The Nickel Report

On June 18, 2025, the Supreme Court decided Oklahoma v. EPA and EPA v. Calumet, a pair of cases that focus on the Clean Air Act’s (CAA or Act) venue selection provisions.

The judicial review provisions of the Act send review of “nationally applicable” EPA actions to the DC Circuit and review of “locally or regionally applicable” EPA actions to the regional circuits. See 42 U.S.C. § 7607(b)(1). However, in an exception to that rule, venue may lie in the DC Circuit for regionally applicable actions that are “based on a determination of nationwide scope or effect.” In the Court’s two recent decisions, it explained that the CAA venue analysis called for a two-step inquiry. First, courts must decide whether the EPA action is nationally applicable or only locally or regionally applicable; if nationally applicable, the case belongs in the DC Circuit. Second, if locally or regionally applicable, courts must decide whether the case falls within the exception for “nationwide scope or effect” to override the default rule of regional circuit review.

On May 29, 2025, in a decision long-awaited by project developers, the Supreme Court issued Seven County Infrastructure Coalition v. Eagle County, Colorado, which clarified the proper scope of review and deference to be afforded to agency decisionmaking under the National Environmental Policy Act (NEPA). This decision reinforces longstanding Supreme Court holdings and may help improve the NEPA process by providing support for agencies to focus their NEPA reviews on impacts associated with their authorizations.

Last month saw several developments in the U.S. Environmental Protection Agency’s (EPA) ongoing efforts to authorize states to implement Class VI of the federal Underground Injection Control (UIC) program under the Safe Drinking Water Act (SDWA) for geologic sequestration of carbon. This push toward state primacy is an important development for the rapidly growing carbon capture and sequestration (CCS) industry, for which Class VI permits are the critical construction and operating permit. Currently, there are 62 CCS projects - including many with multiple wells - with permit applications pending with EPA. Project proponents anticipate that permitting will be faster if administered by the state instead of EPA. The latest developments last month include: (1) EPA’s proposal to grant primacy to Arizona; (2) EPA’s proposal to grant primacy to Texas; (3) a federal court decision rejecting a challenge to EPA’s earlier grant of primacy to Louisiana; and (4) an ongoing challenge to West Virginia’s recently granted primacy.

On June 9, 2025, the US EPA took another step forward toward having states take the lead for implementing and enforcing Class VI Underground Injection Control (UIC) programs under the Safe Drinking Water Act (SDWA), which are central to carbon capture and sequestration (CCS) permitting. To date, EPA has signed Memoranda of Agreement (MOAs) with several states regarding state agreements to implement Class VI injection well programs. The Texas MOA was signed on April 29, 2025. Now, and consistent with the MOA, EPA has released its proposed rule to give Texas primacy over the program. 

The US Environmental Protection Agency (EPA) recently announced significant changes coming for two of its major rules that regulate per- and-polyfluoroalkyl substances (PFAS). First, EPA announced on May 12, 2025, that it is delaying the reporting period for the Toxic Substances Control Act (TSCA) Section 8(a)(7) PFAS Reporting Rule and is also considering reopening the entire rule to make substantive revisions. Second, on May 14, 2025, EPA also announced that it plans to withdraw its drinking water standards under the Safe Drinking Water Act (SDWA) for four of the six PFAS that EPA sought to regulate.

On May 15, 2025, the California State Mining and Geology Board voted to establish the Critical Minerals Committee. The committee was established by a unanimous 9-0 vote.

The U.S. Department of Justice (DOJ) recently filed four lawsuits against states related to specific climate change actions they have taken or planned to take. On April 30, 2025, DOJ preemptively sued Hawaii and Michigan to prevent both states from going forward with their stated intent to pursue legal action against fossil fuel companies for alleged harms caused by climate change and to declare those states’ claims unconstitutional. The following day, on May 1, 2025, DOJ sued New York and Vermont for their enactment of climate “superfund” laws, which create retroactive cost recovery claims on producers of fossil fuels, seeking to enjoin the enforcement of those statutes and to have them declared unconstitutional as well.

In recent weeks, the House Committees on Energy & Commerce and Natural Resources considered several legislative proposals that contemplate amendments to, among other things, the Federal Power Act, National Environmental Policy Act, and federal oil and gas leasing policy.

On April 29, 2025, EPA Region 6 entered into a Memorandum of Agreement (MOA) with the Texas Railroad Commission (RRC) that outlines the state’s plans for administering its Class VI injection well program related to carbon capture, utilization, and sequestration. The MOA delineates the responsibility of authority for administering all Class VI injection well activities and regulation in the State of Texas. The signing of the MOA is a significant step towards RRC’s primacy over its Class VI injection well program and represents the end of the application phase of RRC’s primacy effort and the beginning of the proposed rulemaking phase.

On April 28, 2025, EPA Administrator Lee Zeldin revealed the agency’s strategic plans across program offices to address per- and-polyfluoroalkyl substances (PFAS), commonly known as “forever chemicals.” This marks the first public announcement from the new Trump Administration on this issue. EPA aims to implement comprehensive actions targeting PFAS in areas such as water, air emissions, land, waste, and manufactured and imported products. Although specific details are still pending, the announcement foreshadows potential regulatory and enforcement actions the agency may prioritize in the coming months, guided by principles of strengthening scientific research, fulfilling legal obligations, enhancing communication, and building partnerships.