Regulatory Playbook

Trending Issues

Treasury Department and IRS Issue Final Regulations Regarding the Clean Electricity Tax Credits Under Sections 45Y and 48E of the Internal Revenue Code
01.17.2024

On January 7, 2025, the U.S. Department of Treasury (Treasury) and the Internal Revenue Service (IRS) released final regulations [TD 10024] (Final Regulations) providing guidance on the Clean Electricity Production Tax Credit (CEPC) under section 45Y of the Internal Revenue Code (IRC) and the Clean Electricity Investment Tax Credit (CEIC) under section 48E of the IRC (collectively, the Clean Electricity Tax Credits). The Clean Electricity Tax Credits are technology neutral and provide incentives to any clean energy facility that achieves net-zero greenhouse gas (GHG) emissions, giving these facilities the ability to develop over time, while also offering longer-term certainty to investors and developers of clean energy projects. These technologies include wind, solar, hydropower, marine and hydrokinetic, nuclear fission and fusion, geothermal, and certain types of waste energy recovery property (WERP). Treasury and the IRS anticipate releasing the first annual table confirming the list of qualifying technologies soon, but cannot commit to a specific timeline for the annual table release date due to the time and effort necessary to conduct emissions analyses that meet the statutory requirements.

Loan Market Association Publishes Green Loan Terms, Smoothing Path for Green Finance in 2025
01.17.2024

Environmental, Social and Governance (ESG) principles continue to be a focus for the financial markets. Notably, the last few months have been pivotal for the Loan Market Association (LMA), who has introduced new publications with the aim of bolstering the clarity and accessibility of green finance.

Trump 2.0: The Changing Landscape of Renewable Energy Regulation
01.16.2024
Come January 20, 2025, President-elect Donald Trump is expected to take aggressive action to reverse President Biden’s environmental agenda, including the Biden administration’s broad effort to cut greenhouse gas emissions and focus on environmental justice concerns. The process of repealing and replacing Biden’s rules may be lengthy, however, and the Trump administration is expected to maintain some Biden policies and may even expand others where those policies may benefit both renewable energy and traditional fossil fuels.

Navigating the PREVAIL Act: Key Impacts on Litigants as It Advances in the Senate
01.16.2024
Originally introduced in July 2023, The PREVAIL Act brings a series of significant changes to patent law procedures, purportedly aimed to enhance fairness at the U.S. Patent Trial and Appeal Board (PTAB). In November 2024, the bill received a manager’s amendment and passed a vote in the Senate Judiciary Committee. It is now subject to debate before the Senate. This article provides a detailed examination of the Act’s provisions: major changes, which include new standing requirements, the single forum provision, evidentiary standards and petitioner limitations; and other notable changes, such as updates to claim construction, joinder rules and panel assignments. Defendants will need to consider these major changes before filing petitions because there are new consequences which impact district court litigation at the time of filing or institution rather than after the issuance of a final written decision.

Federal and State Tax Relief Resulting from California Fire
01.16.2025
On January 10, 2025, the IRS in IR-2025, announced tax relief for Southern California individuals and businesses impacted by the wildfires and winds, which began on January 7, 2025.

FTC Announces HSR Threshold and Filing Fee Increases for 2025 Transactions
01.15.2025
As a result of the increase in the U.S. Gross National Product (GNP) for 2024, the Federal Trade Commission (FTC) has announced an increase in the jurisdictional filing thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR). The minimum size of transaction threshold will increase by $6.9 million, a 5.8% increase, to $126.4 million. The thresholds determine whether parties involved in proposed mergers, consolidations, or other acquisitions of voting securities, assets, or unincorporated interests must notify the FTC and the Antitrust Division of the Department of Justice (DOJ) of a proposed transaction and comply with a mandatory waiting period before the transaction may be consummated. The revised thresholds will take effect 30 days after they are published in the Federal Register, with the effective date expected to be in mid-February 2025. Until then, the current $119.5 million threshold is still in effect.

