Green Building Law Update

The Intersection of Real Estate, Science, and Law

EPA Seeks Public Comment on Genetically Engineered Mosquito Risk

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

As an environmental attorney, I am often asked to evaluate the legal processes surrounding emerging technologies that intersect with protecting human health and the environment. Few issues illustrate this intersection more vividly than the U.S. Environmental Protection Agency’s latest announcement concerning genetically engineered mosquitoes for mosquito control.

This is a significant environmental matter.

For those unaware, mosquitoes kill more humans than any other creature, including other animals and even humans themselves. They are the deadliest animals in the world.

Malaria, transmitted by mosquitoes, continues to be a leading cause of preventable illness and death in the world, resulting in nearly 263,000,000 cases and 597,100 deaths across 83 countries in 2023. In 2023, for the first time in two decades, the United States experienced cases of locally acquired mosquito transmitted malaria, including cases in Florida, Texas, Maryland, and Arkansas.

On August 21, 2025, EPA began soliciting public comment on a suite of scientific and policy documents that the Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel will publicly review. This panel review is scheduled for November 3 – 5, 2025, and it marks a pivotal step in EPA’s evolving framework for regulating biotechnology products that fall under FIFRA’s broad definition of “pesticide.”

The Legal and Regulatory Framework

At its core, this action is grounded in the authority of FIFRA, a statute enacted in 1947 and amended over the decades to ensure that all pesticides distributed or sold in the United States do not pose unreasonable adverse effects on human health or the environment. Importantly, FIFRA’s scope is not limited to chemical sprays; it extends to biological controls and novel biotechnologies such as genetically engineered mosquitoes. These organisms are considered pesticidal because their genetic modifications are intended to suppress mosquito populations, thereby reducing the transmission of malaria and other mosquito borne diseases.

EPA has long relied on the FIFRA SAP as a mechanism for independent scientific peer review. Established in 1975, the SAP is comprised of leading experts nominated through the National Institutes of Health and the National Science Foundation, with additional scientists available on an ad hoc basis through the Science Review Board. The SAP’s statutory role is to advise EPA on complex scientific matters to improve the robustness of risk assessments and ultimately to support sound regulatory decisions. This scientific review focuses on whether novel proteins are present in the saliva of female genetically engineered mosquitoes, a key consideration because females, unlike males, bite humans.

What is at Issue

Mosquito borne diseases remain a serious public health threat across the globe including in the U.S., and developers are increasingly turning to genetic engineering to reduce populations of disease carrying species. Unlike chemical pesticides, genetically engineered mosquitoes are a “living pesticide.” They work by introducing males with engineered traits that cause reproductive incompatibility, thereby suppressing populations over time.

Genetically engineered mosquito trials in Africa show limited promising early results, though they are still under evaluation and haven’t been fully deployed as large scale control programs. One major obstacle is that there are over 3,500 species of mosquito (.. most do not bite humans) with more than 175 species identified in the U.S.; genetically modifying one species in one geographic area does not impact another.

The Science

The central scientific question is deceptively simple: Do genetically engineered female mosquitoes produce novel proteins in their saliva that could pose new risks to humans if transmitted through bites? To answer this, EPA has prepared a draft white paper, charge questions, and a draft memorandum for developers of genetically engineered mosquitoes. These documents outline both design considerations (to minimize the likelihood that engineered proteins would be expressed in mosquito saliva) and recommended methodologies for empirically verifying the absence of such proteins.

The risk assessment hinges on the traditional definition of “risk” as the product of hazard and exposure. If novel proteins are absent from mosquito saliva, the exposure pathway for humans is effectively eliminated, and the risk is substantially reduced. However, if proteins are present, even in small amounts, EPA must evaluate whether their biochemical properties pose potential hazards. The SAP’s deliberations will help shape the scientific consensus on how to conduct these analyses in a manner that is rigorous, repeatable, and sufficient to satisfy FIFRA’s statutory mandate.

Public Participation and Key Dates

EPA has emphasized transparency and public participation throughout this process. Stakeholders, including industry developers, academic researchers, nongovernmental organizations, and concerned citizens, will have multiple opportunities to weigh in. Written comments on the documents are due by September 22, 2025, and requests to provide oral remarks during the meeting must be submitted by October 27, 2025, at noon Eastern Time. Oral comments will be limited to five minutes, though EPA encourages the submission of written versions and supporting materials by October 30, 2025, to ensure panel members have adequate time to review them.

The virtual meeting itself, held via Zoomgov.com and teleconference from November 3 – 5, 2025, will allow the public not only to observe but also, where registered, to participate directly in the dialogue. EPA has also set deadlines for accommodation requests (October 24, 2025) and for observers who wish to register without providing comments (November 5, 2025). These procedural safeguards ensure that all interested parties, from technology developers to environmental justice advocates, can meaningfully engage in the process.

Broader Policy Implications

This proceeding is about far more than one product or one company’s application. It represents a test case for how EPA will regulate genetically engineered insects going forward, at a time when vector borne diseases like dengue, Zika, and West Nile virus remain persistent threats in the U.S. If the Agency, guided by SAP recommendations, establishes clear and scientifically sound methodologies for assessing protein expression in mosquito saliva, it will provide regulatory certainty to developers while safeguarding public health.

From a legal perspective, this process also highlights the adaptability of FIFRA to novel technologies. Though the statute was enacted decades before genetic engineering, its broad definitions and reliance on case by case scientific review allow EPA to extend its protective framework to cutting edge biotechnology. This flexibility is critical: it balances the potential benefits of genetically engineered mosquitoes, reduced reliance on chemical pesticides, targeted species suppression, and potential declines in disease transmission, against the need to prevent unforeseen human health risks.

Conclusion

EPA’s ongoing review of genetically engineered mosquitoes illustrates the challenges and opportunities of regulating biotechnology under existing environmental law frameworks. Convening the FIFRA Scientific Advisory Panel, the Agency is not only subjecting its draft guidance to independent scrutiny but also opening the door for meaningful public participation in a consequential environmental matter.

The outcome of this proceeding will have lasting implications. If the SAP affirms EPA’s draft methodologies, we may soon see a pathway toward broader deployment of genetically engineered mosquitoes as a tool for public health protection. Conversely, if uncertainties remain, the Agency may require additional testing or impose new conditions on product registrations. Either way, this process underscores the importance of rigorous science, robust public input, and the continuing evolution of environmental law.

For stakeholders across the spectrum, from industry innovators and environmental advocates to public health practitioners and those concerned with protecting the planet, this is a moment to engage. We know a thing or two about mosquito control, and if we can assist you in commenting or otherwise, do not hesitate to reach out to us. Make no mistake, the decisions made here will shape not only the future of mosquito control but also the role of emerging genetic technologies in environmental protection.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “How to Order a Phase II Environmental Site Assessment” on Tuesday, September 16 from 9 – 9:30 am. The webinar is complimentary, but you must register here.

Interior Department Moves to Cancel Maryland Offshore Wind Project

By Stuart Kaplow on Posted in Energy, Environmental, Federal

In a significant legal and political development, the U.S. Department of the Interior has announced that it intends to vacate its approval of the Maryland Offshore Wind Project. This decision comes just weeks after the Department moved to block a major offshore wind project off the coast of Rhode Island, signaling a decisive shift in federal policy toward reevaluating the troubled offshore wind industry.

