Kaplan Kirsch congratulates its client, the City of San Antonio, on the dismissal of Southwest Airlines’ lawsuit challenging the City’s assignment of gates in the planned new terminal complex at San Antonio International Airport. Southwest’s lawsuit arose from the City’s negotiation of a new Airline Use and Lease Agreement, which supported the City’s plan to build a new Terminal C at the Airport. Just before the new Agreement was to take effect, Southwest sued the City, claiming that the City’s decision to assign Southwest gates in existing Terminal A, rather than new Terminal C, was preempted by the Airline Deregulation Act, violated the Equal Protection clause, and was barred by promissory estoppel. In his August 29 decision, Judge Rodriguez dismissed all of Southwest’s claims with prejudice and without leave to amend the complaint. 

With respect to Southwest’s preemption claim, Judge Rodriguez held that because the gate assignment was implemented as part of the new Airline Use and Lease Agreement, it was a contractual matter that did not have “force and effect of law,” and thus was not subject to preemption. He also held that the gate assignment decision did not “relate to” airline prices, routes, and services and was exempt from preemption under the Airline Deregulation Act as a reasonable exercise of the City’s proprietary rights and powers.

The decision is one of the most comprehensive judicial discussions of the scope of airport operators’ proprietary rights and powers. Importantly, the decision broadly affirms that airport operators have authority to plan, manage, and operate their terminals, and may consider airlines’ service offerings in exercising that authority. 

Firm partners Eric Pilsk and Steven Osit led the City’s litigation team.  Eric Smith and Sarah Wilbanks led the legal team that negotiated the Airline Use and Lease Agreement and assisted in the litigation. 

Kaplan Kirsch’s managing partner, Bob Randall, has been appointed to the State of Colorado’s Geologic Storage Stewardship Enterprise Board (Board).

On August 27, 2025, the Energy and Carbon Management Commission (ECMC) announced the five inaugural members of this new Board and the Enterprise they will support. The newly created Enterprise, housed within the Department of Natural Resources (DNR), was established by HB25-1165 to further support effective and safe carbon sequestration in Colorado, and to oversee the long-term monitoring and stewardship of injection facilities. More information about the Board’s responsibilities, its compositional requirements, as well as members’ biographies can be found on the website: ecmc.colorado.gov/CCS-enterprise.

Bob Randall has over 20 years of experience as a natural resources professional, and served as Executive Director of the Colorado Department of Natural Resources from 2016-2019. His current legal practice focuses on public land management, energy development oversight, interagency agreements, and protection of iconic landscapes. Bob’s work in both his private- and public-sector roles has focused on natural resources, particularly regarding energy and mineral development, public lands, water, wildlife, and outdoor recreation.

FOR IMMEDIATE RELEASE
August 19, 2025
Denver, CO – Kaplan Kirsch LLP is proud to announce the addition of three highly respected attorneys to their team: Laura Kilgarriff, Vianes Rodriguez, and Paul Caintic. These individuals bring an impressive knowledge of federal and local government experience to the firm. Their collective expertise deepens the firm’s capabilities in environmental law, transportation and aviation policy and security, and public-sector infrastructure work.

“Laura, Vianes, and Paul are exceptional legal talents with practical experience that will greatly benefit our clients,” said Bob Randall, Managing Partner at Kaplan Kirsch. “They bring a rare combination of litigation skill, regulatory fluency, and public-minded purpose that will help our clients in a time of everchanging policy and growing innovation.”

Laura Kilgarriff comes to Kaplan Kirsch after nearly a decade at the Transportation Security Administration (TSA), where she served as Assistant Chief Counsel for Security Policy and Acting Assistant Chief Counsel for Regulations and Security Standards. Her work shaped federal policy and regulatory frameworks around aviation security, unmanned aircraft systems, and emerging transportation technologies. Laura has worked closely with agencies including DHS, DOT, and the National Security Council and is known for her ability to translate legal complexity into actionable policy.

Vianes Rodriguez brings a unique blend of aviation, tax, and public law experience from his work as in-house counsel at Denver International Airport and as a tax associate at Grant Thornton. As lead attorney for the airport’s $590M concessions program, he negotiated complex commercial transactions and supported critical infrastructure projects. His insights into municipal operations and public-private partnerships strengthen the firm’s airport and public agency practice.

