly four years to reformulate recipes and supply chains.

Illinois is considering a similar prohibition through SB 93. Maryland legislators have already announced plans to introduce legislation banning potassium bromate during the 2027 legislative session. Other states, including Virginia and West Virginia, have begun restricting certain food additives in school meals, reflecting a broader trend of state level intervention in food chemistry that historically had been left largely to federal regulators.

Taken together, these actions represent a rapidly growing national movement in which states are bypassing federal inaction and establishing their own food safety standards.

Why Potassium Bromate Matters

Potassium bromate (KBrO3) is a white crystalline powder and a powerful oxidizing agent used in commercial baking.

For decades, it has been added to flour because it strengthens gluten bonds, improves dough elasticity, shortens production times, increases oven rise, and helps create the chewy texture consumers associate with New York bagels and many styles of pizza crust.

In practical terms, potassium bromate makes dough easier and more predictable to work with. Bakers can produce taller loaves, more uniform crusts, and consistent products with less effort and less fermentation time.

That convenience, however, comes with significant controversy.

Ideally, potassium bromate converts during baking into potassium bromide, a comparatively harmless compound. The reality is that incomplete conversion can leave residual bromate in the finished food product.

The Health Concerns Are Real

Potassium bromate is not being targeted because of internet rumors or social media hysteria.

Animal studies have repeatedly demonstrated that potassium bromate can induce kidney tumors, thyroid tumors, and mesotheliomas. Researchers have also documented oxidative stress, DNA damage, and cytotoxic effects associated with exposure.

The International Agency for Research on Cancer classifies potassium bromate as a Group 2B carcinogen, meaning it is “possibly carcinogenic to humans.” While direct evidence in humans is more limited than in laboratory animals, the classification reflects a substantial body of scientific concern.

The U.S. Food and Drug Administration permits potassium bromate in flour at levels up to 75 parts per million, based on the assumption that proper baking eliminates residual bromate. Critics argue that this assumption depends heavily on manufacturing controls and baking conditions that may vary from one bakery and pizza shop to another.

In risk management, assumptions matter.

When a chemical serves primarily to improve production efficiency and texture, while simultaneously carrying a recognized carcinogenicity concern, many consumers understandably conclude the risk benefit equation no longer works.

This Is Not Just a “MAHA” Issue

Some commentators have attempted to dismiss concern about potassium bromate as merely a “Make America Healthy Again” issue or the latest suburban parenting trend.

That misses the point entirely.

Most well informed people would choose a longer and healthier life over a slightly softer pizza crust, a marginally chewier bagel, or a more forgiving dough recipe.

This is not about politics. In fact, Robert F. Kennedy Jr. has been a vocal critic of banning food ingredients and of allowing certain ingredients to be identified as Generally Recognized as Safe without disclosing safety data to the FDA, in favor of his push for greater transparency.

It is about the science of exposomics and lifetime exposure. For decades, environmental law focused on the visible and the catastrophic: spills, smokestacks, Superfund sites, and enforcement actions after damage was done. Today, exposomics, a quieter but far more pervasive environmental issue is moving to the center of serious scientific and commercial attention. At its core, the exposome describes the totality of environmental exposures an individual experiences over a lifetime and how those exposures affect biology and health.

The same business owners who spend significant resources reducing workplace hazards, environmental liabilities, cybersecurity risks, and product liability exposures understand the logic. When safer alternatives exist and the market is increasingly demanding them, continuing to rely on a controversial chemical becomes harder to justify.

The Rest of the World Already Moved On

Perhaps the most telling fact is that potassium bromate has already been banned in more than 40 countries.

The European Union, the United Kingdom, Canada, India, Brazil, China, and many other jurisdictions prohibit its use in food products. Those nations continue to produce excellent bread, pizza, bagels, and baked goods without relying on bromated flour.

The notion that quality baking requires potassium bromate simply does not withstand international comparison.

Indeed, many of New York’s most celebrated modern pizzerias and artisanal bakeries already advertise that they use unbromated flour. In many circles, “unbromated” has become a marker of quality rather than a compromise.

What This Means for Business Owners

For restaurant operators, pizza shops, bakeries, and food manufacturers, the regulatory writing is on the wall.

Businesses that proactively transition to unbromated flour today are likely to enjoy several advantages:

  • Reduced future regulatory risk.
  • Simplified compliance as state bans proliferate.
  • Stronger consumer confidence.
  • Easier marketing to health conscious customers.
  • Reduced exposure to future product liability claims.

Most importantly, reformulation is increasingly becoming a competitive necessity rather than a regulatory burden.

California’s 2027 deadline is approaching. New York may follow within a year of Governor Hochul’s signature. Illinois is considering similar legislation. Maryland is likely not far behind.

The Bottom Line

As consumers, we can choose what we eat.

As business owners, we can choose what we sell.

Potassium bromate was adopted because it made baking easier and products more uniform. But when a food additive is considered sufficiently concerning to be banned throughout much of the developed world, classified as a possible human carcinogen, and increasingly targeted by state legislatures across America, continuing to rely upon it becomes difficult to defend.