The announcement came not through a press release or public statement, but on August 22, 2025, the U.S. Attorney General’s office filed a Motion to Stay the ongoing case brought by Delaware homeowner Edward Bintz. In its filing, Interior stated unequivocally that it will be filing that motion no later than September 12:

“Interior intends to move to voluntarily remand and vacate its approval of the Construction and Operations Plan .. for the Maryland Offshore Wind Project.”

This is a powerful admission. It means that the federal government itself now acknowledges that its Maryland project’s approval is flawed and should not stand while the courts deliberate. Interior also noted that allowing litigation to continue without remand would cause “significant hardship” to the government and waste judicial resources, a candid recognition of the fragility of the offshore wind permitting regime.

A Wave of Litigation and Political Opposition

The Deleware case is not an outlier. The litigation over offshore wind has been fierce and growing. We blogged last year, Maryland Offshore Wind Project Faces Legal Storm from Coastal Communities, and the plaintiffs list reads like a who’s who of coastal communities and industries: the Town of Ocean City, the Town of Fenwick Island, Worcester County, the Coastal Association of Realtors of Maryland, the Save Right Whales Association, the Waterman’s Association of Worcester County, the White Marlin Open, Inc., as well as numerous hoteliers, retailers, and business groups.

It is telling that despite repeated assurances from US Wind, the Italian developer behind the Maryland project, that its permits were “legally sound,” the Department of the Interior itself has chosen to pull back. The facts on the ground are otherwise.

Ocean City Declares Victory

Perhaps no voice captures the significance of this development better than Ocean City’s mayor, Rick Meehan. In his statement, Mayor Meehan said:

“President Trump’s decision to move toward revoking US Wind’s federal permit is a very positive development for Ocean City. This action acknowledges the validity of our objections and represents a major step in protecting our community, our coastal environment, our commercial and recreational fishing industries, and the future of Ocean City.”

This is more than a local win; it is a recognition that national energy policy must align with the interests of the communities, in this instance, those most directly impacted by offshore industrialization.

Offshore Wind Is, Indeed, “Really” Dead

Just earlier this month, we blogged Offshore Wind Projects are Now ‘Really’ Dead, before I went to Kyrgyzstan to trek and climb. That observation drew significant criticism during our several week hiatus from blogging, particularly from those insisting that Maryland’s US Wind project would somehow buck the national trend. But with this court filing, Interior itself has confirmed the inevitability: the Maryland project is not going forward.

This development is not merely a setback for one foreign wind turbine developer; it is an unmistakable signal that offshore wind as a national strategy has collapsed under the weight of legal defects, environmental harms, economic reality, and political will.

A Positive Path Forward

For Maryland and its coastal neighbors, this decision deemphasizes climate now articulating the bona fides in national security, artificial intelligence, and the like, in an “all of the above” energy strategy. It is also a reminder that litigation and citizen engagement matter. Coastal communities, through their persistence in the courts and the political process, have achieved what once seemed impossible: halting the advance of massive offshore industrial projects that threatened their heritage and future.

The law is often slow to catch up with public sentiment, but here, the Interior Department’s action reflects both legal prudence and a respect for community concerns. Offshore wind projects may have been billed as progress, but the real progress is in protecting Maryland’s coastlines, economies, and ecosystems for generations to come.

Moreover, it is expected that the U.S. Department of Transportation will before September 12, withdraw $700 Million in funding for offshore wind projects across the country, including more than $47 Million for the Sparrows Point Steel Marshalling Point Project in Baltimore County, where US Wind was going to produce these wind turbines.

As we blogged some weeks ago, offshore wind projects are “really” dead. And now, the federal government has proved that statement to be true.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “How to Order a Phase II Environmental Site Assessment” on Tuesday, September 16 from 9 – 9:30 am. The webinar is complimentary, but you must register here.

Offshore Wind Projects are Now ‘Really’ Dead

By Stuart Kaplow on Posted in Codes and Regulations, Federal, wind turbine

As a keen legal observer in matters of environmental law, I write today in a tone of both reasoned clarity and cautious optimism: the recent Federal government decision rescinding offshore wind leasing areas delivers precisely the kind of regulatory finality that our legal system craves.

This is not intended as a value judgment assessing good or bad, but rather a report on the current state of law to assist readers in navigating changing environmental currents, including by deemphasizing climate and now articulating their bona fides in national security, artificial intelligence, and the like. 

A Clear – Eyed Resolution – and a Legal Win

In a four-sentence statement, on July 30, 2025, the Bureau of Ocean Energy Management formally rescinded all designated Wind Energy Areas, totaling more than 3.5 million acres, across the Gulf of Mexico, Gulf of Maine, New York Bight, Oregon, California, and the Central Atlantic

This action followed Secretary’s Order 3437, entitled “Ending Preferential Treatment for Unreliable, Foreign-Controlled Energy Sources in Department Decision‑Making,” and the Presidential Memorandum issued on January 20, 2025, “Temporary Withdrawal of All Areas on the OCS from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects.” 

From a practitioner’s standpoint, this provides sharp legal clarity. Again, this writing is not a value judgment about offshore wind power generation. This pause is not nebulous; it is anchored in formal, appropriately promulgated authority. The federal review process now in motion ensures that longstanding concerns about environmental quality, navigational safety, marine life, foreign dependence in supply chains, and grid reliability will be thoroughly assessed before any future leasing decision is made.

Procedural Integrity, Not Abrupt Reversal

Wind Energy Areas were identified through a not usual, expedited internal agency review in the name of “responding to the urgency of climate change” that included as a stated aim creating union jobs. Take the example of “Central Atlantic 2”, originally proposed in 2023 as a roughly 40 mile wide swath offshore from New Jersey to South Carolina. According to pending challenges, NASA, DoD, NOAA, the commercial fishing industry, tourism operators, coastal communities, and other stakeholders were not listened to during what process there was.

Importantly, this federal action does not truly disturb any existing leases or permits already in place, but no new projects are expected beyond the five offshore wind farms that have already begun construction off the coasts of Virginia, New York, Massachusetts, Rhode Island, and Connecticut. Those five projects, which are currently under construction, are the only projects that are going to qualify for the current government incentives (i.e., the federal tax credits for wind power that are now set to phase out under the recently passed One Big Beautiful Bill Act), among other issues.

By way of example, the remaining Maryland Offshore Wind Project (.. there were 3), being developed by Italy based US Wind, has some approvals, although as we have blogged the Maryland Offshore Wind Project Faces Legal Storm from Coastal Communities, and challenges by the US EPA, has been characterized as ‘walking dead’ where state officials, who committed more than $1.7 Billion of ratepayer money for offshore wind turbines, have not yet publicly acknowledged the project is really dead, nor have they spoken publicly as how that pot of Gold accumulating since 2013 could be redirected in the state that imports more than 40% of its electricity annually.

Why You Should View This as “Positive and Supportive”

Legal Predictability

When agencies act within authorized discretion, litigants know the stakes. BOEM’s decision rests on executive and departmental lawfulness, not capricious or retroactive policy shifts. That predictability helps clients assess risk rationally.

Respectful of Stakeholder Values

Interior Secretary Burgum’s order emphasizes enhanced consultation with tribes, coastal towns, and fishing communities, a foundational value in administrative law that lends credibility to future decisions.

A Time Value for Thoughtful Governance

Rather than perpetual limbo over speculative development zones in the oceans, the federal review process offers a structured pause that offers developers and states a moment to retool expectations, audit cost structures, and prepare for the next lawful phase.