Paul Caintic joins the firm’s Denver office from a large international firm and previously served as an Honors Attorney at the U.S. Department of Justice (DOJ) in the Environment & Natural Resources Division. He brings extensive experience litigating major environmental cases under the Clean Air Act, Clean Water Act, NEPA, and CERCLA. Paul has argued before the U.S. Court of Appeals and played key roles in precedent-setting environmental litigation.

The arrival of these attorneys reflects Kaplan Kirsch’s continued commitment to serving public- and private-sector clients across the country on some of the most complex challenges in infrastructure, security, environmental compliance, land use, and public policy.

PRESS CONTACT: Heather Baker, hbaker@kaplankirsch.com

Yesterday, FAA released the long-awaited Notice of Proposed Rulemaking (NPRM), Normalizing Unmanned Aircraft Systems Beyond Visual Line of Sight (BVLOS) Operations. The proposed rule is the next step in the FAA’s integration of Unmanned Aircraft Systems (UAS) into the national airspace and is intended to establish a predictable pathway for safe, routine, and scalable UAS operations, including package delivery, agriculture, aerial surveying, recreation, flight testing, civic interests, and other applications.

The rule would establish a regulatory pathway for both recreational and commercial use of large UAS (up to 1,320 lbs.) that meets performance-based airworthiness standards to operate beyond the operator’s visual line of sight. To-date, the FAA has allowed only limited BVLOS or large UAS operations through individualized exemptions and waivers to existing regulations.

Among other proposed flight parameters, UAS operating BVLOS would be required to:

• Fly at or below 400 feet
• Avoid large open-air gatherings (but operations over people are permitted with different requirements based on the overflown population density)
• Obtain FAA approval for the areas where UAS are intend to fly, based on identified operating boundaries, number of daily operations, and specified takeoff, landing, and loading areas
• Obtain a permit or certificate, based on the nature of operations

The proposed rule, jointly issued with TSA, would also impose security measures to mitigate potential risks: (1) ensure certain individuals involved in BVLOS operations undergo a security threat assessment; (2) require package delivery operators to obtain a limited security program from TSA; and, (3) require operators to develop and implement physical security and cybersecurity policies and processes. Notably, certain BVLOS operations would be permitted to carry hazardous materials.

Comments on the proposed rule are due by October 6, 2025. While the proposed rule is a very significant step forward in routinely integrating complex UAS operations into the national airspace, it is important to recognize that the proposed rule, once adopted, would still be followed by a lengthy implementation period that allows stakeholders to develop methods to meet the rule’s performance-based requirements. For example, the rule proposes a new framework for determining airworthiness of UAS, which would require aircraft to satisfy performance-based design, production, and airworthiness requirements through consensus standards accepted or approved by the FAA, including “Detect and Avoid” capability for certain UAS operations. The proposed rule would also establish a framework for the FAA’s regulation of Automated Data Service Providers (ADSPs), which would aggregate and provide air traffic and other information in support of managing UAS operations within the national airspace. 

Impact to State and Local Governments, Transportation, and Critical Infrastructure

The proposed expansion of operations would bring a host of opportunities, as well as potential concerns, for cities, transportation hubs, and critical infrastructure. The FAA anticipates significant safety, societal, and economic benefits, and anticipates that UAS may supplement or replace activities currently accomplished by higher-risk crewed aircraft, surface transportation, or individuals. As the scope and frequency of UAS operations increase, however, communities may also have concerns regarding land use compatibility, noise and other environmental impacts, and other quality of life issues.

Additionally, as UAS use increases across the country, state and local governments, airports, surface transportation hubs, and critical infrastructure owners and operators continue to have unresolved concerns over maintaining the safety, security, and wellbeing of their communities and facilities, as well as their authority to manage UAS flights around certain locations and take action against improper UAS activity.

