This article was originally published in the Texas Academy of Family Law Specialists Family Law Forum.

Guardianship Law: An Overview

With our aging population, second marriages and the blended families that arise therefrom, both elder law and family law attorneys are witnessing an uptick in divorce proceedings filed by adult children of elderly parents. These divorce filings are often made in an adult child’s role as guardian of their parent or as agent under power of attorney. Another correlation between our aging population and the increase in divorce proceedings is an increase in guardianship proceedings being initiated by adult children of elderly parents, or sometimes by the other spouse in retaliation for the filing of the divorce proceeding. While these issues are quite broad and could conceivably consume a multi-day CLE program, this article will focus on the general procedures of guardianships, with an emphasis on subject matter jurisdiction of probate courts when a divorce proceeding overlaps with a guardianship proceeding, and will share practical considerations for family law practitioners to keep in mind when they find themselves in the crosshairs of guardianship law and family law.

The statutory scheme for guardianships can be found in Title 3 of the Texas Estates Code. Notably, Title 3 begins with the purpose of guardianship and the reason it warrants its own section in the Texas Estates Code, which is to “promote and protect the well-being of [an] incapacitated person.”[1] Generally speaking, an incapacitated person is defined as someone who is mentally, physically, or legally incompetent.[2] The Texas Estates Code’s definition of an incapacitated person also includes minors and adults who are unable to care for their own physical health or manage their own affairs.[3]

A guardianship proceeding over an allegedly incapacitated person, or, in other words, a “proposed ward,” can be initiated in one of two ways: (1) by filing an application requesting a guardianship over the proposed ward, or (2) by the court itself after someone has filed an information or doctor’s letter regarding the proposed ward.[4] However, guardianship proceedings are typically initiated by the filing of an application by someone close to or involved with the proposed ward. Chapter 1101 of the Texas Estates Code sets forth the pleading requirements for an application for guardianship and essentially provides a checklist of the information required to be included in an application for guardianship. Chapter 1101 also lays out the burdens of proof that the person seeking a guardianship must meet, and the findings that the court must make, to successfully obtain a guardianship over the proposed ward.[5]

Regardless of whether a guardianship proceeding is initiated by the filing of an application or an information letter, another procedural hurdle with guardianships is determining what court has jurisdiction to consider such a case. The Texas Estates Code confers jurisdiction over a guardianship proceeding to “a court exercising original probate jurisdiction.”[6] As to which court has original probate jurisdiction, that can vary by county and generally depends on the structure of the court system in the county in which the guardianship will be pending. The first step to answering this question is determining whether the county has a statutory probate court or not. In counties with a statutory probate court, which are typically in larger metropolitan areas of Texas, the statutory probate court possesses exclusive jurisdiction over all guardianship proceedings.[7] Less-populated counties typically do not have a statutory probate court, and instead have a county court and/or a county court at law. In a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, the county court has original jurisdiction of guardianship proceedings.[8] In a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, the county court at law exercising original probate jurisdiction and the county court have concurrent original jurisdiction of guardianship proceedings, unless otherwise provided by law.[9]

Subject Matter Jurisdiction: Guardianship v. Divorce

While subject matter jurisdiction for guardianship proceedings is governed by the Texas Estates Code, subject matter jurisdiction for divorce proceedings is governed by the Texas Constitution and the Texas Government Code. Article 5, Section 8 of the Texas Constitution grants district courts original jurisdiction over all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by the Texas Constitution or other law on some other court, tribunal, or administrative body.[10] A divorce proceeding is an in rem action over which the district court has subject matter jurisdiction.[11] However, a divorce proceeding may also proceed in a statutory county court depending on the amount in controversy.[12]

The differences in subject matter jurisdiction between guardianship and divorce proceedings is further complicated by the fact that the courts that handle these cases may vary from county to county. Many counties have specifically designated courts for family law cases in the Government Code.[13] Even if the Government Code does not have a specifically designated family court for a particular county, the district judges are empowered with the authority to adopt rules for the filing of cases, assignment of cases for trial, and the distribution of the work amongst the courts.[14] As a result, district judges may make rules and enter orders amongst themselves to divide cases in a certain manner that they determine is best for judicial efficiency. While this may not be a strictly jurisdictional issue, because all the district courts still retain subject matter jurisdiction as provided by the Texas Constitution, it is a practical consideration for the filing of divorce cases.

These variations in subject matter jurisdiction between divorce and guardianship mean that it is rare for a guardianship and a divorce to be pending in the same court unless the jurisdictional stars align. If the cases were ever in the same court, it would likely be in a smaller county in Texas where there was no statutory probate court to hear the guardianship. For example, a divorce proceeding that is filed within the jurisdictional limits of the statutory county court may be heard alongside a contested guardianship proceeding that is also filed or transferred to that same court. Another example may be in a small county that has no statutory probate court or county court at law exercising original probate jurisdiction, and a guardianship proceeding that becomes contested is transferred to a district court.[15] By contrast, in larger counties that do have statutory probate courts, the guardianships and divorces will never be filed in the same court because the statutory probate court has exclusive jurisdiction of guardianships and divorce cases are always filed in the district courts or a statutory county court.[16]

These nuances in jurisdiction cause understandable confusion for practitioners who are participating in concurrent divorce and guardianship proceedings that involve the same parties. The “first filed” rule, or dominant jurisdiction rule, will not apply when evaluating whether a divorce proceeding versus a guardianship proceeding should proceed first because the two cases involve different disputes and the respective subject matter for each case will often invoke the jurisdiction of different courts.[17]

However, even if the divorce and guardianship are filed in different courts, the Texas Estates Code confers jurisdiction on statutory probate courts to hear matters appertaining to or incident to a guardianship estate.[18] In the case of In re Graham, the parties to the divorce were Richard and Gitta Milton.[19] Analyzing Section 608 of the Probate Code (now Section 1022.007 of the Estates Code), the Texas Supreme Court determined that the divorce was a matter related to Mr. Milton’s guardianship estate.[20] As a result, the Court held that the statutory probate court had authority to transfer to itself from a district court a divorce proceeding when one party to the divorce is a ward of the probate court.[21]

One important distinction to be made about the parties in Graham is that divorce involved a spouse (Richard Milton) who had already been determined by the probate court to be incapacitated and a guardian had been appointed. Cases where a guardianship and a divorce are both pending and a party to a divorce has not been determined to be incapacitated are more complicated. If the guardianship is pending in a statutory probate court, a party may ask for a transfer of the divorce to that court under Section 1022.007 of the Texas Estates Code. However, the transfer request is not guaranteed to be granted, and probate judges are often hesitant to allow the transfer because they do not typically preside over divorces and may be uncomfortable in doing so. Depending on the circumstances, a party may strategically choose to keep the divorce and guardianship separated in their respective courts so that each case may be presided over by a judge with experience in that subject matter. Further, if the proceedings are pending in a county without a statutory probate court, a transfer under Section 1022.007 would not be permitted, and the cases would have to remain segregated in their respective courts.

Texas Enters the Guardian Divorce Debate: How Benavides Set the Stage Without Choosing Sides

Beyond jurisdictional complexities lies an even more fundamental question that has divided courts nationwide: Can a guardian initiate divorce proceedings on behalf of their incapacitated ward? This seemingly straightforward question pits the protection of vulnerable adults against the preservation of personal autonomy in marriage, creating a legal battlefield where the stakes involve both individual liberty and family safety. The Texas Supreme Court finally addressed this contentious issue in In re Marriage of Benavides, No. 23-0463, 2025 WL 1197404 (Tex. Apr. 25, 2025)—but rather than choosing sides, the Court outlined an entirely new framework that would ensure protection while leaving the ultimate policy choice to the Legislature.

The Benavides Framework: Procedural Innovation Over Policy Choice

The Benavides case—featuring a wealthy Laredo patriarch with dementia, his fourth wife, competing inheritance claims, and a daughter seeking to protect her father from alleged exploitation—forced the Court to finally provide clarity. Rather than making the difficult policy choice between protection and autonomy, the Court outlined a sophisticated procedural framework that would govern guardian divorces if such authority exists, requiring two mandatory judicial safeguards.

First, the guardianship court must expressly authorize the guardian to pursue the divorce. General litigation authority is not sufficient—the court must specifically consider and approve divorce proceedings as within the guardian’s powers.

Second, both courts must find that divorce serves the ward’s best interests. The guardianship court must determine that granting divorce authority promotes the ward’s well-being, and the family court must independently conclude that actually granting the divorce is in the ward’s best interests and promotes and protects the ward’s well-being.

The Court’s conditional framework acknowledges compelling arguments on both sides while explicitly refusing to make the ultimate policy choice about whether such authority should exist. The Court explicitly noted that “the Legislature may wish to consider amending the Estates Code or the Family Code to plainly express its policy choice on this issue.”[22] Any future guardian divorce petition would need to navigate this two-court, two-finding framework if such authority is established.

The decision’s practical requirements would transform guardian divorce practice entirely. Guardians would need to obtain express authorization before filing and build compelling evidence that divorce truly serves the ward’s well-being. Courts could not simply apply standard no-fault divorce criteria—they would need to independently evaluate whether dissolution promotes the specific ward’s interests.

What This Means Going Forward

Benavides maps the doorway without deciding whether to open it—establishing what procedures would be required if guardian divorces are permitted. Should Texas ultimately permit guardian divorces, family lawyers would need to navigate two courts and meet high evidentiary burdens under the Benavides framework. The decision explicitly invites legislative action, urging policymakers to choose between autonomy and protection. Until then, Texas practitioners operate in an uncertain landscape—one where the fundamental question remains unanswered.