This also allows for an “all of the above” approach to energy generation, that may be particularly important in states like Maryland that have been hard hit by Congress’ unfunding of the Solar for All Program that some had thought would fund thousands of rooftop solar installations in the state.

Executive Discipline, Not Apocalyptic Drama

To be clear, this is not the end of the offshore wind industry; it is a legal reset. The Memorandum is temporary and may be reversed by a future administration, even one with a principal aim of creating union jobs. As one BOEM employee anonymously noted, “the lease areas could hypothetically be re‑designated,” but only after more exhaustive review, local engagement, and legal justification.

Under attorney supervision, that discipline, which may feel burdensome, is the precise mechanism our legal system uses to reconcile public values, ensure administrative fairness, and safeguard long term legitimacy.

In Sum

It should be lost on no one that President Trump chastised the off shore wind while visiting Scotland in late July, saying his Administration would not allow a windmill to be built in the waters of the United States.

For clients and other stakeholders committed to energy development, BOEM’s action delivers structure, transparency, and predictable governance. While offshore wind leasing might appear “really dead” today, what has died is legal ambiguity, not the possibility of future, carefully reviewed development under a renewed and duly considered federal approach. If offshore wind or, for that matter, residential rooftop solar makes economic sense as a business absent huge federal subsidies, this is the time for the industry to chart a path through the review process and preserve optionality, not panic.

DOE Order to Keep Maryland Oil Fired Plant Running Sparks Energy Environmental Tension

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

Last Monday, the U.S. Department of Energy issued a sweeping emergency order under the Federal Power Act, allowing the Wagner Generating Station in Anne Arundel County, Maryland, to continue producing electricity, despite having nearly exhausted its annual limit on fuel oil usage under state environmental law.

This order, requested by PJM Interconnection, one of the nation’s largest grid operators, authorizes the operation of Wagner Unit 4 in exceedance of its 438 hour per year fuel oil combustion cap imposed by a consent order with the Maryland Department of the Environment. The decision underscores the rapidly escalating tension between Maryland’s ambitious climate targets and the urgent reliability needs of the national electric grids.

Legal Emergency Meets Environmental Limits

The legal foundation for the Department of Energy’s action is Section 202(c) of the Federal Power Act, which grants the Secretary of Energy broad discretion to direct the operation of electric generation facilities during energy emergencies. DOE Secretary Chris Wright made clear that the Trump Administration views this emergency as a matter of national energy security, citing the risk of power shortages in Maryland and across the 13 state PJM region, which stretches from Illinois to New Jersey and serves more than 65 million customers.

At the core of the issue is the Wagner Generating Station, a legacy coal converted to oil fired facility operated by Talen Energy. The plant is already slated for retirement, originally planned for 2025, and now extended to 2029. As of July 21, Wagner Unit 4 had only 80 operational hours remaining under its state air quality consent order. MDE had previously found Wagner to be a “significant source of local air pollution,” justifying its strict cap.

But now, with PJM warning of “growing resource adequacy concerns,” the U.S. Department of Energy is overriding that state imposed cap.

A Clash of Laws: Federal Emergency vs. State Climate Mandate

This order is not just about keeping the lights on. It is a bold and unapologetic assertion of federal supremacy over bad state environmental regulations, including those implementing Maryland’s Climate Solutions Now Act of 2022, which mandates a 60% reduction in greenhouse gas emissions from 2006 levels by 2031, the most aggressive near term emissions reduction target in the country.

Simply put: you cannot burn more oil in state while reducing GHG emissions in state, at least not without unintended consequences. Maryland already imports over 40% of the electricity it consumes, a figure that is rising. If we don’t produce more electricity in state, but still demand more energy, emissions reductions goals may be met on paper, while emissions from imported electricity rise. We will simply be exporting our pollution to neighboring states and importing utility higher rates.

This is the inconvenient truth of climate policy and grid reliability. Maryland’s energy trajectory, driven by climate legislation, is increasingly at odds with operational reality.

A Warning from the Grid: Reliability Risks Rising

The emergency DOE order is supported by DOE’s own Resource Adequacy Report, which paints a dire picture. If current fossil fuel plant retirements proceed without sufficient replacement generation, especially dispatchable resources like natural gas or oil, the nation faces “unacceptable reliability risks within five years.” This finding was among the rationales for President Trump’s January 20, 2025 Executive Order 14156, declaring a national energy emergency.

That report, along with PJM’s own 2023 analysis, confirms what many have feared: the transition to a cleaner grid is outpacing the infrastructure, policy, and market reforms necessary to make it work without risking blackouts, brownouts, and unaffordable prices.

Because it is 2025, court challenges are already underway over a similar Michigan order keeping a coal fired plant online beyond its planned shutdown, where several groups allege DOE “abused its authority” to prop up fossil infrastructure under the guise of emergency operations.

What This Means for Maryland

The implications for Marylanders are profound. BG&E customers, already grappling with elevated bills, could see costs rise further from increased use of peaker plants like Wagner, plants that are expensive to run, carbon intensive, and disproportionately impact local air quality. At the same time, this order exposes the limits of Maryland’s statutory ambition to decarbonize swiftly and unilaterally in the context of a shared regional power grid.

We’ve previously blogged Maryland Needs to Produce More Electricity. The Wagner order makes clear: importing electricity may reduce local emissions, but it does not absolve us of responsibility for energy reliability or PJM system wide emissions impacts.

Inexplicably, in an unrelated proceeding on 30 days before this emergency order, the Maryland Public Service Commission argued the DOE exceeded its authority to keep the Eddystone power plant near Philadelphia available after its planned retirement, including because there were no reliability concerns and no emergency to be addressed in the PJM grid?

Troubling to many is that Maryland has no viable strategy for generating the state’s needed electricity.

The Way Forward: Policy Alignment and Infrastructure Investment

As an environmental attorney, I find the situation both frustrating and illuminating. It is yet another example of the disconnect between blue state level climate action and federal energy reliability mandates. That gap must close, and quickly.

This is not a choice between dirty energy and no lights. Rather, it is a call to accelerate investments in dispatchable power; modernize transmission infrastructure, and align regulatory frameworks at every level of government. State rules, like in Maryland that mandate shutting down fossil fuel power plants without replacing the power generation are bad public policy. We cannot afford to let the right hand of energy policy ignore what the left hand of climate policy is doing.

The immediate response we saw in our office to this federal order was inquiries from businesses looking into battery energy storage systems as a solution to enhance the reliability of the electric power grid and ensure business continuity.

Conclusion

The emergency order from Secretary Chris Wright is no doubt legally sound and operationally necessary, but it is environmentally regrettable, and it should serve as a wake up call. Maryland cannot meet its climate goals by regulation alone, nor can the state continue at this time of increasing power demand growth, to lean so heavily on a grid we don’t fully control.

Maryland must urgently invest in energy, diversify our in state generation portfolio, and prepare for the hard conversations about tradeoffs that lie ahead. Because if the state doesn’t, emergency orders like this one will become the norm, not the exception.

EPA’s Reconsideration of the GHG Endangerment Finding

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

The U.S. Environmental Protection Agency is preparing to reverse its 2009 “Endangerment Finding,” a regulatory determination that greenhouse gas emissions from motor vehicles, buildings, power plants, and other sources “endanger public health and welfare.” That endangerment pronouncement, made under Section 202(a) of the Clean Air Act, created the legal justification for many of the sweeping climate regulations that have touched every major sector of the American economy.

