future-focused

EPA Rescinds “Reactivation Policy,” Furthering NSR Program Overhaul

3 minute read

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On September 18, 2025, the Environmental Protection Agency (EPA) announced a nationwide recission of its “Reactivation Policy,” which it had historically applied to determine whether a New Source Review (NSR) permit was required in order to resume the operation of an idle stationary source. 

The Clean Air Act’s (CAA) NSR provisions require the owner or operator of a facility to obtain a permit before constructing a new major stationary source or making a major modification at an existing major stationary source. Under the Reactivation Policy, EPA maintained that resuming operation of an idle facility that was determined to be “permanently shut down” constitutes the construction of a new stationary source, thereby triggering the requirement to obtain an NSR permit. EPA considered the intention of the owner or operator at the time of shutdown when determining whether the shutdown should be treated as permanent, examining factors such as the reason for the shutdown and the cost and time to reactivate the facility, among others. Additionally, EPA presumed that a major stationary source that was idle for two or more years was permanently shut down.

However, on July 25, 2023, the U.S. Court of Appeals for the Third Circuit in Port Hamilton Refining and Transportation, LLLP v. U.S. EPA, 87 F. 4th 188 (3d Cir. 2023), rejected the EPA’s application of the Reactivation Policy to require the owners of an inactive refinery to obtain an NSR permit before restarting the operations of the refinery. The Third Circuit reasoned that the CAA “unambiguously limits” the application of the NSR program to “newly constructed or modified facilities,” and that the EPA’s Reactivation Policy extends the NSR program “beyond those limited circumstances.”

EPA relies on this Third Circuit decision in justifying its recission of the Reactivation Policy, stating that although the “Third Circuit did not vacate the Reactivation Policy itself, the court’s reasoning leads to the inescapable conclusion that it is not permissible for EPA to apply that policy to require existing stationary sources to obtain a permit based solely on resuming operation of the source after a period of inactivity.” Accordingly, “EPA will no longer apply the Reactivation Policy to classify resuming operation of a stationary source as construction of a new source in EPA permitting and enforcement actions on a national basis.” However, EPA stresses that it will continue to enforce the NSR applicability provisions relating to the modification of existing facilities in accordance with the CAA. That is, the “restart of an idled facility involving a physical change (or a change in the method of operation at the source other than simply restarting) will still require [an NSR] permit if it qualifies as a ‘major modification’ by virtue of the nature of the change and the degree to which it results in an increase in regulated NSR pollutant emissions.”

The recission of the Reactivation Policy is the latest in a series of EPA actions reforming the NSR program, following closely after the agency’s new interpretation of “Begin Actual Construction” and reinstatement of its “no second-guessing” policy. These recent changes mark a significant shift in EPA’s application of the NSR program, and industry stakeholders should be on the lookout for more updates in this area.

For more information on air permitting requirements for construction, please contact Liskow attorneys Greg Johnson, Clare Bienvenu, Emily von Qualen, and Colin North, and visit Liskow’s The Louisiana Industrial Insights Hub. 

Thus, where an existing major stationary source that has been idle makes a change in order to enable it to resume operation, EPA will not require the source to obtain an NSR permit unless this change qualifies as a "major modification" under applicable regulations based on the nature of the change and the magnitude of any resulting increase in emissions.

www.epa.gov/…

Podcast: The Oil and Gas Regulator with an Unlikely Name: The Texas Railroad Commission

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In this episode of “Energy Law This Week,” hosts Matt Jones and April L. Rolen-Ogden discuss the Texas Railroad Commission with Kelli Kenney, who is deeply immersed in the legal practice involving that agency. The Texas Railroad Commission is the earliest dedicated agency to regulate oil and gas, and it has been the model for most other states. This episode explains how it got its unlikely name, who it governs, and its principal roles. From spacing regulations and compulsory pooling to allocation wells, the discussion touches upon the key roles of the agency in managing exploration and production in Texas.

Listen to the full episode here.

