On July 25, 2023, a Third Circuit panel rejected an environmental group’s challenge of federally approved changes to Pennsylvania’s State Implementation Plan (“SIP”),  holding that the Environmental Protection Agency (“EPA”) emissions-based analysis did not violate the Clean Air Act (“CAA”). Ctr. for Biological Diversity v. U.S. Env’t Prot. Agency, 2023 WL 471884, at *6 (3d Cir. 2023). The panel’s reasoning focused on a close statutory reading of §7410 of the CAA, which prevents EPA from approving any SIP revision that would “interfere with any applicable requirement for attainment and reasonable further progress” in reaching the National Ambient Air Quality Standards (“NAAQS”). Id. at *4. NAAQS are air quality benchmarks that each state must work toward by reducing their air pollution levels. Id. at *1. Ultimately, the Third Circuit held that Pennsylvania’s revisions did not interfere with NAAQS attainment because Pennsylvania reasonably concluded that emissions would likely decrease under the source specific requirements imposed by the revised plan. Id. at *4. Read More »

Share | Email| Comments|  Topics: Air, Citizen Suit, Clean Air Act, Climate Change, Greenhouse Gas, HAPs, Hazardous Air Pollutants, Legislation, Pennsylvania, Rulemaking, Third Circuit

This post was authored by Trang Do, a summer associate.

In West Virginia v. EPA, the Supreme Court limited the authority of the United States Environmental Protection Agency (EPA) to reduce greenhouse gases by setting emission guidelines for existing power plants, characterizing the energy generation shifting strategy proposed in the Clean Power Plan (CPP) as an overreach of the agency’s power. In a 6-3 decision, with the three liberal justices dissenting, the Court held that the authority to adopt a regulatory program that would significantly alter how the nation’s energy is generated fell under an “extraordinary case” of the major questions doctrine. West Virginia v. EPA 597 U. S. ____ (2022). The major questions doctrine requires that a federal agency have “clear congressional authorization” when acting on issues of great “economic and political significance.” Id. (citing Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324). Read More »

Share | Email| Comments|  Topics: Clean Air Act, Climate Change, Decisions of Note, Electric, Emissions, Energy, EPA, Greenhouse Gas, Legislation, Refinery, Rulemaking, Supreme Court, West Virginia

This Blog Post was authored by Isaiah B. Kramer, a summer associate.

On June 7, 2021, the Colorado Supreme Court affirmed in part a decision of the Appellate Division and held that the Colorado Department of Public Health and Environment (“the Department”) may bring an enforcement action against a county under the State’s Solid Wastes Disposal Sites and and Facilities Act (“the SWA”). Bd. of Cnty. Comm’rs of La Plata v. Colo. Dep’t of Pub. Health, 2021 CO 43. In doing so, the Court found that the county was neither protected by sovereign immunity nor otherwise exempt from the reach of the SWA. Read More »

Share | Email| Comments|  Topics: Colorado, Contamination, Enforcement, Enforcement Action, Groundwater, Landfill, Legislation, Nuisance, Sovereign Immunity, Waste

Western District of Pennsylvania Magistrate Judge Susan P. Baxter reiterated in an opinion issued last Friday that certain municipal laws prohibiting natural gas drilling are preempted by the federal Safe Drinking Water Act and the Pennsylvania Oil and Gas Act. Seneca Res. Corp. v. Highland Twp. et al., No. 16-cv-289 (W.D. Pa. Sept. 29, 2017) (“Seneca III”).  The decision is the result of a complex procedural and political history in the township, and it reinforced an earlier settlement and consent decree between the same parties.  In its opinion, the federal court’s decision provided guidance regarding the interplay among federal, state, and local authority over energy development in Pennsylvania. Read More »

Share | Email| Comments|  Topics: Act 13, Legislation, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania, Pipelines, Safe Drinking Water Act, Water

On June 7, 2017, the Commonwealth Court upheld a zoning ordinance allowing oil and gas drilling in mixed use agricultural and residential areas of a Butler County municipality because the pre-existing zoning code had already allowed construction of what the Court found were substantially similar public utility structures. 

