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FTA has now withdrawn the ANPRM and will not promulgate fatigue-related regulations, but has done so because it has identified existing measures it asserts it can use to mitigate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.

On June 30, 2025, California Governor Gavin Newsom signed into law significant amendments to the California Environmental Quality Act (“CEQA”). These changes have important consequences for local governments, developers, environmental advocates, and other stakeholders. After years of debate over CEQA reform, the Governor conditioned his budget on the passage of a package of changes incorporated into budget bills AB 130 and SB 131. The amendments to CEQA took effect immediately on June 30, 2025.

AB 130 exempts from CEQA infill housing developments of 20 acres or less that meet local zoning, density, and objective planning standards. Infill is defined to include sites previously developed with residential, commercial, public institutional, transit, retail, or any combination of such uses. The exemption does not apply if the project requires demolition of a historic structure listed on a historic register, if the project site is located in an environmentally sensitive area, or if the project would be located on a listed hazardous waste site. Further requirements to protect air quality apply for development within 500 feet of a freeway. Importantly, and after significant back-and-forth, the final version of AB 130 also requires certain tribal consultation processes.

SB 131 establishes several new CEQA exemptions, including for parks, wildfire risk mitigation projects, health centers, daycare centers, food banks, advanced manufacturing facilities, updates to the State’s climate adaptation strategy, and high-speed rail stations and maintenance facilities. It also extends and expands existing exemptions for broadband and community water systems with climate and biodiversity benefits that are funded through specified programs. Reliance on any of the above CEQA exemptions must be supported by “substantial evidence” that the criteria is met. California courts review for substantial evidence in a manner deferential to the CEQA lead agency.

In addition, SB 131 streamlines the amount of environmental review required for housing projects that would qualify for a CEQA exemption but for a single unmet condition. While CEQA previously required a full environmental review of all resource areas under such circumstances, the legislative changes make it such that only the impacts associated with the one condition need be analyzed. Projects involving a warehouse distribution center or oil and gas infrastructure are not eligible for this streamlining measure.

Finally, SB 131 requires the Governor’s Office of Land Use and Climate Innovation to map sites for eligible infill development by July 1, 2027.

Key takeaways from these reforms include:

·         As amended, CEQA may offer developers of infill housing and other newly exempt projects an opportunity to speed up the environmental review process.

·         Developers and local governments seeking to rely on these CEQA exemptions will need to remain vigilant about specific requirements of the new exemptions. In particular, tribal consultation requirements will remain very important.

·         The amendments will not entirely eliminate litigation risk, costs, and delays; project approvals based on the new exceptions may be challenged, though such challenges will be subject to the deferential “substantial evidence” standard.

·         Projects with greater potential for environmental impact (whether due to size or location), will remain subject to CEQA’s typically robust environmental review requirements.

·         Interested stakeholders should closely monitor the process for and results of the upcoming infill development mapping process to be carried out by the Governor’s Office.

Please contact Wil Mumby or Matt Adams with any questions about CEQA’s requirements.

We provide this alert for situational awareness and emphasize that there is no immediate action for federal grantees to take. We anticipate the United States Department of Transportation (USDOT) and its modal administrations will issue guidance to grantees and initiate rulemaking to establish criteria for procurements and grant administration. We will monitor and report on future developments.

USDOT, in a reversal of its decades-long policy, has sought court approval of a consent order that would declare its Disadvantaged Business Enterprise (DBE) program unconstitutional. If the consent order is approved, the order would impact DBE programs at the Federal Transit Administration (FTA), Federal Aviation Administration (FAA), and Federal Highway Administration (FHWA). Congress has not authorized FRA to establish a DBE program. Groups who intervened in the case who support the continuation of DBE programs plan to oppose the order if the Court grants it.