For example:

• Section 2209 Rulemaking Restricting UAS Flights Around Critical Infrastructure. We are still waiting on the FAA to publish the statutorily-mandated “Section 2209” rule, which would establish procedures for restricting UAS operations near critical infrastructure. Pursuant to the FAA Extension, Safety, and Security Act of 2016, FAA was required to establish procedures for applicants to petition the FAA to prohibit or restrict the operation of UAS in close proximity to certain fixed site faculties, to include: (1) critical infrastructure, such as energy production, transmission, and distribution facilities and equipment; (2) oil refineries and chemical facilities; (3) amusement parks; and (4) other locations that warrant such restrictions. Without this rule, UAS operations (including proposed BVLOS operations) are generally permitted around these locations. Under the Act, the procedures were supposed to have been published by January 2017, and the Trump Administration’s Executive Order, Restoring American Airspace Sovereignty (June 6, 2025) adds pressure on the agency to promptly publish a proposed Section 2209 rule.
• UAS Detection and Law Enforcement Response. The proposed rule adds to an existing complex legal framework surrounding UAS operations, including parameters for detection and addressing unauthorized and illicit UAS activity. Note that only certain Federal agencies have authority to conduct counter-UAS activities, which remains unchanged by the proposed rule. Law enforcement, airport sponsors, and transit facility owners and operators should consult federal guidance regarding the laws and regulations that apply to their use of UAS detection and mitigation equipment.

Existing tools available to Federal, state, and local entities will continue to be available for BVLOS operations. For example, UAS flown under the BVLOS rule will be subject to Remote ID requirements, meaning that they must broadcast their location and identification in real time (law enforcement agencies can work with the FAA to correlate Remote ID information with UAS registration information). However, state and local law enforcement authority to address an errant or malicious UAS remains limited. Also, while the FAA poses exclusive authority to regulate aviation safety, airspace management, and air traffic control (including UAS operations), state and local governments retain authority over land use planning, zoning, privacy, and law enforcement operations. For example, state and local governments retain authority to regulate the property that UAS may use for take-off or landing areas. 

Kaplan Kirsch attorneys have significant Federal experience and familiarity with UAS matters, including the draft BVLOS rule, and are available to support entities considering the impact of the proposed rule. In particular, John Putnam and Subash Iyer headed the Office of General Counsel at U.S. DOT, and Laura Kilgarriff was an Assistant Chief Counsel at TSA, where, among other matters, she advised on legal issues related to UAS and Counter-UAS. For additional information, please reach out to John Putnam, Subash Iyer, Laura Kilgarriff, Steve Osit, or any other Firm attorney with whom you normally work.

The Fiscal Year 2026 Senate appropriations bill, S. 2465, “Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2026,” would allocate $20 million dollars in funding for transit safety and security improvements and additional funding specifically dedicated to entities preparing for the 2028 Olympics and 2026 FIFA World Cup. If passed, the bill would provide a new opportunity for transit agencies to secure federal funding:

• The U.S. Department of Transportation (DOT) would make $20 million of transit funds available to 10 eligible recipients with the highest ridership in fiscal year 2024 for costs related to operating equipment and facilities for use in public transportation to improve public safety, reduce crime, and increase security in transit systems.
• An additional $68 million would be available for transportation assistance (including transit planning, capital projects, and operating assistance) for surface, commuter, and public transportation systems necessary to support the mobility needs of the Olympic and Paralympic events held in Los Angeles Summer 2028.
• Approximately $78 million would be available for costs related to the planning and operating equipment, as well as facilities for use in public transportation that supplement regular transit services in support of matches or other public events held in domestic host cities for the FIFA World Cup 2026 (Atlanta, Boston, Dallas, Houston, Kansas City, Los Angeles, Miami, New York/New Jersey, Philadelphia, San Francisco/Bay Area, and Seattle).

If the bill passes, Kaplan Kirsch is well positioned to support transit agencies seeking to obtain and utilize these funds, including funds for bolstering security in transit systems. Kaplan Kirsch can also help agencies understand and implement FTA regulations and guidance, including a recently released FTA video series concerning the Olympics and World Cup. Adding to the firm’s renowned transit and rail practice, which advises clients on safety, regulatory and compliance matters, Kaplan Kirsch recently deepened its expertise in transportation security issues. Laura Kilgarriff, former Assistant Chief Counsel for Security Policy and Acting Assistant Chief Counsel for Regulations and Security Standards for the Transportation Security Administration (TSA), joined the firm this summer. Laura brings a decade of transportation security expertise to the firm, and along with other Kaplan Kirsch attorneys, could help U.S. transit agencies improve safety and security of their systems and prepare for the millions of people expected to travel for the upcoming events.

The Senate bill is available here. For questions, please reach out to Allison Ishihara Fultz, Ayelet Hirschkorn, John Putnam, Subash Iyer, Chuck Spitulnik, Christian Alexander, Casey Morris, Grant Glovin, or Laura Kilgarriff.

