Energy and Environment Monitor

States and Developers File Amicus Briefs Supporting Review of Jurisdictional Determinations by Corps of Engineers

March 7, 2016

Two groups of states, one led by West Virginia and one by North Dakota, have filed amicus briefs in the U.S. Supreme Court supporting landowners claiming a right to challenge jurisdictional determinations by the Corps of Engineers.  Likewise, amicus briefs were submitted by the National Association of Homebuilders and the American Farm Bureau Federation. 

Historically, developers and…

Fish & Wildlife Service Imposes New Habitat Criteria

February 25, 2016

New criteria and policy was announced on February 11 by the U.S. Fish & Wildlife Service (“F&WS”) for designating “critical habitat” under the Endangered Species Act. The agency announced two changes in its regulations (81 Fed. Reg. 7214-7226; 81 Fed, Reg. 7414-7440) and adopted one new policy (81 Fed. Reg. 7226-7248).  Collectively, these changes will provide the agency considerably…

Federal Court In WV Voids Severance Deed Waiver Because Longwall Mining Not Contemplated In 1902

February 18, 2016

Surface owners have the right of “subjacent support”—to have their surface left intact—unless that right has been waived. In West Virginia, the right of support can be waived expressly (by saying that mineral owner has no obligation to support the surface and no liability for failing to support it) or by necessary implication (by granting all of the coal and right to remove all of the…

District court judge denies request for interlocutory appeal in Coal Ash Pollution Suit

February 16, 2016

On January 29, 2016, The United State District Court for the Middle District of North Carolina denied Duke Energy Carolinas, LLC’s (“Duke”) interlocutory appeal of its order denying Duke’s motion to dismiss a Clean Water Act (“CWA”) citizen suit. Duke argued that, before the law suit proceeded further, the Fourth Circuit should weigh in on two issues regarding claims of unpermitted discharges…

District court judge denies request for interlocutory appeal in Coal Ash Pollution Suit

February 16, 2016

On January 29, 2016, The United State District Court for the Middle District of North Carolina denied Duke Energy Carolinas, LLC’s (“Duke”) interlocutory appeal of its order denying Duke’s motion to dismiss a Clean Water Act (“CWA”) citizen suit. here.  Duke argued that, before the law suit proceeded further, the Fourth Circuit should weigh in on two issues regarding claims of unpermitted…

U.S. Supreme Court Stays Clean Power Plan Rule for Existing Coal Plants

February 10, 2016

The Obama Administration finalized the “Clean Power Plan” rule for existing coal-fired electric generating plants on October 23, 2015.  80 FR 64662 (Oct. 23, 2015).  The rule creates a CO₂ budget for states that cannot be met by existing coal-fired units.  Instead, the rule depends on widespread “trading” by which states can meet their budgets only if coal-fired units are not…

WV Surface Mine Board Holds WVDEP Cannot Charge Surface Mine Permit Transfer Fees for Upstream Changes in Ownership and Control: Justice Companies Not Responsible for Fee in Stock Acquisition

January 19, 2016

In 2010 or 2011, the Legislature amended the West Virginia Surface Coal Mining and Reclamation Act to impose a $1,500 fee for the transfer or assignment of permits by adding the highlighted language:

d) No transfer, assignment or sale of the rights granted under any permit issued pursuant to this article may be made without the prior written approval of the secretary, application for which…

Fayette County, WV Ordinance Banning Oil & Gas Waste Disposal Met with Preemptive Challenge By Gas Industry

January 19, 2016

Fayette County, West Virginia is home to the New River Gorge. It is also home to the newest local ordinance affecting the oil and gas industry. On January 12, 2016, the County adopted an “Ordinance Banning the Storage, Disposal or Use of Oil and Natural Gas Waste in Fayette County, West Virginia.” Just days later, EQT Production Company sued the County Commissioners in federal court…

Fish and Wildlife Adopts Final Rule to Protect the Northern Long-Eared Bat

January 19, 2016

As readers of our blog may recall, we have written numerous articles about the U.S. Fish & Wildlife Services’ handwringing for at least two years over the Northern Long-Eared Bat (NLE Bat) (see Here and Here). I use the pejorative purposefully.  The NLE Bat has a natural range that covers 37 states from the Atlantic Coat to the Great Plains and half of Canada.  It is afflicted, like other bat…

Obama Pauses Federal Coal Leases

January 18, 2016

On January 15, 2016, the Obama Administration suspended its federal coal leasing program. The partial moratorium was ordered to accommodate an evaluation of the leasing program by the Interior Department. The Administration has announced a comprehensive review of the program, evaluating aspects such as federal royalty rates and environmental factors related to climate change. This announcement…

Commonwealth Court Overrules DEP’s Procedural Objections to Challenge of DEP’s Use of Public Resources Form and PNDI Policy in Well Permitting Process

January 13, 2016

Though some believe little of consequence is ever accomplished by government in the week between Christmas and the New Year. Pennsylvania’s courts have proven that notion wrong. Both the state’s Supreme Court (see Matt Tyree’s article from last week) and Commonwealth Court published important decisions on December 29 in cases involving the state’s Department of Environmental…

PA Supreme Court Issues Procedural Ruling Regarding Regulatory Fines for Ongoing Pollution

January 7, 2016

On December 29, 2015, the Supreme Court of Pennsylvania ruled in favor of EQT Production Company (EQT) in a procedural challenge to a fine levied by the Department of Environmental Protection for the Commonwealth of Pennsylvania (PADEP). The ruling allows EQT to obtain pre-enforcement judicial review, via a declaratory judgment proceeding, of PADEP’s interpretation of “ongoing discharges” under…