Background:

On May 28, the United States Department of Transportation (USDOT) reversed its previous stance and joined plaintiffs in seeking a consent order from the U.S. District Court of the Eastern District of Kentucky that would declare USDOT’s Congressionally-mandated DBE program unconstitutional. In their original 2023 complaint, the plaintiffs in Mid-America Milling v. DOT claimed the DBE program’s use of race- and gender-based presumptions created “discriminatory barriers, preventing many construction companies from competing for contracts on an equal footing with firms owned by women and certain racial minorities.” In September 2024, a federal judge granted a preliminary injunction limiting the program’s enforcement in Kentucky and Indiana.

For instance, FTA’s DBE regulations require recipients of planning, capital, and/or operating assistance to maintain a DBE program. Congress directed USDOT to establish its DBE program in 1983 and has consistently reauthorized the program—including with respect to federal highway and transit funding under the Infrastructure Investment and Jobs Act of 2021 (Pub. L. 117-58). In April 2024, USDOT issued a final rule expanding the DBE program. USDOT regulations presumptively include women and specific racial minorities in this category, though others may qualify by documenting that they meet the criteria to be deemed disadvantaged. USDOT’s DBE program sets a goal of allocating at least 10 percent of certain federal funding to DBEs, defined as businesses owned by “socially and economically disadvantaged individuals.”

Upon entering office, President Trump issued Executive Orders 14151 and 14173, which called for ending equity-related actions by federal agencies.

On May 28, the USDOT joined the Mid-America Milling plaintiffs in submitting a proposed consent order to the court, which would function like an enforceable settlement. The proposed order states “DBE eligibility using race- and sex-based presumptions, as reauthorized by the IIJA, and in the FAA Reauthorization Act of 2024, is not supported by the U.S. Constitution as currently interpreted under equal protection jurisprudence.” The proposed order cites to the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023), which held that the use of racial preference in university admissions programs violated the Constitution’s Equal Protection Clause. If approved, the proposed consent order would prohibit USDOT from approving “any federal, state or local [US]DOT-funded projects with DBE contract goals where any DBE in that jurisdiction was determined to be eligible based on a race- or sex-based presumption.”

Although FAA, FHWA, and FTA are not parties to the case, the proposed order, if approved, would apply across the entire USDOT. The result would be sweeping implications for federal programs aimed at disadvantaged business enterprises. In particular, USDOT would be prohibited from approving funding for projects with DBE contract goals in jurisdictions where any DBE’s eligibility was determined using race- or sex-based presumptions. It is not clear from the wording of the proposed order whether this prohibition would be applicable retroactively to existing USDOT funding agreements.

The U.S. District Court of the Eastern District of Kentucky has not yet ruled on the proposed consent order. Kaplan Kirsch will continue to monitor and report on further developments.

If you have any questions, please contact Ayelet Hirschkorn, Allison Ishihara Fultz, John Putnam, Chuck Spitulnik, Christian Alexander, or Grant Glovin.

FOR IMMEDIATE RELEASE – JUNE 2, 2025

PRESS CONTACT: Lindsey E. Rasmussen / 612.867.9940 / LRasmussen@hilltoppublicsolutions.com 

Denver, CO — Kaplan Kirsch is pleased to announce the return of John Putnam and Allison Ishihara Fultz and the addition of Samuel Kohn, three nationally respected attorneys who recently held senior roles in the Biden Administration. Their arrival strengthens the firm’s position at the forefront of infrastructure, transportation, environmental, and Native American law at a time when these sectors are navigating unprecedented policy changes and a shifting funding and regulatory environment.

“John, Allison, and Sam are not only some of the sharpest legal minds in the country, they’re also trusted advisors who know how to get things done in government,” said Steve Kaplan, co-founder of Kaplan Kirsch. “We’re thrilled to have them on our team at a time when our clients are navigating historic changes in infrastructure, energy, and tribal governance.” Steve’s personal public service includes serving as General Counsel of the U.S. Department of Transportation and as City Attorney for Denver.

