June 4, 2019
The Sierra Club and four other non-governmental organizations (NGOs) announced on June 4, 2019 that they are sending Notices of Intent to Sue (NOIs) nine companies in West Virginia and Pennsylvania in federal court for alleged violations of the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA). The notices allege that a total of fifteen facilities owned by the…
June 3, 2019
The Fifth Amendment to the United States Constitution provides that no private property shall be taken for public use, without “just compensation.” West Virginia’s Constitution contains a similar prohibition.
But the West Virginia Department of Transportation (WVDOT) has felt compelled to violate this most basic right. And, strangely, it has used environmental laws to do so.
The Background…
May 19, 2019
“[O]ur long national nightmare is over.” [1]
On May 15 the Sixth Circuit Court of Appeals decided that a partial owner of the surface may grant the right to mine the coal beneath the severed surface estate notwithstanding the objections of the remaining surface owners. The Court concluded that the right to mine was correctly determined as a matter of Kentucky property law, that the state agency’s…
May 12, 2019
The U.S. EPA issued an interpretative rule on April 12 which establishes some long-sought clarity to the question of whether a discharge of pollutants into groundwater is subject to its regulation and permitting. The agency concluded that such discharges, even when the pollutants reach navigable waters regulated under the Clean Water Act, are not subject to its permitting authority under §402 of…
May 9, 2019
Danish insulation manufacturer Roxul (a/k/a Rockwool) was induced to locate a new manufacturing facility in the Eastern Panhandle of West Virginia by local and state officials. One mechanism for doing so was a “payment in lieu of taxes” or “PILOT” agreement to which the Jefferson County Board of Education (“BOE”) was a signatory. But, when the political winds shifted and local opposition grew,…
May 8, 2019
The Natural Resource Defenses Council (“NRDC”), assisted by the West Virginia Surface Owners’ Rights Organization, has issued a report claiming that West Virginia’s groundwater is not adequately protected from underground injection. https://www.nrdc.org/sites/default/files/west-virginia-groundwater-underground-injection-report.pdf. The Underground Injection Control (“UIC”) program originated from…
April 15, 2019
The proposed Rockwool insulation manufacturing facility in Jefferson County, West Virginia has seen more than its share of opposition from local residents. Most recently, county residents blocked access to the Danish Embassy in Washington to express their disapproval of the facility, which is a subsidiary of a Denmark-based company. Now, Rockwool and one of its original supporters, the Jefferson…
April 11, 2019
A new report by the Manhattan Institute explains that while greater efficiencies can be gained by electric generators using solar or wind energy, technology will soon bump up against hard stops in those efforts. See The “New Energy Economy”: An Exercise in Magical Thinking (March 26, 2019). https://www.manhattan-institute.org/energy-environment For example, the so-called Betz limit will prevent…
March 26, 2019
EPA’s Science Advisory Board (“SAB”) is one of eight statutorily established Federal Advisory Committees established under the Federal Advisory Committee Act to provide guidance on various environmental and health issues to EPA and other federal agencies.[1] See 5 U.S.C. App. There are 14 others established by the President or agency heads. Throughout the Obama administration, industry…
February 17, 2019
We have written about EPA’s Coal Ash rule before: EPA Will Not Regulate Coal Ash as Hazardous Waste, but Restrictions Nonetheless Apply: Coal Mine Disposal Unaffected; Utility Groups Ask EPA to Modify Coal Ash Rule and to Extend Compliance Deadlines; and EPA Issues Guidance for States to Develop Permitting Programs for Coal Ash Disposal.
In 2015, EPA issued its Coal Ash rule. 80 Fed. Reg. 21,302…
February 13, 2019
On February 11, 2019, 32 Democratic Delegates cosponsored House Joint Resolution 25, dubbed the “Environmental Rights Amendment.” The resolution proposes to amend the West Virginia constitution’s Bill of Rights by including a provision specifying that a clean environment is a constitutional right:
ARTICLE III. BILL OF RIGHTS.
§23. Natural Resources and the Public Estate.