Consumers who choose unbromated pizza, bagels, and bread are making a rational exposomics based decision grounded in precaution and risk management.

And businesses that respond to that demand are likely positioning themselves on the right side of both risk mitigation and the marketplace.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Environmental Issues in Commercial Leases” on Tues, June 16 at 9 am. The webinar is complimentary, but you must register here.

SEC Proposes Rescission of Climate Related Disclosure Rules

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

Last Friday, the Securities and Exchange Commission formally proposed to entirely rescind its rules that require companies to provide climate change related information in their registration statements and annual reports. While the contentious climate rules never took effect, the Commission’s proposal focuses on returning the agency to its core mandate and restoring a materiality focused approach to securities regulation.

Make no mistake, the proposed roll back marks among the most significant shifts in U.S. federal regulation, moving away from the Biden era prescriptive climate apocalypticism mandates returning to the flexible, objective “materiality” standard in making investment decisions.

“SEC disclosure obligations should comply with the Commission’s statutory authority, be guided by materiality as the North Star, avoid the practical effect of dictating corporate behavior, and be imposed only when the expected benefits justify the likely costs and burdens,” said SEC Chairman Paul S. Atkins in a statement.

The Commission in March 2024 approved amendments to its rules under the Securities Act of 1933 and Securities Exchange Act of 1934 to mandate highly specific and granular disclosure from virtually all public companies about climate related matters such as greenhouse gas emissions (including originally requiring calculation of Scope 3 emissions), management of climate related risks, and the financial statement effects of severe weather events. These rules represented the most significant expansion of mandatory environmental disclosure in the history of U.S. securities regulation.

Within 60 days of the Commission’s adoption of those amendments, various parties petitioned for judicial review in multiple federal courts of appeals. On March 21, 2024, these petitions were consolidated for review in the U.S. Court of Appeals for the Eighth Circuit.

On April 4, 2024, the Commission stayed the new climate disclosure rules pending completion of consolidated litigation. 

On March 27, 2025, the Commission voted to end its defense of the final rules. On Sept. 12, 2025, the Eighth Circuit issued an order holding the consolidated petitions for review in abeyance until such time as the Commission reconsiders the challenged rules by notice and comment rulemaking or renews its defense of the climate disclosure rules. 

The Commission is now proposing to rescind the climate disclosure rules in their entirety because they exceed the scope of the agency’s statutory authority. Even if it had authority to adopt such final rules, the Commission now believes there are independent, compelling policy reasons to rescind them entirely:

  • They are unnecessary and inconsistent with a registrant specific, materiality based approach to disclosure that best serves the interests of registrants and investors.
  • They stray well beyond the policy concerns of the federal securities laws.
  • They impose substantial costs on public companies and their shareholders that are not justified by the informational benefits they may provide to some investors.
  • They are at odds with the Commission’s policy objectives of facilitating capital formation and promoting public company status.

Following the publication last week in the Federal Register, the public comment period on this action to rescind will remain open until August 3, 2026.

As a Fortune 50 CEO said last week, “By restoring the traditional materiality standard, the SEC’s proposal shifts the focus away from single issue advocacy and back to providing investors with the comprehensive information they need to make informed investment decisions. Apocalyptic global warming has all but ended, but this is about much more than that.”

While the SEC’s proposed rescission has been characterized as the final nail in the coffin of the SEC climate rule, state climate reporting laws with significant extra jurisdictional reach, such as California’s, and those targeting buildings, such as Maryland, continue to exist.

The rescission marks a significant shift in public policy, moving away from prescriptive apocalyptic climate securities law mandates toward a more reasoned, broader market driven materiality based approach.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Environmental Issues in Commercial Leases” on Tues, June 16 at 9 am. The webinar is complimentary, but you must register here.

Appeals Court Issues Injunction Halting Maryland Green Marketing Law

By Stuart Kaplow on Posted in Climate Change, Codes and Regulations, Energy, Environmental

Maryland’s effort to police “green” marketing claims in the electricity sector just hit a major constitutional roadblock.

In a decision last month, the U.S. Court of Appeals for the Fourth Circuit ordered a preliminary injunction against a 2024 Maryland law’s core speech restriction on describing renewable electricity, and sent the remainder of the case back to the District Court for further review.

The offending law “prohibits certain suppliers from marketing their electricity as clean, green, eco-friendly, environmentally friendly or responsible, carbon-free, 100% renewable, 100% wind, 100% hydro, 100% solar, 100% emission-free, or similar claims unless the electricity offered by the supplier is at least 51% renewable or backed by RECs derived from within the PJM region,” despite that such is true and correct.

The decision in Retail Energy Advancement League & Green Mountain Energy Co. v. Brown is more about the First Amendment than a matter of environmental law. It is a profound condemnation of Maryland’s policymaking process that public officials would attempt to restrict and compel speech about climate change on the premise that the perceived importance of the issue outweighs the public’s interest in the free expression of truthful information.

This is not a surprise. We blogged in 2024 when this law was enacted, “while much of the world has moved on from catastrophizing climate change, Maryland political leaders remain consumed with those ideological battles over the practical governance of environmental matters.”

