Energy and Environment MonitorWVDEP Moves to Dismiss Gas Producer Lawsuit Claiming "Flat Rate Statute" is UnconstitutionalJune 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… "As We Know, Elections Have Consequences........"May 29, 2018 From the U.S. District Court in Washington comes a lengthy opinion that rejects a challenge from three conservation organizations to a determination of the Army Corps of Engineers to issue a Finding of No Significant Impacts (FONSI) and a decision not to prepare an environmental impact statement. The court’s opinion is a carefully expressed analysis of why the Corps’ decision complied with NEPA… "Generator Improvements Rule" Becomes Effective June 1, 2018 in West VirginiaMay 21, 2018 In 2016, EPA amended the requirements applicable to hazardous waste generators by promulgating the “Generator Improvements Rule.” See https://www.epa.gov/hwgenerators/final-rule-hazardous-waste-generator-improvements. Those requirements become effective in West Virginia on June 1,, 2018.
Background
The rules for hazardous waste generators were largely written in the 1980s. In 2004, EPA… Fourth Circuit Holds Groundwater Connection to Navigable Waters Triggers CWA CoverageMay 17, 2018 “[T]he fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past.” Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, Slip Op. at 18) (4th Cir. April 12, 2018) The Clean Water Act prohibits unpermitted “discharges” from a “point source” to a “navigable water.” 33 U.S.C. § 1311(a). Although the definition of what constitutes… PA Supreme Court Rejects PADEP’s Theory of Limitless Civil Penalties for “Continuing Violation” of Clean Streams LawApril 24, 2018 We have previously written about a declaratory judgment action filed by a natural gas producer against the Pennsylvania Department of Environmental Protection (“PADEP”) challenging the agency’s interpretation of Pennsylvania’s Clean Streams Law. In that proceeding, the gas producer sought pre-enforcement judicial review of PADEP’s legal interpretation of what constitutes a “continuing violation”… Supreme Court's Answer to Certified Questions Preserves Right to Longwall Mine in West VirginiaApril 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… Supreme Court's Answer to Certified Questions Preserves Right to Longwall Mine in West VirginiaApril 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 SenateApril 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 OperatorApril 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,… Department of Justice Reins In Use of Guidance Documents in Enforcement ActionsFebruary 13, 2018 “Consistent with our duty to uphold the rule of law with fair notice and due process, this policy helps restore the appropriate role of guidance documents and avoids rulemaking by enforcement.” – Associate Attorney General Rachel Brand. On January 25, 2018, Rachel Brand, Associate Attorney General, issued a memorandum (“Brand Memo”) evidencing new a policy that prohibits the Department of Justice… Ninth Circuit Adopts Broad Definition of "Point Source" DischargeFebruary 7, 2018 Last week the United States Court of Appeals for the Ninth Circuit ruled that discharges from wastewater injections that seep into groundwater and ultimately reach “waters of the United States” are subject to the Clean Water Act’s (CWA) permitting requirements. The suit alleged that Maui County, Hawaii had injected wastewater into wells that eventually made its way into the Pacific Ocean through… At Least We Know Now Where to File SuitJanuary 24, 2018 The U.S. Supreme Court decided a case on Monday of this week that environmental law nerds having been waiting breathlessly for since 2015. It concerns the EPA and Corps of Engineers rule promulgated that year defining the “waters of the United States” (‘WOTUS”). By that rule the agencies sought to delineate the geographic reach of those waters and the statutory programs which depend upon their… |
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