On September 4, 2018, the U.S. Court of Appeals for the Third Circuit determined that the Third Circuit, and not the Pennsylvania Environmental Hearing Board (“EHB”), has jurisdiction to review Water Quality Certifications issued by the Pennsylvania Department of Environmental Protection (“DEP”) for interstate natural gas projects governed by the Natural Gas Act. See Del. Riverkeeper Network, et al. v. Dep’t of Envtl. Prot., No. 16-221, 2018 WL 4201626 (3d Cir. Sept. 4, 2018). The Third Circuit also held that DEP does not violate Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) by issuing a Water Quality Certification that is conditioned on obtaining substantive permits. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Water Act, Condemnation, EHB, Eminent Domain, Energy, Environmental Rights Amendment, Federal Energy Regulatory Commission, Marcellus Shale, Natural Gas Act, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

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

Last Thursday, the Fourth Circuit Court of Appeals held that environmental groups could bring a citizen suit under the Clean Water Act (“CWA”) against the owner of a ruptured gasoline pipeline where the pipeline had been repaired but the spilled gasoline allegedly continued to travel through groundwater and into nearby surface waters regulated by the CWA as “navigable waters.” Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018). In doing so, the Court weighed in on an issue that was of first impression to the Fourth Circuit and has significant implications for CWA liability – whether the discharge of a pollutant that moves through ground water before reaching navigable waters may constitute a discharge of a pollutant pursuant to the CWA. The Court also resolved the preliminary jurisdictional issue by finding that the plaintiffs had adequately alleged an “ongoing violation” as necessary to allege a CWA violation in the district court.   Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Fourth Circuit, Navigability, Oil and Gas, Pipelines, Water

Last week, the Pennsylvania Supreme Court issued its highly anticipated opinion in EQT Prod. Co. v. Dep’t of Envtl. Prot., No. 6 MAP 2017, 2018 WL 1516385, (Pa. Mar. 28, 2018), holding that the Clean Streams Law (“CSL”) does not authorize the Department of Environmental Protection (“DEP”) to impose daily penalties for the ongoing, continuing presence of pollutants in waters of the Commonwealth. In the 5-to-2 decision, which affirmed in part the Commonwealth Court’s preceding opinion, the Court ruled that to construe the language of the CSL as allowing penalties for the movement of pollutants from one water body to another (DEP’s “water-to-water” theory) was not only unsupported by the statutory language, but would also expose the regulated community to potentially massive civil penalties, and as such, DEP’s penalty calculations including penalties for the days the pollutants remained in the affected groundwater after the initial discharge were excessive. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Case Update, Cases to Watch, Civil Penalties, Clean Streams Law, Contamination, Decisions of Note, Declaratory Relief, Drilling, EHB, Enforcement Action, Groundwater, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Remediation, Water, Wetlands

Earlier this month, in B&R Resources, LLC v. DEP, No. 1234 C.D. 2017 (March 15, 2018), Pennsylvania’s Commonwealth Court held that the sole managing member of a limited liability company may be personally liable for his company’s failure to plug certain abandoned wells. In doing so, the Commonwealth Court clarified that the participation theory of liability, which essentially extends liability from a corporation to its officers who “participated” in corporate wrongdoing, may encompass not only intentional misconduct by an officer but also deliberate inaction. Read More »

Share | Email| Comments|  Topics: Energy, Exploration, Marcellus Shale, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Pipelines

Do indirect discharges of pollutants into navigable waters amount to a violation of the Clean Water Act? On February 1^st, the Court of Appeals for the Ninth Circuit held in Hawaii Wildlife Fund et al. v. County of Maui, No. 15-17447, that discharges of pollutants originating from a point source violate the Clean Water Act even if the pollutants first enter another means of conveyance—in this case groundwater—before entering into a navigable waterway. Despite recent EPA efforts to roll back certain environmental regulations, the court gave no deference to EPA’s amicus curiae proposed liability rule requiring a “direct hydrological connection” between the point source and the navigable water. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Drilling, Effluents, EPA, Ninth Circuit, NPDES, Oil and Gas, Permits, Rapanos, 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

Is a leaking pipeline indicative of an operator’s failed attempt to consider all relevant risk factors when the pipeline has had leaks in the past? In the context of pipeline integrity management regulations, the Court of Appeals of the Fifth Circuit said no.  On August 14, 2017, the Court vacated, in part, a final order issued by the Pipeline Hazardous Materials Safety Administration (“PHMSA”) to ExxonMobil Pipeline Company (“ExxonMobil”), which found that ExxonMobil failed to properly consider the susceptibility of certain portions of its Pegasus Pipeline to seam failure and assessed a civil penalty of $2.6 million.  The opinion in ExxonMobil Pipeline Company v. United States DOT determined that, despite an oil leak from its Pegasus Pipeline, ExxonMobil was not in violation of PHMSA regulations requiring it to consider all risk factors that reflected the risk conditions on a certain pipeline segment because ExxonMobil “carefully [underwent] an informed decision-making process in good faith, reasonably taking into account all relevant risk factors in reaching a decision” that the pipeline was not at risk of seam failure.  2017 U.S. App. LEXIS 15144 (Aug. 14, 2017). Read More »

Share | Email| Comments|  Topics: Civil Penalties, Drilling, Energy, Fifth Circuit, Oil and Gas, PHMSA, Pipeline Hazardous Materials Safety Administration, Pipelines

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