The people have a right to…
January 8, 2019
The Environmental Protection Agency and Corps of Engineers delivered their long-awaited definition of “waters of the United States” (WOTUS) on December 11. The pre-publication version of the rule released on that day marks the beginning of the end of one the most contentious issues in the history of American environmental law. The new definition will “encompass relatively permanent flowing and…
June 4, 2019
The Sierra Club and four other non-governmental organizations (NGOs) announced on June 4, 2019 that they are sending Notices of Intent to Sue (NOIs) nine companies in West Virginia and Pennsylvania in federal court for alleged violations of the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA). The notices allege that a total of fifteen facilities owned by the…
June 3, 2019
The Fifth Amendment to the United States Constitution provides that no private property shall be taken for public use, without “just compensation.” West Virginia’s Constitution contains a similar prohibition.
But the West Virginia Department of Transportation (WVDOT) has felt compelled to violate this most basic right. And, strangely, it has used environmental laws to do so.
The Background…
May 19, 2019
“[O]ur long national nightmare is over.” [1]
On May 15 the Sixth Circuit Court of Appeals decided that a partial owner of the surface may grant the right to mine the coal beneath the severed surface estate notwithstanding the objections of the remaining surface owners. The Court concluded that the right to mine was correctly determined as a matter of Kentucky property law, that the state agency’s…
May 12, 2019
The U.S. EPA issued an interpretative rule on April 12 which establishes some long-sought clarity to the question of whether a discharge of pollutants into groundwater is subject to its regulation and permitting. The agency concluded that such discharges, even when the pollutants reach navigable waters regulated under the Clean Water Act, are not subject to its permitting authority under §402 of…
May 9, 2019
Danish insulation manufacturer Roxul (a/k/a Rockwool) was induced to locate a new manufacturing facility in the Eastern Panhandle of West Virginia by local and state officials. One mechanism for doing so was a “payment in lieu of taxes” or “PILOT” agreement to which the Jefferson County Board of Education (“BOE”) was a signatory. But, when the political winds shifted and local opposition grew,…
May 8, 2019
The Natural Resource Defenses Council (“NRDC”), assisted by the West Virginia Surface Owners’ Rights Organization, has issued a report claiming that West Virginia’s groundwater is not adequately protected from underground injection. https://www.nrdc.org/sites/default/files/west-virginia-groundwater-underground-injection-report.pdf. The Underground Injection Control (“UIC”) program originated from…
April 15, 2019
The proposed Rockwool insulation manufacturing facility in Jefferson County, West Virginia has seen more than its share of opposition from local residents. Most recently, county residents blocked access to the Danish Embassy in Washington to express their disapproval of the facility, which is a subsidiary of a Denmark-based company. Now, Rockwool and one of its original supporters, the Jefferson…
April 11, 2019
A new report by the Manhattan Institute explains that while greater efficiencies can be gained by electric generators using solar or wind energy, technology will soon bump up against hard stops in those efforts. See The “New Energy Economy”: An Exercise in Magical Thinking (March 26, 2019). https://www.manhattan-institute.org/energy-environment For example, the so-called Betz limit will prevent…
March 26, 2019
EPA’s Science Advisory Board (“SAB”) is one of eight statutorily established Federal Advisory Committees established under the Federal Advisory Committee Act to provide guidance on various environmental and health issues to EPA and other federal agencies.[1] See 5 U.S.C. App. There are 14 others established by the President or agency heads. Throughout the Obama administration, industry…
February 17, 2019
We have written about EPA’s Coal Ash rule before: EPA Will Not Regulate Coal Ash as Hazardous Waste, but Restrictions Nonetheless Apply: Coal Mine Disposal Unaffected; Utility Groups Ask EPA to Modify Coal Ash Rule and to Extend Compliance Deadlines; and EPA Issues Guidance for States to Develop Permitting Programs for Coal Ash Disposal.
In 2015, EPA issued its Coal Ash rule. 80 Fed. Reg. 21,302…
February 13, 2019
On February 11, 2019, 32 Democratic Delegates cosponsored House Joint Resolution 25, dubbed the “Environmental Rights Amendment.” The resolution proposes to amend the West Virginia constitution’s Bill of Rights by including a provision specifying that a clean environment is a constitutional right:
ARTICLE III. BILL OF RIGHTS.
§23. Natural Resources and the Public Estate.
The people have a right to…
January 8, 2019
The Environmental Protection Agency and Corps of Engineers delivered their long-awaited definition of “waters of the United States” (WOTUS) on December 11. The pre-publication version of the rule released on that day marks the beginning of the end of one the most contentious issues in the history of American environmental law. The new definition will “encompass relatively permanent flowing and…