Podcast: The Oil and Gas Regulator with an Unlikely Name: The Texas Railroad Commission

less than a minute

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In this episode of “Energy Law This Week,” hosts Matt Jones and April L. Rolen-Ogden discuss the Texas Railroad Commission with Kelli Kenney, who is deeply immersed in the legal practice involving that agency. The Texas Railroad Commission is the earliest dedicated agency to regulate oil and gas, and it has been the model for most other states. This episode explains how it got its unlikely name, who it governs, and its principal roles. From spacing regulations and compulsory pooling to allocation wells, the discussion touches upon the key roles of the agency in managing exploration and production in Texas.

Listen to the full episode here.

Louisiana Clarifies Sales Tax Treatment of Delivery, Freight, and Transportation Charges

2 minute read

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The Louisiana Department of Revenue (“LDR”) has issued Revenue Information Bulletin (RIB) No. 25-025 providing clarification on how state and local sales and use taxes apply to transportation charges, including shipping, freight, and delivery costs, in transactions involving tangible personal property, digital products, leases and rentals, and taxable services. This comes after the legislature expanded the sales tax base to include certain transportation charges during the 2024 Third Extraordinary Session of the Louisiana Legislature, which took effect on January 1, 2025.

Under Louisiana law, the definitions of both “cost price” and “sales price” include transportation charges. As a result, delivery or freight fees charged by a seller for transporting taxable tangible personal property or digital products are subject to sales tax, regardless of whether those charges are separately itemized or included in the total price. Therefore, sellers that provide delivery as part of a sale must treat those charges as part of the taxable base unless a specific exemption or exclusion applies.

Transportation charges follow the tax treatment of the underlying transaction. If the sale itself is exempt or excluded from sales tax, such as a sale for resale or a purchase of qualifying manufacturing machinery and equipment, then the associated transportation charges are also excluded or exempt. For instance, a delivery charge on a sale of equipment to a Louisiana state agency (exempt under La. R.S. 47:305.7(A)(1)(a)) is likewise exempt.

When a single invoice includes both taxable and non-taxable items and only one transportation charge is applied, the entire transportation charge is taxable if any portion of the invoice relates to a sale that is subject to sales and use tax. Sellers who separately invoice or itemize delivery charges associated with exempt or excluded sales to avoid tax on a mixed transaction may not avoid tax by improperly allocating delivery costs to non-taxable invoices.

The taxability of transportation charges also depends on who arranges the delivery. If the purchaser contracts directly with a third-party carrier for shipment, those charges are not taxable. Similarly, no tax applies if the seller hires a third-party carrier but does not charge the purchaser for delivery. However, if the seller passes through third-party delivery charges to the customer, those amounts are deemed part of the sales price and are subject to tax.

In contrast to sales transactions, Louisiana’s sales tax on leases and rentals applies to the “gross proceeds derived from the lease or rental.” Transportation or delivery charges are not included in gross proceeds, meaning separately stated delivery fees on leased or rented property are not taxable. Likewise, for taxable services, sales tax applies only to the amount paid for the service itself. Therefore, separately stated delivery or transportation charges related to the service are not taxable. For further updates regarding this topic, contact Liskow attorneys Bob Angelico, Leon Rittenberg III, Caroline Lafourcade, and Kevin Naccari, Jr. and visit our Tax practice page.

EPA Reinstates “No Second-Guessing” NSR Policy: What It Means For Industry

3 minute read

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On September 15, 2025, the Environmental Protection Agency (EPA) reinstated a policy from the first Trump administration that the agency would not “second-guess” pre-project emissions projections made by permit applicants in New Source Review (NSR) permitting. Specifically, EPA re-issued a 2017 memorandum, titled “New Source Review Preconstruction Permitting Requirements: Enforceability and Use of the Actual-to-Projected-Actual Applicability Test in Determining Major Modification Applicability.”