The Federal Transit Administration (FTA) withdrew an advance notice of proposed rulemaking (ANPRM) concerning minimum safety standards to prevent fatigue-related safety incidents on July 1, 2025.  The ANPRM contemplated the promulgation of regulations regarding transit worker hours of service and fatigue risk management programs.  FTA will not issue a notice of proposed rulemaking regarding those subjects at this time.  However, other regulations may still require individual rail transit agencies to address safety risks caused by transit worker fatigue.

In the original ANPRM, issued on October 30, 2023, FTA announced it was considering proposing minimum safety standards to guarantee transit workers would receive adequate rest to prevent safety incidents.  FTA explained that it and local investigations had identified multiple rail transit crashes caused by fatigued train operators.  To address fatigue-related risks, FTA contemplated requiring hours of service regulations, which other U.S. Department of Transportation operating administrations had promulgated, and fatigue risk management programs, which implemented processes to account for and mitigate factors that contribute to fatigue.  The agency sought comments regarding the regulations it should implement, and later issued a related request for information to rail transit agencies. 

FTA has now withdrawn the ANPRM and will not promulgate fatigue-related regulations, but has done so because it has identified existing measures it asserts it can use to mitigate the safety risks associated with fatigue.  These include the existing Public Transportation Agency Safety Plan regulations, which require agencies to mitigate safety risks they identify through a Safety Management System-based analysis.  Those risks may include operator fatigue.  FTA also stated that it may issue special or general directives to address risks associated with transit worker fatigue, and must issue restrictions and prohibitions if it determines that unsafe conditions or practices—including those associated with transit worker fatigue—create a substantial risk of death or personal injury.

The withdrawal of the ANPRM was one of numerous regulatory actions FTA took last week as part of a deregulatory push.  We anticipate communicating more about those actions in the coming days.

The notice of withdrawal is linked here and published at 90 Fed. Reg. 28700.  The original ANPRM is linked here was published at 88 Fed. Red. 74107. For additional questions, please contact Allison Ishihara Fultz, Ayelet Hirschkorn, John Putnam, Subash Iyer, Chuck Spitulnik, Christian Alexander, Casey Morris, or Grant Glovin.

• DOT has reversed a long-standing policy that capped Transportation Infrastructure Finance and Innovation Act (TIFIA) assistance for many transportation infrastructure projects.

• Eligible projects may now receive TIFIA secured loans up to the statutory maximum of 49 percent of eligible costs, a significant increase from the previous cap of 33 percent.

On July 7, 2025, the U.S. Department of Transportation (DOT) announced an update to its policy for the TIFIA loan program. The revised policy allows all eligible transportation infrastructure projects to finance up to 49 percent of eligible costs through the program, a notable shift from the previous limit of 33 percent for many projects.

TIFIA is a powerful financing tool for project sponsors. Administered by the DOT’s Build America Bureau, the program provides federal credit assistance in the form of direct loans, loan guarantees, and standby lines of credit for surface transportation projects of national and regional significance. TIFIA assistance offers improved access to capital markets, flexible repayment terms, and more favorable interest rates than those typically available in private markets.

Projects eligible for TIFIA financing include transit systems, bicycle and pedestrian infrastructure, intercity passenger bus or rail facilities and vehicles, transit-oriented development, intelligent transportation systems, and public-private partnerships. Public or private entities seeking to finance, design, construct, own, or operate an eligible surface transportation project may apply for TIFIA credit assistance. These entities may include state departments of transportation, local governments, transit agencies, special authorities, special districts, railroad companies, and private firms.

While the statutory cap for TIFIA secured loans is 49 percent of eligible project costs, DOT has historically taken a conservative approach to credit risk, limiting many loans to 33 percent of eligible project costs as a policy matter. Previously, the statutory maximum was available only for specific categories, including certain transit and Transit-Oriented Development projects and those funded under the TIFIA Rural Projects Initiative. Under the new policy, all eligible projects can capitalize on TIFIA’s assistance to the maximum extent allowable under the statute.
Kaplan Kirsch has extensive experience with TIFIA and DOT’s other federal infrastructure financing programs administered by the Build America Bureau—namely, the Railroad Rehabilitation and Improvement Financing (RRIF) and private activity bonds (PABs) program. The firm has represented clients on projects using or pursuing TIFIA financing across the country, including rail and transit, transit-oriented development, highway, and airport related projects. In addition, Partners John Putnam and Subash Iyer previously oversaw all legal matters for the Build America Bureau’s financing programs when they served at DOT.