Practice Guidance, Ethical Considerations, and Conclusion

When guardianship and divorce proceedings are concurrent or intersect with one another, practitioners should carefully consider the order in which they proceed with the divorce or guardianship proceedings to ensure that the constitutional and due process rights of the alleged incapacitated person are protected. In guardianships, the Texas Estates Code requires the appointment of an attorney ad litem to represent the legal interests of the proposed ward in that proceeding.[23] However, the attorney ad litem’s authority to represent the proposed ward is limited to the guardianship proceeding, unless the probate court enters an order specifying otherwise. If the proposed ward has hired their own counsel, the probate court will need to conduct a hearing to determine if the proposed ward has the ability to retain their own counsel.[24] The proposed ward’s ability to retain their own counsel in the guardianship would also affect their ability to do so in the divorce. The retention and authority of legal representation for the proposed ward in both the guardianship and the divorce proceedings is a crucial issue to determine at the beginning of the proceedings to ensure the proposed ward’s due process rights are protected. 

Another consideration for practitioners is the proposed ward’s ability to enter into agreed orders in the divorce or participate in other negotiations or agreements. Findings related to a party’s capacity or incapacity should be handled by the probate court, not the divorce court, and these determinations directly affect the way the divorce proceeds. For example, if a divorce proceeding goes forward with an alleged incapacitated person as a party, the parties and the family court run the risk that orders or agreements entered into by the alleged incapacitated party may be void or voidable. A possible solution is to ask the probate court to appoint a temporary guardian for the alleged incapacitated party with the authority to participate in the divorce proceeding. Alternatively, the divorce could be abated pending a final determination of the need for a guardianship for the proposed ward. If a permanent guardian is appointed, the guardian is the proper party to the divorce on behalf of the proposed ward. Ultimately, the circumstances and the level of incapacity of the proposed ward will be a driving factor as to how to proceed in each individual case.

Other than procedural and practical issues that may arise during guardianship-divorce proceedings, there are also ethical issues when working with a client who may lack capacity. Rule 1.17 of the Texas Disciplinary Rules of Conduct provides that if an attorney reasonably suspects a client to have diminished capacity, the attorney may take reasonably necessary protective action such as seeking the appointment of a guardian or attorney ad litem for the client or submitting an information letter to a court with jurisdiction to initiate a guardianship proceeding for the client. However, practitioners should be warned that transforming your role from advocate to applicant with respect to seeking a guardianship for your client may create a conflict of interest and prohibit continued representation in the divorce proceeding.

Practitioners should also be aware of circumstances when a guardianship or divorce proceeding is used as a tool to retaliate against the other spouse. For example, a client may retain you to divorce his or her spouse and after the divorce proceeding has been initiated, the other spouse files for a guardianship over your client claiming your client lacks capacity to even seek a divorce. Is the spouse retaliating or does your client truly lack capacity?

As the “baby boomer” generation ages and the elderly population increases, practitioners can expect to see an increase in the overlap of guardianships and divorce proceedings, and for some of the circumstances and issues discussed in this article to come across their desk. And as this article highlights, there are procedural nuances to guardianships and divorce proceedings that can become even more complicated when these two practice areas intersect. Although Benavides and Graham provide some guidance for practitioners when they find themselves caught in-between a guardianship and divorce proceeding, there are still jurisdictional and practical issues that these cases do not address. Until such issues are addressed by the legislature or more case law, practitioners should be familiar with the basics of guardianship law in the event a divorce proceeding turns in an issue of one spouse’s capacity, or lack thereof.

[1] Tex. Est. Code Ann. § 1001.001.

[2] Tex. Est. Code Ann. § 1001.003.

[3] Tex. Est. Code Ann. § 1002.017.

[4] Tex. Est. Code Ann. § 1101.001 (guardianship proceeding initiated by application); Tex. Est. Code Ann. § 1102.003 (guardianship proceeding initiated by filing an information letter with the court).

[5] Tex. Est. Code Ann. § 1101.001.

[6] Tex. Est. Code Ann. § 1022.001.

[7] Tex. Est. Code Ann. § 1022.005.

[8] Tex. Est. Code Ann. § 1022.002(a).

[9] Tex. Est. Code Ann. § 1022.002(b).

[10] Tex. Const. art. V, § 8; see also Tex. Gov’t Code Ann. § 24.007.

[11] Blenkle v. Blenkle, 674 S.W.2d 501, 503 (Tex. App—El Paso 1984, no writ).

[12] Tex. Gov’t Code Ann. § 25.003(c)(1).

[13] See Tex. Gov’t Code Ann. §§ 24.601–24.644.

[14] Tex. Gov’t Code Ann. § 24.024.

[15] Tex. Est. Code Ann. § 1022.003.

[16] Tex. Est. Code Ann. § 1022.005; Tex. Const. art. V, § 8; Tex. Gov’t Code Ann. § 24.007.

[17] See In re King, 478 S.W.3d 930, 933 (Tex. App.—Dallas 2015, orig. proceeding) (when a claim asserted in a second suit is outside the jurisdictional limits of the court where the first suit was filed, the first court cannot assert dominant jurisdiction over the claim in the second suit).

[18] Tex. Est. Code Ann. § 1022.007; In re Graham, 971 S.W.2d 56, 59 (Tex. 1998).

[19] In re Graham, 971 S.W.2d at 57.

[20] Id. at 60.

[21] Id.

[22] Benavides, 2025 WL 1197404, at *13.

[23] Tex. Est. Code Ann. § 1054.001.

[24] Tex. Est. Code Ann. § 1054.006.

When Carlos Benavides died in December 2020, he left behind more than just a wealthy estate—he sparked a legal challenge that would force Texas courts to confront one of family law’s most divisive questions.

For over a century, American courts have wrestled with a fundamental question: Can someone else decide to end your marriage when you’re no longer capable of making that decision yourself?

The question has split American courts into two distinct philosophies. The Traditional Majority views marriage as so intensely personal that only spouses themselves can choose dissolution. Wyoming’s decision in Flory v. Flory, 527 P.3d 250, 252 (Wyo. 2023), exemplifies this approach: divorce is “too personal and volitional to be pursued at the pleasure or discretion of a guardian.” The Progressive Minority argues this approach leaves vulnerable adults defenseless. Illinois’s decision in Karbin v. Karbin ex rel. Hibler, 364 Ill. Dec. 665, 977 N.E.2d 154, 162 (2012), captures modern thinking: guardians should make “all types of uniquely personal decisions that are in the ward’s best interests, including the decision to seek a dissolution of marriage.” These courts emphasize that denying guardian divorce authority can trap incapacitated individuals in exploitative marriages.

Into this national divide stepped the Texas Supreme Court in In re Marriage of Benavides, 2025 WL 1197404 (Tex. Apr. 25, 2025), charting an entirely new path forward.

From Laredo to the Supreme Court: The Benavides Story

Carlos “C.Y.” Benavides Jr., a descendant of Laredo’s founder and beneficiary of substantial mineral trusts, married his fourth wife, Leticia Russo, in 2004. They signed agreements keeping all assets separate (a decision that would prove crucial to the later litigation). Seven months later, Carlos filed for divorce, but five months after that, doctors diagnosed him with dementia. The divorce was dismissed, but legal warfare had begun.

As Carlos’s condition worsened, competing narratives emerged. Leticia claimed Carlos gave her “full authority” over his accounts, repeatedly saying “todo lo mío es tuyo”—“all that I have is yours.” Id. at *2. Carlos’s daughter, Linda, painted a darker picture: systematic exploitation of an incapacitated man.

The family dysfunction erupted in 2011. Linda filed for guardianship while Carlos signed a new will leaving everything to Leticia. The court found Carlos totally incapacitated and appointed Linda as guardian. In 2018, Linda moved Carlos from his home with Leticia and filed for divorce on his behalf, claiming they had lived apart for over three years. The trial court granted the divorce in September 2020, but Carlos died two weeks later, launching the appeal that would reach the Texas Supreme Court. Id. at *1-4.

The Benavides Framework

When Benavides reached the Texas Supreme Court, many expected a definitive ruling that would finally resolve decades of uncertainty. Instead, the Court delivered something far more sophisticated—and arguably more frustrating: crucial guidance wrapped in judicial restraint.

Rather than deciding whether a guardian may initiate a divorce on behalf of a ward, the Court explicitly declined to “definitively decide” the issue. Id. at *14. It characterized the matter as “the very type of policy choice on which we consistently defer to the Legislature.” Id. at *12. The message was clear: Courts interpret law; legislatures make policy.

Yet while dodging the core question, the Court created something entirely new: a procedural framework that would govern guardian divorces if such authority exists. The framework requires two crucial safeguards. First, express guardianship court authorization—guardians cannot rely on general litigation authority but must obtain specific authorization for divorce proceedings. Second, dual best-interest findings—both the guardianship court and family court must independently find that the divorce serves the ward’s best interests and promotes their well-being.

Most significantly, the Court explicitly invited legislative action, noting that “the Legislature may wish to consider amending the Estates Code or the Family Code to plainly express its policy choice.” Id. at *13.

But the decision exposed philosophical divisions among the justices. Chief Justice Blacklock’s concurring opinion revealed the moral complexity underlying the issue: “Marriage pre-dates and transcends our law,” he wrote. “Marriage is a unique, natural relationship reflected in the law and recognized by the law, but it was not created by the law.” Id. at *15 (Blacklock, C.J., concurring). He continued, “Whether I want to be married and whether somebody thinks I should be married are two completely different questions,” and “only the former has any bearing on whether I am or will remain married.” Id. at *18. This reflects the traditionalist view that some decisions are simply too personal for third-party determination.

