Since 2009, the Delaware River Basin Commission (“DRBC”) has effectively placed a moratorium on fracking activity within the Delaware River Basin (the “Basin”), premised on its assertion that any such activity is a “project” over which the DRBC has authority. But in Wayne Land & Mineral Group LLC v. Del. River Basin Comm’n, No. 17-1800, 2018 WL 3233784 (July 3, 2018), the Third Circuit, overturning a Pennsylvania District Court decision, has held that Delaware River Basin Compact’s (the “Compact”) definition of “project” is ambiguous, and that the DRBC may be without authority over fracking. The Third Circuit’s decision creates uncertainty regarding the scope of the DRBC’s authority and the future of fracking and other land use activities in the Basin. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Declaratory Relief, Delaware River Basin Commission, Drilling, Energy, Exploration, Groundwater, Marcellus Shale, Mineral Rights, Natural Gas, Oil and Gas, Pennsylvania, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

Earlier this month, the Pennsylvania Supreme Court affirmed in part and reversed in part a preliminary injunction issued by the Pennsylvania Commonwealth Court with respect to newly promulgated regulations regarding unconventional well drilling. Marcellus Shale Coal. v. Dep't of Envtl. Prot. of Commonwealth, 115 MAP 2016, 2018 WL 2452607 (June 1, 2018). In the decision, the Court rejected the argument that courts should defer to a regulatory agency when deciding a preliminary injunction with respect to the agency’s authority to issue regulations, and also shed light on how it interprets allegations of vagueness and conflict in agency regulations. The majority opinion was authored by Chief Justice Saylor and was joined in full by all the associate justices except for Justice Donohue, who authored a concurring and dissenting opinion. Justice Donohue’s opinion, perhaps most notably, voices her disagreement with the Commonwealth Court’s interpretation of Article 1, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment. Read More »

Share | Email| Comments|  Topics: Act 13, Drilling, Energy, Environmental Rights Amendment, Groundwater, Injunction, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Pipelines, Water

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 the latest development in the ongoing dispute between EQT Production Company (“EQT”) and the Pennsylvania Department of Environmental Protection (“DEP”) over DEP’s calculation of continuing violations of the Clean Streams Law (“CSL”), the Pennsylvania Commonwealth Court held that Section 301 of the CSL prohibits acts or omissions resulting in the initial active discharge or entry of industrial waste into waters of the Commonwealth, and does not authorize ongoing penalties for the continuing presence of that industrial waste in waters of the Commonwealth after its initial entry.  The Commonwealth Court’s decision in this case, EQT Production Co. v. Dept. of Envt’l Prot., No. 485 M.D. 2014 (Jan. 11, 2017), comes over one year after the Pennsylvania Supreme Court decided EQT Production Co. v. Dept. of Envt’l Prot., 130 A.3d 752 (Pa. 2015), which we reported on, holding that EQT may be permitted to challenge DEP’s continuing-violation interpretation in the Commonwealth Court before the Pennsylvania Environmental Hearing Board decides and imposes the ultimate penalty, given the threat of ballooning penalties under DEP’s ongoing-violation interpretation.  Read More »

Share | Email| Comments|  Topics: Case Update, Cases to Watch, Civil Penalties, Clean Streams Law, Decisions of Note, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection

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

Last week, the United States Court of Appeals for the Third Circuit struck down challenges by environmental organizations to the Federal Energy Regulatory Commission’s (FERC) approval of an expansion of the Transcontinental pipeline, a 10,000-mile pipeline that extends from South Texas to New York City and is operated by Transcontinental Gas Pipe Line Company, LLC (“Transco”).  In doing so, however, the Court held that the environmental organizations had properly invoked a provision of the federal Natural Gas Act to challenge water quality-related permits issued by the states of Pennsylvania and New Jersey.  Thus, the decision, Delaware Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot, No. 15-2122 (3d Cir. August 8, 2016), provides that the Court of Appeals has exclusive jurisdiction over challenges to permits issued to an interstate natural gas facility to certify compliance with State water quality standards promulgated under federal supervision, as well as with federally-established Clean Water Act requirements.   Read More »

Share | Email| Comments|  Topics: Clean Water Act, Energy, Federal Energy Regulatory Commission, Federal Procedure, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pennsylvania, Permits, Procedure, Subject Matter Jurisdiction, Third Circuit, Water, Wetlands

Earlier this month, the Colorado Supreme Court invalidated two municipalities’ bans on hydraulic fracturing, holding that the local ordinances instituting the bans were preempted by state law.  In City of Longmont v. Colorado Oil and Gas Association, No. 15SC667 (May 2, 2016), the Court held that an indefinite ban on fracking activity was preempted by the state’s Oil and Gas Act, which generally provides that fracking is permitted and supported in the state.  Similarly, in City of Fort Collins v. Colorado Oil and Gas Association, No. 15SC668 (May 2, 2016), the Court held that a local ordinance instituting a five-year moratorium on fracking that was slated to expire in 2018 was likewise preempted. Read More »

Share | Email| Comments|  Topics: Act 13, Colorado, Energy, Exploration, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania

On Friday, the Pennsylvania Superior Court issued a non-precedential opinion that affirmed a trial court’s order denying objections filed by natural gas drilling company, Range Resources-Appalachia, LLC, to a subpoena issued to one of its engineering consultants, URS Corp. The case, Haney v. Range Resources-Appalachia, LLC, et al., No. 2012-3534, involves personal injury and property damage claims filed by a group of residents that live near Range’s Yeager natural gas drilling site in Washington County, Pennsylvania.   Read More »

Share | Email| Comments|  Topics: Air, Discovery, Expert Witness, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania, Privilege, Work Product