Energy and Environment Monitor

ExxonMobil Sued by Climate Activists for Failure to Account for Climate Risks to Oil Storage Facility in Massachusetts

October 4, 2016

The Conservation Law Foundation has sued Exxon in Massachusetts for failing to acknowledge and respond to climate-based risks posed to the environment by its petroleum terminal in Everett, Massachusetts. The Complaint claims the terminal lies below the level of a storm surge that occurred in 1978 and if FEMA were to update flood hazard maps through the area, then the terminal would likely fall…

Court Slaps Down EPA Over Improper Disclosure of Private Information

September 21, 2016

The U.S. Court of Appeals for the Eighth Circuit handed the EPA an unexpected reversal last week in a case involving its unlawful disclosure of private information to environmental groups. The Eighth Circuit reversed a district court which had concluded that the farm organizations which sued EPA did not have standing to bring the action. More important, the circuit court addressed the merits of…

OSM SIGNALS END TO SELF-BONDING

September 14, 2016

The federal Office of Surface Mining (OSM) surprised no one on September 7 when it announced that it would commence rulemaking to revise its regulations governing the use of self-bonds at coal mining operations (81 Federal Register 61612). The announcement formally approves a petition filed in March by the predominantly Western environmental organization, WildEarth Guardians, to prohibit the use…

West Virginia County Court Rules That Mine Operator Is Not Required To Prevent Subsidence Damage To Commercial Gas Lines Where Operator Has The Right To Subside But Has Duty To Compensate For Damages

September 7, 2016

By Order of August 5, 2016, the Circuit Court of Marshall County, WV ruled that West Virginia’s surface mining rules do not require underground mine operators to take steps—or pay pipeline operators to take steps—in advance of mining to prevent damage to overlying pipelines where the miner has the common law right to subside the surface. Link to Order  The Court also held, however, that…

Court Allows Pipeline Opponents to Challenge Clean Water Act Permits Directly in Circuit Courts of Appeal

August 11, 2016

The Natural Gas Act (“NGA”) of 1938 grants the Federal Energy Regulatory Commission (“FERC”) exclusive authority to regulate sales and transportation of natural gas in interstate commerce. To that end, Section 7 of the NGA empowers FERC to authorize the construction and operation of interstate transportation facilities—i.e., pipelines.  FERC does so by determining whether a project serves the…

EPA Proposes Amendments to NPDES Procedural Rules

July 28, 2016

“A man always has two reasons for doing anything -- a good reason and the real reason.” J.P. Morgan

Whenever an agency proposes to change the procedures it follows to make decisions, it must offer a good reason for the change. When an agency proposes to make multiple changes in its procedures, there is almost certainly a real reason for its proposal. This is why EPA’s May 18 (81 FR31344) proposed…

Fourth Circuit Rejects Sierra Club’s Health Claims in Mining Permit Appeal

July 14, 2016

The United States Court of Appeals for the Fourth Circuit has unanimously upheld the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Raven Crest Contracting, LLC, a subsidiary of White Forest Resources, Inc.

On August 10, 2012, the Corps issued a § 404 “dredge and fill permit” to Raven Crest for its Boone North No. 5 Surface Mine in Boone County, West Virginia. The Ohio…

Do You Have a Permit for that Reclaimed Valley Fill? The Sierra Club Says You Need One

July 7, 2016

During surface mining, rock and dirt (known as “overburden” or “spoil”) is removed to access coal seams. This rock and dirt swells, leaving the mining operator with excess material after mining and regrading.  In the steep slopes of Appalachia, the only place to safely store this excess material is in valleys and hollows in the form of valley fills.

Typically, the valley fill material is…

Do You Have a Permit for that Reclaimed Valley Fill? The Sierra Club Says You Need One

July 7, 2016

During surface mining, rock and dirt (known as “overburden” or “spoil”) is removed to access coal seams. This rock and dirt swells, leaving the mining operator with excess material after mining and regrading.  In the steep slopes of Appalachia, the only place to safely store this excess material is in valleys and hollows in the form of valley fills.

Typically, the valley fill material is…

WVU Research Undermines USEPA Test Method for Aluminum

June 27, 2016

Aluminum is among the most common elements found in the Earth’s crust. Soil eroded by flowing water invariably discharges aluminum.  For surface coal mining, this represents an engineering and technical challenge because rainfall and snow melt must be collected and channeled into ponds for sediment to settle before the water is discharged to a stream.  On every particle of discharged…

Northern District Decisions Add Uncertainty to Subsidence Law

June 24, 2016

In Schoene v. McElroy, the Federal District Court for the Northern District of West Virginia recently issued a series of unpublished opinions calling into question the ability of mine operators to rely on severance deeds as a legal basis for employing longwall miners. Additionally, the Court abandoned the long-standing rule in West Virginia that the less costly option between repair of subsidence…

Tenth Circuit Vacates District Court NEPA Rulings on Mine Permit Modifications, but Only After Finding Appeals Were Moot

June 23, 2016

In 2015, a district court in Colorado ruled that OSM had failed to discharge its NEPA obligations in considering applications to modify existing surface mining permits sought by Colowyo Coal Company and Trapper Mining, Inc.  The two mines at issue were the primary fuel suppliers for a power plant.  The court ruled that OSM had improperly failed to solicit public comment on its…