Jackson Kelly PLLC

Energy and Environment Monitor

Energy

WV Passes Laws to Promote Solar Energy Development

West Virginia recently supported the solar industry by passing H.B. 3310 into law.  This law exempts the Public Service Commission from jurisdiction over power rates for retail customers entering into a power purchase agreement (PPA) for on-site solar facilities under certain circumstances.  This would allow more free enterprise for solar companies and purportedly increase the consumption of solar…

Federal Court Rejects Use of Virginia County Flood Ordinance to Limit Natural Gas Pipeline Construction

A federal court in Virginia has ruled that a county’s attempt to impede an interstate gas pipeline with a floodplain ordinance is preempted by the federal Natural Gas Act. See Atlantic Coast Pipeline, LLC v. Nelson County Board of Supervisors, No. 3:18-00115 (W.D. Va. March 9, 2020).

The Atlantic Coast Pipeline (“ACP”) holds a certificate from FERC under the Natural Gas Act to construct and…

Ohio Appeals Court Rules that State §401 Waiver Divested it of All Enforcement Authority Over Rover Pipeline

     The State of Ohio has failed in its efforts to enforce water laws against a FERC-approved natural gas transmission line because the State waived its right to certify the facility under §401 of the Clean Water Act.  See State of Ohio ex rel. Yost v. Rover Pipeline, LLC, Ohio Ct. App. (Stark County Dec. 9, 2019).  There, both a trial and appeals court have ruled that a state’s waiver of its…

Third Circuit Declines to Reconsider Eminent Domain Case: Allows States to Block Pipelines

We have written about this before. Both the Third Circuit Court of Appeals and the District Court of Maryland (in the Fourth Circuit) have ruled that Congress can convey to FERC-approved energy projects the right to condemn property, but have also held that the right does not extend to state-owned property. See Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by…

Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by Pipeline Developers in Federal Courts

In recent months, two courts—a federal district court in Maryland and the U.S. Court of Appeals for the Third Circuit (encompassing Pennsylvania, New Jersey, and Delaware) have ruled that states enjoy “sovereign immunity” to lawsuits by pipeline developers to condemn state-owned lands. See In re PennEast Pipeline Company, LLC, Nos. 19-1191 to -1232 (3d Cir. Sept. 10, 2019) & Columbia Gas…

No Uranium Mining in Virginia; Supreme Court Finds Mining Prohibition within State’s Power

Observant readers may remember that a year ago, the U.S. Supreme Court agreed to hear a mining case, a somewhat rare event for the Court. The case examined whether the Commonwealth of Virginia interfered with an area of law preempted by Congress under the Atomic Energy Act of 1954 (AEA) when it enacted a 1981 moratorium to prohibit uranium mining. In an unusual three-way decision issued on June…

Sierra Club Targets Multiple Companies Under Clean Water Act

The Sierra Club and four other non-governmental organizations (NGOs) announced on June 4, 2019 that they are sending Notices of Intent to Sue (NOIs) nine companies in West Virginia and Pennsylvania in federal court for alleged violations of the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA).  The notices allege that a total of fifteen facilities owned by the…

Violating the Constitution in the Name of the Environment

The Fifth Amendment to the United States Constitution provides that no private property shall be taken for public use, without “just compensation.”  West Virginia’s Constitution contains a similar prohibition.

But the West Virginia Department of Transportation (WVDOT) has felt compelled to violate this most basic right.  And, strangely, it has used environmental laws to do so.

The Background…

The Green New Deal Meets Physics

A new report by the Manhattan Institute explains that while greater efficiencies can be gained by electric generators using solar or wind energy, technology will soon bump up against hard stops in those efforts.  See The “New Energy Economy”: An Exercise in Magical Thinking (March 26, 2019).  https://www.manhattan-institute.org/energy-environment  For example, the so-called Betz limit will prevent…

House Delegates Introduce Environmental Constitutional Amendment

          On February 11, 2019, 32 Democratic Delegates cosponsored House Joint Resolution 25, dubbed the “Environmental Rights Amendment.”  The resolution proposes to amend the West Virginia constitution’s Bill of Rights by including a provision specifying that a clean environment is a constitutional right:

 

ARTICLE III. BILL OF RIGHTS.

§23. Natural Resources and the Public Estate.

The people have a right to…

 

© 2021 Jackson Kelly PLLC. All Rights Reserved.