The news that the EPA submitted a proposed rule to the White House Office of Management and Budget on June 30 entitled “Greenhouse Gas Endangerment Finding and Motor Vehicle Reconsideration Rule,” (although the text of the rule is not yet provided) to reverse this finding should come as a surprise to no one. In fact, the agency announced on March 12 that it would do just this, initiate a formal reconsideration of the Endangerment Finding.

This represents a dramatic turning point in U.S. environmental law, not a dismantling of protections as some suggest, but rather the beginning of a slow process like turning a ship at sea to bring regulatory science back into alignment with the laws of our nation as passed by Congress. Whatever one’s partisan view, or not, this is a big deal that will impact nearly every business and household. As a single act, it is the biggest environmental matter the Trump administration has undertaken.

What is the Endangerment Finding?

At the heart of this reconsideration lies a fundamental legal precept: regulations derive authority from statutes and therefore cannot contradict or exceed the statutes from which they derive authority.

The Endangerment Finding was issued by EPA in response to the Supreme Court’s 2007 decision in Massachusetts v. EPA, which held that greenhouse gases are “air pollutants” under the Clean Air Act and that the EPA must regulate them if it finds they endanger public health or welfare. Not to be ignored, that Supreme Court decision grew out of a 1999 “petition for rulemaking” in which 19 private organizations called on EPA to regulate GHG emissions from new motor vehicles (i.e., it did not arise from an act of Congress).

But that judicial command was narrow. The Court did not require regulation; it required a reasoned determination. In 2009, the Obama era EPA made such a determination, including going far beyond only new motor vehicles. In 2016 and again in 2022, the agency reaffirmed it. From that flowed the entire new body of regulation that is the regulation of GHG emissions, which has grown so fast and large as to all but suck the air out of the room for other environmental protections.

The current EPA is now reassessing the legal underpinnings of that determination in light of updated judicial interpretations, technological advances, and economic shifts.

This is precisely how administrative law is supposed to work. Agencies are not frozen in amber; they are accountable to new evidence, new jurisprudence (such as the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo limiting deference to agency interpretations), and evolving executive branch will. Reconsideration, especially after a transparent public notice and comment process, upholds the rule of law.

Scientific Transparency Should Be Encouraged, Not Feared

Contrary to alarmist media narratives, reconsideration does not equal denial of climate change. It signals an appropriate skepticism toward regulatory overreach and toward an aging scientific consensus that may no longer reflect current priorities.

Much of the concern over the proposed reversal of the Endangerment Finding centers around science, but law and science are not synonymous. The Clean Air Act requires a scientific judgment about endangerment, yes, but not a monolithic or unchanging one.

By way of example, the 2009 Endangerment Finding considered six GHGs collectively, rather than individually. EPA’s current leadership has raised questions about whether this aggregate approach was justified. That is a valid scientific and legal question. Moreover, the agency is considering the vast technological developments that have emerged over the past decade: advances in carbon capture, zero emissions transport, decentralized power generation, and atmospheric modeling, all of which may affect the risk calculus surrounding GHG emissions.

It is intellectually dishonest to suggest that asking hard questions about evolving science and changing law undermines environmental protection. Quite the opposite. A regulatory regime that is responsive to updated information, rather than beholden to policy goals fixed in a different era, is more resilient and better suited to serve the public interest.

Courts Have Left the Door Open for Change

Legal critics of the proposed reversal have already pointed to Coalition for Responsible Regulation v. EPA, in which the D.C. Circuit upheld the 2009 Endangerment Finding. But as the court made clear, its review was grounded in the record then before the agency. The law does not bind the EPA to one path forever. What it requires is consistency and rationality. If the agency believes, after reasoned analysis and public comment, that the previous findings are flawed or overstated, it has both the authority and the responsibility to correct course.

Moreover, the 2024 Supreme Court decision in Loper Bright explicitly overruled the Chevron doctrine, removing the judicial obligation to defer to agency interpretations of ambiguous statutes. Courts will now review the EPA’s statutory interpretation de novo. That legal sea change alone justifies a fresh look at the Clean Air Act’s applicability to climate regulation (cf., when the Clean Air Act was approved by Congress in 1970, we were not yet stringing the words “climate change” together).

This Is Not Deregulation – It’s Re – Regulation

Let’s be clear: reversing the Endangerment Finding will not, by itself, eliminate any existing climate rule. Each regulation, whether for vehicles, power plants, or buildings, has its own legal and scientific basis and would need to be reviewed independently (.. remember the original petition for rulemaking was only about new motor vehicles). EPA has announced that it intends to do just that.

This reconsideration is not an attack on the environment. It is an affirmation that sweeping federal regulations must be justified by sound science and grounded in clear statutory authority. Americans deserve an environmental policy that is legally durable, economically sound, and scientifically current.

Again, this is not a repeal by fiat; this is a rulemaking in accordance with the Administrative Procedure Act and Section 307 of the Clean Air Act. And to suggest otherwise is to ignore the rule of law.

A Call for Constructive Engagement

The upcoming public notice and comment period is a critical opportunity for all stakeholders, environmental groups, energy producers, scientists, state governments, and individual citizens to make their voices heard. That process will shape the final rule and ensure its legitimacy in both the court of law and the court of public opinion.

Key to all of this is that Congress has never acted on GHG emissions. If lawmakers disagree with EPA’s new direction, they can codify the Endangerment Finding or direct EPA through statute. That is how our constitutional system works: the legislative branch writes the laws; the executive implements them; and the judiciary ensures both stay within their bounds.

Conclusion

EPA’s reconsideration of the Endangerment Finding is not an attack on science; it is a reaffirmation of law. It invites a long overdue national dialogue about how best to address climate change within the constitutional structure of our republic and in the context of other environmental matters.

What is certain is that the conversation over what will be the biggest environmental issue of the year is beginning in earnest. We urge all that it be guided not by fear or partisanship, but by facts and law, seeking to protect human health and the environment.

If you’d like to participate in the public comment period when the EPA’s proposed rule is published, or if your business may be particularly affected by changes in the federal climate regulatory framework, our law firm can advise you on your options and help prepare tailored legal and policy responses.

Stablecoin: The GENIUS Act Ushers in a New Era including Green Building Finance

By Stuart Kaplow on Posted in Federal, Green Building, LEED, Sustainability

On July 18, 2025, the President of the United States, Donald J. Trump, signed into law the much anticipated Guiding and Establishing National Innovation for U.S. Stablecoins Act, that is the GENIUS Act, a sweeping piece of legislation that provides a legal framework for U.S. dollar backed stablecoins. While the bill has been touted as a landmark moment in the evolution of financial technology, what may be less appreciated, but no less transformative, is how the GENIUS Act could unlock long awaited capital for voluntary green building and energy efficient upgrades in commercial real estate.

The Greatest Revolution Since “the Birth of the Internet”

During the signing ceremony, President Trump declared that the dollar backed stablecoin authorized under the GENIUS Act could be “the greatest revolution in financial technology since the birth of the Internet.” That may sound hyperbolic, but for those of us working at the intersection of environmental law, real estate, and finance, the potential for this new asset class is real and long overdue. “The entire ancient system will be eligible for the 21st century upgrade using state-of-the-art crypto technology.”