Beyond federal financing programs, Kaplan Kirsch brings deep expertise in development-related infrastructure financing, including bank finance, private placements, tax increment financing, and special districts.

Please contact John Putnam, Subash Iyer, Allison Ishihara Fultz, Ayelet Hirschkorn, Chuck Spitulnik, Christian Alexander, Casey Morris, or Grant Glovin with questions.

Denver, CO (July 10, 2025) — Kaplan Kirsch LLP is proud to announce that Subash Iyer, former Acting General Counsel of the U.S. Department of Transportation and former Chief Counsel of the Federal Transit Administration (FTA), has joined the firm as a partner. His arrival marks a significant addition to the firm’s leading national infrastructure, transportation, and public law practice, building on the return of John Putnam and Allison Ishihara Fultz, two nationally respected attorneys who also held senior roles at the U.S. Department of Transportation (USDOT). These recent hires signal Kaplan Kirsch’s continued commitment to supporting transit, rail, and other agencies, airports, and state departments of transportation, with the experienced strategic counsel they need to successfully complete capital projects, capture funding opportunities, address fiscal challenges, and navigate unprecedented policy and regulatory changes. Subash will be based in Kaplan Kirsch’s New York office.

Subash brings a significant depth of legal and public policy experience to the firm. As Acting General Counsel of USDOT, he served as Transportation Secretary Pete Buttigieg’s top legal advisor, overseeing a 500-person legal team, leading the Department’s rulemaking agenda, streamlining processes to expedite project delivery, and defending landmark transportation and environmental policies. As Chief Counsel at the Federal Transit Administration (FTA), Subash worked to implement the historic Infrastructure Investment and Jobs Act and oversaw all FTA legal matters, including on Buy America compliance and safety and labor regulations. Prior to joining USDOT, Subash served as Special Counsel for Ethics, Risk, and Compliance at the Metropolitan Transportation Authority (MTA) in New York. Subash, a former Supreme Court clerk to Justice Ruth Bader Ginsburg, also brings a strong litigation background from private practice in Washington, D.C., where he helped deliver multiple Supreme Court and court of appeals victories for his clients.

“Subash is a remarkable lawyer and public servant, and we’re thrilled to have him join our growing team,” said Bob Randall, Managing Partner of the firm. “This is shaping up to be a strong hiring year for Kaplan Kirsch. Subash adds a strategic federal perspective that will be invaluable to our clients – and he’s one of several talented attorneys joining us this summer.”

“The best teams deliver the best results,” said John Putnam, a Partner at the Firm and the General Counsel of USDOT prior to Subash.  “Subash Iyer and Allison Ishihara Fultz are proven players who achieved big wins as part of the USDOT; they now expand our Firm’s capabilities, and their passion, experience, and knowledge will make our clients’ teams that much stronger.”

A graduate of NYU School of Law and Columbia University, Subash began his legal career with three prestigious clerkships – serving at the U.S. District Court for the Southern District of New York, the U.S. Court of Appeals for the Second Circuit, and the U.S. Supreme Court for Justice Ginsburg.

“I’ve long admired Kaplan Kirsch’s thoughtful, mission-driven work and their national leadership in the transportation, infrastructure, and climate space,” said Subash Iyer. “Clients trust Kaplan Kirsch on some of the most pressing legal, regulatory, and project delivery issues in our industry, and I’m excited to bring my experiences from federal service and a transit agency to help transportation providers capture the opportunities and tackle the challenges ahead.”

With Subash’s arrival, Kaplan Kirsch will count among its ranks three former DOT confirmed or acting General Counsels, a former FRA chief counsel, and a former FTA chief counsel, as well as an assistant chief counsel of the Transportation Security Administration (TSA). The firm welcomed three additional attorneys over the past six weeks: Caitlin McCusker, Casey Morris, and Caroline G. Jaschke. With the experience they bring from the U.S. Department of Justice (DOJ), USDOT, and FRA, Kaplan Kirsch continues to deepen its bench and expand its capacity to serve developers and operators of transportation infrastructure across the nation.

