Energy and Environment MonitorEnvironmental EnforcementEPA Issues COVID-19 GuidanceMarch 27, 2020 On March 26, 2020, the United States Environmental Protection Agency (“EPA”) issued guidance on how the agency will address compliance and enforcement issues in light of COVID-19. In its guidance, EPA acknowledges that illnesses, travel bans and social distancing may cause shortages in staffing that impact monitoring or compliance. Accordingly, the EPA provides that it will, under specifically… Anti Mining Group Urges Fourth Circuit to Override Clean Water Act Permit ShieldFebruary 26, 2020 The plaintiffs in an important Clean Water Act (“CWA”) case filed their reply brief with the Fourth Circuit on January 28, 2020. We have previously written about the ruling in Southern Appalachian Mountain Stewards (“SAMS”) v. Red River Coal Company, here and here. The case is now on appeal before the Fourth Circuit from the District Court’s ruling, which gave broad effect to the Clean Water… U.S. Fish and Wildlife Service Proposes Critical Habitat for Two Central Appalachian CrayfishFebruary 18, 2020
BACKGROUND
In 2016, the U.S. Fish and Wildlife Service (“USFWS” or “Service”) listed the Guyandotte River crayfish as endangered and the Big Sandy crayfish as threatened. An explanation of those decisions and a map of their range in West Virginia, Kentucky and southwest Virginia may be viewed here. In 2018, the Center for Biological Diversity sued the USFWS to force the designation of critical… Anti Mining Group Appeals Adverse Clean Water Act “Permit Shield” RulingJanuary 8, 2020 In September, a federal district court in Virginia gave broad effect to the Clean Water Act “permit shield.” We have written before of the ruling in Southern Appalachian Mountain Stewards (SAMS) v. Red River Coal Company.[1] The court’s ruling was notable because it extended the “permit shield” to entire “outlets” not expressly controlled by the NPDES permit and not just to individual pollutants… Third Circuit Declines to Reconsider Eminent Domain Case: Allows States to Block PipelinesNovember 11, 2019 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… West Virginia Supreme Court Slams Class Certification Order from Trial Court Judge Who Stood to Benefit from the Class ActionNovember 7, 2019 The West Virginia Supreme Court has ruled that a Circuit Court judge should not have decided whether to “certify” a class action in which he was a potential class member. In addition, the Court has vacated the certification order of the Circuit Court as inadequately supported. See State ex rel. Municipal Water Works v Swope, No. 19-0404 (W.Va. Sup. Ct. Oct. 18, 2019).
In March 2019, a group of… Two Sets of Climate Books? Is New York’s Claim Against Exxon Mobil Heating Up or Just a Lot of Hot Air?November 5, 2019 The New York Attorney General (“NYAG”) has sued Exxon Mobil (“Exxon”) for fraud and misrepresentation to its investors under a New York securities law known as the Martin Act. The NYAG contends that Exxon represented to the public that it was accounting for “projected carbon costs in evaluating its ongoing investments” using one value ($80.00 per ton of CO2 emissions) but that internally (and… The Beginning of the EndOctober 30, 2019 The U.S. EPA and the Army Corps of Engineers published the repeal of the 2015 “Waters of the United States” (WOTUS) rule in the October 22 Federal Register. With this rulemaking, the agencies are restoring the 1986 rule that defined “waters of the United States” before the 2015 revision. The agencies’ announcement also marks the beginning of the end to one of the most contentious, protracted and… Reginald Comes to the Keystone State?October 9, 2019 By Executive Order No. 2019-07 issued on October 3, 2019, Pennsylvania Governor Wolf directed the PADEP to develop rules by July 31, 2020 for limiting CO2 emissions from “fossil-fuel-fired electric power generators.” The same Order mandated that the regulatory program establish a CO2 “budget consistent with that established in the RGGI (pronounced “Reggie”) participating states; provide for the… Court Rejects Claims that Valley Fill Discharges are Unpermitted Discharges: Relies on Broad Application of “Permit Shield”September 30, 2019 A federal court in Virginia has ruled in favor of a coal operator in a citizen suit filed under the Clean Water Act, the Surface Mining Act and RCRA. See Southern Appalachian Mountain Stewards (“SAMS”) v. Red River Coal Company, Inc., No. 2:17-cv-00028 (W.D. Va. Sept. 24, 2019). There, Red River has held a combined NPDES/SMCRA permit (“Permit”) since 1992 for a surface mining operation. As part… Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by Pipeline Developers in Federal CourtsSeptember 13, 2019 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… Southern District of West Virginia Rules That Permit Validity Cannot Form the Basis of a SMCRA Citizen SuitAugust 28, 2019 On August 12, 2019, a federal court in West Virginia ruled that plaintiffs cannot use SMCRA’s citizen suit provision to challenge the validity of a surface mining permit in a suit against the permittee. Order. The Plaintiffs, a group of anti-mining organizations, relied on what has come to be known as SMCRA’s “not started” provision, which provides for termination of permits where mining has not… |
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