Why Maryland Passed Senate Bill 1 in 2024

Electrons on the electricity power grid are indistinguishable; suppliers rely on renewable energy certificates (RECs), providing verifiable proof, worldwide, that one megawatt hour (MWh) of electricity was produced from renewable sources.

Under the guise of concern about consumer confusion, but clearly more about command and control, the appellate federal court found violated Constitutional free speech protections, in 2024 the Maryland General Assembly’s enactment of SB 1, which prohibited electricity suppliers from using terms like clean, green, eco‑friendly, or 100% renewable, to describe RECs unless:

  • At least 51% of the electricity was generated from renewable sources or
  • The RECs were sourced from within the PJM Interconnection region.

The law also required suppliers to include state mandated disclosures explaining how RECs work and what consumers are buying.

The Fourth Circuit’s Core Holding: The Speech Ban Fails

The District Court denied a preliminary injunction. The Fourth Circuit reversed.

Interesting to students of the U.S. Constitution, the appellate court did not decide whether the “strict scrutiny” standard applies, because Maryland’s law fails even under intermediate scrutiny.

1. The speech is not inherently misleading

Maryland argued that terms like “green” or “100% wind” mislead consumers when describing RECs. The court rejected this:

  • RECs are a legitimate, federally recognized mechanism for tracking renewable generation.
  • Suppliers can use these terms truthfully when backed by RECs.
  • Maryland offered no evidence of actual consumer deception.

2. Maryland’s asserted interests don’t justify the restriction

The State’s consumer protection rationale could be real, but this law’s design undermines it:

  • The statute bans “green” claims backed by RECs from outside PJM ..
  • .. yet allows identical claims backed by RECs from anywhere within PJM, even if the generation is hundreds of miles away and has no Maryland specific environmental benefit.

This geographic distinction, the court held, does not meaningfully reduce confusion.

3. The law is more extensive than necessary

The statute is both underinclusive and poorly tailored. Maryland could have pursued less restrictive alternatives, such as clearer disclosures, without banning entire categories of truthful speech.

Result: The court ordered a preliminary injunction against § 7‑707(c) of the Public Utility Code, the speech restriction.

Compelled Disclosures: A To Be Continued Story

The court took a different approach to the disclosure requirements.

After the District Court ruled, the Maryland Public Service Commission issued new mandatory disclosure language, replacing the statutory “model” language. Because the District Court never evaluated the new version, the Fourth Circuit:

  • Vacated the District Court’s ruling on disclosures
  • Remanded for a fresh analysis under Zauderer (.. a case that held a mandatory 29 word disclosure threatened to drown out a two word statement on a billboard)

This portion of the case will shape how far Maryland can go in mandating explanatory language about green power.

Why This Case Matters for Businesses

1. States face limits on regulating business claims

The opinion reinforces a growing judicial skepticism toward state level attempts to tightly control business marketing, especially when the state’s rationale is thin or its tailoring is sloppy.

2. RECs remain legally recognized instruments

The court’s treatment of RECs as legitimate, non misleading substantiation for renewable claims is significant. It aligns with federal policy, including the longstanding FTC Green Guides, and undercuts arguments that REC backed claims are inherently deceptive.

3. Government required disclosures must be factual and balanced

The remand signals that government disclosure requirements must be:

  • Accurate
  • Neutral
  • Not so lengthy or complex that they drown out the speaker’s own message

This is a critical boundary for states experimenting with politically charged, environmentally related consumer protection laws.

4. Expect ripple effects across the country

This decision will influence legislative drafting and litigation strategies across the country.

5. More supply

In a state that imports more than 40% of its electricity, SB 1 had the effect of driving retail electricity suppliers and aggregators out of Maryland. Possibly, the effect of this court decision will create more suppliers and reduce electricity rates.

Bottom Line

The Fourth Circuit’s decision is an alarming condemnation of Maryland government that public officials would seek to regulate speech about climate change, believing the subject’s significance is sufficient to override the fundamental principle that truthful speech should not be censored or compelled by the state.

Additionally, the public reaction to the 2024 law is yet another example of people not believing that their government institutions are protecting or serving them. While much of the world has moved on from climate doomism, the Maryland government remains consumed with ideological battles over practical governance.

The next phase, evaluating the PSC’s newly mandated disclosure language, will reveal how Maryland policymakers reconcile environmental objectives with constitutionally protected free speech rights.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Environmental Issues in Commercial Leases” on Tues, June 16 at 9 am. The webinar is complimentary, but you must register here.

Historic Low Levels at Reservoirs Reveal Flaws in Modern Maryland Stormwater Management

By Stuart Kaplow on Posted in Environmental, Local Government, State

Environmental attorneys practicing in Maryland and advising clients throughout the Chesapeake Bay watershed spend a great deal of time discussing stormwater, erosion, nutrient runoff, and water regulatory compliance. But in recent months, another issue has become impossible to ignore: historically low water levels in Baltimore’s drinking water reservoirs.

