Monthly newsletter Material Concerns: Legal Updates on Substances of Emerging Concern keeps clients informed on the latest legal, regulatory and scientific developments related to substances of emerging concern. Each issue delivers concise, actionable insights to help companies navigate the evolving landscape of environmental law.

Data Centers Face Growing Regulatory and Community Scrutiny

By Jennifer E. Hackman

The rapid expansion of data centers, driven in part by increasing demand for artificial intelligence and cloud computing infrastructure, is drawing greater attention from policymakers, regulators and local communities across the United States. Several states have responded by proposing temporary moratoriums or enhanced oversight of new data center development. 

Lawmakers in states including Virginia, Michigan, Pennsylvania, Oklahoma, New York, Vermont and Georgia have considered measures ranging from temporary permitting freezes to requirements for environmental-impact and infrastructure studies. Virginia's proposals, for example, reflect concerns about whether power-transmission infrastructure can keep pace with new demand in Northern Virginia, the world’s largest concentration of data centers. Other states have focused on water consumption, electricity costs borne by utility customers, and the potential need for additional generation resources to serve growing demand. Most of these state measures are still pending, some have failed, and only one to date, New York’s AB 10141/SB 9144, has passed the legislature. At the federal level, policymakers have also introduced legislation seeking greater review of large AI-related data center projects and their environmental effects. The Artificial Intelligence Data Center Moratorium Act (S. 4214), introduced in March 2026 by Senator Bernie Sanders (I-Vt.) and Representative Alexandria Ocasio-Cortez (D-N.Y.) would impose a nationwide moratorium on the construction of new AI-related data centers and expansion of existing facilities until Congress enacts broader AI legislation addressing safety, economic and environmental concerns. The proposal specifically references preventing increases in electricity costs, environmental harm and climate impacts associated with AI infrastructure. 

At the same time, courts are seeing a growing number of challenges related to data center development. Recent lawsuits have involved zoning and land-use approvals, environmental review requirements, air emissions, noise concerns, water-resource impacts, and other community objections. 

Although the regulatory landscape remains highly dynamic, stakeholders across the sector are paying closer attention to sustainability, resource management and community engagement. As legislatures, regulators and courts continue to address issues surrounding data center development, project developers, utilities, local governments and affected communities are likely to play an important role in shaping the future framework governing this rapidly expanding industry. 

D.C. Circuit Upholds EPA’s “Hazardous Substances” Designation for PFOA and PFOS

By Joseph Zaleski

The United States Court of Appeals for the District of Columbia Circuit unanimously upheld the Environmental Protection Agency’s (EPA) 2024 designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Chamber of Com. of the U.S. v. EPA, No. 24-1193 (D.C. Cir., filed August 18, 2026). In its ruling, the court held that “having adequately considered and reasonably explained its decision to regulate at this initial stage even in the face of acknowledged uncertainties, EPA made a reasoned decision on the record before it in designating the forever chemicals PFOA and PFOS as hazardous substances.” Slip op. at 53. The court determined that EPA correctly and appropriately interpreted its statutory authority to make the designations under Section 102 of CERCLA, finding that the statutory standard of “may present a substantial risk of harm” “carries its plain meaning of a scientifically possible substantial risk of harm upon release,” Slip op. at 17-18. The court held that EPA met this, citing “extensive” scientific studies that have linked PFOA and PFOS to various human health hazards. 

The court also found that the cost/benefit analysis prepared by EPA to support the rulemaking satisfied the agency’s procedural and administrative rulemaking obligations. Because EPA assumed that such a cost/benefit analysis was required before designating “hazardous substances” under Section 102, the court did not address the fundamental legal question of whether such an analysis is required by statute. This issue may arise in future rulemakings and litigation over designation of other chemicals and compounds as “hazardous substances.”

The 2024 designation rule specifically requires:

1. Reporting to the National Response Center of releases of PFOA or PFOS, or their salts or structural isomers, that meet or exceed the reportable quantity of one pound in any 24-hour period, and publication in local newspapers notifying potentially injured parties of the releases.
2. Notification by federal entities transferring or selling property about the storage, release or disposal of PFOA or PFOS on the property, as well as a covenant on the deed warranting the federal agency has cleaned up (or will in the future) any PFOA or PFOS contamination as required under CERCLA.
3. Listing and regulation of PFOA and PFOS by the United States Department of Transportation as hazardous materials under the federal Hazardous Materials Transportation Act.

More generally, EPA’s designation of PFOA and PFOS as CERCLA “hazardous substances” will give the agency more authority and tools to require investigation and cleanup of these substances at existing or new Superfund sites around the country. Whether the court’s agreement with EPA’s interpretation of its Section 102 authority for listing of hazardous substances will prompt EPA to propose and designate additional chemicals or compounds as “hazardous substances” remains to be seen. 

Driscoll’s Lawsuits Reflect Growing Risks of Consumer Protection Litigation

By Kate Klaus

Two recent lawsuits against Driscoll’s, the global berry producer, highlight the expanding litigation landscape around environmental marketing claims. Both cases challenge Driscoll’s statements around sustainability and food safety, claiming its messaging creates consumer expectations that its produce does not meet.

The first of these lawsuits, filed in June 2026, is a proposed class action alleging that Driscoll’s conventional (non-organic) strawberries contain detectable levels of PFAS. Washington v. Driscoll’s, Inc., No. 26-06961 (N.D. Cal., removed from state court July 8, 2026). The lawsuit centers on the claim that consumers would not have purchased Driscoll’s strawberries, or would have paid less for them, had they known of the alleged PFAS content. The complaint relies in part on third-party testing that reportedly identified fluorinated pesticide compounds in two packages of Driscoll’s strawberries. The complaint further asserts that the purported presence of PFAS conflicts with consumer expectations allegedly created by Driscoll’s slogan “Only the Finest Berries.”

The case raises claims under various California consumer-protection statutes, seeking damages such as the return of profits and punitive damages. The complaint also seeks injunctive relief, including an order preventing Driscoll’s from selling its conventional strawberries until the alleged PFAS are removed or disclosed. 

A second lawsuit was filed in August 2026 in D.C. Superior Court by the advocacy organizations Beyond Pesticides, the Organic Consumers Association, and Toxin Free USA. Beyond Pesticides v. Driscoll’s Inc., No. 26-005727 (D.C. Super. Ct., filed August 14, 2026). The plaintiffs challenge Driscoll’s sustainability messaging, including representations that its products are “good for you and the planet.” According to the complaint, such statements are misleading because the company’s berry growing and packaging practices allegedly “use significant amounts of plastic,” “little of which is recycled.” The complaint further asserts that the company’s plastic use leads to the presence of microplastics in its berries and the environment, citing laboratory testing commissioned by the plaintiffs that reportedly detected microplastic particles in a sample of Driscoll’s blueberries. 

For these reasons, among others, the plaintiffs claim that Driscoll’s products and practices are inconsistent with its environmental messaging. The plaintiffs seek injunctive and declaratory relief, but no damages, under the D.C. Consumer Protection Procedures Act. Specifically, the complaint asks the court to declare that Driscoll’s marketing violates the D.C. law, and to prevent it from continuing the challenged conduct. 

Notably, neither of these two lawsuits raise personal injury or traditional product liability claims. Rather, the cases are part of a broader trend in litigation centered on product marketing and consumer expectations. That trend may accelerate as states continue to expand chemical disclosure requirements. For example, several states are beginning to implement PFAS reporting and labeling programs. As more product information becomes public, consumers may increasingly look to compare those disclosures against companies’ marketing claims and sustainability messaging.