Energy and Environment Monitor

Supreme Court's Answer to Certified Questions Preserves Right to Longwall Mine in West Virginia

April 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…

Bill Aimed at Eliminating “Chevron Deference” Passes Arizona Senate

April 12, 2018

    Last week the Arizona State Senate passed a bill that would amend that state’s administrative procedure law to kill its version of the “Chevron” doctrine, which requires courts to defer to an agency’s reasonable interpretation of statutes within its purview.

    The doctrine originates from the landmark 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, which set…

West Virginia Supreme Court Dissolves Water Replacement Obligation of Mine Operator

April 10, 2018

By Order dated April 5, 2018, the West Virginia Supreme Court issued its second ruling in the past six months exploring the duties imposed by the West Virginia Surface Coal Mining and Reclamation Act (“WV SCMRA”) upon coal mine operators. See Belcher v. Dynamic Energy, Inc..  WV SCMRA requires mine operators to “replace” water supplies of property owners who use the water for domestic,…

West Virginia Supreme Court Emphasizes Importance of DEP’s Role in SMCRA Citizen Suits

October 12, 2017

On October 5, 2017, the West Virginia Supreme Court ruled that the Wyoming County Circuit Court impermissibly substituted its own judgment for that of the West Virginia Department of Environmental Protection (“DEP”) regarding alleged mining-related contamination of residential water supplies. The Supreme Court’s order raises a number of questions regarding the extent to which citizens may pursue…

Trump’s EPA Proposes to Roll Back Clean Power Plan

October 11, 2017

The Obama EPA finalized two rules in 2015 that comprised the Clean Power Plan (“CPP”). One established CO₂ emission standards for new, modified and reconstructed power plans under Section 111(b) of the Clean Air Act.  The second, and far more controversial, established CO₂ emission “guidelines” under CAA §111(d) to be used by states in regulating existing power plants.    As we have noted before, the…

FERC Sidesteps New York’s Denial of CWA §401 Certification Giving Go-Ahead to Millennium Pipeline Company Spur

October 9, 2017

“For any company desiring to construct a natural gas pipeline, all roads lead to FERC.” Millennium Pipeline Company, L.L.C. v. Seggos, 860 F.3d 696, 698 (D.C. Cir. 2017).

In a significant and already controversial decision issued in mid-September, the Federal Energy Regulatory Commission (“FERC”) granted approval for Millennium Pipeline Company L.L.C. (“Millennium”)…

Update on Clean Power Plan Litigation

September 12, 2017

On September 7, 2017, the Environmental Protection Agency (“EPA”) filed a Status Report in the ongoing Clean Power Plan litigation (State of West Virginia v. EPA), which has been pending before the D.C. Circuit Court of Appeals for two years.

The Obama Administration first released a draft version of the “Clean Power Plan” rules for existing coal-fired electric generating plants in June of…

Sierra Club Links Up with Libertarian Landowners in Continued Opposition to Gas Development

September 7, 2017

Opponents of natural gas development do not have the resources to challenge individual well permits in the Marcellus and related shale gas basins. Instead, they understand that the future of the industry depends on assembling the rights to draw gas from fractionated ownership and on the ability to attract higher prices by building transmission pipelines to carry the gas to new markets.  So, the…

One Project, Many Lawsuits

September 6, 2017

On August 23^rd, the federal Court of Appeals for the Third Circuit affirmed a decision by the Corps of Engineers to issue a Clean Water Act §404 permit to Tennessee Gas Pipeline Company to construct about 13 miles of “looped” pipeline in two counties in northeastern Pennsylvania (read the JK Energy & Environmental Monitor summary of Delaware Riverkeeper Network v. U.S. Army Corps of…

Third Circuit Rejects Challenge to Corps of Engineers’ Permit for Pipeline

August 31, 2017

On August 23, the Third Circuit Court of Appeals affirmed the Corps’ decision to issue a Clean Water Act § 404 “fill” permit to a pipeline developer for 13 miles of pipeline in Pennsylvania. See Delaware River Network v. U.S. Army Corps of Engineers, No. 17-1506 (3rd Cir. Aug. 23, 2017).  The Riverkeeper’s challenge was an original action filed in the 3rd Circuit pursuant to the…

WVU Study Identifies Opportunity to Create “Natural Gas Storage Hub” in Applachia

August 29, 2017

A public study led by West Virginia University has proposed a regional effort towards developing infrastructure capable of supporting oil and natural gas storage facilities along the Ohio and Kanawha rivers. The data was presented on August 29 in Canonsburg, Pennsylvania. Known as the Appalachian Storage Hub study, researchers from the West Virginia, Pennsylvania and Ohio geological surveys have…

EPA Issues Guidance for States to Develop Permitting Programs for Coal Ash Disposal

August 21, 2017

On August 15th, 2017 the Environmental Protection Agency (EPA) released and began accepting public comments on guidance for states that want to develop a permitting program for the disposal of coal combustion residuals (CCR), or coal ash. While the guidance does offer some flexibility to states in developing their permitting programs, state programs must be at least as protective as the Federal…