John Putnam – who served as General Counsel of the U.S. Department of Transportation – where he was a top legal advisor to Secretary of Transportation Pete Buttigieg, rejoins the firm as a partner in its Denver office. John is a founding partner of Kaplan Kirsch and previously served as its Managing Partner. Most recently, he served as Senior Advisor to the Colorado Department of Transportation, where he was the Governor’s Chief Negotiator on the renegotiation of the 99-Year lease of the Moffat Tunnel under the Continental Divide lease, and also played a lead role in advancing passenger rail service and implementing statewide greenhouse gas policies in the transportation sector. He is a widely-known, trusted legal strategist and brings a unique perspective on state and federal transportation, environmental and energy policy. With a background spanning federal, state and local government, John offers a distinct perspective that strengthens the Kaplan Kirsch team’s work in infrastructure, transportation, and environmental law.

“Having worked at the highest levels of both state and federal government, I’m excited to bring those gained insights back to Kaplan Kirsch,” said Putnam. “This is a time of enormous opportunity – and complexity – for infrastructure, transportation, and climate projects. I’m looking forward to helping our clients put policy into action – from aviation, transit and rail to renewable energy and beyond.”

Allison Ishihara Fultz returns to the firm’s Washington, D.C., office after more than three years as Chief Counsel of the Federal Railroad Administration. With a background in both law and architecture, Allison brings unique insight to the firm, advising clients on complex infrastructure projects across the country, with a focus on regulatory compliance, intergovernmental agreements, establishing rail and transit operating agencies, and creative rail development solutions, making her a go-to advisor for both public and private sector clients.

“Transportation and infrastructure are critical sectors both experiencing unprecedented changes in the United States right now. We have a tremendous opportunity to modernize systems, connect communities on a regional and national scale, and build more reliable and effective foundations for our country,” said Fultz. “It’s exciting to be back at Kaplan Kirsch helping clients lead in this transformative movement.”

Samuel Kohn joined the firm as a partner in the San Francisco office. He brings nearly 15 years of experience to the firm representing Indian Tribes, Alaska Natives, and tribal consortia on issues of governance, land use, infrastructure, and federal engagement. A member of the Apsáalooke Nation (Crow Tribe of Montana), Samuel served as Senior Counselor to the Assistant Secretary – Indian Affairs at the U.S. Department of the Interior. He is an expert on Indian law and policy and strengthens the firm’s institutional knowledge on self-governance, cultural preservation, Indian gaming, and fee-to-trust issues. He has extensive litigation and transactional experience and is known for his ability to navigate complex legal and policy challenges facing Native American communities across the United States. 

“We are in a pivotal moment for Indian affairs,” said Kohn. “Indian Tribes’ sovereign rights are being tested by the growth of tribal self-determination, the need for modernization, and the urgent demand for true government-to-government accountability. I’m proud to be part of Kaplan Kirsch to expand Indian law work to uphold respect, equity, and the sacred responsibility to support self-determination, protect Indigenous knowledge, and build a future rooted in resilience and justice.”

Putnam, Fultz, and Kohn bring unmatched knowledge in federal law and policy – and an intricate understanding of how infrastructure, climate, and Native American issues intersect at every level of government. Their return marks a major expansion of the firm’s capabilities as current and new clients take on ambitious projects in an ever-changing landscape. Bob Randall, Managing Partner at Kaplan Kirsch, and previously the Executive Director of the Colorado Department of Natural Resources, is particularly proud of the Firm’s expertise which capitalizes on its attorneys’ public as well as private sector roles.

“Our clients are confronting some of the most complex legal and policy challenges of our time, and they need advisors who bring both practical experience and big-picture vision,” said Randall. “John, Allison, and Sam bring precisely that. Their impactful government service and subject-matter expertise perfectly complement our firm’s interdisciplinary and collaborative model. Along with our existing team of outstanding lawyers, they are helping us build one of the most forward-looking infrastructure and public law practices in the country.”