The Financing Problem Plaguing Green Building

For decades, voluntary green building standards, like LEED, Green Globes, and ENERGY STAR, have promised reduced environmental impacts and long term operating savings. Yet, adoption has lagged. Why? One word: capital.

Programs like PACE (Property Assessed Clean Energy) once held promise. These programs allow property owners to finance improvements like HVAC upgrades, solar panels, and insulation through local government collected property tax assessments. But PACE was not frictionless, to the contrary, it never truly overcame the cost barriers for property owners.

Similarly, the green bond market, designed to offer investment grade debt tied to environmentally beneficial projects, has been tepid. Investors have hesitated due to inconsistent standards, questionable “green” credentials, and a lack of transparency. Despite good intentions, green bonds simply haven’t gained traction.

And in recent days, the federal government has taken steps to curtail and roll back incentives for solar and wind energy, as well as other alternative energy technologies in commercial and residential real estate.

Stablecoin: A Transparent, Liquid, and Secure Solution

Enter the GENIUS Act and its transformative stablecoin framework.

For the uninitiated, stablecoins are cryptocurrencies that maintain a fixed value, in this instance pegging the value to the U.S. dollar. Unlike other leading crypto assets like Bitcoin and Ethereum, stablecoins are less prone to price volatility.

Under the new law, issuers of stablecoins must fully back their digital tokens with U.S. dollars or short term U.S. Treasuries, subject to monthly audits and federal oversight. Prior to this authorizing law there have been stablecoins tied to the US dollar like Tether (arguably the first dollar backed stablecoin created in 2014) and Global Dollar, which regularly publish audits of the assets held in reserve. What’s been missing is regulatory certainty (the last Treasury Secretary referred to it as “illicit finance”) and market trust (where there had been different rules in every country, if there were rules at all). The GENIUS Act delivers both.

This is where green building comes back into the picture.

With stablecoins now government regulated, they can serve as a near frictionless funding mechanism including for commercial energy upgrades. Their real time transparency, thanks to blockchain, allows building owners, lenders, and regulators to see exactly how funds are used, building trust and reducing compliance costs.

Tokenizing Green Improvements: A New Asset Class

Consider this: A building owner replaces an outdated HVAC system with a high efficiency model. Using funds issued via a GENIUS Act compliant stablecoin, that transaction is not only verified and auditable, but the efficiency gain itself can be tokenized.

What does that mean? That HVAC upgrade could become a tradeable green token, verified on chain and tied to measurable environmental benefits. These tokens could form the basis of market-driven incentives, from environmental offsets to energy credits and energy rebates, all without high administrative overhead.

The result? A self reinforcing financial loop:

  • Verified energy improvements
  • Tokenized green credits
  • Secondary market incentives
  • Lower cost of capital
  • More green building voluntary upgrades.

A Pathway to Mass Adoption

A stablecoin like device is already Africa’s leading mobile money service, so there is proof of concept. We have some experience in this space.

Just last month China’s central bank governor Pan Gongsheng made clear his vision to globalize the yuan with a more multipolar monetary system, included Beijing implementing stablecoins (.. and that is already happening in Hong Kong, although at modest capital amounts in what appears more like a China offshore market testing?).

The U.S. has lagged behind in constructing green buildings and converting existing buildings to green, largely because the financial ecosystem didn’t reward sustainability. The GENIUS Act flips that script. It creates a pathway where financial stability supports environmental sustainability, aligning incentives across markets.

For the first time, green building upgrades are not just relying on government handouts to be environmentally prudent; they are now economically smart.

Looking Forward

We are witnessing the dawn of a new financial era, one in which the blockchain’s transparency, stablecoin’s liquidity, and green building’s promise converge. This moment doesn’t belong only to fintech or to climate policy; it’s a hybrid solution to hybrid problems for every person with a roof over their head.

With this new law, America can lead in both clean technology and financial innovation. For building owners, developers, investors, and green entrepreneurs, the message is clear: Sustainability is no longer a sunk cost; it’s a frictionless tradable asset.

The GENIUS Act may live up to its name after all.

Note, the content above has been generated by an artificial intelligence language model transcribing and combining my comments as a guest on a podcast yesterday. 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.

Mold in the John Hanson House: Court Preserves Government Immunity at the Expense of Human Health

By Stuart Kaplow on Posted in Local Government, State

Earlier this month, the Maryland Appellate Court issued a controversial ruling in Candace McCarthy v. Board of Commissioners for Frederick County, Maryland, holding that Frederick County is immune from a negligence claim stemming from mold exposure in the historic John Hanson House.

The decision, issued on the same day Maryland’s new mold exposure law took effect, has drawn sharp criticism in both legal and environmental communities, many arguing that the court applied an outdated legal framework that fails to address modern environmental health risks in a historically preserved building.

“The King Can Do No Wrong”

The doctrine of sovereign immunity originates in English common law, where the Crown could not be sued in its own courts without its consent. This principle, rex non potest peccare (the king can do no wrong), was imported into American legal doctrine and became embedded in U.S. jurisprudence at both the federal and state levels.

A Historic Home, A Modern Health Hazard

The John Hanson House, named after the first person to serve a full term as President of the United States in Congress Assembled under the Articles of Confederation (1781–1782), is part of Frederick County’s courthouse complex. The County acquired the 4.3 acre property in 1975 with plans to renovate the 1700s structure for commercial and office use. Since 1984, the Office of the Public Defender, a state agency, has leased space in the building.

In 2018, Public Defender employee Candace McCarthy complained of mold in the building’s basement. Testing confirmed its presence. McCarthy alleges that exposure to mold in the John Hanson House contributed to her development of an autoimmune disease. She brought a negligence claim against the County, asserting its failure to maintain safe conditions in the leased space.

The Court: Governmental Immunity Prevails

The Maryland Appellate Court affirmed the dismissal of McCarthy’s lawsuit on the grounds of governmental immunity. Local governments, counties, municipalities, and other subdivisions are not “sovereigns” in the constitutional sense, but they still enjoy forms of immunity under state laws, and in this instance under Maryland law.

Citing longstanding Maryland law, the court concluded that Frederick County’s maintenance of the John Hanson House qualified as a “governmental function,” not a “proprietary” one, thus shielding the County from liability.

In its reasoning, the court applied the State’s four factor test to determine whether a government action is “governmental”: (1) Authorized by legislative mandate; (2) Performed solely for public benefit; (3) Without private profit or emolument; and, (4) Designed to promote public health or welfare.

Although the County collected rent from the Public Defender, the court deemed this reimbursement for operating costs, not profit, emphasizing that the building’s integration into the courthouse complex affirmed its governmental nature. The failed maintenance of the John Hanson House, the court concluded, was thus immune from tort liability.

A Faulty Framework for the 21st Century

That conclusion might make sense in the abstract, but in the context of this case, it reflects a profound legal blind spot. Mold in historic structures, particularly Colonial buildings like the John Hanson House, is a foreseeable risk that arises from known construction vulnerabilities. These include the use of porous materials like wood, horsehair plaster, and brick, along with the absence of vapor barriers, waterproofing, or modern ventilation systems.

This isn’t an abstract or rare concern. Mold is common in historic buildings reused for modern occupancy in Maryland (.. not to mention privately owned buildings). The risk is exacerbated in structures with subterranean or poorly ventilated areas, like the basement of the John Hanson House, where moisture accumulates and fungi thrive.

