May 25, 2016
“Standing” is a legal principle which is fundamental to every environmental case filed in federal courts. Because the Constitution grants federal courts power to hear only actual “cases and controversies”, a litigant must allege facts to demonstrate why the federal court has the authority to hear the case. Those facts must identify 1) a legal injury suffered, 2) that is traceable to the…
May 18, 2016
Challenges to EPA’s Clean Power Plan are pending in the Circuit Court for the District of Columbia. Oral argument on those challenges had been scheduled for June 2, 2016. On May 16, though, on its own motion, the D.C. Circuit moved the oral argument date from June until September 27. In addition, the case will no longer be heard before the original three-judge panel assigned to it, but…
May 2, 2016
On April 27, 2016, the U.S. Fish and Wildlife Service (FWS) published a decision reversing their prior decision and determining that designation of critical habitat is not prudent for the Northern Long-Eared Bat (NLEB).
The NLEB is a wide-ranging species that is found in a variety of forested habitats in summer and hibernates in caves and mines in winter. The FWS determined that the fungal…
April 28, 2016
The Sierra Club’s “Beyond Coal” campaign has generated another suit against West Virginia.
The Surface Mine Control and Reclamation Act (SMCRA) requires coal operators to reclaim mine sites after mining. To insure that reclamation occurs, operators must post reclamation bonds. West Virginia and many other states have an alternative bonding system that requires operators to both post a…
April 25, 2016
On June 29, 2015, the United States Supreme Court ruled that EPA erred when it failed to take cost into account in evaluating whether it was “appropriate and necessary” to regulate hazardous air pollutants (mercury) from coal- and oil-fired electric generating units. See Michigan v. EPA, No. 14-46 (June 29, 20150). The rule, known commonly as the “Mercury and Air Toxics Standards” or…
April 21, 2016
In a unanimous decision, the Virginia Supreme Court affirmed on Thursday that a conveyance of “coal and minerals” includes coal-bed methane (CBM). The decision represents an incremental expansion of the Court’s 1936 Warren v. Clinchfield Coal decision which held that severance deed which conveyed “coal and minerals” included conventional oil and gas. The plaintiff/appellant in the present case…
April 20, 2016
By Federal Register notice of April 7, 2016, the U.S. Fish & Wildlife Service (“USF&WS” or “Service”) determined that the Big Sandy crayfish is threatened and the Guyandotte River crayfish is endangered. The USF&WS originally proposed the listings on April 7, 2015 (80 FR 18710). See also “Fish and Wildlife Service Lists Snuffbox and Rayed Bean Mussels to Endangered…
April 11, 2016
In the April 7, 2016 Federal Register, EPA proposed to add a site in Clarksburg, West Virginia to National Priorities List. The NPL is intended to guide EPA in determining which sites containing hazardous substances warrant further investigation and remediation under CERCLA.
According to a press release by EPA Region 3, the North 25th Street Glass and Zinc site in Clarksburg consists of…
April 5, 2016
In February, the U.S. EPA and U.S. Geological Survey (USGS) jointly released a draft technical report entitled “Protecting Aquatic Life from Effects of Hydrologic Alteration.” This 92 page text summarizes the received wisdom among the regulatory agencies. They include the following observations: “flow regime plays a central role in supporting healthy aquatic ecosystems and the ecological…
March 31, 2016
The West Virginia Department of Environmental Protection’s (“WVDEP”) Division of Air Quality (“DAQ”) recently issued two General Permits regulating air pollution in the oil and gas industry, both of which have been challenged by the West Virginia Oil and Natural Gas Association (“WVONGA”) as exceeding the Agency’s authority. During the public comment process, DAQ dismissed complaints about…
March 31, 2016
The West Virginia Department of Environmental Protection’s (“WVDEP”) Division of Air Quality (“DAQ”) recently issued two General Permits regulating air pollution in the oil and gas industry, both of which have been challenged by the West Virginia Oil and Natural Gas Association (“WVONGA”) as exceeding the Agency’s authority. During the public comment process, DAQ dismissed complaints about…
March 10, 2016
EPA has released a pre-publication copy of a proposed rule to expand its risk management program under § 112(r)(7) of the Clean Air Act. EPA has long maintained a risk management program (“RMP”) under § 112(r) of the Clean Air Act for “stationary sources” that hold “regulated substances” in excess of threshold quantities. See 40 C.F.R. Part 68. These facilities have been…
May 25, 2016
“Standing” is a legal principle which is fundamental to every environmental case filed in federal courts. Because the Constitution grants federal courts power to hear only actual “cases and controversies”, a litigant must allege facts to demonstrate why the federal court has the authority to hear the case. Those facts must identify 1) a legal injury suffered, 2) that is traceable to the…
May 18, 2016
Challenges to EPA’s Clean Power Plan are pending in the Circuit Court for the District of Columbia. Oral argument on those challenges had been scheduled for June 2, 2016. On May 16, though, on its own motion, the D.C. Circuit moved the oral argument date from June until September 27. In addition, the case will no longer be heard before the original three-judge panel assigned to it, but…
May 2, 2016
On April 27, 2016, the U.S. Fish and Wildlife Service (FWS) published a decision reversing their prior decision and determining that designation of critical habitat is not prudent for the Northern Long-Eared Bat (NLEB).
