This entry was authored by MGKF Summer Associate Ryan Raynor

Next term, the United States Supreme Court will decide the extent to which federal agencies must consider environmental impacts beyond their control in performing environmental reviews. On June 24, 2024, the Supreme Court granted certiorari to the Seven County Infrastructure Coalition and the Uinta Basin Railway, LLC to determine whether the National Environmental Policy Act (“NEPA”) requires a federal agency conducting an environmental impact statement (“EIS”) to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority. Eagle Cnty., Colorado v. Surface Transportation Bd., 82 F.4th 1152, 1179 (D.C. Cir. 2023), cert. granted sub nom. Seven Cnty. Coalition v. Eagle Cnty., Co, 2024 WL 3089539 (U.S. June 24, 2024). Read More »

Share | Email| Comments|  Topics: Energy, FERC, Greenhouse Gas, Natural Gas, NEPA, Oil and Gas, Pipelines, Railroad, United States Supreme Court

In California Restaurant Association v. City of Berkeley, 89 F. 4th 1094 (9th Cir. 2024), the Ninth Circuit was tasked with determining whether the City of Berkeley’s attempt to prohibit the use of natural gas pipelines in new buildings through a local ordinance conflicted with the federal Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. § 6297(c).  That statute expressly preempts state and local governments from enacting regulations restricting energy use of many natural gas appliances, including those used in household and restaurant kitchens.  After evaluating the parties’ arguments, the court concluded that the ordinance is preempted by the EPCA based on the text, structure, and context of that statute.  Read More »

Share | Email| Comments|  Topics: Climate Change, Natural Gas, Preemption

When a public interest environmental rights group or other party appeals a decision by the New Jersey Department of Environmental Protection affecting a planned project, it should name the permittee as a party on the Notice of Appeal and serve them accordingly. On April 11, 2022, the Supreme Court of New Jersey remanded a case back to the Appellate Division and held that an appellant natural gas company should have been named as a party in the Notice of Appeal and served. See In re Proposed Constr. of Compressor Station (CS327), No. 086428 (Apr. 11, 2022). Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Intervention, Natural Gas, New Jersey, Oil and Gas, Permits, Pipelines, Procedure, Standing

On Tuesday, June 29, 2021, the United States Supreme Court reversed the Third Circuit and held that Section 717f(h) of the Natural Gas Act authorizes Federal Energy Regulatory Commission (FERC) certificate holders to “condemn all necessary rights-of-way, including land in which the State holds an interest.” See PennEast Pipeline Co., LLC v. New Jersey, Slip Op. No. 19-1039, (June 29, 2021). This holding is consistent with history and precedent regarding the superior power of federal eminent domain. Read More »

Share | Email| Comments|  Topics: Condemnation, Eminent Domain, Federal Energy Regulatory Commission, FERC, Marcellus Shale, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pipelines, Public Lands, Sovereign Immunity, Supreme Court, Takings, Takings Clause, Third Circuit, United States Supreme Court

On February 21, 2020, the Pennsylvania Commonwealth Court dismissed a claim brought by a group of municipalities alleging that a Pennsylvania Public Utility Commission (PUC) regulation governing the siting of gas meters failed to sufficiently protect historic resources under Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment (ERA). See City of Lancaster, et al. v. Pa. Pub. Util. Comm’n, No. 251 MD 2019 (Pa. Cmwlth. Feb. 21, 2020). Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Energy, Environmental Rights Amendment, Historic Resources, Natural Gas, Pennsylvania, Preemption, Public Utilities Commission, Real Estate, Residential, Utilities

In a split 3-2 decision, the Pennsylvania Supreme Court held that the rule of capture applies to gas wells completed using hydraulic fracturing, though the Court’s holding was limited by the undeveloped factual record in the case. See Briggs v. Southwestern Energy Production Co., No. 63 MAP 2018 (Pa. Jan. 22, 2020). With the Court’s decision, Pennsylvania joins Texas and other states that have applied the rule of capture to hydraulic fracturing. The narrow scope of the Court’s holding, however, makes it almost certain that neighboring landowners will continue to assert trespass and conversion claims against developers in Pennsylvania engaging in hydraulic fracturing until the law is further developed. Read More »

Share | Email| Comments|  Topics: Drilling, Energy, Exploration, Hydraulic Fracturing, Marcellus Shale, Mineral Rights, Natural Gas, Oil and Gas, Pennsylvania, Royalties, Trespass

On September 10, the Third Circuit held that while the National Gas Act (NGA) delegates the federal government’s power of eminent domain to private gas companies, it does not necessarily delegate the federal government’s exemption from state sovereign immunity. In re: PennEast Pipeline Company, LLC, No. 19-1191 (3d Cir. 2019). As a result, private entities acting under the NGA cannot condemn state-owned property absent action by an accountable federal official. Read More »

Share | Email| Comments|  Topics: Condemnation, Eleventh Amendment, Eminent Domain, Federal Energy Regulatory Commission, FERC, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pipelines, Public Lands, Sovereign Immunity, Takings, Third Circuit

Last month in a 2-1 split, the Third Circuit held that state, not federal, law determined how much a landowner was entitled to as just compensation in condemnation proceedings brought by private entities under the Natural Gas Act of 1938. Tennessee Gas Pipeline Co., LLC v. Permanent Easement for 7.053 Acres, No. 17-3700 (3d Cir. July 23, 2019). The precedential decision will force natural gas companies to account for differences in state law in negotiations with landowners over what constitutes “just compensation” for a taking.   Read More »

Share | Email| Comments|  Topics: Condemnation, Drilling, Energy, Marcellus Shale, Natural Gas, Natural Gas Act, Oil and Gas, Pennsylvania, Pipelines, Real Estate, Takings, Third Circuit

Two recent decisions from two different states, Pennsylvania and West Virginia, suggest that courts are becoming increasingly skeptical of landowners seeking to capitalize on oil and gas companies utilizing horizontal directional drilling (HDD) to access resources under the property of the landowners. Read More »

Share | Email| Comments|  Topics: Damages, Deeds, Drilling, Energy, Exploration, Leases, Marcellus Shale, Mineral Rights, Natural Gas, Nuisance, Oil and Gas, Pennsylvania, Property Damage, Property Value, Real Estate, Royalties, West Virginia

Quoting a Dr. Seuss book, the United States Court of Appeals for the Fourth Circuit on Thursday issued its opinion in Cowpasture River Preservation Association v. United States Forest Service, No. 18-1144 (4^th Cir. Dec. 13, 2018). The Court held that the US Forest Service (the “Forest Service”) violated the National Forest Management Act (“NFMA”) and the National Environmental Policy Act (“NEPA”), as well as lacked statutory authority under the Mineral Leasing Act (“MLA”) to grant a pipeline right of way across the Appalachian National Scenic Trail (the “Appalachian Trail”), failing to “speak for the trees” as Seuss’s Lorax directs. Read More »

Share | Email| Comments|  Topics: Energy, Federal Energy Regulatory Commission, FERC, Fourth Circuit, Mineral Leasing Act, National Forest Management Act, Natural Gas, NEPA, Pipelines