June 18, 2026 | By: Win Colbert

The regulatory environment for energy, infrastructure, and other projects is undergoing a dramatic shift. New executive orders, evolving agency priorities, landmark court decisions, and pending federal legislation are reshaping permitting, enforcement, and environmental compliance across the United States.

For energy companies, developers, and investors, success in 2026 will depend not only on understanding the rules, but on strategically navigating a rapidly changing regulatory landscape.

Key Takeaways

1. The Fundamentals of Regulatory Success Haven’t Changed

Despite shifting political priorities, core project management principles remain essential:

• Develop deep, cross-functional project knowledge
• Identify short- and long-term project goals early
• Establish realistic permitting timelines and milestones
• Anticipate notice, review, and compliance requirements
• Prepare proactively for enforcement and dispute resolution
• Maintain both “macro” regulatory awareness and project-specific focus

2. Executive Orders Are Reshaping Energy and Environmental Policy

Since January 2025, the administration has issued numerous executive orders aimed at:

• Expanding domestic energy and mineral production
• Accelerating permitting timelines
• Reducing regulatory burdens
• Increasing federal support for fossil fuel and infrastructure development

Key initiatives include:

• EO 14154: Unleashing American Energy
• EO 14156: Declaring a National Energy Emergency
• EO 14270: Zero-Based Regulatory Budgeting To Unleash American Energy

These directives are driving agencies to:

• Re-evaluate existing regulations
• Streamline approvals
• Prioritize domestic production and infrastructure reliability

3. Courts Are Limiting Agency Authority and Expanding Project Leverage

Recent Supreme Court decisions have fundamentally altered administrative law:

• In West Virginia v. EPA, the Court strengthened the “major questions doctrine,” limiting expansive agency action without clear congressional authorization.
• In Loper Bright Enterprises v. Raimondo, the Court overturned “Chevron deference”, requiring courts to independently interpret ambiguous statutes. Previously, the Chevron deference doctrine (established by the Supreme Court in 1984; see Chevron U.S.A., Inc. v. Natural Resources Defense Council) required federal courts to defer to a government agency’s interpretation of an ambiguous statute that the agency was tasked with administering, provided the agency’s interpretation was “reasonable” or “permissible”.

Agencies now face greater legal constraints, and regulated entities have stronger grounds to challenge aggressive regulatory interpretations.

4. NEPA Reviews Are Becoming Narrower and Faster

Recent case law is also reshaping the scope of environmental review under the National Environmental Policy Act:

• Marin Audubon Society v. FAA limited the authority of the Council on Environmental Quality to impose binding NEPA regulations.
• Seven County Infrastructure Coalition v. Eagle County narrowed the scope of environmental review and reinforced judicial deference to agencies.

Result:

• Shorter environmental analyses
• Reduced review obligations for indirect impacts
• Greater agency discretion in defining project scope

However, courts may still invalidate reviews if they are deemed too vague or unsupported.

5. EPA Enforcement Is Shifting Toward “Compliance First”

The Environmental Protection Agency is signaling a major enforcement philosophy shift:

• Increased emphasis on:
  • Voluntary compliance
  • Self-reporting and corrective action
  • State-federal coordination
  • Tailored remedies rather than punitive enforcement

Enforcement actions are expected to require clear and well-supported findings of violation. In response to any enforcement action, proactive engagement and transparency may significantly reduce enforcement exposure.

6. Pending Legislation Could Dramatically Accelerate Permitting

Several federal bills propose to streamline environmental review and infrastructure development, including:

• Shortened litigation windows
• Increased permit certainty
• Digital and AI-assisted environmental review processes
• Faster infrastructure and critical mineral approvals

Proposed federal legislation includes the following:

• SPEED Act (The “Standardizing Permitting and Expediting Economic Development Act” seeks to modernize NEPA by shortening environmental review timelines, limiting judicial review windows, and redefining what qualifies as a “major federal action”).
• Interactive Federal Review Act (would require U.S. DOT to encourage recipients of federal highway funding who are conducting environmental reviews under NEPA to  use of certain digital platforms and models.
• Streamlining Critical Mineral Permitting Act (would amend the Solid Waste Disposal Act to allow an owner/operator of a critical energy resource facility to obtain an  interim permit subject to final approval by U.S. EPA).
• REPAIR Act  (goal is to enhance funding and support for critical repairs).