Despite these low water levels, it is estimated that more than 15 trillion gallons of stormwater (.. yes, trillions with a “t”) are being dumped into the Chesapeake Bay each year; not a source of drinking water.

The irony is striking.

For more than 100 years, government policy across focused on moving the rain once it hits the ground or lands on a roof a/k/a stormwater, away from developed property as quickly as possible. That approach reduced localized flooding and supported suburban growth. That engineering paradigm, rooted in 19th and 20th century urban sanitation and flood control practices, has had the unintended consequence of reducing groundwater recharge, lowering base flows in streams, and in some areas contributing to potable water stress and diminished reservoir levels.

Today, much of that stormwater infrastructure is contributing to long term potable water supply stress.

The problem is not merely drought. It is that stormwater management fundamentally altered the natural hydrologic cycle. Rain water is a resource, not a source of pollution under some misguided regulatory scheme, and today a discussion of capture potential is of paramount import.

The 64,000 square mile Chesapeake Bay watershed receives, on average, 40 inches of rain per year. This equals roughly 70 trillion gallons of precipitation annually (.. watershed area times rainfall depth), such that the capture potential is huge.

Baltimore’s Reservoir System Depends on Watershed Hydrology

The Baltimore metropolitan area relies heavily on three principal reservoirs, the first of which dates to the 1880s:

  • Loch Raven Reservoir
  • Prettyboy Reservoir
  • Liberty Reservoir

These reservoirs provide drinking water to more than 1.8 million Maryland residents and businesses. But the local governments in the Baltimore metropolitan district expend more effort on collecting customer water through the threatened tax sale of properties than on providing potable water to residents.

Most people assume reservoir levels are driven simply by rainfall totals. In reality, reservoir sustainability depends on something much more complicated:

  • groundwater recharge,
  • soil moisture retention,
  • forest infiltration,
  • stream baseflow,
  • watershed storage capacity, and
  • slow, sustained hydrologic release.

Historically, rainfall infiltrated into forests and soils throughout the watershed, replenishing groundwater aquifers that slowly fed streams and tributaries over time. That steady groundwater contribution maintained streamflow even during dry periods.

Modern stormwater regulation changed that equation.

The “Collect and Convey” Stormwater Model

Traditional American stormwater infrastructure was engineered around one central objective: rapid drainage. The system consists of curbs and gutters, storm drains, pipes, concrete channels, and detention basins, much of it oversized primarily for flood control.

In developed areas, rainfall that once infiltrated naturally is now rapidly collected and conveyed. From an engineering perspective, the system works exactly as designed.

But hydrologically, there is a cost. Instead of remaining within the watershed:

  • less water infiltrates into aquifers,
  • less groundwater is recharged,
  • streams lose baseflow,
  • runoff reaches rivers faster, and
  • rain is effectively exported from the local landscape.

The result is a watershed that experiences both:

  • more flooding during storms, and
  • greater water scarcity during drought.

Why Reservoir Levels Can Decline Even After Heavy Rain

One of the most misunderstood aspects of water supply management is that old central Maryland partially stream fed reservoirs are certainly not sustained solely by storm events.

Short duration, high intensity storms often produce dramatic runoff spikes but relatively poor groundwater recharge. When stormwater systems rapidly move water out of the landscape, much of that water bypasses the slower hydrologic processes that support long term reservoir stability.

This is increasingly important because today we are experiencing larger episodic rain events, longer dry intervals, hotter temperatures, and higher evaporation rates.

In many highly regulated urbanized watersheds, including central Maryland, the land now behaves less like a sponge and more like a macadam parking lot. The USGS reports that in many eastern U.S. watersheds, infiltration rates have declined by 50% or more.

That means:

  • streams rise rapidly after storms,
  • water exits the system quickly,
  • infiltration opportunities diminish, and
  • reservoir inflows become less reliable over time.

The same infrastructure designed to reduce flooding is actually unintentionally reducing drought resilience.

Chesapeake Bay Regulations Were Partially Moving in the Right Direction

Interestingly, some of the most criticized stormwater regulations in the Chesapeake Bay region were, at least indirectly, attempting to address this hydrologic imbalance. Programs promoting environmental site design were not solely about nutrient reduction. They were also attempting to restore portions of the natural water cycle.

Practices such as:

  • permeable hardscapes,
  • bioswales,
  • rain gardens,
  • infiltration trenches, and
  • regenerative stormwater conveyance

seek to slow runoff and increase groundwater recharge. In effect, they attempt to recreate the hydrology that existed before widespread stormwater management regulation. Unfortunately, those practices are often under designed to accomplish significant water capture.

We recently blogged about OMB’s May 2026 PFAS Rollback, including another unintended consequence that studies indicate Maryland’s waterways have among the highest or even the highest levels of PFAS, with stormwater management being the primary driver.

Stormwater as a Water Supply Asset

Western states have already begun reframing stormwater as a valuable water resource rather than merely a nuisance to be removed.

For example:

  • Tucson’s Commercial Water Harvesting Ordinance.
  • Denver and Boulder mandate rain gardens in parking lots.
  • Los Angeles stormwater capture as part of long term potable water strategy.
  • Houston’s roadway rainfall collection, storage, and treatment policy.

