Energy and Environment Monitor

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…

WVDEP Provides Guidance to Mine Operators on Cutting Timber in Northern Long-Eared Bat Territory

November 19, 2015

In 1996, the U.S. Fish & Wildlife Service issued a “Biological Opinion and Conference Report” to the Office of Surface Mining which concluded that so long as the provisions of the state and federal surface mining programs, which included information gathering and reporting obligations concerning endangered species, were followed then surface mining was not likely to jeopardize the existence of…

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…

Pipeline Opponents Urging FERC to Consolidate NEPA Review for Multiple Pipeline Projects

November 4, 2015

The latest effort by pipeline opponents to slow FERC approvals focuses on the National Environmental Policy Act (“NEPA”). NEPA requires environmental impact statements for “major federal actions” which are determined to “significantly affect the quality of the human environment.” The requirement of FERC approval and the need for other federal permits for pipeline projects triggers NEPA. …

EPA Acts on Petition to Extend Toxic Release Inventory Reporting to Oil and Gas Extraction Sector

November 3, 2015

Starting in October 2011, the Environmental Integrity Project and other organizations petitioned EPA to add the Oil and Gas Extraction industrial sector to the scope of industrial activity covered by the reporting requirements of Section 313 of the Emergency Planning and Community Right to Know Act, commonly known as the “Toxics Release Inventory.” That petition sought to include all sub-sectors…

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…