7. Energy Development Is Becoming a National Strategic Priority

Federal policy increasingly links energy production to:

• National security
• AI and data center growth
• Supply chain resilience
• Critical mineral independence

This broader policy alignment is creating:

• More favorable permitting conditions
• Increased government support for infrastructure expansion
• Greater emphasis on energy reliability and domestic production

8. Long-Term Stability Still Requires Caution

While current trends favor accelerated development:

• Regulatory priorities can shift with future administrations
• Agency interpretations may continue evolving
• Litigation risk remains significant

Best practices include:

• Maintaining strong compliance records
• Structuring projects to withstand policy changes
• Building flexible permitting and operational strategies
• Evaluating both short-term opportunities and long-term stability risks

The Bottom Line

The 2026 regulatory landscape presents a rare combination of opportunity and uncertainty for the regulated community. Executive orders, judicial decisions, and proposed legislation are creating new tools to accelerate permitting and reduce regulatory friction, but the environment remains politically and legally fluid.

Companies that combine proactive planning, strategic regulatory engagement, and adaptable compliance strategies will be in the best position to capitalize on today’s opportunities while protecting long-term operational stability.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

Win Colbert

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

June 9, 2026 | Congratulations to the GableGotwals attorneys recently recognized in the 2026 Top Attorneys guide by 405 Magazine. This marks the Firm’s seventh consecutive year to appear in the review.

The local guide to attorneys and practices was developed through extensive peer-review surveys conducted by Data Research. This year, 25 GableGotwals attorneys were highlighted in 14 practice areas:

Appellate Law

Gerard M. D’Emilio

Arbitration and Mediation

Jeff Curran (Legacy)

Banking and Financial

Jeffrey D. Hassell
Francesca A. Walentynowicz (Rising Star)

Business Law

Nathan H. Atkins
J. Blake Patton

Civil Law Litigation

Amy M. Stipe

Commercial Litigation

John M. “Jake” Krattiger

Eminent Domain

Scott Kiplinger

Energy, Oil and Gas

E. Talitha Ebrite
Rosa M. Garner (Rising Star)
Nick V. Merkley
Brooks A. Richardson
Rob F. Robertson

Government and Administrative

David R. Herber
Robert G. McCampbell (Legacy)

Insurance

Lance Leffel
Ashlyn M. Smith
Leasa M. Stewart

Labor and Employment

Ellen A. Adams

Land Use Environment

Tyler A. Self (Rising Star)
Tim Sowecke

Medical Malpractice Defense

Brian Blackstock
Zoe Butts Dowdell

Oil and Gas

Leo J. Portman

GableGotwals’ profile is featured in the June 2026 issue of 405 Magazine, beginning on page 65. The article is also available online.

Download PDF >

GableGotwals is pleased to announce that Katriel “Kat” Statman has joined the Houston office as a Shareholder. With more than a decade of experience, Kat’s practice focuses on energy litigation. His experience includes complex commercial litigation representing privately and publicly held entities across a wide variety of industries beyond energy, including chemical and industrial manufacturing, and construction. He regularly advises clients on catastrophic incident responses and the broad array of potential litigation and regulatory actions that arise as a result. In addition, he has experience counseling clients in toxic torts, products liability, and maritime claims and defenses.

“Kat’s addition reflects the Firm’s strategic commitment to expand our presence and capabilities in Texas,” said John Dale, Chairman and CEO of GableGotwals. “His litigation experience and deep energy knowledge add to our existing Houston litigation team and are a seamless fit across our practice areas and client base.”

“I’m excited to join GableGotwals’ Houston office and help continue the Firm’s growth in Texas,” said Kat Statman. “What drew me is GableGotwals’ longstanding presence and notable reputation in the energy sector. The Texas market is thriving, and the opportunities for growth are ripe. GableGotwals gives me an incredible platform to serve my clients and build my practice alongside a team that’s already deeply rooted in the industry.”

Kat is licensed to practice in Texas and New Mexico. He is named a Best Lawyer in Commercial Litigation, is on the Editorial Board for the Institute for Energy Law’s Oil & Gas E-Report, serves as an officer on the Institute for Energy Law’s Renewables Committee, and was part of the 7th Institute for Energy Law’s Leadership Class in 2024-2025.

Prior to joining the Firm, Kat was a Shareholder at an Am Law 200 firm.

About GableGotwals

GableGotwals® is a full-service law firm with more than 100 attorneys and 70 other business professionals in Oklahoma and Texas. We represent a diversified client base across the nation, and our connections and reach are global. Fortune 500 corporations, privately owned companies, entrepreneurs, foundations, and individuals entrust us every day with the stewardship and strategic management of their legal challenges.

