The adage “you can’t put the toothpaste back in the tube” has manifested itself in two recent federal court decisions. Under separate theories, both the Second Circuit and the District Court of the District of Columbia have issued decisions that highlight the difficulty environmental groups faced in challenging energy infrastructure projects that have been completed during the course of litigation. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Procedures Act, Army Corps, Citizen Suit, D.C. Circuit, Energy, Marcellus Shale, NEPA, New York, NPDES, Oil and Gas, Pipelines, Second Circuit

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

On Monday, July 29, 2019, a seven-judge panel of the Pennsylvania Commonwealth Court, in Pa. Envtl. Defense Found. v. Commonwealth, No. 228 M.D. 2012 (Pa. Cmwlth. July 29, 2019) (“PEDF III”), held that two-thirds of rental payments and up-front bonuses received by the Commonwealth as proceeds from oil and gas leases on state forest and park lands must be reserved for conservation purposes under Article I, Section 27 of the Pennsylvania Constitution, also called the Environmental Rights Amendment (“ERA”). Read More »

Share | Email| Comments|  Topics: Environmental Rights Amendment, Marcellus Shale, Oil and Gas, Pennsylvania, Pipelines

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

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

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

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

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