Before beginning construction of a project, the Actual-to-Projected-Actual Applicability (APTA) test is utilized to determine whether a proposed project at an existing source triggers NSR permitting by comparing pre-project actual emissions with the projected post-project actual emissions. With the reinstatement of the 2017 policy, EPA is clarifying that “when a source owner or operator performs a pre-project NSR applicability analysis in accordance with the calculation procedures in the regulations, and follows the applicable recordkeeping and notification requirements in the regulations, that owner or operator has met the pre-project source obligations of the regulations, unless there is clear error (e.g. the source applies the wrong significance threshold).” As long as the owner or operator complies with the regulatory requirements, EPA will not “substitute its judgment for that of the owner or operator by ‘second guessing’ the owner or operator’s emissions projections.” The 2017 policy also clarifies that the intent of an owner or operator to manage emissions from a unit after a project is completed is relevant information that may be considered when projecting future actual emissions.

The 6th Circuit’s opinion in U.S. v. DTE Energy Co., 711 F.3d 643 (6th Cir. 2013), held that EPA has the authority to pursue enforcement based solely on an allegedly improper projection of future emissions even though actual emissions from the source had not increased. The “no second-guessing” policy indicates that as long as an owner or operator makes a good-faith projection about a project’s emissions increase (or lack thereof), EPA will exercise its discretion and not pursue enforcement “unless post-project actual emissions data indicate that a significant emissions increase or a significant net emissions increase did in fact occur.” EPA will look to the actual emissions during the 5- or 10-year recordkeeping or reporting period to assess whether a significant emissions increase has occurred. As such, the policy indicates that EPA will use its substantial discretion to restrict enforcement for mere projection errors that did not result in post-project significant actual emissions increases or significant net increases and will reserve enforcement for matters where post-project actual emissions indicate that an NSR permit is required. 

This action by EPA was part of a trio of changes the administration made to its NSR permitting policies. EPA’s reinstatement of its “no second-guessing” policy comes on the heels of its September 2, 2025, interpretation of “begin actual construction,” wherein the Agency previewed its current stance on the topic and signaled its intention to amend the NSR regulations to authorize a broader set of construction activities before (or without) receiving an NSR permit. Following the reinstatement of the “no second-guessing” policy, on September 18, 2025, EPA furthered its NSR program overhaul by rescinding its “Reactivation Policy.”

Stay tuned for further NSR updates. For more information on air permitting requirements for construction, please contact Liskow attorneys Greg Johnson, Clare Bienvenu, Emily von Qualen, and Colin North, and visit Liskow’s The Louisiana Industrial Insights Hub. 

This permitting reform action provides much needed certainty for preconstruction permit requirements for manufacturing and data center facilities. EPA will not “second-guess” pre-project emissions projections unless there is clear error or violation of recordkeeping requirements.

www.epa.gov/…

IRS Adds Chemicals to Taxable Substances List

2 minute read

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The IRS announced the addition of 39 chemicals to the list of taxable substances subject to the Superfund Chemical Excise Taxes in Notice 2025-51, 2025-41 IRB 448. 

The Superfund Chemical Excise Taxes apply to manufacturers, producers, or importers who sell or use “taxable chemicals” or “taxable substances” that are manufactured or produced in the U.S. or are imported into the United States. The tax is applicable if the chemicals or substances are considered taxable under §4661 or §4672 of the Internal Revenue Code (“Code”). Businesses must analyze the chemical composition of all of their products and determine where along the supply chain any taxable chemicals or substances are imported into or produced in the U.S. and by whom.

The following substances were added to the List according to the Notice:

1.          Acrylonitrile-butadiene rubber

2.          Bromo-isobutene-isoprene rubber

3.          Chloroprene rubber

4.          Ethylene-propylene-ethylidene nor-bornene rubber

5.          Ethylene vinyl acetate

6.          Ethylene vinyl acetate

7.          Hydrogenated acrylonitrile-butadiene rubber

8.          Isobutene-isoprene rubber

9.          Poly(ethylene-propylene) rubber

10.        Emulsion styrene-butadiene rubber

11.        Solution styrene-butadiene rubber

12.        Emulsion styrene butadiene rubber

13.        Solution styrene-butadiene rubber

14.        Hydrogenated acrylonitrile-butadiene rubber

15.        Bromobutyl isobutylene isoprene rubber

16.        Chlorobutyl isobutylene isoprene rubber

17.        DIPE–di-isopropyl ether

18.        Di-isodecyl phthalate

19.        Di-isononyl adipate

20.        Di-isononyl phthalate

21.        Di-tridecyl phthalate

22.        Ethylene propylene diene (EPDM) rubber   

23.        Isodecyl alcohol

24.        Isodecyl benzoate

25.        Isooctyl alcohol

26.        Linear nonyl phthalate

27.        Linear nonyl undecyl phthalate

28.        Linear undecyl phthalate

29.        Linear nonyl tri-mellitate

30.        Neo decanoic acid

31.        Neo pentanoic acid

32.        Nonene

33.        Regular butyl rubber

34.        Tridecyl alcohol

35.        Tri-isononyl tri-mellitate

36.        Di-isobutylene

37.        Polyisobutylene

38.        Styrene-acrylonitrile

39.        Acrylonitrile butadiene styrene

The effective date for purposes of the excise tax under §4671 of the Code for the taxable substances added to the list is January 1, 2026.

For the effective date for purposes of refund claims under Section 4662(e) of the Internal Revenue Code for the taxable substances added to the list, see the determination for each substance.

The updated list and prescribed tax rates for taxable substances will be included in the instructions to IRS Form 6627, Environmental Taxes.

In November 2021, President Biden signed into law the Infrastructure Investment and Jobs Act, which revived and expanded long dormant excise taxes (known as the Superfund Chemicals Taxes) used to address hazardous waste sites in the United States. The new taxes, which went into effect on July 1, 2022, apply to the sale of certain chemical substances, and to an importer’s sale or use of specified substances.

For more information, contact Liskow attorneys Caroline Lafourcade, Greg Johnson, or Clare Bienvenu.

The IRS announced in Notice 2025-51, 2025-41 IRB 448 the addition of 39 chemicals to the list of taxable substances subject to the Superfund Chemical Excise Taxes.

www.irs.gov/…

Broker Liability and Federal Preemption: U.S. Supreme Court to Consider the Road Ahead

3 minute read

Freight brokers play a critical role in the modern supply chain. Rather than owning trucks or employing drivers, they match shippers with licensed carriers and keep goods moving across the country. Although a freight broker’s work usually occurs behind the scenes, questions often arise about the scope of their responsibility when motor accidents occur. In those situations, plaintiffs have increasingly turned to brokers for recovery, alleging that they negligently hired the carrier involved in the loss. Whether such negligent hiring claims overcome federal preemption lies at the center of a deep divide among federal circuit courts. But this split will soon be resolved. Just last week, the Supreme Court granted certiorari in Montgomery v. Caribe Transportation II, LLC, 124 F.4th 1053, 1058 (7th Cir. 2025), cert. granted, 2025 WL 2808807 (U.S. Oct. 3, 2025), a case poised to address the preemption question once and for all.

At the crux of the dispute is the Federal Aviation Administration Authorization Act of 1994 (the “Act”). Despite its name, the statute goes beyond aviation to include motor carriers, freight forwarders, and freight brokers engaged in interstate commerce. Congress passed the Act, in part, to promote national uniformity in transportation regulation. See City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 440 (2002) (“[S]tate economic regulation of motor carrier operations . . . is a huge problem for national and regional carriers attempting to conduct a standard way of doing business.”) (quoting H.R. Conf. Rep. No. 103–677, p. 87 (1994))). To help achieve this goal, the Act includes a preemption clause, barring states from enacting or enforcing any law “related to a price, route, or service” of a motor carrier, broker, or freight forwarder “with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). By its terms, “related to” expresses a “broad pre-emptive purpose,” See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992), reaching any state law “having a connection with or reference to” broker services, whether directly or indirectly, see Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013) (quoting Rowe v. New Hampshire Motor Transport Ass’n, 552 U.S. 364, 370 (2008)); Ye v. GlobalTranz Enters., Inc., 74 F.4th 453, 458 (7th Cir. 2023).