May, 19 2026 | By: Ethan T. Mock

The global race for critical minerals is no longer a future prospect; it is a current economic and national security imperative. As highlighted in recent reporting by Bloomberg Law, the surge in demand for rare earth metals, essential for everything from electric vehicle batteries to defense technologies, has propelled a specialized niche in the legal sector. At GableGotwals, we are uniquely positioned to lead in this arena, offering a powerhouse trifecta of expertise in Federal Indian Law, sophisticated transactional law, and direct BIA regulatory experience. Our reputation has earned us a Band 1 ranking in Energy and Natural Resources, Native American Law, Corporate/Commercial, and Environment by Chambers & Partners.

The Tribal Frontier of Critical Minerals

The Bloomberg Law analysis underscores that many of the most significant untapped deposits of critical minerals are located on or near tribal lands. However, unlocking this potential requires navigating a jurisdictional landscape that many law firms find impenetrable. Over time, GableGotwals has developed strong relationships with local tribes and is ready to bridge this gap with its dedicated attorneys, many of whom are tribal members. We are committed to facilitating between Native American tribal governments and businesses to achieve economic development.

With a premier Native American Law practice, our Firm understands the nuances of tribal sovereignty and the essential role of tribal nations as partners in the global energy transition. We don’t just see a mining deal; we see a path toward tribal economic self-determination and sustainable resource management.

Transactional Precision Meets Federal Insight

Successful mining deals in Indian Country require more than just an understanding of the minerals; they require a mastery of the “machinery” of the Bureau of Indian Affairs (“BIA”). The complexity of subsurface leasing is where projects often stall, trapped in the regulatory requirements of Title 25 of the Code of Federal Regulations.

Our team includes attorneys with direct, “inside-the-agency” experience at the BIA. This specialized background provides our clients with:

• Regulatory Fluency: Deep knowledge of the Indian Mineral Leasing Act and the Indian Mineral Development Act to structure flexible, high-value agreements.
• Navigational Expertise: An intimate understanding of BIA Standard Operating Procedures and the internal flow of lease approvals, ensuring that environmental and appraisal standards are met without unnecessary delays.
• Risk Mitigation: Transactional experts who can draft and negotiate complex joint ventures and development agreements while ensuring strict compliance with federal trust responsibilities.

Integrated Transactional & Environmental Practices

Beyond Indian law and BIA leasing, GableGotwals brings a full-service platform to critical-minerals projects, pairing sophisticated deal counsel with environmental and regulatory guidance. Our transactional team structures acquisitions, joint ventures, offtake arrangements, and financing to allocate risk, protect value, and keep projects bankable. In parallel, our environmental practice helps clients anticipate and address permitting and compliance issues early, including NEPA strategy, air and water approvals, cultural-resource considerations, and remediation planning, so transactions can close with clear, practical pathways to development and operations.

Ready for the Mining Paradigm Shift

As the market for rare earth minerals evolves, the legal counsel supporting it must be equally sophisticated. GableGotwals offers the rare combination: “Big Law” transactional capability paired with the niche, technical expertise of BIA leasing, environmental, and Indian Law. This expertise is made possible by many of our attorneys who formerly practiced at AmLaw 100 firms, former in-house counsel at major energy companies, and those who graduated top of their class from prestigious universities.

Whether you are a tribal nation seeking to leverage your subsurface assets for the next generation of energy, or a commercial developer looking to navigate the federal trust landscape, GableGotwals has the expertise to move your mining project from prospecting to production. We are not just observing the race for rare earth minerals; we are providing the roadmap for our clients to lead it.

 Ethan T. Mock
918-595-4875
emock@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

January 5, 2026 | By: Tim Sowecke and Tyler A. Self

On December 5, 2025, EPA Assistant Administrator Craig Pritzlaff issued a memorandum (the “Pritzlaff Memo”) directing the Office of Enforcement and Compliance Assurance (“OECA”) to adopt a renewed “compliance first” approach across all civil enforcement and compliance programs. The memorandum reflects a deliberate shift away from prolonged investigations and expansive remedial demands, refocusing EPA on efficient return to compliance, clear and defensible statutory interpretation, and consistent application of enforcement principles across EPA regions. EPA’s new approach promises more predictable, cooperative, and legally grounded enforcement, reducing expansive demands and giving regulated entities a clearer path to resolve ambiguities.

With the new year underway and EPA recalibrating its enforcement policy, now is the ideal time for companies to proactively resolve enforcement issues and secure efficient, durable compliance outcomes.

