Energy and Environment Monitor

Fourth Circuit Follows Lead of Sixth Circuit: Citizen Groups Cannot Use SMCRA's Citizen Suit to Sue for Discharges Subject to Clean Water Act "Permit Shield"

April 6, 2021

The 4th Circuit has followed the 6th Circuit’s lead in extending the Clean Water Act (“CWA”) “permit shield” to citizen suits filed under the federal Surface Mining Control and Reclamation Act (“SMCRA”). In a case decided March 30th, the 4th Circuit said “we agree with the district court - and thus the [6th] Circuit in Sierra Club v. ICG Hazard, LLC, 781 F. 3d 281, 291-92(6th Cir. 2015) - that…

Corps of Engineers Rejects Some State Certification Conditions on Nationwide § 404 Permits in WV and Ohio

March 18, 2021

In January, the Corps of Engineers reissued 12 existing Nationwide §404 permits (“NWPs”) and issued 4 new ones. As part of this effort, the Corps split NWP 12 (formerly for all utility lines) into three new NWPs: 12 (oil or natural gas pipelines); 57 (electric utility lines and telecommunications) and 58 (utility line activities for water and other substances). These 16 NWPs took effect on March…

Federal Court Denies WVDEP's Motion to Dismiss Claim that State Failed to Notify OSM of a "Significant Event" in the State's SMCRA Bonding Program: OVEC v. WVDEP (SDWV)

December 3, 2020

Earlier this year, OVEC and other anti-mining groups sued the WVDEP, claiming the agency had failed to provide notice to OSM that the State’s surface mining reclamation program had suffered “a significant change in funding or budgeting.”  The WVDEP moved to dismiss the Complaint claiming that: 1) the plaintiffs lacked standing because there had been no failure of the bonding system; 2) plaintiffs…

Federal Court in NY Vacates Solicitor Opinion Restricting Scope of Migratory Bird Treaty Act to Actions Directed at Birds

August 12, 2020

The Migratory Bird Treaty Act (MBTA) makes it a misdemeanor, “unless permitted by regulations” to “pursue, hunt, take, capture, [or] kill” migratory birds “by any means or in any manner.” 16 U.S.C. Section 703(a). For years, the Interior Department interpreted the Act as prohibiting so-called “incidental takes” - deaths of birds by activities undertaken for other purposes, such as construction of…

New Suit Claims WVDEP Failed to Inform OSM of Potential SRF Funding Shortfall

July 15, 2020

Three anti-mining organizations - Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and Sierra Club (collectively “Plaintiffs”) - sued the West Virginia Department of Environmental Protection (“WVDEP”) for failing to notify the federal Office of Surface Mining (“OSM”) of a significant change in funding or budgeting concerning WVDEP’s ability to manage its…

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…

Montana Judge Maintains Injunction on NWP 12 for New Oil & Gas Pipelines

May 19, 2020

On April 15, 2020, a federal district court in the District of Montana vacated the U.S. Army Corps of Engineers’ Nationwide Permit 12 (“NWP 12”), which was issued in 2017 pursuant to Section 404 of the Clean Water Act and authorizes discharges of dredged or fill material associated with utility line activities. The Court also issued an injunction preventing the Corps from authorizing further use…

INJUNCTION ISSUED BY MONTANA COURT APPEARS TO PROHIBIT U.S. ARMY CORPS OF ENGINEERS FROM AUTHORIZING ANY UTILITY LINE ACTIVITIES UNDER NATIONWIDE PERMIT 12 UNTIL COMPLETION OF ENDANGERED SPECIES ACT REVIEW

April 20, 2020

In a case challenging the U.S. Army Corps of Engineers’ approval of the Keystone XL pipeline, a federal district court in Montana issued a sweeping injunction last week that, on its face, seems to prohibit the Corps from approving any activities under its Nationwide Permit 12 (“NWP 12”), which authorizes discharges of dredged or fill material associated with utility line activities, until it…

Federal Court Rejects Use of Virginia County Flood Ordinance to Limit Natural Gas Pipeline Construction

April 2, 2020

A federal court in Virginia has ruled that a county’s attempt to impede an interstate gas pipeline with a floodplain ordinance is preempted by the federal Natural Gas Act. See Atlantic Coast Pipeline, LLC v. Nelson County Board of Supervisors, No. 3:18-00115 (W.D. Va. March 9, 2020).

The Atlantic Coast Pipeline (“ACP”) holds a certificate from FERC under the Natural Gas Act to construct and…

West Virginia Enhances Penalties for Trespass and Damages to Critical Infrastructure

April 1, 2020

The West Virginia Legislature has adopted a West Virginia Critical Infrastructure Protection Act. See W. Va. Code §61-10-34 (copy available at https://legiscan.com/WV/text/HB4615/2020). The new Act establishes three categories of criminal actions concerning “critical infrastructure”.

1. Trespass: It is a misdemeanor to “willfully and knowingly … enter[] property containing a critical infrastructure…

EPA Issues COVID-19 Guidance

March 27, 2020

On March 26, 2020, the United States Environmental Protection Agency (“EPA”) issued guidance on how the agency will address compliance and enforcement issues in light of COVID-19.

In its guidance, EPA acknowledges that illnesses, travel bans and social distancing may cause shortages in staffing that impact monitoring or compliance.   Accordingly, the EPA provides that it will, under specifically…

Anti Mining Group Urges Fourth Circuit to Override Clean Water Act Permit Shield

February 26, 2020

          The plaintiffs in an important Clean Water Act (“CWA”) case filed their reply brief with the Fourth Circuit on January 28, 2020.  We have previously written about the ruling in Southern Appalachian Mountain Stewards (“SAMS”) v. Red River Coal Company, here and here.  The case is now on appeal before the Fourth Circuit from the District Court’s ruling, which gave broad effect to the Clean Water…