About Kaplan Kirsch
Kaplan Kirsch LLP is a national law firm focused on solving complex legal, regulatory, and policy challenges for a diverse array of public and private sector clients in the infrastructure, environmental, energy and climate change, land use, Native American law, and transportation sectors. With offices in Denver, Washington, D.C., New York, and San Francisco, the firm is known for crafting innovative solutions to high-risk and seemingly intractable problems involving the interplay of many disciplines. Attorneys at Kaplan Kirsch have been counsel to a variety of public agencies, including municipal utilities, across the United States, represented public interest organizations in high-profile environmental litigation, served as government counsel at the highest levels of federal, state and local government, and represented a wide range of clients on cutting-edge compliance issues. Learn more at www.kaplankirsch.com. 

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The U.S. Supreme Court issued a unanimous decision, on May 29, 2025, narrowing the scope of environmental review under the National Environmental Policy Act (NEPA).  In Seven County Infrastructure Coalition v. Eagle County, Colorado, the Court reversed in part the D.C. Circuit Court of Appeals’ finding that the Surface Transportation Board (Board) violated NEPA in authorizing an 88-mile rail line intended to transport waxy crude oil out of Utah’s Uinta Basin.  Kaplan Kirsch LLP represents Eagle County in the litigation.

The central issue before the Court was the longstanding “indirect effects” requirement that came from the Council on Environmental Quality regulations under NEPA, which mandates an agency evaluate a project’s environmental effects that are reasonably foreseeable but occur later in time or distance from the project before an agency.  The Court held that the D.C. Circuit erred in holding that NEPA required the Board consider the effects of oil production in the Uinta Basin and of increased oil refining along the Gulf Coast, which would be facilitated by the new rail line.  The Court also held that the D.C. Circuit failed to afford the Board the “substantial deference” NEPA requires regarding the nature and scope of effects an agency considers in its environmental review. 

Writing for the Court, Justice Brett Kavanaugh explained that “NEPA requires agencies to focus on the environmental effects of the project at issue.”  Under NEPA, the Board’s environmental impact statement “did not need to address the environmental effects of upstream oil drilling or downstream oil refining.  Rather, it needed to address only the effects of the 88-mile railroad line.”  The Court’s decision establishes a new legal standard under NEPA:  an agency “may decline to evaluate environmental effects from separate projects upstream or downstream from the project at issue.”  Underlying its decision was the Court’s conclusion that  “NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents . . . to try to stop or at least slow down new infrastructure and construction projects.”

The Court’s decision may significantly narrow the scope of an agency’s environmental review, especially reviews of large transportation, rail, and infrastructure projects that—due to their nature and scope—have far reaching effects beyond the actual geographic limits of a project’s construction.  Citing specific projects such as those for airports and highways, the Court reversed NEPA’s decades-old requirement that project proponents consider indirect effects such as induced residential or business development.  Those indirect effects may no longer need to be evaluated under NEPA.  According to the Court, “if the project at issue might lead to the construction or increased use of a separate project . . . , the agency need not consider the environmental effects of that separate project.”

The Supreme Court did not disturb a majority of the D.C. Circuit’s ruling that the Board violated NEPA, the Interstate Commerce Commission Termination Act, Endangered Species Act, and Administrative Procedure Act.  Among the issues left untouched were the D.C. Circuit’s finding that the Board failed to consider the effects of trains that would use the project transporting millions of gallons of oil through Colorado, including rail accidents along the Colorado River and the risk of wildfire posed by long heavy oil trains.  The Board’s other NEPA violations, as well as violations of its own rail statute and the Endangered Species Act, were not raised in the petition before the Supreme Court.  The case has been remanded to the D.C. Circuit where the lower court must determine what impact the new NEPA standard has on its original decision to vacate the rail project.

If you have questions or wish to discuss the Supreme Court’s ruling and how this decision may impact environmental reviews under NEPA, please contact Nate Hunt, John Putnam, Allison Fultz, Catherine van Heuven, or Christian Alexander. 

Kaplan Kirsch has updated this rail law alert to correct a typographical error in the original.

The FY25 Certifications and Assurances reflect updates to requirements for:

• Disposition of real estate
• Lobbying disclosures
• Civil Rights Act compliance
• Recent regulatory changes for micro-purchase thresholds and
• Expiring authorizations for COVID-19 funding.