The issues in Delaware Riverkeeper et al. v. Middlesex Township Zoning Hearing Board v. R.E. Gas Development LLC et al., 1229 CD 2015, 1323 CD 2015, 2609 CD 2015, arose out of Middlesex Township’s Ordinance 127, enacted in 2014, which sought to add a “oil and gas well site development” use within a Residential-Agricultural (“R-AG”) District. Environmental groups, the Clean Air Council and the Delaware Riverkeeper Network, appealed the Middlesex Township Zoning Hearing Board’s enactment of the ordinance, upheld by the Butler County Court of Common Pleas, which found in part that the added language was a permissible extension of the already existing zoning provisions. Read More »

Share | Email| Comments|  Topics: Act 13, Drilling, Energy, Exploration, Legislation, Marcellus Shale, Mineral Rights, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Real Estate, Zoning

In December of 2013, in Robinson Township v. Commonwealth of Pennsylvania, 83 A.3d 901 (Pa. 2013) (“Robinson II”), the Pennsylvania Supreme Court, among other things, struck down as unconstitutional provisions of the 2012 amendments to Pennsylvania’s Oil and Gas Act, also referred to as Act 13 regarding statewide zoning laws and municipalities’ abilities to enact ordinances affecting the oil and gas industry.  On Wednesday September 28^th, in Robinson's second round before the Pennsylvania Supreme Court (Robinson IV), the Court invalidated additional provisions of Act.

The remand of Robinson II to the Commonwealth Court required the lower court to determine whether or not certain provisions of the Act regarding the review of municipal ordinances affecting oil and gas operations were severable from the Act 13 provisions that were found unconstitutional.  The remand also required the Commonwealth Court to determine; (a) whether two other Act 13 sections, one related to the disclosure of hydraulic fracturing chemical trade secrets to health professionals and the other related to the scope of PADEP notification requirements after spills, violated Article III, Section 32 (no “special laws”) or Article III, Section 3 (the “single subject rule”) of the Pennsylvania Constitution; and (b) whether another Act 13 section regarding the use of eminent domain for gas storage violated the 5^th amendment of the U.S. Constitution and Article 1, Section 10 of the Pennsylvania Constitution. The case before the Supreme Court was an appeal to the Commonwealth Court’s ruling on these issues. Read More »

Share | Email| Comments|  Topics: Act 13, Case Update, Decisions of Note, Legislation, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania, Real Estate

In a decision issued today in Pa. Independent Oil & Gas Assoc. v. Commonwealth, No. 321 M.D. 2015, a seven-member panel of the Pennsylvania Commonwealth Court held that Section 3215(c) of Act 13, the Pennsylvania Oil and Gas Act, remains enforceable despite the Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013).  Section 3215(c) provides that when making a determination on a proposed oil and gas well, DEP “shall consider” the impact of the proposed well on public resources, including parks, rivers, landmarks, historic sites, flora and fauna habitat, and public drinking water sources.  Read More »

Share | Email| Comments|  Topics: Act 13, Declaratory Relief, Drilling, Drinking Water, Exploration, Legislation, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Water, Wetlands

Two months ago I blogged about  DeLalla v. Hanover Ins., No. 10-3933 (3rd Cir. Oct. 12, 2011), a case in which the Third Circuit held that, when it comes to removal, each defendant gets its own thirty-day window to file a Notice of Removal such that a later-served defendant is not foreclosed from seeking removal if the thirty-day window has already closed on the first-served defendant.  As befitting a precedential Third Circuit decision, there was clearly a lot of effort put into the 22 page opinion. Read More »

Share | Email| Comments|  Topics: Case Update, Legislation, Procedure, Removal