That Frederick County failed to prevent or remediate mold in a structure it actively leased for office use after actual notice of the indoor air quality issue should raise serious concerns. That the law prevents a harmed individual from seeking a remedy only underscores how governmental immunity can serve as a blunt instrument that thwarts justice and the safety of the governed.

A Legal Decision Issued the Same Day as a New Mold Law?

The timing of the court’s ruling only highlights the gap between emerging environmental health realities and ossified legal doctrine. On the same day the appellate decision was published, Maryland’s new mold law, 2025 Senate Bill 856, took effect. The statute, for the first time, regulates mold in rental properties. While it doesn’t apply retroactively, the legislation represents the state’s growing recognition that mold exposure is a serious public health risk, deserving for the first time, state regulation; but how will the law be implemented for public buildings?

Maryland has expanded the role of government to now include the regulation of mold in rental properties, but this mold claim is rebuffed because the County landlord is pursuing a government function. But for Candace McCarthy, that regulation comes too late. Moreover, there is some irony there?

Preservation or Public Health? Why Not Both?

Historic preservation is a commendable public policy goal. The adaptive reuse of heritage buildings, including those with Revolutionary era roots like the John Hanson House, plays a vital role in community identity and sustainability.

But preservation must not come at the cost of human health. It is unacceptable to restore and repurpose buildings from the 1700s without modernizing them to meet 21st century indoor air quality standards. People today spend nearly 90% of their time indoors, according to the EPA. Indoor air, often more polluted than outdoor air, is a frontline environmental health concern. Biological contaminants like mold can cause severe, even lifelong, respiratory and immune system conditions as alleged here.

If we are to responsibly preserve the past, we must ensure those buildings do not harm the people living and working in them today.

A Legal System Behind the Times

The real issue is not with the court’s logic, within the confines of current Maryland law, the ruling arguably got it right. Rather, the problem lies with the doctrine of governmental immunity itself. While total immunity is conferred on the State of Maryland and its agencies, counties and municipalities receive limited immunity when acting in a “governmental” capacity. That distinction, however, is increasingly unworkable in the modern world.

In this case, the County acted not as a sovereign authority, but as a landlord leasing office space in a commercial arrangement. Yet, because the building was nominally part of a state courthouse grounds and complex, the County was deemed immune from responsibility for known, preventable environmental hazards.

It is a fundamental precept of our constitutional order that for every wrong, there is a remedy. Sovereign immunity erodes that guarantee.

Conclusion: Modernize Government Immunity

The McCarthy case illustrates the urgent need for Maryland and other states to modernize doctrines of governmental immunity, particularly when public health is at stake. As science based professionals and legal commentators have noted, this decision applies an 18th century legal shield to a 21st century environmental issue. That’s not just injudicious, it’s dangerous.

Critics argue that the original rationale, “the King can do no wrong,” is an anachronism in a modern constitutional democracy. The government is not a monarch, and the people are not subjects. Justice John Paul Stevens once wrote that absolute immunity “runs counter to democratic principles of accountability.”

It is time to recalibrate the balance between governmental protections and individual rights in the face of evolving environmental hazards. McCarthy’s case is not just about mold. We are reminded of children injured by lead based paint in government housing who have been denied justice.

This case is about whether our legal system is equipped to respond to the real world impacts of outdated building practices and whether our governments, local, state, and federal, will be held accountable when they fail to protect the people they serve.

Historic buildings deserve preservation. But so do the people who work in them. The bottom line is that limited immunity should protect governance, not shield harm.

You can read the full decision here:
Candace McCarthy v. Board of Commissioners for Frederick County, Maryland

How will Your Business Benefit from the One Big Beautiful Bill?

By Stuart Kaplow on Posted in Energy, Environmental, Federal

We have been fielding questions about the One Big Beautiful Bill Act, which passed Congress last week and was signed by the President on July 4th, and thought that as this turns from a partisan debate to now being the law, this initial analysis would be relevant, urgent, and provide utility to our readers.

Enacted as a budget reconciliation bill that only requires a simple majority in the Senate (instead of needing 60 votes to avoid a filibuster), it reduces taxes, reduces or increases spending for various federal programs, otherwise addresses agencies and programs throughout the federal government, and on page 686 the statutory debt limit “is increased by $5,000,000,000,000.” (.. that is 5 Trillion dollars, but who is counting?).

It is likely not possible to overstate how consequential this sprawling legislation is, fundamentally realigning the role of government in the image of President Trump’s economic and social vision. The impact will be felt by literally every household and business in the country.

This blog post will not address the vast majority of the provisions in the nearly 1,000 page H.R. 1, from “no tax on tips” (up to $25,000), “no tax on overtime” (up to $12,500), “no tax on car loan interest” (up to $10,000), a new tax deduction for “senior citizens” ($6,0000 per individual), and more, but rather this is a quick compilation of the key environmental matters our clients have been asking about.  

Be clear, the big, beautiful bill is not “anti” protecting the environment and human health; rather, it represents a rising movement of environmentalists who believe you can care about the planet and still hold conservative values. This bill has reclaimed the environmental debate from the left and made it their own. Eco conservatives tend toward an all of the above approach to the environment and energy policy. Those solutions are articulated in this bill, and there is a lot more common ground than the legacy media reports in the exhausting news cycle, when it focuses all but exclusively on the bill’s implications for Medicare to the detriment of other matters, including environmental issues.

Many of the clients we have spoken with view this mega bill, and importantly, when considered concomitantly with the President’s Executive Orders, as a huge necessary and positive course correction in environmental and energy public policy for the nation.

Environmental highlights from the law include:

179D: Energy Efficient Commercial Buildings Tax Deduction that was permanent and was widely utilized, “.. is amended by adding at the end the following new subsection: ‘‘(i) TERMINATION. – This section shall not apply with respect to property the construction of which begins after June 30, 2026”.’’ But like much else in this bill, the Biden era altered program is now ended, but with 100% first year “bonus depreciation,” a feature of the Trump 2017 tax cuts being reinstated, real estate developers are winners in this new law. 

45L: New Energy Efficient Homes Credit utilized in many residential properties, “is amended by striking ‘‘December 31, 2032’’ and inserting ‘‘June 30, 2026’’ as the credit’s end date.” A sister federal tax incentive, also altered by the Biden Administration, for residential building not eligible for 179D, this will now sunset on June 30, 2026.

25C: Energy Efficient Home Improvement Tax Credit “is amended by striking ‘‘placed in service’’  .. through December 31, 2032’’ and inserting ‘‘placed in service after December 31, 2025’’ ending the incentive this year.”

25D: Residential Solar, other home energy systems credits, “is amended by striking ‘‘to property placed in service after December 31, 2034’’ and inserting ‘‘with respect to any expenditures made after December 31, 2025.”

Of note, that while wind and solar industry are clear losers in this new law, especially any project relying on foreign components, there are no new excise taxes on wind and solar projects; that proposed provision was removed from the bill in the final hours. And the bill preserves existing tax incentives on technologies like advanced nuclear, battery storage, hydropower, and geothermal energy, again advancing the all of the above approach to environmental and energy policy..

30C: Alternative Fuel Refueling Property Credit, “is amended by striking ‘‘December 31, 2032’’ and inserting ‘‘June 30, 2026’’.”

30D: New Clean Vehicle Credit “is amended by striking ‘‘placed in service after December 31, 2032’’ and inserting ‘‘acquired after September 30, 2025’’.”