The Compliance First Framework

The Pritzlaff Memo directs EPA personnel to prioritize timely compliance rather than extended investigations or the pursuit of every conceivable violation. The agency acknowledges that earlier approaches—often marked by lengthy fact-finding, layered information requests, or efforts to expand regulatory interpretations—can delay actual environmental protection without actually improving long-term outcomes. The memorandum identifies six guiding principles for its compliance first framework:

1. Emphasis on Compliance Assistance

EPA encourages proactive outreach, technical assistance, training, and voluntary compliance through audits and self-reporting to help regulated entities identify and correct issues promptly. The goal is straightforward: where early engagement can correct noncompliance, enforcement escalation should be unnecessary.

2. Reinforced Cooperative Federalism

EPA commits to appropriate deference to authorized state programs, close coordination with state partners, and avoidance of duplicative or conflicting oversight. States remain the primary implementers for many environmental programs, and EPA signals an intent to support, not supplant, them.

3. Open Communication with the Regulated Community

EPA staff are instructed to maintain a transparent, “no surprises” approach during inspections and enforcement actions. Clear expectations and predictable processes are intended to foster trust and achieve earlier, more efficient resolutions.

4. Enforcement Based on Clear and Defensible “Best Reading” of Law

Going forward, violations must rest on clear, unambiguous, and narrowly tailored interpretations grounded in the best reading of the governing statutory and regulatory text. The memorandum cautions that expansive interpretations untethered from plain meaning create regulatory uncertainty and undermine public confidence. Notably, the memorandum situates this guidance in the post-Chevron administrative landscape, expressly referencing the Supreme Court’s decision in Loper Bright, and signals OECA’s heightened sensitivity to judicial scrutiny of agency interpretations.

The memorandum further directs that material legal ambiguities may no longer be resolved ad hoc at the regional or field level but instead must be elevated to national leadership to ensure consistency and avoid divergent regional interpretations. Regional staff, including enforcement attorneys, are expressly instructed not to resolve such questions independently, ensuring consistent nationwide application of environmental statutes.

5. Compliance Requirements and Injunctive Relief

Another shift reflected in the memorandum is the rescission of the April 2021 OECA guidance that encouraged the use of expansive injunctive tools for enforcement, such as advanced monitoring, third-party supervision and verification, enhanced reporting, electronic data portals, facility-wide audits, supplemental environmental projects (“SEPs”), and other measures bearing only attenuated connections to statutory violations.

Under EPA’s new policy, enhanced monitoring and reporting requirements are now “generally not appropriate” unless expressly required by law and directly tied to the specific noncompliance at issue. Likewise, third-party audits, third-party verification, and third-party monitoring may be raised in settlement negotiations only with prior approval from the OECA Assistant Administrator.

6. Reasoned Decision Making: LEAPS

The memorandum stresses the application of the “LEAPS” framework when making decisions on noncompliance and the appropriate means for achieving compliance:

• Law: the clearest, most defensible reading.
• Evidence: reliable and supportable facts.
• Analysis: sound, transparent reasoning.
• Programmatic Impact: avoiding mission creep.
• Stakeholder Impact: including states, Tribes, and regulated entities.

The LEAPS framework reflects the agency’s recognition that environmental statutes are complex enough without the addition of novel or aggressive interpretations. EPA further states that it will act “swiftly” to limit abusive litigation tactics from third parties, such as citizen suits. While citizen suits play an important enforcement role, the memo acknowledges that some have sought remedies beyond what environmental laws authorize.

What Now? Practical Implications for Regulated Entities

Although the guidance is not legally binding, the Pritzlaff Memo was transmitted to OECA and regional leadership and took immediate effect, applying to all civil, judicial, and administrative enforcement matters, including those already underway. Regulated entities should anticipate meaningful shifts in EPA’s day-to-day enforcement posture under the Pritzlaff Memo.

Inspections and enforcement interactions are likely to become more transparent and predictable, with a stronger emphasis on cooperation and prompt return to compliance rather than extended adversarial exchanges. Entities should also see fewer expansive or creative injunctive demands, particularly those not grounded in statutory authority, reducing uncertainty and costs associated with negotiating extra-regulatory requirements.

At the same time, the memorandum creates a clearer basis for challenging questionable or unsupported interpretations of environmental laws, since EPA staff must elevate ambiguities to national leadership for consistent resolution. Ongoing enforcement matters may slow or be recalibrated as the agency aligns its approach with the new framework. Additional clarity is expected once OECA issues its forthcoming unified guidance document on enforcement levels, which should further define expectations and outcomes for regulated parties.

Conclusion

The Pritzlaff Memo marks a deliberate recalibration of EPA’s enforcement philosophy: a return to clarity, consistency, and timely compliance. While environmental enforcement will remain vigorous where necessary, regulated entities should expect (and demand if necessary) a more focused, legally grounded, and predictable process that aims to resolve noncompliance efficiently rather than expand the scope of regulatory obligations through enforcement leverage.