The NLEB is a wide-ranging species that is found in a variety of forested habitats in summer and hibernates in caves and mines in winter. The FWS determined that the fungal…
April 28, 2016
The Sierra Club’s “Beyond Coal” campaign has generated another suit against West Virginia.
The Surface Mine Control and Reclamation Act (SMCRA) requires coal operators to reclaim mine sites after mining. To insure that reclamation occurs, operators must post reclamation bonds. West Virginia and many other states have an alternative bonding system that requires operators to both post a…
April 25, 2016
On June 29, 2015, the United States Supreme Court ruled that EPA erred when it failed to take cost into account in evaluating whether it was “appropriate and necessary” to regulate hazardous air pollutants (mercury) from coal- and oil-fired electric generating units. See Michigan v. EPA, No. 14-46 (June 29, 20150). The rule, known commonly as the “Mercury and Air Toxics Standards” or…
April 21, 2016
In a unanimous decision, the Virginia Supreme Court affirmed on Thursday that a conveyance of “coal and minerals” includes coal-bed methane (CBM). The decision represents an incremental expansion of the Court’s 1936 Warren v. Clinchfield Coal decision which held that severance deed which conveyed “coal and minerals” included conventional oil and gas. The plaintiff/appellant in the present case…
April 20, 2016
By Federal Register notice of April 7, 2016, the U.S. Fish & Wildlife Service (“USF&WS” or “Service”) determined that the Big Sandy crayfish is threatened and the Guyandotte River crayfish is endangered. The USF&WS originally proposed the listings on April 7, 2015 (80 FR 18710). See also “Fish and Wildlife Service Lists Snuffbox and Rayed Bean Mussels to Endangered…
April 11, 2016
In the April 7, 2016 Federal Register, EPA proposed to add a site in Clarksburg, West Virginia to National Priorities List. The NPL is intended to guide EPA in determining which sites containing hazardous substances warrant further investigation and remediation under CERCLA.
According to a press release by EPA Region 3, the North 25th Street Glass and Zinc site in Clarksburg consists of…
April 5, 2016
In February, the U.S. EPA and U.S. Geological Survey (USGS) jointly released a draft technical report entitled “Protecting Aquatic Life from Effects of Hydrologic Alteration.” This 92 page text summarizes the received wisdom among the regulatory agencies. They include the following observations: “flow regime plays a central role in supporting healthy aquatic ecosystems and the ecological…
March 31, 2016
The West Virginia Department of Environmental Protection’s (“WVDEP”) Division of Air Quality (“DAQ”) recently issued two General Permits regulating air pollution in the oil and gas industry, both of which have been challenged by the West Virginia Oil and Natural Gas Association (“WVONGA”) as exceeding the Agency’s authority. During the public comment process, DAQ dismissed complaints about…
March 31, 2016
The West Virginia Department of Environmental Protection’s (“WVDEP”) Division of Air Quality (“DAQ”) recently issued two General Permits regulating air pollution in the oil and gas industry, both of which have been challenged by the West Virginia Oil and Natural Gas Association (“WVONGA”) as exceeding the Agency’s authority. During the public comment process, DAQ dismissed complaints about…
March 10, 2016
EPA has released a pre-publication copy of a proposed rule to expand its risk management program under § 112(r)(7) of the Clean Air Act. EPA has long maintained a risk management program (“RMP”) under § 112(r) of the Clean Air Act for “stationary sources” that hold “regulated substances” in excess of threshold quantities. See 40 C.F.R. Part 68. These facilities have been…