Where Texas Goes From Here

Benavides offers conditional clarity—a detailed framework awaiting someone to decide its purpose. If guardian-initiated divorces are to be allowed, the case lays out a meticulous path: formal court approval, compelling evidence of best interest, and layered judicial oversight. It is a far cry from ordinary divorce, and intentionally so.

Now, the Legislature must decide whether to follow that map, redraw it, or leave it unmarked. It can affirm this new route with statutory safeguards, close the door entirely, or continue allowing families to operate amid legal uncertainty.

The Court’s decision may be seen as measured restraint or missed opportunity. Yet in declining to declare a definitive rule, the justices extended an invitation: for lawmakers to finish what the judiciary could only begin. In doing so, they handed families something rare in such cases—structure, if not resolution.

For now, Benavides remains a decision in waiting: part blueprint, part open question. But in a realm long governed by silence and uncertainty, even that is progress.

A new Supreme Court decision creates potential traps for the unwary and gives the Internal Revenue Service (“IRS”) nationwide power to leave a taxpayer without a remedy to contest certain collection actions. Importantly, while a Collection Due Process (“CDP”) action is pending, taxpayers should ensure to the extent possible that no refunds are generated for other tax years as the IRS may seize these amounts to satisfy the liability at issue in the CDP, eliminating the taxpayer’s right to contest that liability. In Commissioner v. Zuch, with Justice Barrett delivering the majority opinion, the Supreme Court held that the United States Tax Court (the “Tax Court”) lacked jurisdiction under Internal Revenue Code (“IRC”) Section 6330 to resolve disputes between the taxpayer and the IRS when the IRS is no longer pursuing a levy. Instead, the taxpayer’s remedy in such cases is to file a suit for a refund against the IRS in federal district court. Taxpayers with similar ongoing collections issues should immediately identify refund deadlines and file refund claims with the IRS (on a protective basis or otherwise) before the statute of limitations runs out and they are potentially left with no recourse.

In Zuch, for the 2010 tax year, Jennifer Zuch (“Taxpayer”) and her then-spouse separately filed tax returns. After receiving notice that the IRS intended to levy on her property to collect an unpaid tax liability, Taxpayer requested a CDP hearing under IRC Section 6330. At the CDP hearing, Taxpayer argued that her account should have been credited with estimated taxes that were already paid to the IRS. The IRS Appeals Officer disagreed and sustained the levy action because the estimated tax payments had already been credited to her then-spouse. Taxpayer then appealed to the Tax Court, however, while this process was occurring over several years, Taxpayer filed multiple tax returns with overpayments that entitled Taxpayer to a refund. Each time, instead of issuing a refund, the IRS offset said amounts against Taxpayer’s outstanding tax liability for the 2010 tax year. Eventually, Taxpayer’s balance was zero, so the IRS moved to dismiss the Tax Court proceeding as moot. The Tax Court held that it lacked jurisdiction over the appeal because there was no longer a justification for the IRS to pursue a levy. Taxpayer appealed the Tax Court decision, and the Third Circuit Court of Appeals agreed with Taxpayer, holding that the IRS’s decision not to pursue a levy did not moot the Tax Court proceeding. The Third Circuit’s decision created a split with the Fourth and the D.C. Circuits.

The Supreme Court reversed the decision of the Third Circuit and remanded the case for further proceedings consistent with the opinion, holding that a “determination” within the meaning of IRC Section 6330(d)(1) “refers to the binary decision whether a levy may proceed.” The Court reasoned that IRC Section 6330(c)(3), which sets forth the basis for the Appeals Officer’s “determination,” states that IRS Appeals “shall take into consideration” three factors, including the existence or amount of the underlying tax liability—in this case, whether the estimated tax payments were properly applied. Thus, those “considerations” are only inputs which result in the “determination” of the IRS Appeals Officer sustaining the levy, i.e., the output. The Supreme Court further reasoned that IRC Section 6330(e) only goes so far as to confer on the Tax Court the authority to issue an order enjoining a levy but no authority to order a refund or issue a declaratory judgment to resolve a tax liability dispute. The Tax Court, therefore, only has jurisdiction to review the “determination” and has no authority to resolve tax disputes that no longer have a connection to an ongoing levy. Finally, the Supreme Court reminds the Taxpayer that she does not lack recourse against the IRS and should “[r]ecall the default rule: Taxpayers cannot challenge disputes about tax liability without first paying the disputed taxes.” Taxpayer may file a post-deprivation suit for a refund (citing 28 U.S.C. §§ 1346(a)(1), 1491(a)(1)).

In light of the Supreme Court’s decision, Taxpayers should be aware that there first must be a levy action for the Tax Court to exercise jurisdiction under IRC Section 6330. That is, there will need to be an unpaid tax because otherwise there cannot be justification for a levy. According to the majority opinion, the Taxpayer in Zuch had a few options. Because the Taxpayer in Zuch had overpayments in subsequent years, she ended up in the same place—filing a refund suit—as she would have had she initially paid the tax when due. Had Taxpayer not had overpayments in subsequent years, the unpaid tax liability and the levy would have remained, and the Tax Court would have retained jurisdiction to decide whether the levy could move forward or whether to enjoin the levy. Importantly, while the Supreme Court did not cut off a taxpayer’s recourse under either circumstance, it explicitly sent the message that “[t]he Tax Court is a court of limited jurisdiction.” (citing Commissioner v. McCoy, 484 U. S. 3, 7 (1987); I.R.C. § 7442).

In addition, although the decision is rendered in the context of the Tax Court’s jurisdiction, its rationale may also be relied upon by IRS Appeals Officers looking to deny CDP hearings where the IRS has been able to collect the allegedly outstanding liabilities by offset.

In the aftermath of the ruling, similarly-placed taxpayers may find themselves in the difficult position of deciding whether to pursue a CDP proceeding knowing that the IRS could collect the liabilities at issue by offset and thereby defeat the Tax Court’s jurisdiction (as in Zuch). Or, as the dissenting opinion by Justice Gorsuch points out, the IRS could potentially drop the proposed levy at any point in the proceedings and strip the taxpayer of their Tax Court remedy.

The alternative that the majority opinion provides is for a taxpayer to pay the liabilities at issue and then file a timely administrative claim with the IRS, followed by a timely suit for refund in federal district court. However, when a pre-payment litigation option such as IRS Section 6330 exists, the decision to use a post-deprivation remedy will not be made lightly, particularly because a refund suit requires full payment of all taxes, interest, and penalties for a tax period.

If taxpayers do choose to pursue (or continue to pursue) CDP proceedings in similar matters, it will be important to calendar any deadlines for filing an administrative refund claim, as well as a refund suit, in relation to any amounts that the IRS collects by offset. As the dissent also points out, the Taxpayer in Zuch did not timely file all her administrative refund claims while she was pursuing the CDP proceedings, leaving her potentially remediless to recoup some of her overpayments from the IRS. Hence, at a minimum, taxpayers should ensure to the extent possible that taxes for other periods are not overpaid, and even if CDP proceedings are ongoing, taxpayers should consider at least filing protective refund claims for any overpayments to preserve their rights before the statute of limitations runs out and leaves them without recourse.

It seems that the death of Chevron deference was not the end of agency deference. Almost a year after striking down Chevron deference, today the U.S. Supreme Court issued a decision on the role of judicial deference towards an agency’s fact and scope determinations. In an opinion penned by Justice Kavanaugh, the U.S. Supreme Court found that the U.S. Surface Transportation Board (the “Board”) rightfully excluded the environmental effects of upstream oil drilling and downstream oil refining when approving the construction of an 88-mile railroad line in Utah. Seven Cnty. Infrastructure Coal. v. Eagle Cnty., Colorado, 605 U. S. ____ (2025). Contrary to the D.C. Circuit’s decision, which found that the Board was required to evaluate these impacts, the Supreme Court held that the railway project’s Environmental Impact Statement (“EIS”) complied with the National Environmental Policy Act (“NEPA”) requirements, focusing on the procedural nature of NEPA and the “textually mandated focus on the proposed action.”[1]

Despite the strong language in the opinion, likening NEPA to an overgrown “judicial oak that has hindered infrastructure development under the guise of just a little more process,” and demanding “course correction,”[2] the decision still leaves open questions on scoping of EIS. The Court aligned some guiderails stating: “A relatively modest infrastructure project should not be turned into a scapegoat for everything that ensues from upstream oil drilling to downstream refinery emissions.”[3] But the Court also recognized that in certain circumstances, other projects may be interrelated enough in time or place to require consideration.

Acknowledging the gray area in defining the project, the Court is leaving the decision to the agencies stating:

When assessing significant environmental effects and feasible alternatives for purposes of NEPA, an agency will invariably make a series of fact-dependent, context-specific, and policy-laden choices about the depth and breadth of its inquiry—and also about the length, content, and level of detail of the resulting EIS. Courts should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness.[4]

Thus, the Court is signaling a retreat from judicial interference in the scoping of a project under NEPA and voiced overall skepticism with the way NEPA has been interpreted in the past. Projects may draw parallels to this decision to justify the exclusion of upstream and downstream oil and gas impacts in their respective evaluations.