For assistance with regulatory compliance and enforcement issues, please contact Tim Sowecke or Tyler A. Self. GableGotwals’ Administrative & Regulatory, Energy, Oil and Gas, and Environmental and Natural Resources teams regularly advise clients on regulatory compliance and enforcement.

Tim Sowecke
405-568-3308
tsowecke@gablelaw.com

Tyler A. Self
405-235-5589
tself@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

November 2025 (Volume 1, Edition 4)

In this edition of GableGotwals’ PFAS Pulse, we track the latest developments in per- and polyfluoroalkyl substances (“PFAS”) regulation and litigation. Recent developments include:

• EPA announces rollback of portions of the Toxic Substances Control Act (“TSCA”) PFAS reporting rule
• EPA issues FAQs on pesticides containing fluorinated carbon
• Federal judge dismisses attempt to make EPA regulate PFAS in biosolids
• Senate to hold hearing on cleanup and disposal policy for PFAS

Taken together, these developments underscore that PFAS oversight is evolving but not easing. Companies should remain vigilant as EPA continues to refine its regulatory approach.

EPA proposes major revisions to TSCA PFAS reporting rule.

EPA has taken its most significant step yet toward narrowing the scope of PFAS reporting under TSCA. On November 13, 2025, EPA published a proposed rule revising its 2023 PFAS Reporting Rule.

The revision introduces a narrower, more targeted framework designed to be “more practical and implementable and reduce unnecessary, or potentially duplicative, reporting requirements for businesses while maintaining the ability to obtain important use and safety information on PFAS,” according to EPA’s press release announcing the changes.

As PFAS regulation expands under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), the Safe Drinking Water Act (“SDWA”), and state programs, understanding the trajectory of TSCA reporting that led to EPA’s latest shift on TSCA reporting is critical to long-term compliance planning.

A. How We Got Here

Congress quietly, yet remarkably, expanded TSCA through the National Defense Authorization Act (“NDAA”), which added Section 8(a)(7), requiring EPA to collect information from anyone who manufactured a PFAS substance in any year since January 1, 2011.

In October 2023, EPA issued a sweeping final rule implementing the NDAA mandate, which included the following:

• Mandatory reporting for all PFAS manufactured or imported from 2011-2022
• Coverage extending to PFAS contained in articles
• No de minimis thresholds
• No exclusions for byproducts, impurities, intermediates, or research and development
• One-time retrospective reporting capturing more than 1,400 PFAS

Even with the reporting requirements limited to “known or reasonably ascertainable,” companies faced a massive burden auditing records and supply chains dating back to 2011.

EPA’s own cost estimate ran into the billions. Industry compliance efforts were also significant, leading to repeated deadline extensions, first to January 2026, then on May 13, 2025, through an interim final rule, pushing the reporting deadline window to April 13, 2026 – October 13, 2026 for standard filers and April 13, 2027 for small manufacturers reporting solely as article importers.

As the deadlines kept getting pushed, EPA simultaneously signaled an openness to substantive revisions. In an April 2025 press release, EPA stated its intent to implement the TSCA reporting rule “to smartly collect necessary information, as Congress envisioned and consistent with TSCA, without overburdening small businesses and article importers.”

B. November 2025 Proposed Rule: Four Exemptions and New Deadlines

EPA’s new proposed rule introduces four major exemptions and new deadlines that would dramatically narrow the universe of obligated companies.

1. Imported Article ExemptionThis is the most consequential revision. Under the 2023 rule, a company that imported a single PFAS-treated article in 2011 was obligated to report, even if it had no chemical expertise, no supplier visibility, and no reasonable ability to identify PFAS content. The new proposal removes article importers entirely.EPA’s rationale for removing article importers is threefold: (1) article importers typically lack “known or reasonably ascertainable” PFAS information; (2) upstream PFAS manufacturers will still capture information EPA needs; and (3) Congress did not intend to sweep article importers into Section 8(a)(7).

   This change alone will remove thousands of businesses from reporting obligations.