The Chesapeake Bay region needs to think similarly. In Maryland, rain is still viewed too narrowly as stormwater through a regulatory lens:

  • flood control,
  • sediment control,
  • MS4 permit compliance,
  • Chesapeake Bay nutrient reduction, and
  • For government to tax (i.e., the rain tax) to do more stormwater management.

But low reservoir levels demonstrate that stormwater management is also a drinking water issue.

The Legal and Policy Implications

This emerging reality has significant implications for water allocation planning, something places like Maryland have little, if ever, considered.

Local governments and regulators must begin to cause stormwater infrastructure to maximize water retention rather than maximizing watershed conveyance efficiency. That shift could begin with banning traditional concrete curbs and gutters.

For businesses, developers, institutions, and property owners throughout Maryland, this means stormwater compliance, including state delegated application of the federal Clean Water Act amendments, increasingly intersects with broader potable water supply resilience issues.

The Core Paradox

Baltimore’s current historically low reservoir levels, even in the midst of a very rainy spring season, should serve as a warning that water scarcity in the eastern United States is not solely a function of insufficient rainfall.

The unintended consequence of stormwater management is that many urbanized areas now struggle to retain enough water to provide drinking water. This is not only a dry fire hydrants in the California Palisades problem.

Providing potable water is a core governmental function grounded in the state’s police power, the public trust doctrine, and statutory obligations under the Safe Drinking Water Act. Because local governments generally operate potable water systems as public utilities, residents have a legally protected expectation, if not a constitutional right, that drinking water will be safe, reliable, and nondiscriminatory.

With that in mind, the more than 70 trillion gallons of precipitation that fall annually in the Chesapeake Bay watershed make Maryland’s stormwater capture potential impossible to ignore, and the continued failure to harness this vast resource an increasingly indefensible missed opportunity.

The future of stormwater management in the Chesapeake Bay watershed likely depends on recognizing a simple but profound reality (paraphrasing the CalEPA secretary): The rain we rush away during storms will be the same water we later wish we still had.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Environmental Issues in Commercial Leases” on Tues, June 16 at 9 am. The webinar is complimentary, but you must register here.

OMB’s May 2026 PFAS Rollback Clearance and What Businesses Must Do Now

By Stuart Kaplow on Posted in Codes and Regulations, Federal

The EPA’s proposed scaling back of portions of the federal PFAS drinking water regulations is significant, but businesses should not mistake it for a retreat from PFAS compliance risk.

On May 1, 2026, the White House Office of Management and Budget completed its interagency review of two EPA proposed rules that would scale back portions of the Biden era PFAS National Primary Drinking Water Regulation. OMB clearance means EPA may now publish the proposals in the Federal Register, likely in the near term.

The proposals would:

  • Extend the compliance deadline for PFOA and PFOS maximum contaminant levels (MCLs) from 2029 to 2031; and
  • Rescind entirely the MCLs for PFNA, PFHxS, HFPO-DA (GenX), and mixtures containing two or more of those compounds and PFBS.

This is a big deal for nearly every commercial real estate owner. There will be winners and losers.

The current federal standards, finalized in April 2024, established MCLs of 4 parts per trillion (.. an incredibly small amount equivalent to maybe 4 drops of water in 20 Olympic size swimming pools) for PFOA and PFOS and 10 ppt for PFNA, PFHxS, and GenX chemicals, along with a Hazard Index for certain PFAS mixtures. Water systems currently must complete monitoring by 2027 and install treatment systems by 2029.

We previously blogged about the extraordinary scope of PFAS contamination in PFOA and PFOS Now Hazardous Substances Under Superfund Law, noting that a study cited by EPA estimated that 99.7% of Americans have detectable PFAS in their blood. PFAS contamination is now so pervasive that it affects virtually every activity people are involved in.

And we more recently blogged, EPA is Retaining the CERCLA Hazardous Substance Designation for PFAS | Green Building Law Update, describing how PFAS concerns have become embedded in Phase I Environmental Site Assessments.

However, even if portions of the federal drinking water rule are rescinded, PFAS liability exposure is not disappearing.

Importantly, the rollback proposals do not eliminate the existing federal MCLs unless and until EPA completes notice and comment rulemaking and survives judicial review. The current standards remain legally in effect today.

Moreover, litigation is continuing in the U.S. Court of Appeals for the D.C. Circuit. In January 2026, the court denied EPA’s effort to summarily vacate the challenged PFAS MCLs, and in March 2026 denied EPA’s motion to sever and stay the litigation concerning PFHxS, PFNA, HFPO-DA, and PFBS mixture standards. Accordingly, the existing federal PFAS standards remain operative while both the litigation and administrative rulemaking proceed on parallel tracks.

For businesses in many states, including Maryland, however, the larger point is this: Maryland is not a passive follower of federal PFAS policy.

Studies indicate Maryland’s waterways have among the highest or even the highest levels of these “forever chemicals.” The Maryland Department of the Environment has already moved differently on PFAS monitoring, disclosure, stormwater permitting, biosolids oversight, and remediation protocols. Maryland historically adopts environmental standards more stringent than federal baselines, but in this instance, it is relying on EPA enforceable limits.