The U.S. Department of Transportation (DOT) and its operating administrations issued updates to their National Environmental Policy Act (NEPA) procedures on July 3, 2025. Because these procedures constitute a significant departure from long-running policies, rail and transit project sponsors undertaking NEPA review should assess whether the updates apply to their projects and carefully review their current environmental review processes, documentation, and timelines. Sponsors also should consider whether the updated procedures and regulations present opportunities to expedite environmental review and project delivery, as well as how to manage any risks of litigation.

Revisions to Joint NEPA Regulations: The Federal Railroad Administration (FRA), Federal Transit Administration (FTA), and Federal Highway Administration (FHWA) issued an interim final rule updating their joint NEPA regulations (23 CFR Part 771). The updated rules are effective immediately, but the agencies are accepting public comment through August 4, 2025 and may make further changes.

Key revisions to the FRA, FTA, and FHWA joint NEPA regulations include:

• Applicability: Increased agency discretion to determine the applicability of the joint regulations’ procedural requirements.
• Sponsor Preparation: New provisions allowing sponsors to prepare their own environmental documents.
• Corridor Identification and Development (CID) Program: New language explicitly allowing analyses, studies, and work developed pursuant to the CID program to be incorporated into the NEPA process.
• Conflicts of Interest: Removal of references to conflict of interest requirements previously derived from Council on Environmental Quality (CEQ) regulations.
• Deadlines: Timelines for completing an environmental assessment (EA) or environmental impact statement (EIS) in accordance with NEPA’s statutory deadlines, distinguishing when an action is a major project subject to the different timelines in 23 U.S.C. 139, the statute that supplements NEPA and provides environmental review processes for surface transportation and multimodal projects requiring DOT approval.
• Page Limits: Page limits for environmental documents in accordance with NEPA’s statutory requirements, distinguishing when an action is a major project subject to the different page limits in 23 U.S.C. 139.
• Reliance and Adoption: New language addressing situations in which a proposed action is substantially the same as an action covered in an existing environmental document or categorical exclusion determination.

Revisions to DOT-Wide NEPA Processes: DOT rescinded its previous NEPA procedures (DOT Order 5610.1C) and issued updated department-wide NEPA procedures. The order is effective immediately, but DOT is soliciting public comment through August 4, 2025 and may update the procedures based on the comments received.

Key updates in the new DOT Order 5610.1D include:

• Categorical Exclusions: Expanded use of categorical exclusions. New language allowing DOT agencies to apply a categorical exclusion established in another DOT agency’s procedures, adopt another non-DOT agency’s categorical exclusion (subject to NEPA’s statutory notice and consultation requirements), and rely on another agency’s categorical exclusion determination.
• Applicant Preparation: New procedures for the preparation of environmental documents by applicants and applicant-hired contractors.
• Roles and Responsibilities: Clarification of the roles of the lead agency, joint lead agency, cooperating agencies, and participating agencies.
• Scope: Limitation of the required scope of review in environmental documents.
• Mitigated Findings of No Significant Impact (FONSIs): New language allowing agencies to rely on mitigation measures to reduce impacts below the level of significance that would require an EIS.
• Re-Evaluations and Supplements: Clarification of when a re-evaluation is appropriate and when an environmental document must be supplemented.

Scope of Projects Impacted: Rail and transit project sponsors should be aware that ongoing environmental reviews may be subject to the new procedures outlined in the updated regulations and order. The Federal Register notice for the FRA, FTA, and FHWA interim final rule states that “revised agency procedures will have no effect on sufficiently advanced ongoing NEPA reviews, where the Department, following CEQ guidance, has held that it will continue to apply existing procedures.” The agencies did not provide any clarification as to which reviews will be considered “sufficiently advanced.” The new DOT Order 5610.1D states that it does not apply to decisions or final environmental documents issued prior to its effective date, but that it should be applied to “actions” initiated on or after its effective date. DOT did not clarify the new order’s applicability for ongoing NEPA reviews where the review was initiated prior to the order’s effective date but for which the agency action at issue will occur after.

Additional Changes to NEPA in the “One Big Beautiful Bill Act”: In addition to these administrative developments, the President signed into law the legislation commonly referred to as the “One Big Beautiful Bill Act” last week. Section 60026 of the Act amends NEPA to provide for project sponsor opt-in fees for environmental reviews that allow a project sponsor to pay a fee for the expedited preparation of an EA or EIS (180 days for an EA and 1 year for an EIS). The statute sets the fee at 125 percent of the anticipated cost for the sponsor to prepare the EA or EIS or for the agency to supervise the preparation of the EA or EIS. DOT has not yet stated how it will implement this new provision, but it will present an opportunity for project sponsors to expedite environmental reviews.

