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Energy and Environment Monitor

Oil and Gas Development

Ohio Appeals Court Rules that State §401 Waiver Divested it of All Enforcement Authority Over Rover Pipeline

     The State of Ohio has failed in its efforts to enforce water laws against a FERC-approved natural gas transmission line because the State waived its right to certify the facility under §401 of the Clean Water Act.  See State of Ohio ex rel. Yost v. Rover Pipeline, LLC, Ohio Ct. App. (Stark County Dec. 9, 2019).  There, both a trial and appeals court have ruled that a state’s waiver of its…

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…

Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by Pipeline Developers in Federal Courts

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…

House Delegates Introduce Environmental Constitutional Amendment

          On February 11, 2019, 32 Democratic Delegates cosponsored House Joint Resolution 25, dubbed the “Environmental Rights Amendment.”  The resolution proposes to amend the West Virginia constitution’s Bill of Rights by including a provision specifying that a clean environment is a constitutional right:

 

ARTICLE III. BILL OF RIGHTS.

§23. Natural Resources and the Public Estate.

The people have a right to…

Federal Court Rules that a West Virginia County Cannot Deny a Request to Re-Zone Property to Allow for Construction of a Natural Gas Compressor Station

          A federal district court in West Virginia ruled on Wednesday that Fayette County’s zoning code is preempted by the Natural Gas Act as it applies to Mountain Valley Pipeline’s FERC-approved activities in connection with a compressor station to be constructed in that county. See Mountain Valley Pipeline, LLC v. Wender, et al., No. 2:17-cv-4377 (S.D.W.Va. Aug. 29, 2018), ECF No. 34. MVP obtained a…

"Strangled by Process"

          The U.S. Court of Appeals for the Fourth Circuit decided a case involving the Mineral Leasing Act of 1920 (MLA), an event sufficiently unusual that it merited a reading of the case. The MLA is the federal statute that governs the leasing of federal minerals, normally coal and oil and gas, on the public lands that the Bureau of Land Management (BLM) administers, primarily in the Western U.S. The…

Federal Courts on both Coasts Reject Cities' Efforts to Hold Oil Industry Responsible for Damages Caused by Climate Change

"The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case." Judge William Alsup

          Last week, on July 19, 2018, the U.S. District Court for the Southern District of New York (Judge John F. Keenan) dismissed the City of New York’s action against BP, Chevron, Conoco-Phillips, Exxon Mobile and Royal Dutch Shell seeking to recover…

Oil & Gas Development Wins Significant Case in Third Circuit

   The U.S. Court of Appeals for the Third Circuit has just given oil and gas development in northeastern Pennsylvania a new boost with a decision issued on July 3.  It reversed a district court’s decision that the Delaware River Basin Commission may bar oil and gas drilling and the associated hydraulic fracturing within the Delaware River watershed under the guise of regulating a “project” that may…

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…

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…

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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