As mentioned, last June the Supreme Court ended Chevron deference in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which focused on an agency’s interpretation of legal ambiguities in federal statutes, which the Court held would now be subject to de novo review. In contrasting this case and Loper Bright, Justice Kavanaugh explained that while NEPA requires an EIS to be “detailed,” and it is the Court’s power to interpret the meaning of “detailed” (under Loper Bright), what details need to be included in an EIS is a question of fact that warrants deference to the agency. “The agency is better equipped to assess what facts are relevant to the agency’s own decision than a court is.”[5]

The Kean Miller environmental regulatory and industrial project teams are closely monitoring the impacts of this decision on currently pending EIS and developing projects.

[1] Decision at p. 16 (internal citation omitted, emphasis added).

[2] Decision at p. 13.

[3] Decision at p. 19.

[4] Decision at p. 12 (emphasis added).

[5] Decision at p. 10.

On April 9, 2025, the President issued Executive Order 14629, a sweeping initiative to rebuild the United States’ commercial shipbuilding industry, revitalize its maritime workforce, and reclaim its role as a global leader in maritime logistics and security. This order carries significant implications for shipbuilders, cargo operators, port authorities, marine investors, and maritime contractors.

Issued in the wake of mounting concerns over U.S. dependence on foreign shipbuilders—particularly China—the order calls for an all-of-government strategy to reclaim control over America’s maritime future. Here’s a detailed look at what the Executive Order entails and how it’s expected to impact the sector:

Maritime Action Plan (Sec. 3)

A centerpiece of the Order is the creation of a Maritime Action Plan (MAP), to be developed within 210 days by the Assistant to the President for National Security Affairs, in coordination with Cabinet-level departments (Defense, Commerce, Transportation, Homeland Security, Labor, State, Education) and other agencies. The MAP is designed to become the federal government’s maritime playbook—aligning funding, legislation, regulatory reform, and workforce initiatives under one coordinated strategy. The Office of Management and Budget will lead the fiscal and legislative alignment, while the MAP itself will incorporate actions outlined in 18 specific sections of the Order.

Reviving the Industrial Heart of U.S. Maritime (Sec. 4)

The Order begins by tackling the Maritime Industrial Base, which it acknowledges has suffered from decades of disinvestment. Federal agencies, led by the Department of Defense, are directed to explore use of Defense Production Act authorities and Office of Strategic Capital tools to incentivize investment in shipyards, marine repair, port infrastructure, and supply chains.

The goal is to catalyze both public and private capital to rebuild the physical and workforce infrastructure required to make U.S. shipbuilding economically viable again. Agencies must prioritize projects based on taxpayer return-on-investment, commercial and military value, and long-term workforce benefits.

Responding to China’s Dominance in Shipbuilding (Sec. 5)

One of the most pointed sections of the Order directly addresses China’s aggressive targeting of global shipbuilding and logistics sectors. The U.S. Trade Representative is empowered to advance its Section 301 investigation and potentially impose tariffs or other trade actions on PRC-linked cargo equipment, particularly cranes and handling devices.

These measures reflect growing bipartisan concern that China’s subsidized shipbuilding poses both an economic and national security threat—especially at strategic ports. Legal and compliance implications for maritime importers and logistics clients will be significant.

Closing Loopholes in U.S. Port Fee Collections (Sec. 6)

For years, cargo routed through Canadian or Mexican ports has offered a backdoor around the Harbor Maintenance Fee. This Order closes that loophole. The Department of Homeland Security is instructed to require that all foreign cargo entering the U.S.—whether directly or via land borders—be subject to full Customs and Border Protection (CBP) processing and applicable fees. If cargo is not “substantially transformed” before entering from Canada or Mexico, it will face not only full HMF charges but also an added 10% service fee to offset enforcement costs.

Turning to Allies for Maritime Investment and Trade Alignment (Secs. 7 & 8)

Recognizing that rebuilding U.S. maritime capacity can’t be done in isolation, the Order calls for coordinated engagement with allies and partners. The Departments of State and Commerce, along with the Trade Representative, are tasked with aligning global trade policies related to the maritime sector—including coordinated tariffs or parallel enforcement efforts.

Simultaneously, the Department of Commerce is directed to explore investment incentives for allied shipbuilders willing to open facilities or fund upgrades in the United States—particularly those that bolster U.S. shipyard capacity.

Creating a Sustainable Funding Engine: The Maritime Security Trust Fund (Sec. 9)

One of the more transformative proposals involves the creation of a Maritime Security Trust Fund, administered through the Office of Management and Budget and supported by the Department of Transportation. This dedicated funding source would provide stable, long-term capital for the programs under the MAP—reducing reliance on annual budget negotiations and increasing predictability for industry partners. The fund could be sourced from existing tariff revenues, penalties, fees, or future maritime excise tax reforms.

A New Investment Program for U.S. Shipbuilding (Sec. 10)

The Order directs the Department of Transportation to propose a new shipbuilding incentives program, one that offers greater flexibility than current initiatives like the Small Shipyard Grant Program or Title XI Federal Ship Financing. Potential support mechanisms include capital improvement grants, vessel construction loans, and guarantees that comply with the Federal Credit Reform Act. This is designed to create a reliable financing environment for commercial shipyards and repair facilities ready to modernize or scale operations.

Establishing Maritime Prosperity Zones (Sec. 11)

To draw new capital to historically overlooked areas, the administration proposes the establishment of Maritime Prosperity Zones—tax-advantaged investment areas modeled on the Opportunity Zones created in 2017. These would include non-coastal and inland regions, such as the Great Lakes and Mississippi River corridors, which have untapped industrial potential. The Departments of Commerce, Treasury, Transportation, and Homeland Security will jointly develop the plan.

Reinforcing U.S. Cargo Shipping and Preference Laws (Sec. 12)

The Department of Transportation is charged with preparing a full inventory of federal programs, cargo preference laws, and tax/regulatory tools that can be used to grow domestic shipping. This includes programs like the Maritime Security Program, Tanker Security Program, and various maritime academy supports.

It also calls for a review of cargo preference waiver processes to ensure more U.S.-flagged and built vessels are being used in federal shipping contracts, especially in military logistics.

Modernizing Mariner Training and Expanding Educational Pipelines (Sec. 13)

Executive Order 14269 calls for a comprehensive review and reform of the nation’s mariner training and credentialing systems.

Within 90 days, a coalition of federal agencies—including the Departments of State, Defense, Labor, Transportation, Education, and Homeland Security—is required to deliver a coordinated report with recommendations to address workforce challenges in the maritime sector. These recommendations will focus on aligning educational institutions, technical training programs, and credentialing pathways with the anticipated national demand.

Reviving the U.S. Merchant Marine Academy (Sec. 14)

The United States Merchant Marine Academy (USMMA) is slated for urgent upgrades. Within 30 days, the Department of Transportation must begin deferred maintenance projects and finalize a long-term facilities master plan, followed by a five-year capital improvement plan in coordination with the Department of Government Efficiency. These steps are framed as essential to ensure the U.S. maintains a world-class maritime education institution.

Streamlining Ship Procurement and Deregulating Bottlenecks (Secs. 15 & 16)

A recurring complaint from U.S. shipbuilders is procurement complexity and regulatory drag. The Order addresses this by requiring the Departments of Defense, Commerce, Homeland Security, and the National Science Foundation to propose reforms that:

  • Reduce design and review delays
  • Encourage modular shipbuilding
  • Rely more on commercial acquisition practices and broad industry standards

Concurrently, agencies must conduct internal reviews to identify deregulatory opportunities, aligned with Executive Order 14192, to eliminate red tape that blocks innovation or raises costs unnecessarily.

Reinforcing Strategic Capacity: Fleet and Arctic Readiness (Secs. 17 – 21)

To ensure maritime readiness in times of crisis and position the U.S. as a global leader in strategic waterways, the Executive Order outlines several initiatives designed to expand and reinforce the operational fleet.

Growing the U.S.-Flagged Fleet (Section 17)

The Department of Transportation, in coordination with the Department of Defense, is required to propose a legislative framework that increases the number of U.S.-flagged commercial vessels available for international trade. The goal is to ensure sufficient tonnage and cargo capacity under the U.S. flag that can be rapidly mobilized during national emergencies.

  • Incentives under consideration include:
  • Subsidies to encourage construction of militarily useful commercial ships;
  • Expanded financial support for modifications that make commercial vessels deployable for defense purposes;
  • Policies that boost the number of U.S.-built, crewed, and flagged vessels participating in global trade.

Securing Arctic Waterways (Section 18)

With Arctic shipping routes becoming more navigable due to climate change, the Departments of Defense, Transportation, and Homeland Security, along with the U.S. Coast Guard, are instructed to develop a national Arctic Maritime Strategy. This strategy will define the vision, goals, and risk posture necessary to secure these high-stakes transit lanes and support future economic activity in the region.

Shipbuilding Capacity Review (Section 19)

The Order mandates a review of federal shipbuilding for the Army, Navy, and Coast Guard, to identify ways to:

  • Increase competition among domestic shipbuilders;
  • Reduce systemic cost overruns and production delays;
  • Expand participation in subsurface, surface, and unmanned vessel programs.

Separate, prioritized recommendations for each branch must be submitted to the President within 45 days.

Inactive Reserve Fleet Assessment (Section 21)

Finally, to guarantee strategic readiness, the Department of Defense must review and issue guidance on the maintenance, mobilization, and funding structure of the U.S. inactive reserve fleet. This review will inform future MAP decisions to ensure that reserve vessels are prepared for activation in times of conflict or disaster.