But Maryland, despite being slow to act in the PFAS space beyond using federal grants for testing, is now partially funding some projects, including the now under construction granular activated carbon facility to clean up the drinking water in the Town of Hampstead. Maryland was criticized last month as misguidedly focusing on agricultural application of biosolids; enacting Senate Bill 719 and House Bill 925, which prohibit the application of sewage sludge to agricultural or marginal land if the sewage sludge has a total concentration of PFAS of 50 parts per billion or more, but with Maryland doing nothing to hold the polluters accountable or reduce discharges into waterways, the government operated waste treatment plants that excrete the biosolids.

Maryland’s widespread testing and sampling PFAS monitoring requirements are expected to continue regardless of any EPA rollback. That includes ongoing sampling directives affecting community water systems, non transient non community systems, and private groundwater sources and surface water intakes.

Businesses should also expect PFAS to remain a material issue in:

  • Real estate transactions;
  • Phase I Environmental Site Assessments;
  • Stormwater management;
  • Biosolid spreading on agricultural land; and more.

Because PFAS is already integrated into CERCLA enforcement and toxic tort litigation, rollback of certain drinking water standards does little to reduce long term litigation exposure.

Indeed, states may become even more aggressive if federal standards weaken. Commentators are already observing that PFAS regulation is increasingly shifting to the states.

For Maryland facility owners and operators, prudent next steps now include:

  • Track risk through legal counsel who can assist with screening solutions;
  • Continuing compliance planning based on the original 2029 timetable;
  • Developing dual track capital plans assuming either 2029 or 2031 compliance dates;
  • Reviewing historical sampling data for PFHxS, PFNA, GenX, and PFBS mixture impacts;
  • Updating environmental reserve analyses and transaction diligence protocols; and
  • Preparing supportive comment letters once EPA formally publishes the proposed rollback rules.

In the near term, businesses should also review risk communication materials provided to tenants, customers, employees, and investors. PFAS disclosures increasingly appear in financing documents, environmental indemnities, and transactional representations and warranties.

Longer term, sophisticated businesses should integrate PFAS treatment energy loads and operational costs into infrastructure planning. Granular activated carbon, ion exchange, and reverse osmosis systems can materially increase both operating expenses and electrical demand. Companies should also evaluate possible cost recovery avenues, including litigation, insurance claims, grants, and state revolving fund programs.

Meanwhile, EPA itself continues to advance PFAS related initiatives, from updated guidance on PFAS destruction to disposal technologies.

Including, on April 02, 2026, EPA announced the draft Sixth Contaminant Candidate List. The CCL is a list of contaminants that are currently not subject to any proposed or promulgated national primary drinking water regulations but are known or anticipated to occur in public water systems. Contaminants listed on the CCL may require future regulation and PFAS is listed on this draft CCL.

PFAS is not going away. The term “forever chemicals” remains apt. Bioaccumulation leads to significant health risks. The science is evolving, regulation remains fluid, and compliance costs will continue to rise.

There will be winners and losers in the environment and politics of PFAS. Businesses will not be able to insulate themselves from the shocks of PFAS if they slow PFAS planning merely because Washington may be reconsidering portions of the federal rules. The regulatory, transactional, and litigation risks remain very real.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Environmental Issues in Commercial Leases” on Tues, June 16 at 9 am. The webinar is complimentary, but you must register here.

Midge Spraying with Bti Along the Chesapeake Bay Poses Lifetime Risks

By Stuart Kaplow on Posted in Environmental, Local Government, State

For many waterfront property owners along the Chesapeake Bay, spring brings a familiar nuisance: aerial spraying by helicopters flying as low as 50 feet above the water, applying a naturally occurring soil bacterium as a biological ‘cosmetic’ pesticide to control midge flies.

Swarms of the non biting midges (Chironomidae) rise from Maryland’s Back River, Middle River, Bird River, and the tidal Gunpowder. Unlike mosquitoes, midges do not bite, and they do not transmit disease, but they do clog outdoor lights, frustrate residents, and create real operational headaches for outdoor restaurants.

So, it is not a surprise that Baltimore County government, for at least the fourth year, has turned to Bacillus thuringiensis israelensis (Bti), a biological larvicide widely used for mosquito control, as a non essential, but aesthetic solution to midges. Bti is commonly sold under the trade names Vectbac, Teknar, Aquabac, and Bactimos and is often marketed as “natural,” “safe,” and “highly targeted.”

But when it comes to midge suppression in the water along the Chesapeake Bay shoreline, the science tells a very different story. And for property owners along this heavily regulated estuary, the ecological risks are not abstract; there is no debate that this is reputational, but the bigger issue is over a lifetime how those exposures affect human biology and health.