2. De Minimis Concentration Threshold (0.1%)EPA proposes exempting PFAS present below 0.1% in mixtures or articles and is seeking comment on whether a 1% threshold would better reflect real-world data availability during the 2011-2022 lookback period. Given the analytical and recordkeeping gaps for most companies, this exemption may become a practical necessity.
3. Byproducts, Impurities, and Non-Isolated IntermediatesThese proposed exemptions align TSCA PFAS reporting with the Chemical Data Reporting (“CDR”) rule under TSCA, excluding PFAS inadvertently generated during manufacturing processes. For refineries, chemical plants, and manufacturing operations where PFAS may be produced unintentionally through thermal processes or trace reactions, this would be a significant exemption.
4. Research and Development PFASPFAS manufactured solely for R&D on the basis that these substances are not manufactured at volumes or with the intent to meaningfully contribute to commercial exposure.
5. Revised Reporting WindowEPA proposes opening the reporting period 60 days after the effective date of the final rule and keeping it open for three months.

C. EPA Is Soliciting Comment

EPA is specifically seeking input on the following items:

• Whether to limit reportable PFAS only to those with CAS Registry Numbers
• Whether to add production-volume thresholds
• Whether the economic analysis accurately accounts for sunk costs already incurred
• Whether the de minimis level should be 0.1%, 1%, or another value

D. Closing Thoughts on TSCA Reporting

EPA’s proposed revisions represent the most substantial overhaul of TSCA PFAS reporting since the rule’s 2023 publication. While the agency is reducing burdens on article importers and small manufacturers, it is not backing away from PFAS regulation.

EPA continues to expand PFAS reporting under the Toxics Release Inventory (“TRI”), with automatic annual additions under the NDAA. In 2025, EPA proposed rules clarifying supplier notification obligations for PFAS in mixtures and trade name products, and EPA delayed but did not rescind its January 2025 rule adding nine new PFAS to TRI. Suppliers must notify customers with the first shipment of a TRI-listed PFAS in the calendar year it is added.

Companies that manufactured or imported PFAS between 2011 and 2022 remain obligated and should continue preparing for reporting in 2026-2027. Supply-chain mapping, document preservation, and internal PFAS compliance systems remain essential.

EPA issues FAQs on pesticides containing fluorinated carbon.

EPA’s Office of Pesticide Programs (“OPP”) has released a set of FAQs addressing pesticides that contain a fluorinated carbon, an increasingly important topic as regulatory definitions of PFAS diverge across programs. The FAQ is non-binding, but clarifies OPP’s current posture under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), and how this approach fits within today’s broader PFAS regulatory landscape.

A. No PFAS definition adopted for pesticides yet.

The FAQ reiterates that EPA has not adopted a PFAS definition for pesticide registration. Instead, OPP continues to evaluate each active ingredient and degradate case-by-case, focusing on hazard exposure, substance persistence, and bioaccumulation factors.

This approach contrasts with both the TSCA definition used by EPA’s Office of Pollution Prevention and Toxics (“OPPT”) and the broader Organization for Economic Cooperation and Development (“OECD”) structural definitions. OPP expressly declines to adopt either definition for pesticides, emphasizing instead that structural classification (PFAS or otherwise) does not dictate regulatory outcome.

B. Fluorinated pesticides will receive the same FIFRA review.

EPA emphasizes that pesticides containing fluorinated carbons undergo the same FIFRA registration review as any other active ingredient. If standard data are not sufficient, EPA requires additional studies before determining whether the product meets FIFRA’s “no unreasonable adverse effects” standard.

C. EPA acknowledges benefits of some fluorinated pesticides.

EPA notes that certain short-chained fluorinated pesticides, especially those containing only a single fluorinated carbon, may present lower toxicity and environmental risk compared to legacy pesticides such as organochlorines, e.g., DDT, aldrin, dieldrin, chlordane, most of which have been banned in the United States. EPA also highlights potential advantages such as resistance management modes of action and reduced-risk designations.

D. Takeaways on fluorinated carbon atoms in pesticides.

EPA is very clear that the FAQ does not interpret statutes or amend regulations, nor does it signal any pending rulemaking. Instead, the document functions as guidance on OPP’s existing framework. The practical implications for registrants and manufacturers are that they (1) should expect chemical-specific environmental fate and degradate scrutiny to continue or increase; (2) fluorination alone is not a regulatory risk factor, but persistence and bioaccumulation data remain critical; and (3) consider whether supplemental studies may be prudent to proactively address EPA requests in future registration cycles.

Further, registered fluorinated pesticides remain lawful and vetted under FIFRA’s existing framework, but users should continue to actively monitor supply chains and related regulatory programs that may affect the use of certain substances with fluorinated carbon atoms.

Federal judge dismisses attempt to make EPA regulate PFAS in biosolids.

On September 29, 2025, the U.S. District Court for the District of Columbia dismissed a high-profile lawsuit, Farmer v. EPA, in which agricultural producers, environmental organizations, and local governments sought to force the EPA to identify and regulate PFAS in biosolids under the Clean Water Act (“CWA”).