Closing Observations

Executive Order 14269 is perhaps the most ambitious federal directive aimed at rebuilding American maritime capacity since World War II. It addresses infrastructure, policy, law, workforce, and trade in a single integrated blueprint.

It also creates opportunities—particularly in financing, infrastructure modernization, ship procurement, and cargo law compliance—for companies operating across the shipping, port operations, defense contracting, and educational sectors.

Industry stakeholders should begin preparing for rapid federal engagement, new funding pathways, and heightened enforcement of trade and cargo preference laws.

On April 16, 2025, Senator Schwertner moved to suspend the Texas Senate’s regular order of business to take up and consider Committee Substituted Senate Bill 30 (“CSSB 30”). This motion prevailed by a vote of 20 Yeas and 11 Nays. During this session, 5 different Senators proposed 6 total amendments to CCSB 30. Senator Schwertner’s 2 amendments were the only 2 adopted of the 6.[1] A summary of Senator Schwertner’s 2 amendments are as follows.

Floor Amendment No. 1:

  1. First, this Amendment revises CSSB 30’s definition for “mental or emotional pain or anguish.” CCSB 30 defined “mental or emotional pain or anguish” as “grievous and debilitating angst, distress, torment, or emotional suffering or turmoil that causes a substantial disruption in a person’s daily routine.” This Amendment replaces the evidentiary requirement of showing “a substantial disruption in a person’s daily routine,” though in accordance with Texas Supreme Court precedent, with “a substantial disruption in a person’s life.”
  2. Second, this Amendment provides for a differing evidentiary standard for “physical pain and suffering” in cases of sexual assault or abuse.
  3. Third, this Amendment adds licensed professional counselors and psychologists to the inclusive list of who constitutes a provider under this subchapter.
  4. Fourth, this Amendment adds a provision that establishes that the Texas Rules of Evidence shall continue to govern questions of admissibility in any action under this subchapter, except for evidence that is rendered admissible as a matter of law under Section 41.107, namely:
    • All statements or invoices from health care providers for services related to the injury in the lawsuit.
    • Any letter of protection connected to the lawsuit.
    • Any written agreement for refunds, rebates, or payments to anyone involved in the claim (e.g., payor, injured person, attorney, etc.).
    • If the injured individual was referred to a health care provider for services by the injured individual’s attorney and the provider will provide testimony that is presented to the trier of fact in the action, then (1) an anonymized list of persons referred by the attorney to the provider in the preceding two years; (2) the date and amount of each payment made to the provider in the preceding two years by or at the direction of the attorney; (3) if applicable, each person anonymously described under Subparagraph (1) on whose behalf a payment described by Subparagraph (2) was made; and (4) other aspects of any financial relationship between the attorney and the provider.
    • Treatment guidelines and drug formularies approved by the Workers’ Compensation Division of the Texas Department of Insurance as evidence relating to the necessity of health care services provided to the injured individual.

Floor Amendment No. 2: This Amendment allows for the amount of health care costs to be adjudicated based upon the May 1, 2025 Medicare fee schedule as adjusted by the CPI between May 1, 2025 and the date on which the service was provided to the induvial or the date the trial commences, depending on which section of the bill is appropriate. This Amendment seeks to allow the limit on evidence for medical expenses that exceed 300% of the Medicare fee schedule to account for inflation in the context of future medical expenses.

After accepting Senator Schwertner’s amendments, the Senate took a vote and passed Amended CSSB 30 by the following vote: Yeas 20 and Nays 11.

[1] Senator Johnson, Senator West, Senator Gutierrez, and Senator Eckhardt each proposed amendments to CSSB 30 on April 16. In general, these amendments sought to challenge: the disclosure and admissibility requirements for medical referrals by legal practitioners arguing that the prejudicial value of the same would outweigh any probative value; the constitutionality of limiting non-economic damages; and limiting the categories of non-economic damages on a jury verdict. The Senate denied each amendment in a vote of 20 Nays and 11 Yeas.

Though House Bill 4806 has not seen substantial movement since its introduction on March 13,[1] its identical counterpart, Senate Bill 30, is steadily progressing through the Texas Senate. Most recently, on April 14, 2025, Senator Schwertner distributed a substituted Senate Bill 30 to the committee on State Affairs, containing 9 substantial changes to Senate Bill 30. Ultimately, the committee did not voice any objections to the substitutions, and the committee adopted the substitutions. That same day, the committee considered Senate Bill 30, as substituted, at a public hearing, a vote was taken, and Senate Bill 30, as substituted, passed through the committee — 9 ayes, 1 nay, and 1 absent. Senate Bill 30, as substituted, is now on the intent calendar awaiting consideration and vote by the Texas Senate.

Senator Schwertner’s 9 primary revisions to the Bill are summarized and copied in pertinent part below.

Change One: The substitute amends language to prohibit from controverting bills already paid or amounts that do not exceed 300% of the Medicare fee scheduled for each service provided.

ORIGINAL SENATE BILL 30SENATE BILL 30 AS SUBSTITUTED
Sec. 18.0011. AFFIDAVIT OF HEALTH CARE FACILITY OR PROVIDER.

(a) A party may not controvert the reasonableness of the charges for health care services stated in an affidavit served under Section 18.001 if, as to each health care service provided by the health care facility or provider:

1) The affidavit states one of the following amounts as the reasonable charge for the service:

A. The amounts received from all sources by the facility or provider to pay for the service provided to the person whose injury or death is the subject of the action; or

B. An amount that does not exceed 150 percent of the median amount paid by nongovernmental third-party payors to health care facilities or providers for the same type of service provided to the person whose injury or death is the subject of the action during the month in which the service was provided, as drawn from the Texas All Payor Claims Database established under Subchapter I, Chapter 38, Insurance Code, for the geozip . . . ; and

2) The affidavit is accompanied by an invoice for the service that would comply with the clean claim requirements of Chapter 1301, Insurance Code.		Sec. 18.0011. AFFIDAVIT OF HEALTH CARE FACILITY OR PROVIDER.

(a) A party may not controvert the reasonableness of the charges for health care services stated in an affidavit served under Section 18.001 if, as to each health care service provided by the health care facility or provider to the person whose injury or death is the subject of the action:

1) The affidavit states one of the following amounts as the reasonable charge for the service:

A. The amounts received from all sources by the facility or provider to pay for the service; or

B. If Paragraph (A) does not apply, an amount that, on the date the service was provided, does not exceed 300 percent of the Medicare fee schedule for the service; and

2) The affidavit is accompanied by an invoice for the service that would comply with the clean claim requirements of Chapter 1301, Insurance Code.

Change Two: The substitute further clarifies that the trial court must exclude testimony from the facility or provider in accordance with section 18.0011 unless they indicate a subsequent intention to testify or the party appears at trial.

ORIGINAL SENATE BILL 30SENATE BILL 30 AS SUBSTITUTED
Sec. 18.0011. AFFIDAVIT OF HEALTH CARE FACILITY OR PROVIDER.

(b) If an affidavit of a health care facility or provider served under Section 18.001 complies with Subsection (a) and includes a statement that the facility or provider does not intend to appear at trial to testify regarding the reasonableness of the facility’s or provider’s charges or the necessity for the facility’s or provider’s services, then:

1) A party may not seek to obtain through any pretrial discovery procedure information from the facility or provider about the reasonableness of the facility ’s or provider ’s charges or the necessity for the facility’s or provider’s services; and

2) The trial court shall exclude trial testimony by the facility or provider regarding the reasonableness of the facility ’s or provider ’s charges or the necessity for the facility ’s or provider ’s services unless:

A. The court finds there is good cause to allow the testimony;

B. The testimony will not unfairly surprise or unfairly prejudice any party to the action; and

C. A party opposing admission of the testimony into evidence is given a reasonable opportunity to conduct discovery and present evidence relevant to the testimony to be offered by the facility or provider.		Sec. 18.0011. AFFIDAVIT OF HEALTH CARE FACILITY OR PROVIDER.

(b) If an affidavit of a health care facility or provider served under Section 18.001 complies with Subsection (a) and includes a statement that the facility or provider does not intend to appear at trial to testify regarding the reasonableness of the facility’s or provider’s charges or the necessity for the facility’s or provider’s services, then:

1) A party may not seek to obtain through any pretrial discovery procedure information from the facility or provider about the reasonableness of the facility ’s or provider ’s charges or the necessity for the facility’s or provider’s services; and

2) The trial court shall exclude trial testimony by the facility or provider regarding the reasonableness of the facility’s or provider’s charges or the necessity for the facility’s or provider’s services unless:

A. After the affidavit is served, the facility or provider states an intention to testify at trial or appears at trial to testify;

B. The court finds there is good cause to allow the testimony;

C. The testimony will not unfairly surprise or unfairly prejudice any party to the action; and

D. A party opposing admission of the testimony into evidence is given a reasonable opportunity to conduct discovery and present evidence relevant to the testimony to be offered by the facility or provider.

Change Three: The substitute clarifies that the definitions of “mental or emotional pain or anguish” and “physical pain and suffering” maintain the inclusion of disfigurement, physical impairment, loss of consortium, loss of companionship and society, and loss of enjoyment in life.

ORIGINAL SENATE BILL 30SENATE BILL 30 AS SUBSTITUTED
(11-a) “Mental or emotional pain or anguish” means grievous and debilitating angst, distress, torment, or emotional suffering or turmoil that:

A. Causes a substantial disruption in a person’s daily routine; and

B. Arises from loss of consortium, loss of companionship and society, loss of enjoyment of life, or a similar mental or emotional injury.
 