1. Midges Are a Nuisance – But a Keystone Food Source in the Bay

Yes, midges are annoying. But while mosquitoes can be a public health concern, midges in the Bay are at worst a nuisance for a few weeks a year, not a disease vector. However, they do serve as:

  • A primary food source for juvenile striped bass, perch, menhaden, and sunfish
  • Essential forage for swallows, martins, and bats
  • A major energy link between the Chesapeake Bay’s sediments and its fishery food web

Suppressing midges is not like suppressing mosquitoes. In the Chesapeake Bay, midges are part of the foundation of the aquatic food chain. For residents and businesses that depend on healthy fisheries, tourism, or water quality, this matters, as it does for those who dine on blue crabs or Rockfish.

2. What the science says about Bti and non target midges

  • First isolated in 1976 in the Negev Desert in Israel this misapplication on water for other than mosquito disease control carries with it risk pathways.
  • Banned use: Local governments (e.g., Quebec, Canada) have banned the use of Bti, not only for midges, but even for disease carrying mosquitoes, after a systematic review and meta analysis found significant, consistent negative effects of Bti on bird populations.
  • Exposomics: The public, not just suburban MAHA moms, are concerned about the exposome, the totality of environmental exposures an individual experiences over a lifetime and how those exposures affect biology and health.
  • Cross boundary impacts: Studies in river valleys show that Bti driven reductions in aquatic midges measurably change the diet and condition of riparian predators (e.g., spiders, birds, and bats) that rely on emerging insects.

For the Chesapeake Bay, tributary creeks and marsh fringes function similarly to the European river floodplains, where these effects were documented high reliance on chironomid emergence to subsidize terrestrial and riparian food webs.

3. Key Chesapeake Bay specific risk pathways

  • Food web disruption for juvenile fish:
    • Juvenile stages of many Bay species feed heavily on chironomid larvae and pupae in low salinity and tidal fresh habitats.
    • Bti induced reductions in midge abundance and emergence can reduce growth and survival in early life stages, with knock on effects on recruitment.
  • Reduced benthic processing and water quality resilience:
    • Chironomids bioturbate sediments and accelerate organic matter breakdown.
    • Their loss can increase sediment oxygen demand and anoxia, undermining nutrient reduction gains in shallow coves and embayments.
  • Impacts on insectivorous birds and bats:
    • Swallows, martins, and bats foraging along shorelines depend on midge swarms, especially in spring and early summer.
    • Long term Bti use in other regions has been associated with declines in aerial insectivores; the Bay already sees stressors on these guilds.
  • Spatial spread and cumulative effects:
    • In tidal creeks and marsh ditches, Bti can be transported downstream and into adjacent wetlands, extending impacts beyond the treatment footprint.
    • Repeated seasonal applications for “nuisance midge” control create chronic suppression, not a one off perturbation.

4. Risk benefit balance in the Chesapeake Bay

  • Public health vs. nuisance:
    • Mosquitoes kill more humans than any other animal (.. think Malaria); but there is no moral equivalence for Bti spraying midges in the Bay that are only a nuisance, not a disease vector.
    • Using Bti at scales sufficient to suppress midges trades a non health nuisance for real ecological risk in a priority restoration estuary.
  • Regulatory and policy alignment:
    • Bay restoration frameworks emphasize benthic habitat, forage base, and nutrient cycling as critical endpoints.
    • Bti use for midge suppression cuts directly against these goals by targeting a keystone detritivore and prey group.
  • Alternatives to this spraying:
    • Other jurisdictions urge eliminating standing water in downspouts and containers, using yellow or “bug” lightbulbs, etc.

Bottom line for Chesapeake Bay

For mosquito borne diseases, carefully targeted Bti can be defensible. For midges, that are merely annoying, liquid aerial spraying under the Maryland executive order authorized Midge Suppression Pilot, not so much.

While this has not yet been a subject in the 2026 Baltimore County local election (.. really?), state senators and delegates have discussed introducing a cosmetic pesticide ban in the Maryland legislature next year to prohibit the government use of pesticides for non essential aesthetic purposes, thus protecting human health and the environment from unnecessary chemical exposure.

For midge control along the Bay shorelines and tributaries, the disruption of the food chain, impact on biodiversity, and non target species effects (e.g., on bees, birds, bats and more) are not well studied and high and poorly aligned with the survivability of the Chesapeake Bay, not to mention the children who play in school yards, playgrounds, and residential lawns.

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Note, the content above has been generated by an artificial intelligence language model transcribing and combining into outline format 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 or seek advice from an appropriate professional.

God Squad Exempts Gulf Oil from Endangered Species Act – What It Means for Business

By Stuart Kaplow on Posted in Codes and Regulations, Environmental

After this post, the Center for Biological Diversity and others filed suit against the Secretary of the Interior. The complaint is a good read.

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In a decision as rare as it is consequential, the Endangered Species Committee, better known as the “God Squad,” voted unanimously on March 31, 2026, to exempt all oil and gas exploration, development, and production activities in the Gulf of America from compliance with the Endangered Species Act. For business leaders, particularly those in energy, land development, and home construction, this action is more than a legal curiosity. It is a clarifying moment about how the United States balances environmental process with national security imperatives.

