Energy and Environment MonitorEnvironmental LitigationOil & Gas Development Wins Significant Case in Third CircuitJuly 10, 2018 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… U.S. Fish and Wildlife Service Sued in West Virginia for Failure to Designate "Critical Habitat" for Two Species of CrayfishJuly 4, 2018 On June 20, 2018, the Center for Biological Diversity sued the U.S. Fish and Wildlife Service (“USFWS”) in federal court in the Southern District of West Virginia, challenging the agency’s failure to designate “critical habitat” for the Big Sandy crayfish and the Guyandotte River crayfish under the Endangered Species Act. USFWS listed the Big Sandy crayfish as “threatened” and the Guyandotte… EPA Proposes to Surrender Clean Water Act Veto AuthorityJune 28, 2018 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… REMINDER: APPEALS FROM CERTAIN DECISIONS OF ENVIRONMENTAL BOARDS MUST BE TAKEN DIRECTLY TO WEST VIRGINIA SUPREME COURTJune 20, 2018 As of March 6, 2018, certain decisions of the Air Quality Board (“AQB”), the Environmental Quality Board (“EQB”), and the Surface Mine Board (“SMB”) must be directly appealed to the West Virginia Supreme Court unless all parties consent to proceeding in Kanawha County Circuit Court.
West Virginia Code §§ 22B-2-3 (governing appeals to the AQB), 22B-3-3 (appeals to the EQB), & 22B-4-3 (appeals to… DOE to Order Procurement of Power from Coal and Nuclear Facilities for 2 Years to Prevent Immediate ShutdownsJune 11, 2018 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 to Reject Claims of Maryland and Delaware that Upwind Power Plants Have Inadequate NOx ControlsJune 7, 2018 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.
… WVDEP Moves to Dismiss Gas Producer Lawsuit Claiming "Flat Rate Statute" is UnconstitutionalJune 6, 2018 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… "As We Know, Elections Have Consequences........"May 29, 2018 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… "Generator Improvements Rule" Becomes Effective June 1, 2018 in West VirginiaMay 21, 2018 In 2016, EPA amended the requirements applicable to hazardous waste generators by promulgating the “Generator Improvements Rule.” See https://www.epa.gov/hwgenerators/final-rule-hazardous-waste-generator-improvements. Those requirements become effective in West Virginia on June 1,, 2018.
Background
The rules for hazardous waste generators were largely written in the 1980s. In 2004, EPA… Fourth Circuit Holds Groundwater Connection to Navigable Waters Triggers CWA CoverageMay 17, 2018 “[T]he fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past.” Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, Slip Op. at 18) (4th Cir. April 12, 2018) The Clean Water Act prohibits unpermitted “discharges” from a “point source” to a “navigable water.” 33 U.S.C. § 1311(a). Although the definition of what constitutes… PA Supreme Court Rejects PADEP’s Theory of Limitless Civil Penalties for “Continuing Violation” of Clean Streams LawApril 24, 2018 We have previously written about a declaratory judgment action filed by a natural gas producer against the Pennsylvania Department of Environmental Protection (“PADEP”) challenging the agency’s interpretation of Pennsylvania’s Clean Streams Law. In that proceeding, the gas producer sought pre-enforcement judicial review of PADEP’s legal interpretation of what constitutes a “continuing violation”… Supreme Court's Answer to Certified Questions Preserves Right to Longwall Mine in West VirginiaApril 19, 2018 The West Virginia Supreme Court recently issued a decision upholding the ability of mine operators to rely on severance deed waivers for the right to subside the surface without liability for common law claims and clarifying that mere subsidence damage is not, itself, a violation of the West Virginia Surface Coal Mining and Reclamation Act. The Court was compelled to reaffirm seemingly… |
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