(12) “Noneconomic damages” means damages awarded for the purpose of compensating a claimant for nonpecuniary losses for physical pain and suffering, mental or emotional pain or anguish, and [loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life,] injury to reputation [and all other nonpecuniary losses of any kind other than exemplary damages]. The term does not include economic or exemplary damages.

(14) “Physical pain and suffering” means a painful or distressing sensation associated with an injury or damage to a part of a person’s body that:

A. Is consciously felt;

B. Is significant in magnitude; and

C. Arises from an observable injury or impairment or is shown to exist through objectively verifiable medical evaluation or testing.		(11-a) “Mental or emotional pain or anguish” means grievous and debilitating angst, distress, torment, or emotional suffering or turmoil that causes a substantial disruption in a person ’s daily routine. The term includes mental or emotional pain or anguish arising from loss of consortium, loss of companionship and society, loss of enjoyment of life, disfigurement, and physical impairment.
 
(12) Removed.

(14) A “Physical pain and suffering” means a painful or distressing sensation associated with an injury or damage to a part of a person’s body that:

A. Is consciously felt;

B. Is significant in magnitude; and

C. Arises from an observable injury, disfigurement, or impairment or is shown to exist through objectively verifiable medical evaluation or testing.

Change Four: The substitute intends to close the “incurred” loophole and prevent artificially inflated medical bills from influencing damage awards and limits the admissible evidence of healthcare expenses to the amount paid or the amounts that do not exceed 300% of the Medicare fee scheduled for the service.

ORIGINAL SENATE BILL 30SENATE BILL 30 AS SUBSTITUTED
Sec. 41.104. LIMITATIONS ON AMOUNT OF RECOVERY.

(a) In addition to any other limitation provided by law, the economic damages that may be awarded to a claimant for health care services provided in the past to an injured individual are limited to the sum of:

1) Amounts third-party payors paid to providers for health care services provided to the injured individual;

2) Amounts paid by the injured individual or paid on behalf of the injured individual by non-third-party payors to providers for health care services provided to the injured individual, but not to purchase an account receivable, if paid without a formal or informal agreement for the provider to refund, rebate, or remit money to the payor, injured individual, claimant, or claimant ’s attorney or anyone associated with the payor, injured individual, claimant, or claimant ’s attorney; and

3) If Subdivisions (1) and (2) do not apply, an amount that does not exceed 150 percent of the median amount paid by nongovernmental third-party payors to health care providers for the same types of services provided to the injured individual during the month in which the services were provided, as drawn from the database for the geozip . . .

(b) In addition to any other limitation provided by law, economic damages awarded for health care expenses that in reasonable probability can be expected to be incurred by the injured individual in the future because of the injury-causing event shall be limited to the reasonable value of necessary services, determined in the manner provided by Subsection (a)(3) for determination of past health care expenses, except that the determination must use data from the database for the month preceding the date the trial commenced.		Sec. 41.104. ADMISSIBLE EVIDENCE OF HEALTH CARE EXPENSES.

(a) In addition to any other limitation provided by law, the evidence that may be offered to prove the amount of the economic damages that may be awarded to a claimant for health care services provided in the past to an injured individual is limited to evidence of:

1) Amounts third-party payors paid to providers for health care services provided to the injured individual;

2) Amounts paid by the injured individual or paid on behalf of the injured individual by non-third-party payors to providers for health care services provided to the injured individual, but not to purchase an account receivable or as a loan, if paid without a formal or informal agreement for the provider to refund, rebate, or remit money to the payor, injured individual, claimant, or claimant ’s attorney or anyone associated with the payor, injured individual, claimant, or claimant ’s attorney; and

3) If Subdivisions (1) and (2) do not apply, amounts that, on the date each service was provided to the injured individual, do not exceed 300 percent of the Medicare fee schedule for the service.

(b) In addition to any other limitation provided by law, the evidence that may be offered to prove the amount of economic damages that may be awarded to a claimant for health care services that in reasonable probability can be expected to be provided to the injured individual in the future because of the injury-causing event shall be limited to evidence of the amounts of the reasonable value of necessary services, except that the amounts may not exceed 300 percent of the Medicare fee schedule applicable to each service as of the date the trial commenced.

Change Five: The substitute strikes the requirement that a failure to use available health insurance be considered a failure to mitigate damages.

ORIGINAL SENATE BILL 30SENATE BILL 30 AS SUBSTITUTED
Sec. 41.104. LIMITATIONS ON AMOUNT OF RECOVERY.

(d) The failure of the injured individual to use available health benefit coverage shall be considered a failure to mitigate damages.		Stricken.

Change Six: The substitute clarifies that the information disclosed pertaining to a claimant that was referred to a provider by their attorney shall be admissible into evidence, rather than all medical records obtained during discovery.

ORIGINAL SENATE BILL 30SENATE BILL 30 AS SUBSTITUTED
Sec. 41.107. MATTERS ADMISSIBLE INTO EVIDENCE.

In an action to which this subchapter applies, the following matters are admissible into evidence by any party:

A. A document or information provided, disclosed, or obtained under Section 41.105(a) or (b);

B. An injured individual ’s health care expenses incurred as a result of the injury-causing event, regardless of whether the claimant seeks to recover health care expenses in the action;

C. Evidence of health benefit plan coverage that is available to the injured individual to pay for past or future health care services; and

D. Treatment guidelines and drug formularies approved by the Workers’ Compensation Division of the Texas Department of Insurance as evidence relating to the necessity of health care services provided to the injured individual.		Sec. 41.107. MATTERS ADMISSIBLE INTO EVIDENCE.

In an action to which this subchapter applies, the following matters are admissible into evidence by any party:

A. A document or information provided by the claimant under Section 41.105(a);

B. If the injured individual was referred to a health care provider for services by the injured individual’s attorney and the provider will provide testimony that is presented to the trier of fact in the action, the information disclosed by the claimant under Section 41.105(b)(3)(C); and

C. Treatment guidelines and drug formularies approved by the Workers’ Compensation Division of the Texas Department of Insurance as evidence relating to the necessity of health care services provided to the injured individual.

Change Seven: The substitute strikes the provision that required a unanimous jury verdict for non-economic damages.

ORIGINAL SENATE BILL 30SENATE BILL 30 AS SUBSTITUTED
Sec. 41.151. STANDARDS FOR RECOVERY OF CERTAIN NONECONOMIC DAMAGES.

a) Damages for physical pain and suffering or for mental or emotional pain or anguish may be awarded only if the trier of fact is unanimous in finding the amount of money that will fairly and reasonably compensate the claimant for those injuries.		Stricken.

Change Eight: The substitute strikes the provision making it a reversible error for the court to allow for the characterization of an award as a valuation of life.

ORIGINAL SENATE BILL 30SENATE BILL 30 AS SUBSTITUTED
Sec. 41.151. STANDARDS FOR RECOVERY OF CERTAIN NONECONOMIC DAMAGES.

(c) In an action to which this chapter applies, it is reversible error for a court to allow an attorney, witness, or other person through argument, the introduction of evidence, or otherwise to:

1) State or suggest that the trier of fact should determine the amount of damages to award to a claimant for physical pain and suffering or mental or emotional pain or anguish by referring to objects, values, or repeating metrics having no rational connection to the facts of the case; or

2) Characterize an award of damages for physical pain and suffering or mental or emotional pain or anguish as establishing a valuation of human life.		Sec. 41.151. STANDARDS FOR RECOVERY OF CERTAIN NONECONOMIC DAMAGES.

(b) In an action to which this chapter applies, it is reversible error for a court to allow an attorney, witness, or other person through argument, the introduction of evidence, or otherwise to state or suggest that the trier of fact should determine the amount of damages to award to a claimant for physical pain and suffering or mental or emotional pain or anguish by referring to objects, values, units of time, or other matters having no rational connection to the facts of the case.

Change Nine: The substitute strikes the provision that allowed for remittitur upon a jury’s award of noneconomic damages past a certain threshold.

ORIGINAL SENATE BILL 30SENATE BILL 30 AS SUBSTITUTED
Sec. 41.153. MOTION TO REMIT NONECONOMIC DAMAGES IN CERTAIN ACTIONS.

(a) Except in an action in which another law limits recovery of noneconomic damages, in a trial to a jury in a personal injury or wrongful death action, a trial court shall state the legal and factual support for the amount of noneconomic damages awarded to a claimant in a judgment if a defendant requests remittitur of noneconomic damages awarded to the claimant and the award exceeds:

1) $1 million for past and future mental or emotional pain or anguish in a wrongful death action;

2) For past and future damages for physical pain and suffering in a personal injury action, the lesser of:

A. Three times the amount awarded for past and future health care expenses; or

B. $100,000 per year for each year of the claimant ’s life expectancy;

3) $1 million for past and future mental or emotional pain or anguish in a personal injury action arising from an event primarily causing emotional injury to a claimant; or

4) $250,000 for past and future mental or emotional pain or anguish in a personal injury action arising from an event primarily causing bodily injury to the claimant.

(b) In a statement of legal support for the amount of noneconomic damages awarded in the judgment, the court shall include references to judgments rendered in this state and affirmed on appeal of comparable amounts awarded under comparable facts.		Stricken.

[1] House Bill 4806 was read for the first time in the House and referred to the Judiciary & Civil Jurisprudence Committee on April 3.