The Legal Mechanism Few Ever See

The “God Squad” derives its authority from Section 7(h) of the ESA, a provision designed as a constitutional safety valve. While the ESA is among the most stringent environmental statutes, imposing near-absolute prohibitions on federal actions that “jeopardize” listed species, Congress recognized that exceptional circumstances might demand a different outcome.

Those circumstances are exceedingly rare. Since its creation in the late 1970s, the Committee has been convened only a handful of times, and exemptions have been granted even less frequently. That rarity is precisely what gives this decision its weight.

Here, the statutory trigger was not a conventional balancing test of economic benefits versus species impacts. Instead, the Secretary of War issued a formal finding that an exemption was “necessary for reasons of national security.” Under the plain language of 16 U.S.C. § 1536(j), that finding effectively compels the Committee to act, “notwithstanding any other provision” of the ESA.

In other words, once the national security determination is made, the usual ESA machinery, biological opinions, alternatives analysis, and mitigation conditions no longer constrain the outcome.

What the Exemption Actually Does

The scope of the exemption is sweeping. It covers all activities associated with the Outer Continental Shelf Oil and Gas Program administered by the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement. That includes exploration, development, and production operations across federal waters in the Gulf of America.

Practically, the order eliminates three core ESA obligations:

  • Section 7 consultation requirements, including the need for federal agencies to consult with wildlife agencies before authorizing activities;
  • The “jeopardy” and “adverse modification” standards, which often delay or constrain project approvals; and
  • Prohibitions on “take” of listed species, which can otherwise expose operators to significant civil and criminal liability.

At the same time, the exemption does not create a regulatory vacuum. The Committee explicitly preserved the avoidance and minimization measures already embedded in prior biological opinions issued by the National Marine Fisheries Service (2025) and the U.S. Fish and Wildlife Service (2018 and 2025). These measures, ranging from vessel speed restrictions to monitoring protocols, remain operational.

From a compliance standpoint, this is a critical nuance: the decision streamlines process risk without eliminating environmental performance expectations.

Why National Security Matters Here

Energy security is national security. That proposition has moved from policy rhetoric to statutory application.

The Gulf of America is a cornerstone of U.S. energy production, supplying a significant share of domestic oil and natural gas. Offshore production supports not only fuel markets but also petrochemical manufacturing, defense logistics, and export capacity. Disruptions in this ecosystem ripple through supply chains, pricing stability, and geopolitical positioning.

Against that backdrop, the Secretary of War’s finding reflects a broader federal assessment: that uninterrupted Gulf energy operations are integral to maintaining national resilience. Whether in the context of global conflicts, trade volatility, or cyber physical threats to infrastructure, the ability to produce energy domestically is a strategic asset.

For business stakeholders, the implication is straightforward. The federal government has signaled that, in defined circumstances, it will prioritize operational continuity over procedural environmental constraints.

Addressing the Conservation Concerns

Critics have focused, understandably, on species impacts, particularly the critically endangered Rice’s whale, whose population is estimated at roughly 50 individuals endemic to the Gulf of America.

Those concerns are not trivial. The ESA’s purpose is to prevent extinction, and any action perceived as increasing risk to a species invites scrutiny.

However, two points are often underemphasized in the public discourse:

  1. Existing mitigation remains in place. The exemption does not authorize reckless conduct. Operators are still bound by the avoidance and minimization measures developed through years of scientific consultation.
  2. The ESA itself contemplates this outcome. Congress deliberately included the national security override. This is not an erosion of the statute; it is an application of it.

From a legal perspective, the decision reflects fidelity to statutory design rather than a departure from it.

Litigation Risk and Business Planning

The Committee’s order is subject to judicial review, with challenges directed to the U.S. Courts of Appeals for the Fifth or Eleventh Circuits. Litigation is likely, and businesses should assume continued scrutiny.

That said, the legal posture of this decision is unusually robust. The “notwithstanding any other provision” language significantly narrows the grounds on which challengers can prevail. Courts are generally reluctant to second guess explicit national security determinations made by the political branches.

A Signal Beyond the Gulf

This is not merely a Gulf of America story. It is a precedent setting moment in environmental law and policy.

The decision illustrates that:

  • The federal government is willing to use dormant statutory tools when strategic interests are at stake;
  • Environmental compliance frameworks, while stringent, are not absolute; and
  • National security considerations can and will reshape regulatory landscapes in real time.

For businesses, particularly those operating at the intersection of energy and environmental regulation, the message is clear: regulatory risk is dynamic and varies greatly from state to state, including where some jurisdictions are not only hostile to business but also simply do not align with broader national priorities, and other places where some will find opportunities.

Bottom Line

The “God Squad” is not invoked lightly. Its unanimous decision to exempt Gulf oil and gas activities from the ESA underscores the gravity of the national security determination behind it.

This is not a rollback of environmental values; it is a recognition that, in appropriate circumstances, competing public interests must be reconciled decisively. For the business community, that decisiveness translates into greater certainty, sustained operational capacity, and a clearer understanding of how environmental law functions under stress.

In a world where energy security and environmental stewardship increasingly intersect, this decision is a case study in how the law manages that tension, by design, not by accident.

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