New Year, New Presidency: What to Expect on Day One of President Trump 2.0
01.10.2025
On Monday, January 20, 2025, President-elect Donald J. Trump will take the oath of office. While the first 100 days of a presidential administration is the unit of measurement typically used to determine early presidential success or failure, President-elect Trump has promised to “make heads spin” with a flurry of early executive orders, agency directives, nominations and pardons in the early hours and days of the second Trump Administration.

Journey’s End? Fifth Circuit Issues Splintered Decision in Important Clean Air Act Citizen Suit Case
01.10.2025
On December 11, 2024, the U.S. Court of Appeals for the Fifth Circuit issued its long-awaited ruling in this Clean Air Act Citizen suit case. The opinion is very long, running to 170 pages. It comprises separate opinions from Chief Judge Elrod, and Circuit Judges Davis, Ho, Jones and Oldham. Each judge agreed that this is an important case “that impacts not only Exxon but also standing doctrine and environmental law more generally.” Judge Oldham remarked that this case has been argued several times before the district court, three three-judge circuit panels, and an en banc rehearing, which was granted “presumably because a majority of active judges recognized the inadequacy of the panels’ decision.” After two years of unsuccessful en banc deliberations, Judge Oldham stated that eight members of the Court would vacate, seven judges would vote to affirm the trial Court’s judgment, Chief Judge Elrod in the per curiam opinion would also affirm the trial judges’ judgment—but not the same judgment the seven affirming judges would select, and Judge Ho, who supplied the ninth vote for the per curiam opinion but did not otherwise join it would opt instead for dismissal based on the en banc order as being improvidently granted.

Treasury and IRS Issue Final Regulations on the Credit for Production of Clean Hydrogen Under Section 45V of the Internal Revenue Code
01.08.2025
Section 45V of the Internal Revenue Code (IRC), enacted as part of the Inflation Reduction Act of 2022, grants a clean hydrogen production credit (CHPC) for each kilogram of clean hydrogen produced by a taxpayer at a qualified clean hydrogen production facility (CHPF). The credit amount available to taxpayers under IRC section 45V varies based on the life cycle greenhouse gas (GHG) emissions generated from the CHPF. Additionally, taxpayers can qualify for a higher credit amount when applicable prevailing wage and apprenticeship requirements are met.

New York’s “Climate Superfund” Bill becomes Law, Part of a Trend
01.06.2025
State infrastructure budgets have become increasingly burdened by the costs associated with recovery from and adaptation to extreme weather events. For example, the Great Vermont Flood of July 2023 resulted in over $1 billion in flood damage from a single rain event. Just after the one-year anniversary of the storms, Vermont was again hit by torrential rains and flooding from the remnants of Hurricane Beryl—one of the many devastating and costly storms of the 2024 hurricane season. To address the growing financial burdens of extreme weather, lawmakers from six states have sponsored so-called “Climate Superfund” bills in hopes of boosting their states’ budgets to repair and better prepare infrastructure. Two of these—Vermont and now New York—have made it into law. In September 2024, Sen. Van Hollen (D-MD) and Rep. Nadler (D-NY-12) introduced a federal bill, the “Polluters Pay Fund, ” aiming to establish a national framework for climate liability and unify state efforts under a federal umbrella, but that bill has not advanced beyond initial committee referral and is unlikely to get traction when both legislative houses are Republican-controlled in 2025.