On March 13, 2025, the Texas House of Representatives introduced House Bill 4806, authored by Representative Greg Bonnen, to limit the recovery of damages in civil actions. Lieutenant Governor Dan Patrick announced that Senate Bill 30 — an identical companion bill to House Bill 4806 authored by Senator Charles Schwertner — is part of his second round of top 40 priority bills for the 89th regular legislative session.[1] The most notable developments in this Bill are as follows:

1. It modifies the procedure for challenging the necessity and reasonableness of a plaintiff’s medical services and expenses. Plaintiffs rely on Section 18.001 affidavits to establish the necessity and reasonableness of their medical expenses and services. In response, defendants currently contest these affidavits through a Section 18.001 controverting affidavit. House Bill 4806 proposes requiring a defendant to instead issue a notice of intent to controvert the reasonableness of the charged amounts and the necessity of services.

Furthermore, this Bill would impose a more substantial impact on such opposition. Specifically, this notice would render a plaintiff’s Section 18.001 affidavit completely ineffective, except for authentication purposes. Lastly, this Bill would prohibit a defendant from challenging the reasonableness of medical expenses in Section 18.001 affidavits when such expenses are supported by the same equation used to calculate the “past medical expenses cap” discussed in subpart 3 herein.[2]

2. It defines certain noneconomic damages. Aligning with Texas case law, this Bill clarifies that future damages are not merely “damages that are incurred after the date of the judgment” but rather “damages that, in reasonable probability, can be expected to be incurred after the date of the judgment.” This Bill’s definition of “future loss of earnings” similarly incorporates this statutory expectation of reasonable probability.

Additionally, under House Bill 4806, “future loss of earnings” would no longer include loss of income, wages, or earning capacity. This Bill’s proposed revisions regarding the definition of key damage terms do not end there. House Bill 4806 statutorily defines what constitutes “mental or emotional pain or anguish”[3] and “physical pain and suffering.”[4]

3. It adds two new subchapters to Chapter 41, Section 8 that limit a plaintiff’s recovery for medical expenses, and mandate often-disputed disclosures. This new subchapter would provide for a “past medical expenses cap,” namely: a plaintiff’s recovery of damages for past healthcare services would be limited to the sum of all amounts paid by third-party payors,[5] the plaintiff, and any other non-third-party payors. If no medical expenses have been paid or the foregoing is otherwise not applicable, then an award of past medical expenses would be capped at “150 percent of the median amount paid by nongovernmental third-party payors to health care providers for the same types of services provided to the injured individual during the month in which the services were provided as drawn from the database for the geozip: (A) in which the services were provided, if the services were provided in this state; or (B) in which The University of Texas Health Science Center at Houston is located, if the services were provided outside of this state.” Notably, House Bill 4806 would also ensure that should an injured individual fail to use available health benefits, a court is to deem it a failure to mitigate damages. Similarly, this new subchapter includes a “future medical expenses cap” that mirrors the “150 percent of the median amount” catchall applicable for the “past medical expenses cap.” Finally, the Bill proposes a new subchapter, which would require the disclosure of, among other things, plaintiff’s: (1) letters of protection with health care providers; (2) lists of medical providers treating the subject injuries; (3) medical authorizations; (4) lists of potential third-party payors for the disputed health care services; and (5) sources of any referrals for health care services. As to the referral disclosure requirement, should the plaintiff’s attorney be the referring party, the plaintiff must also disclose the below. The admissibility of each is specifically protected by the Bill.

  1. An anonymized list of persons referred by the attorney to the provider in the preceding two years;
  2. The date and amount of each payment made to the provider in the preceding two years by or at the direction of the attorney;
  3. If applicable, each person anonymously described under Subparagraph (a) on whose behalf a payment described by Subparagraph (b) was made; and
  4. Other aspects of any financial relationship between the attorney and the provider.

4. It introduces several measures to curb excessive noneconomic damage awards. First, House Bill 4806 would require a unanimous jury decision—rather than the current 10-out-of-12 standard—to award damages for physical pain and suffering or for mental or emotional pain or anguish. Second, complementing the Bill’s newly added definitions discussed in subpart 2 herein, the Bill codifies Texas case law and proposes that all awards for physical pain and suffering and mental or emotional pain or anguish: (1) “must be based on evidence of the nature, duration, and severity of the injury and reflect a rational connection, grounded in the evidence, between the injury suffered and the dollar amount necessary to provide fair and reasonable compensation to a claimant;” (2) “may not be used to penalize or punish a defendant, make an example to others, or serve a social good;” and (3) “may not include amounts that are properly considered economic losses, such as lost earnings caused by physical impairment or medical expenses incurred for emotional or psychological care.” Third, House Bill 4806 specifically prohibits anchoring and attempts to establish a valuation of human life. Fourth, under the Bill, a plaintiff’s recovery of noneconomic damages would be limited to past and future physical pain and suffering, mental or emotional pain or anguish, and injury to reputation. Lastly, the Bill grants a personal injury defendant the ability to require that a trial court state the legal and factual basis for a noneconomic damages award—including references to judgments rendered in the state and affirmed on appeal with comparable amounts and facts—if the award exceeds:

  1. $1 million for past and future mental or emotional pain or anguish in a wrongful death action;
  2. For past and future damages for physical pain and suffering in a personal injury action, the lesser of:
    • three times the amount awarded for past and future health care expenses; or
    • $100,000 per year for each year of the claimant’s life expectancy;”
  3. $1 million for past and future mental or emotional pain or anguish in a personal injury action arising from an event primarily causing emotional injury to a claimant; or
  4. $250,000 for past and future mental or emotional pain or anguish in a personal injury action arising from an event primarily causing bodily injury to the claimant.

5. It limits the calculation of prejudgment interest. House Bill 4806 calls for prejudgment interest to not only be limited to awards for economic losses, but it also provides that the operative date for calculations shall be the date that the plaintiff’s health care expenses were actually paid, or such other economic losses were actually suffered.

[1] https://www.ltgov.texas.gov/2025/03/13/lt-gov-dan-patrick-announces-second-round-of-top-40-priority-bills-for-the-2025-legislative-session/.

[2] House Bill 4806 would require the concession of the reasonableness of medical expenses if: (1) “the affidavit states one of the following amounts as the reasonable charge for the service: (a) the amounts received from all sources by the facility or provider to pay for the service provided to the person whose injury or death is the subject of the action; or (b) an amount that does not exceed 150 percent of the median amount paid by nongovernmental third-party payors to health care facilities or providers for the same type of service provided to the person whose injury or death is the subject of the action during the month in which the service was provided, as drawn from the Texas All Payor Claims Database established under Subchapter I, Chapter 38, Insurance Code, for the geozip: (i) in which the service was provided, if the service was provided in this state; or (ii) Ain which The University of Texas Health Science Center at Houston is located, if the service was provided outside of this state; and (2) the affidavit is accompanied by an invoice for the service that would comply with the clean claim requirements of Chapter 1301, Insurance Code.” Additionally, in the foregoing scenario, if the provider produces a statement that he or she does not intend to appear at trial for purposes of testifying as to the necessity and reasonableness of the health care services and expenses, then discovery and trial testimony of this nature from the provider would be prohibited absent a showing of good cause and lack of unfair surprise.

[3] House Bill 4806 defines “mental or emotional pain or anguish” as follows: “grievous and debilitating angst, distress, torment, or emotional suffering or turmoil that: (a) causes a substantial disruption in a person ’s daily routine; and (b) arises from loss of consortium, loss of companionship and society, loss of enjoyment of life, or a similar mental or emotional injury.”

[4] House Bill 4806 defines “physical pain and suffering” as follows: “painful or distressing sensation associated with an injury or damage to a part of a person ’s body that: A) is consciously felt; (B) is significant in magnitude; and (C)arises from an observable injury or impairment or is shown to exist through objectively verifiable medical evaluation or testing.”

[5] House Bill 4806 explains that “third-party payors” include insurance companies, employer-provided plans, a health maintenance organization, Medicare, Medicaid, and workers’ compensation insurance.

Deposing Corporate Representatives? You Might Get More Time Than You Think

In complex litigation, the strategic use of discovery tools is not just beneficial – it’s imperative. Every litigator knows that a well-executed deposition can be a game-changer by uncovering key admissions, streamlining discovery, and exposing weaknesses in an organization defendant’s case.

Among the various deposition tools available to litigators in federal court, Rule 30(b)(6) serves a distinct role in shaping the testimony of organizations. A “30(b)(6) deposition” allows a party to depose an organization and requires it to designate one or more representatives to “speak for the entity.”[1]

It’s not a secret that an organization may designate multiple representatives, but the broader litigation implications, particularly, the time restraints associated with taking the deposition, are often overlooked.

More Witnesses, More Time? Yes – But with Limits.

Under Rule 30(a)(2)(A)(i) of the Federal Rules of Civil Procedure, each side is entitled to ten depositions before requiring court approval for additional depositions.[2] However, when an organization designates multiple 30(b)(6) witnesses, those individual depositions still count as one for the purposes of the ten-deposition limit.

So, does this mean each designee gets a full seven-hour deposition under Rule 30(d)(1)?

The answer, for the most part, is yes – but courts have discretion to impose reasonable time limits. A 2000 Advisory Committee Note to Rule 30(d)(1) clarifies:

“For purposes of this durational limit, the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition.”

This interpretation has been consistently cited by district courts across multiple circuits, reinforcing that each designee is generally entitled to a full seven-hour deposition. Courts in the First,[3] Second,[4] Third,[5] Fourth,[6] Fifth,[7] Sixth,[8] Seventh,[9] Ninth,[10] Tenth,[11] and Eleventh Circuits[12] have acknowledged and applied this guidance, often permitting deposition time for multiple designees in excess of the 7-hour presumption.