Still, the statute includes an important carveout called the “safety exception.” This clause preserves “the safety regulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A). Courts of appeals disagree about whether this exception shields brokers from negligent hiring claims. The Seventh and Eleventh Circuits have held that it does not, emphasizing that brokers do not themselves operate motor vehicles and that their activities do not have a “direct link” to motor vehicle safety. See Ye, 74 F.4th at 463; Aspen v. Robinson Worldwide, Inc., 65 F.4th 1261 (11th Cir. 2023). Under this view, the Act preempts negligent hiring claims against brokers. In Montgomery, now before the Supreme Court, the Seventh Circuit reaffirmed this prior holding.

But the Ninth and Sixth Circuits have reached the opposite conclusion. These courts have determined that a broker’s choice of carrier is itself a safety-related act, and that state tort duties requiring reasonable care in such hiring fall within the safety exception. See Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1025 (9th Cir. 2020); Cox v. Total Quality Logistics, 2025 WL 1878770, at *5 (6th Cir. July 8, 2025). After all, these courts reason, “brokers are ultimately responsible for placing such motor vehicles on the road.” See Cox, 2025 WL 1878770, at *8.

Brokers operating in Louisiana, Mississippi, and Texas face particular uncertainty. Although the Fifth Circuit has yet to speak directly to the issue, district courts within the circuit are divided. Some trial courts have chosen to follow the Eleventh Circuit’s reasoning that negligent hiring claims are preempted, see, e.g., Domingue v. Costco Wholesale Corp., 2025 WL 2429045, at *3 (S.D. Tex. July 3, 2025); Bailey v. Progressive Cnty. Mut. Ins. Co., 2024 WL 3845966, at *3 (E.D. La. Aug. 16, 2024); Hamby v. Wilson, 2024 WL 2303850, at *4 (E.D. Tex. May 21, 2024), while others have adopted the Ninth Circuit’s view that such claims fall within the safety exception, see, e.g., Glover v. Argonaut Ins. Co., 2025 WL 1805708, at *4 (M.D. La. June 30, 2025); Bertram v. Progressive Se. Ins. Co., 2021 WL 2955740, at *6 (W.D. La. July 14, 2021). This division within the Fifth Circuit, and across the country, carries practical consequences for brokers: the legal standard governing their liability depends not on federal uniformity, but on the fortuity of where a case is filed. In Montgomery, the Supreme Court has chance to settle the preemption dispute and bring more predictability to the interstate transportation sector. Whether it holds that federal preemption bars negligent hiring claims entirely, or that the safety exception preserves them, its ruling will indisputably shape the future of interstate commerce.

For more information regarding this topic, contact Liskow attorneys Kathryn Gonski and Chace Vienne.

Possible Louisiana Guard Deployment Highlights Employers’ USERRA Obligations

2 minute read

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Governor Jeff Landry recently asked the federal government to approve deployment of up to 1,000 Louisiana National Guard troops to assist with public safety across the state, including in New Orleans, Baton Rouge, and Shreveport.  While the request is still pending, Louisiana employers should take note: one or more of your employees could soon be called to active duty, triggering your obligations under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). 

USERRA applies to all employers – regardless of size – and protects employees (but not independent contractors) who serve in the uniformed services, including the armed forces and National Guard, and who have a reasonable expectation that their employment will continue indefinitely or for a significant period. 

Among other things, USERRA requires employers to:

  • Reemploy returning service members in the same or equivalent position they would have held had they not been absent from work for miliary service, with comparable seniority, status, and pay (including promotions and pay increases awarded during their service absence).
  • Continue health coverage for up to 24 months during military service (if elected).
  • Protect pension and benefit accruals as though employment had not been interrupted.
  • Not discriminate or retaliate based on an employee’s military service, obligation, or use of USERRA leave.

With limited exceptions, employees must: (1) provide advance notice of their military duty; and (2) request reemployment within statutory deadlines depending on their length of service (ranging from the next workday after release to up to 90 days after release). 

USERRA violations can result in substantial penalties, including minimum liquidated damages of $50,000, double damages for lost pay and benefits, attorneys’ fees, and injunctive relief. 

For Louisiana employers, now is the time to review internal policies and HR practices for USERRA compliance, train HR staff and supervisors to handle military leave consistently, coordinate with benefit administrators on continuation coverage, and streamline processes to maintain documentation of notice, benefits, and reemployment actions. 

