In 2016, the U.S. Fish and Wildlife Service (“USFWS” or “Service”) listed the Guyandotte River crayfish as endangered and the Big Sandy crayfish as threatened. An explanation of those decisions and a map of their range in West Virginia, Kentucky and southwest Virginia may be viewed here. In 2018, the Center for Biological Diversity sued the USFWS to force the designation of critical…
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…
In September, a federal district court in Virginia gave broad effect to the Clean Water Act “permit shield.” We have written before of the ruling in Southern Appalachian Mountain Stewards (SAMS) v. Red River Coal Company.[1] The court’s ruling was notable because it extended the “permit shield” to entire “outlets” not expressly controlled by the NPDES permit and not just to individual pollutants…
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…
The West Virginia Supreme Court has ruled that a Circuit Court judge should not have decided whether to “certify” a class action in which he was a potential class member. In addition, the Court has vacated the certification order of the Circuit Court as inadequately supported. See State ex rel. Municipal Water Works v Swope, No. 19-0404 (W.Va. Sup. Ct. Oct. 18, 2019).
The New York Attorney General (“NYAG”) has sued Exxon Mobil (“Exxon”) for fraud and misrepresentation to its investors under a New York securities law known as the Martin Act. The NYAG contends that Exxon represented to the public that it was accounting for “projected carbon costs in evaluating its ongoing investments” using one value ($80.00 per ton of CO2 emissions) but that internally (and…
The U.S. EPA and the Army Corps of Engineers published the repeal of the 2015 “Waters of the United States” (WOTUS) rule in the October 22 Federal Register. With this rulemaking, the agencies are restoring the 1986 rule that defined “waters of the United States” before the 2015 revision. The agencies’ announcement also marks the beginning of the end to one of the most contentious, protracted and…
By Executive Order No. 2019-07 issued on October 3, 2019, Pennsylvania Governor Wolf directed the PADEP to develop rules by July 31, 2020 for limiting CO2 emissions from “fossil-fuel-fired electric power generators.” The same Order mandated that the regulatory program establish a CO2 “budget consistent with that established in the RGGI (pronounced “Reggie”) participating states; provide for the…
A federal court in Virginia has ruled in favor of a coal operator in a citizen suit filed under the Clean Water Act, the Surface Mining Act and RCRA. See Southern Appalachian Mountain Stewards (“SAMS”) v. Red River Coal Company, Inc., No. 2:17-cv-00028 (W.D. Va. Sept. 24, 2019). There, Red River has held a combined NPDES/SMCRA permit (“Permit”) since 1992 for a surface mining operation. As part…
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…
On August 12, 2019, a federal court in West Virginia ruled that plaintiffs cannot use SMCRA’s citizen suit provision to challenge the validity of a surface mining permit in a suit against the permittee. Order. The Plaintiffs, a group of anti-mining organizations, relied on what has come to be known as SMCRA’s “not started” provision, which provides for termination of permits where mining has not…
In October 2017, the Trump EPA issued a Directive prohibiting anyone who receives EPA grants from sitting on an EPA Science Advisory Board (“SAB”) or similar science advisory committees formed under the Federal Advisory Committee Act. The Directive was immediately challenged by advocacy groups which had long succeeded in placing sympathizers, many from academic communities and non-profits that…
