Energy and Environment Monitor

Third Circuit Declines to Reconsider Eminent Domain Case: Allows States to Block Pipelines

November 11, 2019

We have written about this before. Both the Third Circuit Court of Appeals and the District Court of Maryland (in the Fourth Circuit) have ruled that Congress can convey to FERC-approved energy projects the right to condemn property, but have also held that the right does not extend to state-owned property. See Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by…

West Virginia Supreme Court Slams Class Certification Order from Trial Court Judge Who Stood to Benefit from the Class Action

November 7, 2019

The West Virginia Supreme Court has ruled that a Circuit Court judge should not have decided whether to “certify” a class action in which he was a potential class member. In addition, the Court has vacated the certification order of the Circuit Court as inadequately supported. See State ex rel. Municipal Water Works v Swope, No. 19-0404 (W.Va. Sup. Ct. Oct. 18, 2019).

In March 2019, a group of…

Two Sets of Climate Books? Is New York’s Claim Against Exxon Mobil Heating Up or Just a Lot of Hot Air?

November 5, 2019

       The New York Attorney General (“NYAG”) has sued Exxon Mobil (“Exxon”) for fraud and misrepresentation to its investors under a New York securities law known as the Martin Act. The NYAG contends that Exxon represented to the public that it was accounting for “projected carbon costs in evaluating its ongoing investments” using one value ($80.00 per ton of CO₂ emissions) but that internally (and…

The Beginning of the End

October 30, 2019

The U.S. EPA and the Army Corps of Engineers published the repeal of the 2015 “Waters of the United States” (WOTUS) rule in the October 22 Federal Register. With this rulemaking, the agencies are restoring the 1986 rule that defined “waters of the United States” before the 2015 revision. The agencies’ announcement also marks the beginning of the end to one of the most contentious, protracted and…

Reginald Comes to the Keystone State?

October 9, 2019

By Executive Order No. 2019-07 issued on October 3, 2019, Pennsylvania Governor Wolf directed the PADEP to develop rules by July 31, 2020 for limiting CO₂ emissions from “fossil-fuel-fired electric power generators.”  The same Order mandated that the regulatory program establish a CO₂ “budget consistent with that established in the RGGI (pronounced “Reggie”) participating states; provide for the…

Court Rejects Claims that Valley Fill Discharges are Unpermitted Discharges: Relies on Broad Application of “Permit Shield”

September 30, 2019

A federal court in Virginia has ruled in favor of a coal operator in a citizen suit filed under the Clean Water Act, the Surface Mining Act and RCRA. See Southern Appalachian Mountain Stewards (“SAMS”) v. Red River Coal Company, Inc., No. 2:17-cv-00028 (W.D. Va. Sept. 24, 2019). There, Red River has held a combined NPDES/SMCRA permit (“Permit”) since 1992 for a surface mining operation.  As part…

Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by Pipeline Developers in Federal Courts

September 13, 2019

In recent months, two courts—a federal district court in Maryland and the U.S. Court of Appeals for the Third Circuit (encompassing Pennsylvania, New Jersey, and Delaware) have ruled that states enjoy “sovereign immunity” to lawsuits by pipeline developers to condemn state-owned lands. See In re PennEast Pipeline Company, LLC, Nos. 19-1191 to -1232 (3d Cir. Sept. 10, 2019) & Columbia Gas…

Southern District of West Virginia Rules That Permit Validity Cannot Form the Basis of a SMCRA Citizen Suit

August 28, 2019

On August 12, 2019, a federal court in West Virginia ruled that plaintiffs cannot use SMCRA’s citizen suit provision to challenge the validity of a surface mining permit in a suit against the permittee. Order. The Plaintiffs, a group of anti-mining organizations, relied on what has come to be known as SMCRA’s “not started” provision, which provides for termination of permits where mining has not…

Challenges continue to Trump directive prohibiting EPA grant recipients from participation in EPA advisory committees

August 7, 2019

In October 2017, the Trump EPA issued a Directive prohibiting anyone who receives EPA grants from sitting on an EPA Science Advisory Board (“SAB”) or similar science advisory committees formed under the Federal Advisory Committee Act. The Directive was immediately challenged by advocacy groups which had long succeeded in placing sympathizers, many from academic communities and non-profits that…

No Uranium Mining in Virginia; Supreme Court Finds Mining Prohibition within State’s Power

July 2, 2019

Observant readers may remember that a year ago, the U.S. Supreme Court agreed to hear a mining case, a somewhat rare event for the Court. The case examined whether the Commonwealth of Virginia interfered with an area of law preempted by Congress under the Atomic Energy Act of 1954 (AEA) when it enacted a 1981 moratorium to prohibit uranium mining. In an unusual three-way decision issued on June…

U.S. Supreme Court Removes One Hurdle in Takings Cases Against State and Local Governments

June 27, 2019

Rose Mary Knick owns 90 acres outside Scranton, Pennsylvania. Her property includes a residence, pasture and a small graveyard where the ancestors of neighbors are supposedly buried. Her Township adopted an ordinance, that broadly defined cemeteries to include the graveyard and that required her to keep it “open and accessible to the general public during daylight hours.” After a Township “Code…

The Administrative State Crumbles

June 17, 2019

The EPA issued a new guidance document on June 7th instructing other federal agencies and the states how they should interpret and implement §401 of the Clean Water Act (“CWA”). Individually, it is a modest step taken to fulfill an executive order issued earlier this year and will be followed by a new rule updated existing EPA’s §401 regulations. Viewed in context, it is another brick removed…