Liskow employment lawyers Ellie George and Tommy McGoey are available to answer any questions regarding compliance with USERRA. For further inquiries, visit our Labor & Employment practice page. 

CEQ Issues Guidance to Federal Agencies for NEPA Review

2 minute read

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The White House Council on Environmental Quality issued guidance on September 29, 2025, implementing the May 2025 opinion of the U.S. Supreme Court in Seven County Infrastructure Coalition v. Eagle County, which narrowed the scope of federal agencies’ NEPA reviews and increased the deference owed by the courts to those agencies’ NEPA determinations.  The new guidance updates and replaces guidance issued in February 2025, building upon amendments to NEPA passed by Congress in 2023 and 2025. The guidance was accompanied by a template to be used by federal agencies in the the development or revision of agency-specific NEPA procedures. The guidance and template are intended to give federal agencies a clear and consistent roadmap to streamline the federal environmental review and permitting process. 

Many federal agencies will choose to issue their NEPA procedures through non-regulatory documents such as guidance or handbooks, which would allow them to adjust these procedures quickly if circumstances arise. Some agencies may choose to address their NEPA procedures through notice-and-comment rulemaking, which is more durable, but takes longer to change to adjust to different circumstances. The September 29 guidance sets forth procedures for the agencies to consult with CEQ in implementing their NEPA programs under either option.

The guidance also allows agencies to implement the fee provisions from the NEPA revisions in the One Big Beautiful Bill Act that allow project proponents to pay for expedited processing of the NEPA review for their project. 

The guidance and template represent the the Trump administration’s latest efforts to streamline environmental permitting and reduce regulatory requirements under NEPA. The changes should assist in achieving EPA Administrator Lee Zeldin’s stated goal to expedite development of artificial intelligence technologies and supporting data centers. 

For more information regarding this topic, contact Liskow attorneys Greg Johnson, Clare Bienvenu, Emily von Qualen, and Colin North, and visit the Louisiana Industrial Insights Hub for further updates.

CEQ has worked and continues to work with agencies for consistency as they revise their agency-level NEPA implementing procedures. Based on the Seven County opinion, the efforts of the working group, and the statutory amendments to NEPA, CEQ is issuing this revised guidance to further assist agencies in establishing or revising their NEPA implementing procedures.

ceq.doe.gov/…

District Court Holds a Financial Advisor is a Common Law Employee Not Entitled to Business Deductions.

2 minute read

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On September 24, 2025, the United States District Court for the Eastern District of Pennsylvania issued a memorandum opinion finding that a Wells Fargo financial advisor was a common law employee rather than an independent contractor, upheld the IRS’s disallowance of business expense deductions, and granted the government’s motion for summary judgement. Francisco Gil, a longtime financial advisor at Wells Fargo, argued that his flexibility in setting his schedule, recruiting clients, and working primarily on commission made him an independent contractor entitled to deduct business expenses on Schedule C. Alternatively, he sought classification as a statutory employee.

The IRS maintained that Gil was a common-law employee, pointing to Wells Fargo’s significant control over his work. The firm supervised him through annual reviews, performance goals, and access to his calendar; provided benefits such as health insurance and a 401(k); supplied office space, equipment, and assistants; withheld taxes from his pay; and retained ownership of his client lists. Wells Fargo also consistently treated him as an employee, issuing W-2s rather than 1099s.

Applying the common-law test for worker classification, the court found that the degree of control, provision of benefits, permanency of the relationship, and integration of Gil’s services into Wells Fargo’s core business overwhelmingly supported employee status. Although his commission-based pay and scheduling flexibility weighed in his favor, they did not overcome the broader evidence of employee treatment.

Because Gil was neither an independent contractor nor a statutory employee, he could not claim Schedule C deductions. The court concluded that Gil and his wife were entitled to smaller refunds than they sought—$17,074 for 2020 and $14,413 for 2021—reflecting only their overpayment as employees. The government’s motion for summary judgment was granted, and the taxpayers’ motion was denied. For further questions regarding whether you or your employee qualifies as an independent contractor, contact Liskow attorneys Leon Rittenberg III and Kevin Naccari and visit our Tax practice page.