On May 23, 2025, the Federal Transit Administration (FTA) issued its FY2025 Annual List of Certifications and Assurances for FTA Grants and Cooperative Agreements. The document is a consolidated list of the statements that recipients of financial assistance from the FTA must make annually or as part of an application. The changes to the FY2025 Certifications and Assurances reflect clarifications based on existing requirements, changes to regulations, or expiring statutory authorization, and not large-scale policy shifts seen in recent Executive Orders or U.S. Department of Transportation (U.S. DOT) guidance.

However, while there are no changes expressly referencing recent Executive Orders (EOs), existing unchanged provisions (Section 1.1(r)) require applicants to “certify compliance with all governing EOs.” EO’s issued since January 20, 2025 include: EO 14005 – Ensuring the Future is Made in all of America by All of America’s Workers; EO 14149 – Restoring Freedom of Speech and Ending Federal Censorship; EO 14151 – Ending Radical and Wasteful Government DEI Programs and Preferencing; EO 14154 – Unleashing American Energy; EO 14168 – Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government; and EO 14173 – Ending Illegal Discrimination and Restoring Merit-Based Opportunity. EOs direct action on the part of Executive branch agencies, not grantees, so we anticipate FTA will issue guidance to establish criteria for grantees to use to comply with this directive. “Certification of compliance with governing EOs” therefore does not require immediate action by grantees, but future regulatory changes implementing the EOs may require grantees to undertake changes.

The most notable changes to the FTA’s FY2025Certifications and Assurances are:

• New certification concerning compliance with requirements for use and disposition of real property acquired with federal assistance. A new Section 1.7 has been added requiring applicants to certify that they will comply with federal requirements concerning real property acquired or improved with federal assistance under 2 C.F.R. 200.311. This certification includes that they will use property for the purposes authorized in an award, and that they will seek disposition instructions from FTA when property no longer is needed for any authorized purposes. FTA notes that this certification responds to a recommendation made by the U.S. Department of Transportation’s Office of Inspector General in its Report FS2024025 (May, 20, 2024).
• New certification concerning increases in micro-purchase thresholds. A new Section 1.4 has been added requiring certain certifications if a recipient establishes a micro-purchase threshold that is higher than the federal micro-purchase threshold. The FTA has noted that it has added this provision to implement 2 C.F.R. 200.320(a)(1)(iv)-(v), which permits recipients to self-certify a micro-purchase threshold above the federal threshold up to $50,000, or higher if approved by the cognizant agency for indirect costs.
• Removal of certifications related to the Coronavirus Response and Relief Supplemental Appropriations. Former certifications at Sections 1.5 and 1.6 have been removed. These required that funding made available under the Consolidated Appropriations Act, 2021, the CARES Act, and the American Rescue Plan Act of 2021 be directed towards payroll and operations of public transportation unless the applicant to certified that the applicant has not furloughed any employees. The removal of these certifications reflects the expiration of their statutory funding deadlines and the fact that the FTA had obligated effectively 100 percent of its available Coronavirus relief finding as of September 2024.
• Relocation of certification regarding lobbying. Certifications regarding disclosure of a grantee’s or applicant’s lobbying activities has been moved from its own category (formerly Category 4) to Section 1.6 under Category 1, which contains certifications and assurances required of every recipient or applicant. FTA comments that this change was made to avoid confusion and occasional delays resulting from recipients failing to execute the certification.
• Clarification to certification of compliance with Title VI of the Civil Rights Act. Section 1.1(f)(1), which requires applicants to certify compliance with Title VI of the Civil Rights Act of 1964, “as effectuated by U.S. DOT regulation 49 CFR Part 21,” has been amended to note that the certification applies to “any amendments thereto.” This change may indicate an expectation of forthcoming amendments to Title VI of the Civil Rights Act or implementing U.S. DOT regulations.

If you have questions or wish to discuss any of 2025 FTA Certifications and Assurances, please contact Allison Ishihara Fultz, Ayelet Hirschkorn, John Putnam, Chuck Spitulnik, Christian Alexander, or Grant Glovin.