Beyond sunsetting certain tax deductions and credits, “unobligated funds from the following programs are rescinded, effectively terminating the programs.  All unobligated funds will be remitted to the U.S. Treasury’s general fund.” The programs eliminated include:

Greenhouse Gas Reduction Fund (providing dollars to non profits)

American Innovation and Manufacturing Act (aimed at reducing GHGs)

Greenhouse Gas Corporate Reporting Fund (providing $27 Billion to reduce GHGs)

Environmental Product Declaration Assistance Fund (to drive EPDs into use)

Greenhouse Gas Air Pollution Plans and Implementation Grants, and many more ..

The bill phases out and terminates multiple energy related federal tax credits, and generally terminates the clean electricity production tax credit for an otherwise qualified facility placed into service after 2028 or for which construction begins after 60 days from the date of enactment of this section (under the prior law, a tax credit is available for the production and sale of zero emissions electricity by a qualified facility placed into service after 2024.)

The bill repeals a program under which the EPA provides “(1) grants and rebates to replace certain medium-duty vehicles (e.g., school buses) and heavy-duty vehicles (e.g., garbage trucks) with zero-emission vehicles, ..” and a host of other Inflation Reduction Act of 2022 programs.

Also the bill “.. nullifies the final rule issued by the National Highway Traffic Safety Administration (NHTSA) titled Corporate Average Fuel Economy Standards ..” under a related rule, NHTSA finalized CAFE standards for passenger cars and light trucks that increase at a rate of 2% per year for passenger cars in model years 2027-2031, ..”

Further, the bill seeks to reduce burdens on energy development, including:

Delay the methane emissions fee, imposed by the Biden IRA on certain methane emissions from oil and natural gas sources for 10 years, to 2034.

Expedited National Environmental Policy Act of 1969 (NEPA) review, will be available from the newly created White House Council on Environmental Quality program by paying an optional fee, 125% of the anticipated costs to prepare the environmental impact statement to have the environmental assessment completed no later than 180 days after paying the fee.

There are new provisions to encourage investments, including in real estate, a sector that, as described above, is a winner under this law:

Opportunity Zones are made permanent, although the definition of “low-income community” is narrowed.

45D: New Markets Tax Credit, which would have expired this year, is made permanent.

The extraordinary breadth and scope of this bill result in it being one of the most consequential pieces of U.S. legislation in modern times.

The enactment contains hundreds of provisions and directly impacts trillions of dollars in spending that must also be seen for its sweeping domestic policy changes, so it is not possible to simply summarize the enactment. We could have written hundreds of words alone about the new requirement that the Department of Transportation secretary “impose fees for space launches and reentries based on payload weight,” but such is beyond the scope of our effort here to highlight environmental and energy changes.

While the bill does more than impact any one sector, significantly, it has reclaimed the environmental debate from the left and made stewardship of land, air, and water their own. Eco conservative’s all of the above approach to environmental and energy policy is evident throughout this legislation.

To determine how the regulatory changes and funding shifts will impact your business, you can search the bill at this link, or better yet, to appreciate all of this in context, read about the William McKinley presidency. If you have a specific question, email me and ask. As the big beautiful bill is implemented, including as the action turns to regulations and agency guidance, we will post more about all of this in the coming days, ..

Fireworks and the Law: A Rare Case of Regulatory Restraint in Environmental Protection

By Stuart Kaplow on Posted in Codes and Regulations, Environmental

In the storied words of John Adams in his July 3, 1776 letter to Abigail, “It ought to be solemnized 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.”

Nearly 250 years later, Americans have embraced his vision with gusto, setting off roughly 275 million pounds of fireworks each year, an astonishing jump from about one tenth of a pound per person in 1976, the U.S. Bicentennial year, to nearly one pound per person today, the vast majority imported from China. Yet, while these fleeting bursts of color and sound delight millions, they also release fine particulate matter and trace metals into our air, raising the perennial question of do we need to balance environmental protection with our national traditions?

A Surge in Particulate Pollution – But Only Very Briefly

A groundbreaking 2015 study by NOAA quantified the impact of Independence Day fireworks on particles (less than 2.5 microns in diameter) using data from 315 monitoring sites nationwide. On average, 24 hour particulate matter concentrations during the 6 pm to midnight window on July 4th were 42% higher than on surrounding days, with the largest hourly spike occurring between 9 pm and 10 pm and levels returning to baseline by noon on July 5th. While some urban monitors briefly recorded readings above the EPA’s 24 hour standard, the spike is both short lived and localized; by the next day, air quality rebounds, minimizing sustained exposure risks.

The Chemistry Behind the Celebrations

Fireworks owe their brilliance to metal salts: strontium compounds create deep reds, sodium salts produce yellows, barium yields vibrant greens, and copper compounds, particularly copper chloride, give those rare blues. In a typical aerial shell, potassium perchlorate serves as the oxidizer, charcoal and sulfur form the black powder propellant, and dextrin or other binders hold star compositions together.

Upon ignition, these materials combust and aerosolize, generating particulate matter laden with metal residues. Yet, because fireworks are designed to detonate at altitude, much of the debris disperses high above ground level, diluting before reaching populated areas.

Minimal Federal and State Regulation

In the United States, the federal government sets only the minimum standards for consumer fireworks under CPSC and ATF regulations, limiting composition weights and lash powder quantities, but does not regulate their use for air quality purposes. Beyond safety permits issued by state fire marshals (for “firework shooters,” manufacturers, and sellers), nearly every jurisdiction, 49 states plus DC, allows some form of consumer fireworks; Massachusetts stands alone in banning their sale and use without a permit. Local permits for large displays may be required, but enforcement focuses almost entirely on fire and injury prevention, not emissions control.

Exceptional Events and the Clean Air Act

Recognizing that the brief particulate surges from fireworks are integral to traditional celebrations, Congress and EPA have treated them as “exceptional events” under 40 CFR § 50.14, alongside wildfires and high winds, allowing states to exclude fireworks influenced data from regulatory determinations if they demonstrate a clear causal link to cultural events like July 4th festivities.

The Rose Park, Utah “Fireworks Exceptional Event” report illustrates this process: filter analysis showed greater than 75% of particulate matter mass attributable to black powder components (potassium nitrate, sulfur, carbon) and trace metals, and light evening winds carried plumes to monitoring sites; EPA concurred in 2019 that these data be excluded from design-value calculations, preserving attainment status without penalizing cultural traditions.

Temporary Guidance for Sensitive Populations

Although the EPA’s “Particulate Matter Pollution” webpage offers general tips for reducing particulate matter exposure, it’s now archived fireworks specific guidance acknowledged that while most individuals experience no effects from short exposures, infants, children, and persons with respiratory conditions may be more sensitive. Accordingly, vulnerable individuals are advised to watch displays from upwind locations or indoors, though practical avoidance is challenging near community events.

Beyond Air: Coastal Waters and the Clean Water Act

In coastal regions like San Diego, concerns shift from air to water. Under an NPDES general permit (Order No. R9-2022-0002), any fireworks display over ocean or bay waters must minimize fallout and debris via best management practices (post-event cleanup, debris collection), balancing aquatic protection with public celebration. Litigation by San Diego Coastkeeper and CERF against SeaWorld highlights enforcement under the Clean Water Act, pressing for strict adherence to discharge permits and exploring nonpolluting alternatives like drone shows.

