The Nickel Report

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.

On April 18, 2025, the Federal Permitting Improvement Steering Council (Permitting Council) identified ten critical mineral projects as FAST-41 Transparency Projects on the Federal Permitting Dashboard (the Projects). Inclusion on the Dashboard is intended to streamline approvals for qualifying projects by enhancing interagency coordination to facilitate a more efficient permitting process with increased transparency.

On April 15, 2025, President Trump took two additional actions building on previous initiatives focused on streamlining and supporting domestic mining and mineral production, including the Immediate Measures to Increase American Mineral Production executive order issued on March 20, 2025 (the Mining Order) and the Unleashing American Energy executive order from January 20, 2025.

The 2,000 page Federal Acquisition Regulation (the “FAR”) has guided and dictated federal procurement for more than forty years.  Periodically, the FAR has been updated to make procurement more efficient and simpler. The Trump administration is now undertaking its own effort with the rollout of an executive order entitled “Restoring Common Sense to Federal Procurement.”  It goes without saying that significant changes to the FAR will impact how federal contractors and their subcontractors do business with the federal government.

The scope of the prohibition of “take” under the Migratory Bird Treaty Act (MBTA or the Act) – and specifically whether the prohibition includes the incidental (unintentional) take of migratory birds – is an issue that has been hotly debated for years. As we reported previously, the federal circuit courts do not agree on the issue, and the federal government’s position has changed several times in recent years, depending on the political party in control of the Executive Branch. The Trump administration amended the government’s position again on April 11, 2025, when the Acting Solicitor for the US Department of the Interior issued a one-page legal opinion (or “M-Opinion”) repealing opinion M-37065, which was issued during the Biden administration and specified that the MBTA prohibits both intentional and incidental take of migratory birds, and restoring opinion M-37050, which was issued during the first Trump administration and specifies that only intentional take of migratory birds is prohibited.

On April 8, President Donald Trump issued a series of orders and a proclamation (collectively the “orders”) intended to revitalize US coal production and the industrial use of coal, including for power generation. Among them was an Executive Order on “Strengthening the Reliability and Security of the United States Electric Grid”[1]  directing the Secretary of Energy to take a series of steps intended to enhance electric grid reliability and security.

On April 8, 2025, President Trump signed an executive order titled Reinvigorating America’s Beautiful Clean Coal Industry and Amending Executive Order 14241, which builds on the March 20 Executive Order titled Immediate Measures to Increase American Mineral Production (Executive Order 14241) and complements two other executive orders issued on April 8 focused on strengthening the US electric grid and protecting American energy from state overreach. The coal order provides for immediate action to remove restrictions on coal leasing, mining, and exporting and outlines initiatives to extend coal-power infrastructure and support coal technologies. This order is part of the administration’s holistic strategy to promote coal production in order to support domestic job creation, provide reliable energy supply for resurgent electricity demand from emerging technologies, lower energy costs, capitalize on vast US coal reserves, and facilitate coal exports.