Jackson Kelly PLLC

Energy and Environment Monitor

Environmental Regulation

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…

The Superfund Excise Tax Is Returning Soon for the Chemical Industry.

Chemical companies need to prepare for the return of an excise tax on chemicals produced or imported that hasn’t been in effect for nearly 30 years.  In January 2022, the IRS published Notice 2021-66, related to the Infrastructure Investment and Jobs Act (“IIJA”), which revives the excise taxes imposed on certain chemicals—previously known as the Superfund Chemicals taxes.  See https://www.irs.gov/…

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…

Indiana Wetland Bill Signed Into Law

Indiana Governor Eric Holcomb signed into law Senate Enrolled Act 389, which dramatically alters Indiana’s regulatory approach to wetlands and other environmental issues. The bill faced strong opposition from environmental organizations, hunting groups, and other wildlife advocates. The full Senate Bill 389 can be found here.

Following SB 389, the state will no longer regulate Class I wetlands and…

Corps of Engineers Rejects Some State Certification Conditions on Nationwide § 404 Permits in WV and Ohio

In January, the Corps of Engineers reissued 12 existing Nationwide §404 permits (“NWPs”) and issued 4 new ones. As part of this effort, the Corps split NWP 12 (formerly for all utility lines) into three new NWPs: 12 (oil or natural gas pipelines); 57 (electric utility lines and telecommunications) and 58 (utility line activities for water and other substances). These 16 NWPs took effect on March…

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…

Federal Court in NY Vacates Solicitor Opinion Restricting Scope of Migratory Bird Treaty Act to Actions Directed at Birds

The Migratory Bird Treaty Act (MBTA) makes it a misdemeanor, “unless permitted by regulations” to “pursue, hunt, take, capture, [or] kill” migratory birds “by any means or in any manner.” 16 U.S.C. Section 703(a). For years, the Interior Department interpreted the Act as prohibiting so-called “incidental takes” - deaths of birds by activities undertaken for other purposes, such as construction of…

New Suit Claims WVDEP Failed to Inform OSM of Potential SRF Funding Shortfall

Three anti-mining organizations - Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and Sierra Club (collectively “Plaintiffs”) - sued the West Virginia Department of Environmental Protection (“WVDEP”) for failing to notify the federal Office of Surface Mining (“OSM”) of a significant change in funding or budgeting concerning WVDEP’s ability to manage its…

Montana Judge Maintains Injunction on NWP 12 for New Oil & Gas Pipelines

On April 15, 2020, a federal district court in the District of Montana vacated the U.S. Army Corps of Engineers’ Nationwide Permit 12 (“NWP 12”), which was issued in 2017 pursuant to Section 404 of the Clean Water Act and authorizes discharges of dredged or fill material associated with utility line activities. The Court also issued an injunction preventing the Corps from authorizing further use…

INJUNCTION ISSUED BY MONTANA COURT APPEARS TO PROHIBIT U.S. ARMY CORPS OF ENGINEERS FROM AUTHORIZING ANY UTILITY LINE ACTIVITIES UNDER NATIONWIDE PERMIT 12 UNTIL COMPLETION OF ENDANGERED SPECIES ACT REVIEW

In a case challenging the U.S. Army Corps of Engineers’ approval of the Keystone XL pipeline, a federal district court in Montana issued a sweeping injunction last week that, on its face, seems to prohibit the Corps from approving any activities under its Nationwide Permit 12 (“NWP 12”), which authorizes discharges of dredged or fill material associated with utility line activities, until it…

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…

West Virginia Enhances Penalties for Trespass and Damages to Critical Infrastructure

The West Virginia Legislature has adopted a West Virginia Critical Infrastructure Protection Act. See W. Va. Code §61-10-34 (copy available at https://legiscan.com/WV/text/HB4615/2020). The new Act establishes three categories of criminal actions concerning “critical infrastructure”.

  1. Trespass: It is a misdemeanor to “willfully and knowingly … enter[] property containing a critical infrastructure…

 

© 2023 Jackson Kelly PLLC. All Rights Reserved.