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Energy and Environment Monitor

Environmental Litigation

WVDEP Moves to Dismiss Gas Producer Lawsuit Claiming "Flat Rate Statute" is Unconstitutional

We have previously written about a gas producer’s suit against WVDEP claiming that West Virginia’s “Flat Rate Statute” unconstitutionally impairs flat rate gas leases. In a flat rate lease, the producer pays a regular, often annual fee to the mineral owner rather than paying a royalty based on the amount of oil and gas that is produced. The history of flat rate leases in West Virginia is…

"As We Know, Elections Have Consequences........"

          From the U.S. District Court in Washington comes a lengthy opinion that rejects a challenge from three conservation organizations to a determination of the Army Corps of Engineers to issue a Finding of No Significant Impacts (FONSI) and a decision not to prepare an environmental impact statement. The court’s opinion is a carefully expressed analysis of why the Corps’ decision complied with NEPA…

"Generator Improvements Rule" Becomes Effective June 1, 2018 in West Virginia

     In 2016, EPA amended the requirements applicable to hazardous waste generators by promulgating the “Generator Improvements Rule.”  See https://www.epa.gov/hwgenerators/final-rule-hazardous-waste-generator-improvementsThose requirements become effective in West Virginia on June 1,, 2018.

 

Background

 

     The rules for hazardous waste generators were largely written in the 1980s.  In 2004, EPA…

Fourth Circuit Holds Groundwater Connection to Navigable Waters Triggers CWA Coverage

“[T]he fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past.”  Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, Slip Op. at 18) (4th Cir. April 12, 2018)

            The Clean Water Act prohibits unpermitted “discharges” from a “point source” to a “navigable water.” 33 U.S.C. § 1311(a).  Although the definition of what constitutes…

PA Supreme Court Rejects PADEP’s Theory of Limitless Civil Penalties for “Continuing Violation” of Clean Streams Law

We have previously written about a declaratory judgment action filed by a natural gas producer against the Pennsylvania Department of Environmental Protection (“PADEP”) challenging the agency’s interpretation of Pennsylvania’s Clean Streams Law. In that proceeding, the gas producer sought pre-enforcement judicial review of PADEP’s legal interpretation of what constitutes a “continuing violation”…

Supreme Court's Answer to Certified Questions Preserves Right to Longwall Mine in West Virginia

The West Virginia Supreme Court recently issued a decision upholding the ability of mine operators to rely on severance deed waivers for the right to subside the surface without liability for common law claims and clarifying that mere subsidence damage is not, itself, a violation of the West Virginia Surface Coal Mining and Reclamation Act.

The Court was compelled to reaffirm seemingly…

Supreme Court's Answer to Certified Questions Preserves Right to Longwall Mine in West Virginia

The West Virginia Supreme Court recently issued a decision upholding the ability of mine operators to rely on severance deed waivers for the right to subside the surface without liability for common law claims and clarifying that mere subsidence damage is not, itself, a violation of the West Virginia Surface Coal Mining and Reclamation Act.

The Court was compelled to reaffirm seemingly…

Bill Aimed at Eliminating “Chevron Deference” Passes Arizona Senate

    Last week the Arizona State Senate passed a bill that would amend that state’s administrative procedure law to kill its version of the “Chevron” doctrine, which requires courts to defer to an agency’s reasonable interpretation of statutes within its purview.

    The doctrine originates from the landmark 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, which set…

West Virginia Supreme Court Dissolves Water Replacement Obligation of Mine Operator

By Order dated April 5, 2018, the West Virginia Supreme Court issued its second ruling in the past six months exploring the duties imposed by the West Virginia Surface Coal Mining and Reclamation Act (“WV SCMRA”) upon coal mine operators. See Belcher v. Dynamic Energy, Inc..  WV SCMRA requires mine operators to “replace” water supplies of property owners who use the water for domestic,…

West Virginia Supreme Court Emphasizes Importance of DEP’s Role in SMCRA Citizen Suits

On October 5, 2017, the West Virginia Supreme Court ruled that the Wyoming County Circuit Court impermissibly substituted its own judgment for that of the West Virginia Department of Environmental Protection (“DEP”) regarding alleged mining-related contamination of residential water supplies. The Supreme Court’s order raises a number of questions regarding the extent to which citizens may pursue…

Trump’s EPA Proposes to Roll Back Clean Power Plan

The Obama EPA finalized two rules in 2015 that comprised the Clean Power Plan (“CPP”). One established CO2 emission standards for new, modified and reconstructed power plans under Section 111(b) of the Clean Air Act.  The second, and far more controversial, established CO2 emission “guidelines” under CAA §111(d) to be used by states in regulating existing power plants.    As we have noted before, the…

FERC Sidesteps New York’s Denial of CWA §401 Certification Giving Go-Ahead to Millennium Pipeline Company Spur

 

For any company desiring to construct a natural gas pipeline, all roads lead to FERC.” Millennium Pipeline Company, L.L.C. v. Seggos, 860 F.3d 696, 698 (D.C. Cir. 2017).

In a significant and already controversial decision issued in mid-September, the Federal Energy Regulatory Commission (“FERC”) granted approval for Millennium Pipeline Company L.L.C. (“Millennium”)…

 

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