Energy and Environment MonitorEnvironmental LitigationThe 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… Challenges continue to Trump directive prohibiting EPA grant recipients from participation in EPA advisory committeesAugust 7, 2019 In October 2017, the Trump EPA issued a Directive prohibiting anyone who receives EPA grants from sitting on an EPA Science Advisory Board (“SAB”) or similar science advisory committees formed under the Federal Advisory Committee Act. The Directive was immediately challenged by advocacy groups which had long succeeded in placing sympathizers, many from academic communities and non-profits that… No Uranium Mining in Virginia; Supreme Court Finds Mining Prohibition within State’s PowerJuly 2, 2019 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… U.S. Supreme Court Removes One Hurdle in Takings Cases Against State and Local GovernmentsJune 27, 2019 Rose Mary Knick owns 90 acres outside Scranton, Pennsylvania. Her property includes a residence, pasture and a small graveyard where the ancestors of neighbors are supposedly buried. Her Township adopted an ordinance, that broadly defined cemeteries to include the graveyard and that required her to keep it “open and accessible to the general public during daylight hours.” After a Township “Code… The Administrative State CrumblesJune 17, 2019 The EPA issued a new guidance document on June 7th instructing other federal agencies and the states how they should interpret and implement §401 of the Clean Water Act (“CWA”). Individually, it is a modest step taken to fulfill an executive order issued earlier this year and will be followed by a new rule updated existing EPA’s §401 regulations. Viewed in context, it is another brick removed… Sierra Club Targets Multiple Companies Under Clean Water ActJune 4, 2019 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 EnvironmentJune 3, 2019 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… Our Long National Nightmare is Over (and We Can Finally Mine Some Coal)May 19, 2019 “[O]ur long national nightmare is over.” [1] On May 15 the Sixth Circuit Court of Appeals decided that a partial owner of the surface may grant the right to mine the coal beneath the severed surface estate notwithstanding the objections of the remaining surface owners. The Court concluded that the right to mine was correctly determined as a matter of Kentucky property law, that the state agency’s… |
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