Civilian Board of Contract Appeals Releases Fiscal Year 2024 Annual Report And Announces New Electronic Docketing System
01.06.2025
The Civilian Board of Contract Appeals (CBCA or Board) recently released its fiscal year (FY) 2024 report. The CBCA docketed 392 new matters, which was down from the 409 new matters docketed in FY 2023. Of the 392 new matters, 165 were Contract Disputes Act (CDA) cases; 65 were Federal Emergency Management Agency arbitrations; 45 were civilian employee travel and relocation expense cases; 13 were civilian employee debt cases; and 11 were Indian Self Determination Act matters. The Board resolved 375 cases in FY 2024, representing the second year in a row where the Board docketed more cases than it resolved. The most active agencies at the Board are, respectively, the Department of Veterans Affairs, General Services Administration and Department of State. The Board did not publish sustain rates or any other information that might reveal how successful companies were in the matters they brought to the Board.

New Congress, More Scrutiny? Preparing for Congressional Oversight and Investigations
01.02.2025
As the 119th Congress begins, with Republicans taking control of both the House and Senate for the first time in five years, companies and nonprofit organizations should anticipate a surge in congressional investigations. Unified control of Congress, coupled with President-elect Trump in the White House, positions Republicans to pursue a sweeping oversight agenda. The question isn’t if there will be investigations—it’s who will be targeted and how to prepare.

Emphasizing Administrative Finality, Court Will Not Require the Reissuance of Checks Not Cashed by Prescribed Deadlines
12.30.2024
In the Dow Corning mass tort chapter 11 case, the Sixth Circuit Court of Appeals has held that tort claimants who fail to cash their settlement checks within the prescribed 180-day window forfeit their rights to otherwise substantial recovery.

With the Preliminary Injunction of the Corporate Transparency Act Stayed, FinCEN Extends Deadlines for Compliance
12.24.2024
On December 3, 2024, the U.S. District Court for the Eastern District of Texas (Mazzant, J.) granted a preliminary injunction in Texas Top Cop Shop, Inc., et al. v. Merrick Garland, Attorney General of the United States, et al., No. 4:24-CV-478 (E.D. Tex. filed Dec. 3, 2024) (the “Order”), enjoining enforcement of the Corporate Transparency Act, 31 U.S.C. § 5336 (CTA) and the Reporting Rule, 31 C.F.R. 1010.380. Among other things, the injunction stayed the January 1, 2025, compliance deadline for reporting companies—as defined by 31 U.S.C. § 5336(b)—to file beneficial ownership information reports under § 5336(b)(2). Order at 78-79. The scope of the injunction was nationwide. Id. at 2, 77-78. The court also concluded that, because the Reporting Rule implements the CTA, it is likely also unconstitutional. Id. at 79.

Small Business Administration Final Rule Makes Significant Changes to Recertification Regulations and Various Government Contracting Programs
12.23.2024
On December 17, 2024, Small Business Administration (SBA) published a final rule making significant changes to SBA’s recertification regime and numerous other SBA programs. The recertification rule changes will affect a business’s eligibility to win both new contracts and work under existing contracts following a recertification of its size or of its small business program status. The changes could dramatically affect both small businesses and large businesses considering merger and acquisition (M&A) activity. This Alert addresses these recertification changes. Given the breadth of SBA’s final rule, we will issue separate alerts addressing other aspects of the final rule.

Key Areas to Consider Under the Updated Antitrust Division Corporate Compliance Guidelines
12.20.2024
For the first time since its introduction in 2019, the U.S. Department of Justice Antitrust Division (“DOJ”) has updated its Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (the “Antitrust Compliance Guidelines” or “Guidelines”). The Antitrust Compliance Guidelines assist prosecutors in evaluating the effectiveness of corporate compliance programs aimed at preventing and detecting violations of the Sherman Act. These guidelines serve a critical role in prosecutorial decisions, shaping the DOJ’s approach on whether to bring antitrust charges, structuring resolutions and determining sentencing guidelines recommendations. For this reason, it is important for corporations to design their antitrust compliance programs with the Antitrust Compliance Guidelines in mind.