A. No non-discretionary duty under the CWA.

Judge Friedrich dismissed the CWA claims for lack of subject-matter jurisdiction, holding that while EPA must review biosolids regulations every two years, the CWA imposes no deadline requiring EPA to identify or regulate additional pollutants.

B. Biennial reports are not final agency action.

The court also dismissed the plaintiffs’ Administrative Procedure Act (“APA”) claims because EPA’s biennial sludge report is informational, is not a final agency action, and imposes no legal obligations.

C. Court provides pathways for future PFAS regulatory pressure.

Although the court declined to compel regulatory action, it left meaningful options on the table. Most notably, the court emphasized that interested parties may petition EPA for rulemaking, and any EPA denial of such a petition may be subject to judicial review. The decision also dismissed the CWA claims without prejudice, permitting a future lawsuit under an alternative theory.

The key takeaways from the ruling are: PFAS in biosolids remains a live policy issue, but the court will not compel EPA to regulate absent a statutory deadline. For more background on PFAS in biosolids, check out PFAS Pulse, Volume 1, Edition 1, here, and an article on legislative attempts to regulate PFAS in biosolids in Oklahoma here.

Senate to hold hearing on cleanup and disposal policy for PFAS.

On November 19, 2025, the U.S. Committee on Environment and Public Works will hold a hearing focused on PFAS cleanup and disposal. Witnesses include industry leaders and Congressional Research Service experts. A link to the proceedings can be found here.

EPA’s April 2024 updated Interim Guidance on PFAS destruction and disposal highlights three primary pathways for destruction or disposal: thermal destruction, hazardous waste landfills, and Class I underground injection wells.

EPA underscores significant data gaps for each method and recommends a precautionary, risk-based approach. Interim storage may be appropriate for high-PFAS-content or containerized materials while research continues.

New analytical tools, including EPA’s new OTM-50 analytical method, aim to improve understanding of thermal byproducts and protect communities near disposal facilities. EPA will continue to update the guidance at least every three years as required by the National Defense Authorization Act.

Conclusion

In sum, these developments reflect a PFAS regulatory landscape that is tightening in some areas and recalibrating in others but unmistakably moving forward. Companies across the supply chain should treat PFAS compliance as an ongoing, strategic priority and remain prepared for continued evolution in PFAS regulations in 2026 and beyond.

Thank you for reading this edition of PFAS Pulse. Feel free to reach out to GableGotwals’ Environmental and Natural Resources team with any questions.

Tim Sowecke
405-568-3308
tsowecke@gablelaw.com

Tyler A. Self
405-235-5589
tself@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

November 17, 2025 | By:  Tim Sowecke, Win Colbert, Tim “TJ” Jones, Tyler Self

Environmental issues surface in far too many deals only after the business terms are locked in, diligence windows are closing, lenders start asking hard questions, and after the opportunity to meaningfully and more accurately allocate risk has slipped away. In today’s regulatory and litigation environment, where Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) liability attaches broadly to owners and operators of contaminated properties, ubiquitous per- and polyfluoroalkyl substances (“PFAS”) have become a routine part of due diligence, and legacy contamination can impair otherwise strong investments — a reactive approach to environmental review is not just inefficient, it is economically harmful.

Accordingly, deal teams should adopt front-loaded, systematized environmental risk management as a formalized component of due diligence. This includes robust ASTM-compliant investigations, strategic use of contractual protections, and targeted risk-transfer mechanisms that inform valuation and negotiations. Consistently, we see that proactive environmental risk assessment leads to stronger deals, clearer liability allocation, and far fewer near- or post-closing surprises.

Step One: Operationalize an Environmental Risk System Before the Deal Starts

Teams regularly engaged in the acquisition and sale of assets should adopt a simple, repeatable internal framework for environmental risk analysis before engaging in any specific transaction. This system should include triggers for when an ASTM-compliant Phase I Environmental Site Assessment should be conducted, what kinds of historical uses may trigger deeper inquiry, how the deal team will weigh investigation and cleanup costs during valuation, and what risk-transfer tools are available.

Importantly, the system should also detail how all environmental diligence will be routed through legal counsel to preserve privilege. While failure to maintain privilege may not have immediate impacts on the deal itself, it can have cascading issues post-deal litigation or later environmental compliance scenarios. Establishing this type of formalized system will allow deal teams to avoid improvising, rushing, or ignoring environmental risk signals during the transaction itself while maintaining client privilege and confidentiality.