Judicial Remedies vs. Regulatory Chills

Where actual harms arise, whether fire start incidents or debris induced water pollution, traditional tort and Clean Water Act enforcement mechanisms remain available. But absent concrete injuries or permit violations, courts have little basis to curtail fireworks that fleetingly degrade air quality. This deference reflects a societal judgment: the joy and unity fireworks engender outweigh their transient environmental footprint.

Conclusion: A Model of Regulatory Restraint?

Fireworks, first developed in 2nd century BC China, have illuminated human festivities for millennia. In the U.S., our legal framework largely exempts them from lasting regulation under air and water laws, treating particulate surges as short lived cultural trade offs rather than ongoing public health threats. We recognize this as a rare instance where the balance tips sharply toward tradition, with minimal bureaucratic burden.

Perhaps other regulatory arenas could learn from this “explosive” example, favoring cultural values and individual enjoyment over heavy handed controls, so long as real harms remain negligible and remedies for actual damage endure.

In the interests of disclosure, I do not represent any fireworks manufacturers, but I do very much enjoy a good copper chloride blue. Happy 4th of July!

Maryland Expands Bat Protections: New Law Shifts Approach to Biodiversity

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

Biodiversity degradation is an existential crisis affecting planetary and human health. Since the enactment of the federal Endangered Species Act in 1973, populations of mammals, birds, amphibians, and fish have dropped a shocking 68%.

As scientists and policymakers grapple with addressing the rapid and widespread decline in species, states like Maryland are exploring regulatory strategies that extend beyond traditional frameworks such as the federal ESA. One such initiative is embodied in Senate Bill 946, passed in the 2025 Maryland General Assembly session and now chaptered under the title “Endangered and Threatened Species – Incidental Taking – Bats.”

This new law marks a significant expansion of one state’s regulation of species protection and introduces a new permitting process that will substantially affect landowners, utility companies, and small businesses operating in Maryland. While initially sponsored by an Eastern Shore lawmaker who described encouraging the forestry industry, the bill’s implementation raises real questions about the efficacy of this government action and its negative economic impact.

Bats make up roughly one fourth of all mammal species, but are any of them going to be saved from human activity by this new law that will be expensive for businesses across Maryland to comply with?

A New Framework for Bat Conservation

Senate Bill 946 authorizes the Maryland Secretary of Natural Resources to issue a permit for the “incidental taking” (.. the unintentional or accidental harming of a protected species) of four species of bats:

  • the Indiana bat,
  • the eastern small footed bat,
  • the northern long eared bat, and
  • the tricolored bat

.. provided that applicants submit a detailed conservation plan and meet stringent criteria. This is a notable policy development: While incidental take permits exist under the federal ESA, Maryland’s Nongame and Endangered Species Conservation Act has previously not authorized these state level permits. The state is now asserting its independent authority to regulate even those species not federally protected, like the eastern small footed bat (after the U.S. Fish and Wildlife Service “found that listing was not warranted” because the culprit in its decline was not humans but a fungus), further expanding the state’s conservation reach.

The same is the situation with the tricolored bat that was proposed for listing by the Biden Administration, but is not currently federally listed as endangered.

While much is known about the federally listed bats, the same cannot be said for the two now Maryland only protected bats, state approved conservation plans must detail:

  • Expected impacts from the activity;
  • Measures to minimize and mitigate those impacts;
  • Financial resources to carry out the plan;
  • Alternatives considered; and
  • Any other measures deemed necessary by the Secretary.

Moreover, the Secretary must affirm that each proposed incidental taking:

  • Will not appreciably reduce the survival of the species;
  • Will be minimized to the extent practicable;
  • Is supported by adequate funding and implementation commitments; and
  • Complies with applicable federal authorizations.

What Bats Are We Talking About?

Maryland is home to 10 bat species, most tree bats and some cave bats. These include migratory species as well as hibernating species that dwell in tree cavities, attics, and even building structures. Bats provide immense ecological benefits, including insect control, pollination, and seed dispersal.

Economic and Regulatory Implications

The Maryland Department of Natural Resources acknowledges that Senate Bill 946 “may have a material impact on small businesses.” Companies, and not just those in construction, energy, agriculture, and forestry, will find themselves subject to new permitting obligations, seasonal activity restrictions, and conservation compliance obligations (i.e., preparing a conservation plan and pursuing state permitting approval) if their operations occur in bat sensitive areas.

Prior to this law, businesses working within the framework of the ESA often managed compliance through federal incidental take permits. Now, Maryland businesses must also navigate a yet to be announced state level conservation permitting regime, potentially duplicating regulatory efforts or facing stricter localized requirements. Importantly, the bill gives the Secretary broad discretion to adopt regulations, meaning more detailed submittals and possibly onerous rules may be forthcoming, but significantly, the state does not have personnel or a budget for this entirely new program?

This has prompted concerns from affected businesses. From time of year work restrictions on tree felling to limitations on land disturbance near roosting sites, the costs and delays associated with bat protections will mount making doing business in Maryland more expensive. For many small businesses, particularly in rural or exurban areas, this may result in burdens disproportionate to their role in the broader biodiversity issue.

Is This the Right Approach to Biodiversity Loss?

There is no question that biodiversity loss is real and consequential. Maybe a million species are at risk of extinction, many within decades. The loss of biodiversity not only affects ecosystems but has direct human consequences, undermining food security, increasing zoonotic disease risk, etc.

That observed, whether Maryland’s expanded bat regulation represents an efficacious response is an open question. Critics argue that the permitting regime will create bureaucratic friction without clearly measurable conservation gains. There is little evidence that incidental take permitting, particularly when implemented at the state level without robust enforcement and funding, meaningfully alters the trajectory of species recovery.

Additionally, the problem is not the killing of bats by humans. The Boogeyman is White nose syndrome, a deadly fungal disease that has caused 90 to 100 percent declines in tri colored bat colonies in Maryland. This new law does nothing to address that, so ..

Moreover, layering additional state level requirements on top of existing federal processes may not address the underlying drivers of biodiversity loss, namely habitat fragmentation, climate change, and invasive species.

What Should Maryland Businesses Do Now?

We have assisted clients in navigating federal bat related regulatory requirements, including the preparation of habitat conservation plans and negotiation with U.S. Fish & Wildlife Service officials. Now, with Senate Bill 946, the same type of work will be needed for state authorization in Maryland.

Businesses should consider:

  • Conducting early habitat assessments if operating in areas with known bat activity;
  • Developing internal compliance protocols to track time-of-year restrictions;
  • Monitoring forthcoming regulations from DNR; and
  • Budgeting for conservation plan preparation and potential project delays.

With more bat species under Maryland’s regulatory umbrella, proactive engagement is not only a legal necessity, it may also protect businesses from unforeseen enforcement and reputational risks.

Conclusion

Maryland’s Senate Bill 946 represents a bold step into an increasingly complex realm of environmental regulation. While bats are undeniably important to the health of ecosystems and worthy of protection, the bill’s real world effectiveness in slowing biodiversity loss is questionable at best. This new law does nothing to address White nose syndrome responsible for more than 90 percent of the bat decline.

What is certain is that businesses need to be prepared for the operational and compliance burdens this law introduces.

If your business could be affected by bat conservation measures, federal or state, we can assist in assessing impacts, designing mitigation strategies, and navigating the new permitting landscape in Maryland. As state biodiversity law continues to evolve beyond the longstanding federal framework, effective legal counsel will be critical to balancing business operations with environmental compliance.

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