Department of Defense Releases New Strategy for Countering Unmanned Systems
12.20.2024
The rise in the deployment of unmanned aircraft systems (UAS), particularly their use in the ongoing conflicts in Ukraine and Israel, has cast a stark light on the vulnerabilities these systems expose both on the battlefield and in civilian areas. Weaponized drones, capable of striking from vast distances, have proven to be an effective, cost-efficient means of disrupting military operations, obliterating once-protected assets such as main battle tanks, combat ships and aircraft, while also targeting civilian infrastructure and military installations far behind the frontlines.

How Broad Is Too Broad? Supreme Court Considers Scope of NEPA
12.19.2024
In the first major National Environmental Policy Act (NEPA) case to reach the U.S. Supreme Court in two decades, the Court is poised to address a circuit split over whether an agency doing an environmental review under NEPA must consider effects beyond its regulatory jurisdiction, including effects relating to climate change. On December 10, 2024, the U.S. Supreme Court heard oral argument in Seven County Infrastructure Coalition v. Eagle County, which will clarify the scope of NEPA’s requirement to evaluate “reasonably foreseeable” effects. At issue is the U.S. Court of Appeals for the D.C. Circuit’s vacatur of an environmental impact statement (EIS) prepared by the Surface Transportation Board (the Board) on the proposed construction of an 88-mile railroad, citing insufficient analysis of potential adverse upstream and downstream effects.

From “Energy Transition” to “Energy Security”: Assessing the Impact of the Republican Trifecta on the Energy Industry
12.18.2024
Energy policy under President-elect Trump and Republicans, who will control both the Senate and House of Representatives at the start of the next Congress in January, will shift focus from the energy transition agenda of the Biden Administration to energy security, with a primary focus on lowering domestic energy costs.

A General Counsel’s Guide to the New HSR Rules
12.12.2024
In November 2024, the Federal Trade Commission (FTC) formally published its long-awaited final rule transforming the premerger notification process under the Hart-Scott-Rodino (HSR) Act—including changes to the HSR notification forms, accompanying instructions, and related agency rules. Compared with the FTC’s initial proposal in 2023, the unanimously adopted final rule is narrower and less burdensome (with changes likely made to secure the support of the Republican-appointed commissioners) but will still impose significant additional compliance costs on HSR filers.

Virginia Supreme Court Strengthens Protection Against Computer Crimes
12.12.2024
Criminal cases are not typically on the radar screen for legal and cybersecurity personnel. But a November 21, 2024, decision from the Supreme Court of Virginia, Commonwealth v. Wallace, has potential ramifications for protection of confidential information and trade secrets.

Trump 2.0: White House and Congressional Republicans Poised to Use the Congressional Review Act for Swift Regulatory Rollback
12.11.2024
Among other hallmarks of the incoming second Trump Administration, promises to slash regulations and the federal bureaucracy are now a defining feature. As exemplified by the creation of the “Department of Government Efficiency” or “DOGE,” an autonomous organization to be spearheaded by Elon Musk and Vivek Ramaswamy and tasked with “cut[ting] the federal government down to size,” President-elect Trump is expected to kick off his de-regulatory agenda on day one.

Trump 2.0: Anticipated Impact on Aviation and Aerospace
12.05.2024
Under the second Trump Administration, we are poised to see significant changes in the air transportation and aerospace landscape. President-elect Trump has made clear his intention to reduce regulation at the federal level, and air transportation will certainly be no exception. In particular, we expect to see reductions in consumer protection initiatives pursued by the Biden Administration, as well as significant reductions in restrictions on the commercial space and advanced air mobility sectors.

Trump 2.0: What Happens to Federal Funding?
12.04.2024
Pillsbury’s recent alert on the newly formed Department of Government Efficiency, or “DOGE,” an autonomous organization created by President-elect Trump and spearheaded by Elon Musk, identified several steps for industries bracing for the impacts of DOGE’s anticipated recommendations to slash the federal budget. We now examine the implications of the Trump Administration’s policy priorities and cost-cutting focus on federal appropriations, government contracts and grant awards.