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Energy and Environment Monitor

Environmental Litigation

Supreme Court Takes Away EPA’s Toys

Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’ [b]ut it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d) [of the Clean Air Act].

- West Virginia v. EPA, 597 U.S. __ (June 30, 2022).

Thus, a…

Fourth Circuit Vacates but does not Reverse District Court Decision Barring Columbia’s Use of Natural Gas Act Eminent Domain Against Commonwealth of Maryland

The Natural Gas Act gives FERC-regulated projects the right to condemn private property.  In 2019, the Third Circuit ruled that those rights did not extend to property held by a state because states enjoy sovereign immunity from such suits.  The federal district court in Maryland followed suit, blocking efforts by Columbia Gas to install a short transmission line under a state-owned bike trail…

Supreme Court Hears Argument on Scope of EPA’s Authority Over Power Plant Emissions

Introduction

On Monday, February 28, 2022, the Supreme Court heard a challenge to EPA’s authority to regulate CO2 emissions from coal-fired power plants.  The challenge was spearheaded by West Virginia’s Attorney General and his Solicitor General.  If the Court rules on the merits, it will determine whether EPA’s authority to limit CO2 emissions from coal-fired power plants is limited to regulating…

Federal Court Denies WVDEP's Motion to Dismiss Claim that State Failed to Notify OSM of a "Significant Event" in the State's SMCRA Bonding Program: OVEC v. WVDEP (SDWV)

Earlier this year, OVEC and other anti-mining groups sued the WVDEP, claiming the agency had failed to provide notice to OSM that the State’s surface mining reclamation program had suffered “a significant change in funding or budgeting.”  The WVDEP moved to dismiss the Complaint claiming that: 1) the plaintiffs lacked standing because there had been no failure of the bonding system; 2) plaintiffs…

Anti Mining Group Urges Fourth Circuit to Override Clean Water Act Permit Shield

          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 Crayfish

 

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” Ruling

      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 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…

West Virginia Supreme Court Slams Class Certification Order from Trial Court Judge Who Stood to Benefit from the Class Action

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?

       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 End

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?

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…

 

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