NEPA practice is changing rapidly and practitioners will need to be nimble to capture opportunities to deliver projects more quickly and ensure their environmental processes and documentation accord with the new policies. For additional questions, please contact Allison Ishihara Fultz, Ayelet Hirschkorn, John Putnam, Chuck Spitulnik, Christian Alexander, Casey Morris, or Grant Glovin.

The National Environmental Policy Act (NEPA) has seen seismic changes in the past several months.

On June 30, 2025, FAA rescinded its previous NEPA procedures and issued new Order 1050.1G, Environmental Impacts: Policies and Procedures, to address the recent rescission of the Council on Environmental Quality (CEQ) NEPA regulations, recent Executive Orders, and a recent Supreme Court decision, and to align with the relatively recent statutory updates adopted as part of the Fiscal Responsibility Act of 2023. At the same time, FAA rescinded the airport-specific NEPA order, Order 5050.4B to the extent that it conflicts with new Order 1050.1G. The Department of Transportation has also issued updated NEPA procedures.

The new NEPA procedures were issued in part in response to a November 2024 decision from the U.S. Court of Appeals for the D.C. Circuit in Marin Audubon Society v. Federal Aviation Administration, which invalidated the CEQ NEPA regulations on the grounds that they had been issued in excess of legal authority. Then, on January 20, 2025, President Trump issued Executive Order 14154, Unleashing American Energy, which rescinded the 1970’s Executive Order that CEQ had relied on for decades as the basis for its authority to promulgate NEPA regulations. In response, CEQ issued an interim final rule on February 25, 2025, formally rescinding  its regulations. Two months later, the U.S. Supreme Court issued a landmark decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, in which the Court announced a “course correction” for the statute, directing courts to give substantial deference to agency fact-finding underlying their NEPA decisions and limiting the scope of agencies’ reviews of indirect effects.

Key revisions in the new FAA Order 1050.1G include:

• Updated terminology and definitions;
• Expanded list of actions that do not constitute “Major Federal Actions” and are therefore not subject to NEPA review;
• Significant new clarifications on the use of categorical exclusions (CATEXs), including edits to the list of extraordinary circumstances that elevate a CATEX to a higher level of review in order to comport with the recent Supreme Court case;
• Adoption of the statutory page and time limits for environmental assessments (EAs) (75 pages and 1 year) and environmental impact statements (EISs) (150 pages and 2 years);
• Clarification of streamlining procedures;
• Removal of environmental justice, climate change, and cumulative impacts as required areas of analysis; and,
• Modification to the existing FAA significance thresholds to comport with the Supreme Court’s narrowing of the obligation to examine indirect effects.

While it is too early to predict with certainty the effect of all of these changes, it is clear that the Order is designed to curtail the scope of NEPA reviews in response to the Supreme Court’s admonition against “litigation-averse agencies” that have been taking “ever more time … to prepare ever longer EISs.” The new Order affords expanded opportunities for the use of CATEXs, provides stricter guidance on time and page limits, and limits the scope of impacts that FAA is obligated to review to complete a compliant environmental review.

The new Order is effective immediately but FAA announced that it will accept public comments on the rule until August 4, 2025, and that comments received will “inform future revisions.”

In addition to these administrative developments, last week, the President signed into law the legislation that he is calling “One Big Beautiful Bill Act.” Section 60026 of the Act amends the NEPA statute to provide project sponsor opt-in fees for environmental reviews. The new language would allow a project sponsor to pay a fee for preparation of an EA or EIS to secure even more expedited reviews (180 days for an EA and 1 year for an EIS). The fee is set at 125 percent of the anticipated cost for the sponsor to prepare the EA or EIS or for the agency to supervise the preparation of the EA or EIS. FAA has not yet stated how it will implement this new law.

If there is one takeaway from all of these changes it is that NEPA law and practice is changing quickly and business as usual is no longer appropriate. Practitioners will need to be nimble to ensure that their environmental processes and documentation accord with the new policies. For additional questions, please contact Katie van Heuven or any other Kaplan Kirsch attorney with whom you normally work.