Step Two: Execute the System Through ASTM-Compliant Due Diligence

In order to better understand environmental due diligence, two foundational concepts are important: “All Appropriate Inquiries” (“AAI”) and ASTM International, formerly known as American Society for Testing and Materials. AAI is the standard established under CERCLA that prospective purchasers must satisfy to preserve the ability to assert key defenses, including the bona fide prospective purchaser and innocent landowner liability defenses under CERCLA.  ASTM is the technical body that develops the standards, specifically the Phase I Environmental Site Assessment standard (ASTM E1527-21), that EPA has approved to meet AAI requirements. In sum, ASTM guides the environmental professional by establishing minimum standards for conducting the environmental investigation, and AAI guides the legal assessment of what is required to secure CERCLA protections for liabilities related to the presence of hazardous substances on a property.

Executing environmental due diligence under this framework should not be a ho-hum exercise. A Phase I conducted using ASTM E1527-21 is critical and involves far more than a site walk and file review. It requires a qualified Environmental Professional to analyze more than 50 years of historical use, inspect the property and its surroundings, review regulatory records and environmental liens, investigate potential off-site sources of contamination, and interview past and present operators. Depending on the circumstances, in today’s regulatory landscape, it requires consideration of certain PFAS as a “recognized environmental condition” at some properties due to current or historic operations.

The Phase I is an investigative and due diligence tool. Its purpose is to identify potential hazardous substance releases or data gaps that cannot be resolved through non-intrusive means, e.g., soil/water sampling. When those gaps exist, a Phase II investigation becomes a critical decision point. Although AAI does not expressly require sampling, CERCLA defenses and transaction certainty will usually require further investigation of potential contamination in the form of sampling and analysis. Targeted sampling for appropriate contaminants, e.g., PFAS, chlorinated solvents, petroleum hydrocarbons, can eliminate or greatly reduce uncertainty related to environmental conditions and help to determine whether the deal is viable for the anticipated/expected purposes and cost, as well as where responsibility for further investigation and cleanup should lie.

Where contamination is confirmed, the parties can account for remediation plans, cost estimates, and regulatory pathways to cleanup or otherwise de-risk the property. All of which should directly inform negotiations.

Step Three: Allocating and Controlling Risk Through Transaction Documents

Once the facts are established through Phase I and possible further investigation, the transaction documents are critical for allocating pre- and post-closing risk. Representations and warranties addressing environmental compliance, historic releases, PFAS, underground storage tanks, and waste management practices become meaningful only when drafted in light of site-specific findings.

Indemnities, though unable to eliminate statutory CERCLA liability, are powerful tools for determining who should be responsible for cleanup as between the parties. Environmental escrows and holdbacks tied to investigation and remediation can be good tools for ensuring a buyer is not left holding an unexpected liability. Pollution insurance can also support risk allocation by providing coverage for pre-existing conditions, off-site migration, agency-directed cleanup, and long-tail liabilities. Additionally, the use of representations and warranties insurance can provide deals with an additional layer of security for assets that carry uncertain and risky liabilities.

Each of these tools is most effective when matched directly to the risks identified during diligence, rather than inserted reflexively at the end of negotiations where they can create friction, delay, or death of the deal.

Step Four: De-Risking Properties Post-Closing

For properties with known or suspected contamination, simply closing the deal should not be the end of the environmental story. Long-term de-risking requires a strategy that includes regulatory engagement, cleanup and remediation planning, and maintenance of engineering and institutional controls. State voluntary cleanup programs and brownfield programs can provide covenants-not-to-sue, defined cleanup endpoints, and long-term liability clarity. Ongoing stewardship measures will likely be necessary and budgeted, such as ongoing monitoring, maintaining soil “caps” or vapor mitigation systems, and honoring land-use restrictions. The considerations are especially important under CERCLA’s broad liability scheme, where past owners and operators remain at risk even decades after their involvement.

Conclusion

Environmental due diligence in transactions should be neither peripheral nor surprising. Rather, environmental risks should be a knowable and quantifiable component of value and liability. By operationalizing a consistent internal system, executing ASTM-compliant diligence early, integrating findings into negotiations and allocation of risk, and committing to long-term stewardship where needed, deal teams move from reactive to proactive control, which results in fewer surprises and stronger deals.

For questions on how to set up and operate strategic environmental due diligence systems for acquisition and divestment of assets, please contact GableGotwals’ Environmental and Natural Resources Law Team.

Tim Sowecke
405-568-3308
tsowecke@gablelaw.com

Win Colbert
346-200-6439
wcolbert@gablelaw.com

Timothy T. Jones

Tyler A. Self
405-235-5589
tself@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.