"The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case." Judge William Alsup
Last week, on July 19, 2018, the U.S. District Court for the Southern District of New York (Judge John F. Keenan) dismissed the City of New York’s action against BP, Chevron, Conoco-Phillips, Exxon Mobile and Royal Dutch Shell seeking to recover…
The U.S. Court of Appeals for the Third Circuit has just given oil and gas development in northeastern Pennsylvania a new boost with a decision issued on July 3. It reversed a district court’s decision that the Delaware River Basin Commission may bar oil and gas drilling and the associated hydraulic fracturing within the Delaware River watershed under the guise of regulating a “project” that may…
EPA Administrator Scott Pruitt announced on June 26 that the agency will revise its regulations to limit EPA’s use of the §404(c) veto. This is the section of the Clean Water Act (CWA) that authorizes EPA to rescind dredge and fill permits issued by the Army Corps of Engineers. Although infrequently utilized since §404(c) was adopted in 1972, its use in January 2011 effectively curtailed the…
Section 202(c) of the Federal Power Act [16 USC §824a(c)[1] allows the Department of Energy to determine that an emergency exists by reason of sudden increases in demand for electricity, a shortage of electric energy, of generation facility or of fuel; “or other causes.” After making that determination, DOE can require temporary connections with such generation as will best “meet the emergency…
EPA has proposed to deny petitions from Delaware and Maryland that sought to force controls on power plants in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia. The petitions claimed that NOx emissions from coal-fired plants in these states were significantly contributing, or would contribute in the future, to ozone levels in Delaware and Maryland that exceed allowable ambient levels.
We have previously written about a gas producer’s suit against WVDEP claiming that West Virginia’s “Flat Rate Statute” unconstitutionally impairs flat rate gas leases. In a flat rate lease, the producer pays a regular, often annual fee to the mineral owner rather than paying a royalty based on the amount of oil and gas that is produced. The history of flat rate leases in West Virginia is…
From the U.S. District Court in Washington comes a lengthy opinion that rejects a challenge from three conservation organizations to a determination of the Army Corps of Engineers to issue a Finding of No Significant Impacts (FONSI) and a decision not to prepare an environmental impact statement. The court’s opinion is a carefully expressed analysis of why the Corps’ decision complied with NEPA…
“Everybody has a plan . . . until they get punched in the face.” Mike Tyson.
In his prime, Mike Tyson created a crisis for opposing fighters. Many claimed to have a plan for dealing with Iron Mike, but the plan didn’t hold up under pressure. And Mike knew it.
Planning for a crisis is difficult, but necessary. Crises by their very nature are unexpected, so you cannot plan a detailed response in…
The Obama EPA finalized two rules in 2015 that comprised the Clean Power Plan (“CPP”). One established CO2 emission standards for new, modified and reconstructed power plans under Section 111(b) of the Clean Air Act. The second, and far more controversial, established CO2 emission “guidelines” under CAA §111(d) to be used by states in regulating existing power plants. As we have noted before, the…
On September 7, 2017, the Environmental Protection Agency (“EPA”) filed a Status Report in the ongoing Clean Power Plan litigation (State of West Virginia v. EPA), which has been pending before the D.C. Circuit Court of Appeals for two years.
The Obama Administration first released a draft version of the “Clean Power Plan” rules for existing coal-fired electric generating plants in June of…
Opponents of natural gas development do not have the resources to challenge individual well permits in the Marcellus and related shale gas basins. Instead, they understand that the future of the industry depends on assembling the rights to draw gas from fractionated ownership and on the ability to attract higher prices by building transmission pipelines to carry the gas to new markets. So, the…
