Energy and Environment Monitor

Ninth Circuit Rules Berkeley Gas Ban is Preempted by Federal Law but Acknowledges Limited Scope of Ruling

May 10, 2023

On April 17, 2023, the Ninth Circuit Court of appeals reversed and remanded the district court’s decision in California Restaurant Association v. City of Berkeley, deciding that the City of Berkeley’s prohibition on natural gas infrastructure in new buildings was preempted by Section 6297(c) of the Energy Policy and Conservation Act (EPCA).[1] The Court determined that Congress intended the scope…

Fourth Circuit Vacates but does not Reverse District Court Decision Barring Columbia’s Use of Natural Gas Act Eminent Domain Against Commonwealth of Maryland

May 23, 2022

The Natural Gas Act gives FERC-regulated projects the right to condemn private property.  In 2019, the Third Circuit ruled that those rights did not extend to property held by a state because states enjoy sovereign immunity from such suits.  The federal district court in Maryland followed suit, blocking efforts by Columbia Gas to install a short transmission line under a state-owned bike trail…

U.S. Supreme Court Allows Pipeline to Cross Appalachian Trail

July 13, 2020

In a major victory for natural gas pipeline development, the Supreme Court ruled 7-2 that the U.S. Forest Service had authority to grant a right-of-way to the Atlantic Coast Pipeline (“ACP”) to extend its pipeline under a portion of the Appalachian Trail (“AT”) located within the George Washington National Forest. See U.S. Forest Service v. Cowpasture River Preservation Ass’n. and Atlantic Coast…

Ohio Appeals Court Rules that State §401 Waiver Divested it of All Enforcement Authority Over Rover Pipeline

February 3, 2020

     The State of Ohio has failed in its efforts to enforce water laws against a FERC-approved natural gas transmission line because the State waived its right to certify the facility under §401 of the Clean Water Act.  See State of Ohio ex rel. Yost v. Rover Pipeline, LLC, Ohio Ct. App. (Stark County Dec. 9, 2019).  There, both a trial and appeals court have ruled that a state’s waiver of its…

Third Circuit Declines to Reconsider Eminent Domain Case: Allows States to Block Pipelines

November 11, 2019

We have written about this before. Both the Third Circuit Court of Appeals and the District Court of Maryland (in the Fourth Circuit) have ruled that Congress can convey to FERC-approved energy projects the right to condemn property, but have also held that the right does not extend to state-owned property. See Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by…

Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by Pipeline Developers in Federal Courts

September 13, 2019

In recent months, two courts—a federal district court in Maryland and the U.S. Court of Appeals for the Third Circuit (encompassing Pennsylvania, New Jersey, and Delaware) have ruled that states enjoy “sovereign immunity” to lawsuits by pipeline developers to condemn state-owned lands. See In re PennEast Pipeline Company, LLC, Nos. 19-1191 to -1232 (3d Cir. Sept. 10, 2019) & Columbia Gas…

House Delegates Introduce Environmental Constitutional Amendment

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…

Federal Court Rules that a West Virginia County Cannot Deny a Request to Re-Zone Property to Allow for Construction of a Natural Gas Compressor Station

August 29, 2018

          A federal district court in West Virginia ruled on Wednesday that Fayette County’s zoning code is preempted by the Natural Gas Act as it applies to Mountain Valley Pipeline’s FERC-approved activities in connection with a compressor station to be constructed in that county. See Mountain Valley Pipeline, LLC v. Wender, et al., No. 2:17-cv-4377 (S.D.W.Va. Aug. 29, 2018), ECF No. 34. MVP obtained a…

"Strangled by Process"

August 15, 2018

          The U.S. Court of Appeals for the Fourth Circuit decided a case involving the Mineral Leasing Act of 1920 (MLA), an event sufficiently unusual that it merited a reading of the case. The MLA is the federal statute that governs the leasing of federal minerals, normally coal and oil and gas, on the public lands that the Bureau of Land Management (BLM) administers, primarily in the Western U.S. The…

Federal Courts on both Coasts Reject Cities' Efforts to Hold Oil Industry Responsible for Damages Caused by Climate Change

July 26, 2018

"The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case." Judge William Alsup

          Last week, on July 19, 2018, the U.S. District Court for the Southern District of New York (Judge John F. Keenan) dismissed the City of New York’s action against BP, Chevron, Conoco-Phillips, Exxon Mobile and Royal Dutch Shell seeking to recover…

Oil & Gas Development Wins Significant Case in Third Circuit

July 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…

WVDEP Moves to Dismiss Gas Producer Lawsuit Claiming "Flat Rate Statute" is Unconstitutional

June 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…