Energy and Environment Monitor

Fayette County, WV Ordinance Banning Oil & Gas Waste Disposal Met with Preemptive Challenge By Gas Industry

January 19, 2016

Fayette County, West Virginia is home to the New River Gorge. It is also home to the newest local ordinance affecting the oil and gas industry. On January 12, 2016, the County adopted an “Ordinance Banning the Storage, Disposal or Use of Oil and Natural Gas Waste in Fayette County, West Virginia.” Just days later, EQT Production Company sued the County Commissioners in federal court…

Fish and Wildlife Adopts Final Rule to Protect the Northern Long-Eared Bat

January 19, 2016

As readers of our blog may recall, we have written numerous articles about the U.S. Fish & Wildlife Services’ handwringing for at least two years over the Northern Long-Eared Bat (NLE Bat) (see Here and Here). I use the pejorative purposefully.  The NLE Bat has a natural range that covers 37 states from the Atlantic Coat to the Great Plains and half of Canada.  It is afflicted, like other bat…

Obama Pauses Federal Coal Leases

January 18, 2016

On January 15, 2016, the Obama Administration suspended its federal coal leasing program. The partial moratorium was ordered to accommodate an evaluation of the leasing program by the Interior Department. The Administration has announced a comprehensive review of the program, evaluating aspects such as federal royalty rates and environmental factors related to climate change. This announcement…

Commonwealth Court Overrules DEP’s Procedural Objections to Challenge of DEP’s Use of Public Resources Form and PNDI Policy in Well Permitting Process

January 13, 2016

Though some believe little of consequence is ever accomplished by government in the week between Christmas and the New Year. Pennsylvania’s courts have proven that notion wrong. Both the state’s Supreme Court (see Matt Tyree’s article from last week) and Commonwealth Court published important decisions on December 29 in cases involving the state’s Department of Environmental…

PA Supreme Court Issues Procedural Ruling Regarding Regulatory Fines for Ongoing Pollution

January 7, 2016

On December 29, 2015, the Supreme Court of Pennsylvania ruled in favor of EQT Production Company (EQT) in a procedural challenge to a fine levied by the Department of Environmental Protection for the Commonwealth of Pennsylvania (PADEP). The ruling allows EQT to obtain pre-enforcement judicial review, via a declaratory judgment proceeding, of PADEP’s interpretation of “ongoing discharges” under…

New Study Could Add Fuel to the Methane-Regulation Fire

December 10, 2015

A new study of the Barnett Shale in Texas, published by the Proceedings of the National Academy of Sciences (PNAS), contained conclusions that will likely inflame the debate surrounding methane emissions from oil and gas sites.  The study shows that methane emissions are likely far higher than previously estimated and that a few high-emitting facilities are responsible for a majority of the…

EPA Tries to Block Murray Energy's Deposition of Gina McCarthy

November 16, 2015

We have previously written about Murray Energy’s lawsuit against EPA in the Northern District of West Virginia.  There, Murray Energy claims that EPA has failed to conduct studies required by Section 321 of the Clean Air Act about the effects of its rules and enforcement actions on jobs.  The Court has permitted Murray Energy to conduct discovery, holding dispositive motions by EPA in abeyance…

Sierra Club Threatens RCRA Citizen Suit Against Oil & Gas Operators Over Earthquakes in Oklahoma and Southern Kansas

November 11, 2015

By letter dated October 29, the Sierra Club served a “Notice of Intent to Sue” on four exploration and production companies claiming that their injection of waste fluids from the oil and gas industries has contributed to earthquakes in Oklahoma and southern Kansas.  The NOI cites the so-called “imminent harm” provision of RCRA.  That provision authorizes citizens who have suffered…

WVDEP Issues General Permit G70-B

November 5, 2015

On November 2, 2015, the WVDEP made a final determination to issue General Permit G70-B for the Prevention and Control of Air Pollution in regard to the Construction, Modification, Relocation, Administrative Update and Operation of Natural Gas Production Facilities Located at the Well Site.  General Permit G70-B’s proposed benefit to the natural gas industry is the adoption of the…

Justice Department Brings Welcomed Candor to WOTUS Litigation

November 2, 2015

Two weeks ago, two of our Lexington colleagues wrote about the Court of Appeals for the Sixth Circuit staying the “Clean Water Rule.” The EPA and the Corps of Engineers promulgated this regulation to define what constitutes “waters of the United States” (WOTUS). Although the agencies have gone to extraordinary lengths to defend the regulation as a mere “clarification,…

EPA Rejects NPDES Takeover Petition in WV; Still to Make a Decision in KY

October 29, 2015

We have previously reported (in March 2015 and July 2015) on a challenge by the Sierra Club and other groups to EPA’s failure to respond to a petition requesting that EPA rescind the NPDES programs in Kentucky and West Virginia. 

After false starts in federal district courts, the Sierra Club filed actions in both the Sixth Circuit and the Fourth Circuit Court of Appeals challenging EPA’s…

“Yes, You Can Own a River”

October 26, 2015

The U.S. District Court for the Eastern District of North Carolina has affirmed a very traditional issue of property rights in a very unusual setting. The district court affirmed that one may acquire ownership of a river by means of adverse possession. Equally significant is that adverse possession may be successfully asserted against the state.

The facts are highly unusual. Aluminum giant ALCOA…