The Nickel Report

A recent federal court decision determined that documents created by a criminal defendant using AI and subsequently shared with legal counsel were not shielded by attorney-client privilege or the work product doctrine. In USA v. Heppner, Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York compelled the disclosure of 31 documents created with Anthropic’s Claude. This order was issued despite the defendant including information from counsel in the AI tool’s input and later providing the resulting outputs to his attorneys. The ruling offers early judicial perspective on privilege concerns involving AI-generated materials, an area where case law remains sparse.

The US Department of Justice (DOJ) recently announced it is “exercising its enforcement discretion to no longer pursue criminal charges . . . on allegations of tampering with onboard diagnostic devices in motor vehicles” under the Clean Air Act (CAA or Act). According to DOJ, this exercise of discretion not to criminally prosecute is based on “sound enforcement principles, efficient use of government resources[,] and avoiding overcriminalization of federal environmental law.” DOJ’s announcement is an about-face from years of criminal prosecutions for identical conduct, including an increase of these prosecutions under the first Trump administration. As a result of this new policy, DOJ is now dismissing existing CAA criminal tampering cases—more than a dozen prosecutions thus far—and the decision may impact some 20 or more ongoing investigations. DOJ stated in its announcement that it intends to continue to pursue civil enforcement for tampering cases under the Act in partnership with EPA.

Since its first day in office, the current administration has taken steps to curtail the development of renewable energy, and wind energy in particular. Just over a year in, the administration’s intentions do not seem to have changed, but there are signs that legal challenges are affecting implementation of its policies toward renewable energy development.

On February 17, 2026, the Federal Aviation Administration (FAA) issued a final rule adopting a new airworthiness directive (AD) for certain Bombardier Inc. airplanes. This new AD requires locking features to be installed on applicable network interfaces to prevent unauthorized network access. FAA seeks 45-day public comment on any written data, views, or arguments associated with this final rule, ending on April 3, 2026.

Among the changes, the proposed rule would amend Hazardous Materials Regulations to treat sodium ion batteries in a manner similar to the way lithium ion batteries are regulated.

On February 10, 2026, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) to amend the Hazardous Materials Regulations (HMR) to adopt certain international regulations and standards concerning proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quality limitations, and vessel stowage requirements. Notably, in this NPRM, PHMSA recognizes the increased use of sodium ion batteries and proposes various changes to regulate them in the same manner as lithium ion batteries.

Perhaps the biggest EPR news to date is the February 6, 2026 decision by the US District Court for the District of Oregon granting the National Association of Wholesaler-Distributors Inc. (NAW) a preliminary injunction to block enforcement of Oregon’s Plastic Pollution and Recycling Modernization Act (RMA) pending a decision on the merits.^[1] The Oregon litigation has the potential to affect the scope of EPR programs across the country, potentially extending beyond packaging to other products. In the meantime, product manufacturers and retailers must continue to wrestle with how best to manage EPR compliance and related costs and business impacts.

On February 9, 2026, the National Highway Traffic Safety Administration (NHTSA) published a notice of a public meeting to provide updates on and insights into ongoing activities regarding vehicle automation across NHTSA. The meeting will be held in person and is scheduled to take place all day on March 10, 2026.

Chemical manufacturers, product makers, and product retailers are gearing up for new state-level restrictions on products sold in stores and online that contain per- and-polyfluoroalkyl substances (PFAS). A total of 18 states have PFAS product restrictions ranging from bans to reporting to labeling requirements. The laws target primarily food packaging, cosmetics, cookware, and textiles, but some states have expansive laws that include all types of products. Each year for the past four years, approximately 200 PFAS-related bills are introduced in state legislatures, and we expect this trend to continue, potentially adding to the growing patchwork of PFAS restrictions.

The past year saw the California Air Resources Board (CARB) grapple with implementation of California’s climate disclosure laws, SB 253 (Climate Corporate Data Accountability Act) and SB 261 (Climate-Related Financial Risk), both of which were enacted in 2023 with first compliance deadlines in 2026.

EPA’s Office of Enforcement and Compliance Assurance (OECA) recently announced a major shift in the agency’s approach to environmental enforcement, emphasizing swift, efficient achievement of compliance over punitive or expansive enforcement measures. The “Reinforcing a ‘Compliance First’ Orientation for Compliance Assurance and Civil Enforcement Activities” memo (not publicly available as of this writing) clarifies that EPA’s primary goal is to ensure compliance with federal environmental laws using the most defensible and clear interpretations of statutory or regulatory mandates, thereby reducing ambiguity and regulatory uncertainty to industry’s benefit. The memo has implications for future compliance and enforcement activity as well as ongoing cases.