This means that in many cases, if an organization designates three representatives, you could be looking at 21 hours of deposition time. But before you start planning an all-nighter with the court reporter, take note:

Courts Can – and Do – Cap Time Limits.

While courts don’t issue carte blanche orders for seemingly endless depositions, 30(b)(6) depositions involving multiple designees often exceed the presumptive 7-hour limit.

For example, in Smith v. Smith,[13] an organization designated four different representatives. Instead of allowing the full 28 hours pursuant to a strict reading of Rule 30(d)(1), the court limited the four depositions to 14 hours total, citing the scope of the topics and potential for redundancy.

Similarly, in Buie v. D.C.,[14] the Court permitted a cumulative 18 hours for 30(b)(6) depositions – not necessarily based on the number of representatives, but in light of the topics sought by the noticing party and the understanding that multiple persons would be acting as the corporate representative.[15]

Despite consistent guidance from courts, noticed parties frequently argue that the seven-hour presumptive limit should apply collectively to all.[16] These arguments, however, have been largely unsuccessful. As the Buie Court noted:

“Although the Advisory Committee notes are not binding on the Court, they explain the intent behind the rules and ‘are nearly universally accorded great weight in interpreting federal rules.’”[17]

Conversely, in In re Rembrandt Technologies,[18] the court rejected a party’s argument that each 30(b)(6) designee should be treated as a separate deponent with a full seven-hour allowance per person. The court reasoned:

A blanket rule permitting a seven-hour deposition of each designated deponent is unfair because it rewards broader deposition notices and penalizes corporate defendants who regularly maintain business information in silos and who therefore must either designate multiple individuals to respond or spend time, energy, money and other resources preparing a single individual to respond and unduly burdensome (because of the manifest increased cost and disruption of preparing more than one person to respond to a deposition notice).

Despite this critique, the court ultimately permitted a total of ten (10) hours to depose five 30(b)(6) designees.[19]

While Rembrandt reflects one court’s rationale, it remains a minority view. Most courts reject a strict numerical cap and instead assess time limits based on the scope of the deposition notice, the number of designees, and the complexity of the issues involved.[20]

The variances between circuit courts – while not stark – are critical in shaping arguments. Even 25 years later, the Advisory Committee notes remain the prevailing authority, despite repeated attempts to impose a strict seven-hour time limit in the 30(b)(6) context.

By staying informed on the evolving applications of Rule 30(b)(6), litigators can ensure they extract the most from 30(b)(6) depositions while effectively managing court-imposed constraints. Whether you’re conducting a 30(b)(6) deposition or defending one, understanding the nuances of deposition duration and designee limitations can help you strategically maximize – or reasonably limit – important testimony.

[1] FRCP 30(b)(6).

[2] See FRCP 30(a)(2)(A)(i).

[3] Proa v. NRT Mid-Atl., Inc., No. CV AMD-05-2157, 2008 WL 11363286 at *11 (D. Md. June 20, 2008).

[4] Oakley v. MSG Networks, Inc., No. 17-CV-6903 (RJS), 2024 WL 5056111 at *3 (S.D.N.Y. Dec. 10, 2024) (Denying party’s motion to limit 30(b)(6) deposition to seven hours.).

[5] Handy v. Delaware River Surgical Suites, LLC, No. 2:19-CV-1028-JHS, 2024 WL 1539604 at *fn.1 (E.D. Pa. Feb. 21, 2024).

[6] Oppenheimer v. Scarafile, No. CV 2:19-3590-RMG, 2021 WL 5902738 at *1 (D.S.C. July 30, 2021).

[7] Payne v. Raytheon Techs. Corp., No. 3:22-CV-2675-BN, 2024 WL 5012054 at *2 (N.D. Tex. Dec. 6, 2024).

[8] ChampionX, LLC v. Resonance Sys., Inc., No. 3:21-CV-288-TAV-JEM, 2024 WL 1743101 (E.D. Tenn. Jan. 12, 2024).

[9] PeopleFlo Mfg., Inc. v. Sundyne, LLC, No. 20 CV 3642, 2022 WL 7102662 at *fn.4 (N.D. Ill. Oct. 12, 2022).

[10] Unknown Party v. Arizona Bd. of Regents, No. CV-18-01623-PHX-DWL, 2021 WL 2291380 (D. Ariz. June 4, 2021).

[11] M.G. through Garcia v. Armijo, No. 1:22-CV-0325 MIS/DLM, 2024 WL 168270 (D.N.M. Jan. 16, 2024).

[12] United States ex rel. Bibby v. Mortg. Invs. Corp., No. 1:12-CV-4020-AT, 2017 WL 8222659 (N.D. Ga. Oct. 12, 2017), report and recommendation adopted, No. 1:12-CV-4020-AT, 2017 WL 8221392 (N.D. Ga. Oct. 13, 2017).

[13] Smith v. Smith, No. 19-10330, 2020 WL 1933820 (E.D. Mich. Apr. 22, 2020).

[14] Buie v. D.C., 327 F.R.D. 1 (D.D.C. 2018).

[15] Id.

[16] See e.g., Smith v. Smith, No. 19-10330, 2020 WL 1933820 (E.D. Mich. Apr. 22, 2020).

[17] Buie v. D.C., 327 F.R.D. 1 (D.D.C. 2018).

[18] In Re Rembrandt Techs., No. 09-CV-00691-WDM-KLM, 2009 WL 1258761 at *14 (D. Colo. May 4, 2009).

[19] Id.

[20] See e.g., Oakley v. MSG Networks, Inc., No. 17-CV-6903 (RJS), 2024 WL 5056111 at *3 (S.D.N.Y. Dec. 10, 2024) (Denying party’s motion to limit 30(b)(6) deposition to seven hours.).

On March 12, 2025, the U.S. Environmental Protection Agency (“EPA”) announced its deregulatory agenda.[1] Although most of the 31 actions identified by the EPA will require formal notice and comment rulemaking, with litigation ensuing, Wednesday’s announcement makes good on the Trump Administration’s promises to roll back environmental regulation.[2]

Of particular significance to the chemical manufacturing and oil and gas industries in Louisiana and Texas, the following regulations, among others, are listed for reconsideration:

  • Clean Power Plan 2.0
  • New Source Performance Standards (“NSPS”) OOOOb and OOOOc[3]
  • Mercury and Air Toxics Standards (“MATS”)[4]
  • Greenhouse Gas Reporting Program[5]
  • PM2.5 National Ambient Air Quality Standard (“PM2.5 NAAQS”)[6]
  • Certain National Emissions Standards for Hazardous Air Pollutants (“NESHAP”)[7]
  • Regional Haze[8]
  • Good Neighbor Plan[9]
  • Risk Management Plan (“RMP”)[10]
  • Implementation of Exceptional Events[11]

These major rulemakings will take time, and at this stage, the scope of reconsideration and the specific regulatory requirements included is uncertain. The Kean Miller environmental regulatory team is closely following all actions.

[1] “EPA Launches Biggest Deregulatory Action in U.S. History” available at: https://www.epa.gov/newsreleases/epa-launches-biggest-deregulatory-action-us-history.

[2] See Executive Orders, “Unleashing American Energy”, “Declaring a National Energy Emergency”, “Putting America First in International Environmental Agreements”, and others available at:  www.whitehouse.gov.

[3] 40 C.F.R. Part 60, Subpart OOOOb (Standards of Performance for Crude Oil and Natural Gas facilities for Which Construction, Modification or Reconstruction Commenced After December 6, 2022); 40 C.F.R. Part 60, Subpart OOOOc (Emissions Guidelines for Greenhouse Gas Emissions From Existing Crude Oil and Natural Gas Facilities).

[4] 40 C.F.R. Part 63, Subpart UUUUU.

[5] 40 C.F.R. Part 98.

[6]  See https://www.epa.gov/pm-pollution/national-ambient-air-quality-standards-naaqs-pm (2024 rulemaking setting the primary annual PM2.5 standard to 9.0 micrograms per cubic meter).

[7] EPA has identified at least the following NESHAP for reconsideration: 40 C.F.R. Part 63 Subpart FFFFF (Integrated Iron and Steel Manufacturing), 40 C.F.R. Part 63 Subpart XXXX (Rubber Tire Manufacturing), 40 C.F.R. Part 63 Subparts F, G, H, I (Synthetic Organic Chemical Manufacturing Industry “SOCMI” including HON), 40 C.F.R. Part 63 Subpart O (Ethylene Oxide Emissions Standards for Sterilization Facilities), 40 C.F.R. Part 63 Subpart AAAAA (Lime Manufacturing Plants), 40 C.F.R. Subpart 63 Subpart L (Coke Ovens), 40 C.F.R. 63 Subpart QQQ (Copper Smelting) 40 C.F.R. 63 Subpart RRRRR (taconite ore processing).  

[8] 40 C.F.R. Sec. 51.308.

[9] 88 Fed. Reg. 49295 (July 31, 2023) and 88 Fed. Reg. 67102 (Sept. 29, 2023) (interim final actions to stay FIPs for certain states)

[10] 40 C.F.R. Part 68.

[11] See e.g., “Treatment of Data Influenced by Exceptional Events” (81 FR 68216; October 3, 2016) and https://www.epa.gov/air-quality-analysis/treatment-air-quality-monitoring-data-influenced-exceptional-events.