Yesterday, the Pennsylvania Environmental Hearing Board issued an important decision that provides guidance on how to apply Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) in the context of a permitting decision in light of the Pa. Supreme Court’s recent decision in Pa. Environmental Defense Found. v. Commonwealth, No. 10 MAP 2015 (Pa. June 20, 2017) (“PEDF”).  See Center for Coalfield Justice v. DEP, EHB Docket No. 2014-072-B (Adjudication issued Aug. 15, 2017).   Read More »

Share | Email| Comments|  Topics: Act 13, Administrative Appeals, Administrative Hearing, Clean Streams Law, EHB, Environmental Rights Amendment, Hearing Board, Mineral Rights, Pennsylvania Department of Environmental Protection, Permits, Water

Is a leaking pipeline indicative of an operator’s failed attempt to consider all relevant risk factors when the pipeline has had leaks in the past? In the context of pipeline integrity management regulations, the Court of Appeals of the Fifth Circuit said no.  On August 14, 2017, the Court vacated, in part, a final order issued by the Pipeline Hazardous Materials Safety Administration (“PHMSA”) to ExxonMobil Pipeline Company (“ExxonMobil”), which found that ExxonMobil failed to properly consider the susceptibility of certain portions of its Pegasus Pipeline to seam failure and assessed a civil penalty of $2.6 million.  The opinion in ExxonMobil Pipeline Company v. United States DOT determined that, despite an oil leak from its Pegasus Pipeline, ExxonMobil was not in violation of PHMSA regulations requiring it to consider all risk factors that reflected the risk conditions on a certain pipeline segment because ExxonMobil “carefully [underwent] an informed decision-making process in good faith, reasonably taking into account all relevant risk factors in reaching a decision” that the pipeline was not at risk of seam failure.  2017 U.S. App. LEXIS 15144 (Aug. 14, 2017). Read More »

Share | Email| Comments|  Topics: Civil Penalties, Drilling, Energy, Fifth Circuit, Oil and Gas, PHMSA, Pipeline Hazardous Materials Safety Administration, Pipelines

On July 19, 2017, the Tenth Circuit Court of Appeals held that the United States, as the title owner of a former mine, was a Potentially Responsible Party (PRP) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), despite the fact that it did not have a possessory interest in the property at the time of the disposal of hazardous substances.  The opinion in Chevron Mining Inc. v. United States, No. 15-2209, 2017 U.S. App. LEXIS 12959, at *1 (10th Cir. July 19, 2017) thus appears to put to rest a defense often asserted, primarily by governmental entities, that “bare legal title” is insufficient for CERCLA liability to attach and instead that some other and additional “indicia of ownership” is required. Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Cleanup, Contamination, Contribution, Exploration, Mineral Rights, Public Lands, Remediation, Superfund, Tenth Circuit

Earlier this month, the Superior Court of Pennsylvania issued a decision that has broad implications for the manner in which Pennsylvania lawyers and their clients communicate with outside consultants, including environmental consultants. In BouSamra v. Excela Health, No. 1637 WDA 2015, 2017 PA Super 235 (July 19, 2017), the Superior Court held that a company waived the attorney-client privilege when it forwarded an email containing legal advice to one of its consultants, a public relations firm. The decision calls into question whether outside consultants should be involved in privileged legal discussions unless the consultant is actively involved in facilitating legal advice from counsel to client. Read More »

Share | Email| Comments|  Topics: Discovery, Privilege

Love Canal – the infamous neighborhood in Niagara Falls, New York where large quantities of chemical waste was dumped, and which became the catalyst for enactment of the federal Superfund program – is still generating legal opinions, nearly 40 years after President Jimmy Carter declared a federal health emergency and Love Canal became the first Superfund site.  Read More »

Share | Email| Comments|  Topics: Contamination, Damages, Defense Costs, Indemnification, Insurance, Insurance Coverage, Medical Monitoring, Negligence, New York, Remediation, Second Circuit, Superfund, Toxic Torts

UPDATE: 

This past Thursday, the U.S. Court of Appeals for the District of Columbia Circuit delayed for two weeks its mandate which required the U.S. Environmental Protection Agency to lift its 90-day stay on portions of its methane rule for new oil and gas infrastructure.  The Court issued the mandate after determining that the EPA lacked authority under the Clean Air Act to issue the stay on the Obama-era regulations as further discussed in the original blog post below.  The order delaying the mandate indicates that the Court is providing EPA with time to “determine whether to seek panel rehearing, rehearing en banc, or pursue other relief” with respect to the mandate.  Thus, the methane rule is again on hold for the next several weeks while EPA decides whether and how to challenge the Court’s lifting of the 90-day stay.     

ORIGINAL POST:

Last week, the U.S. Court of Appeals for the District of Columbia Circuit struck down a 90-day stay imposed by the U.S. Environmental Protection Agency on portions of its methane rule for new oil and gas infrastructure, finding the agency lacked authority under the Clean Air Act to issue the stay. Clean Air Council v. Pruitt, No. 17-1145 (D.C. Cir. July 3, 2017).  The methane rule, which establishes “New Source Performance Standards” for fugitive emissions of methane and other pollutants by the oil and natural gas industries, was finalized in June 2016 by the Obama administration.  Notably, the Court’s 2-1 decision puts back into effect the June 3, 2017 deadline for regulated entities to conduct an initial monitoring survey to identify leaks from equipment. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, D.C. Circuit, Emissions, EPA, Procedure, Rulemaking

This Post was authored by Christopher Rodrigues, a MGKF summer associate.

In a unanimous decision penned by Circuit Judge Kavanaugh, the United States Court of Appeals for the D.C. Circuit affirmed a lower court decision holding that the EPA properly withheld information from its response to several environmental groups' Freedom of Information Act (“FOIA”) requests. Envtl. Integrity Project v. EPA, No. 16-5109, 2017 U.S. App. LEXIS 9332, at *4 (D.C. Cir. May 30, 2017).  The court held that Section 308 of the Clean Water Act (“CWA”) does not supersede Exemption 4 of FOIA. Id.  In relevant part, Section 308 of the CWA states that effluent data shall be made available to the public, unless releasing the information would divulge trade secrets.  33 U.S.C. § 1318(b) (1987).  Exemption 4 under FOIA, however, allows the government to withhold information that would reveal a company’s trade secrets or commercial or financial information.  5 U.S.C. § 552(b)(4) (2016).  Thus, the inconsistent exemptions have created tension in the lower courts that the D.C. Circuit has attempted to alleviate for future decisions in Environmental Integrity. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, D.C. Circuit, Effluents, FOIA, Rulemaking

On June 7, 2017, the Commonwealth Court upheld a zoning ordinance allowing oil and gas drilling in mixed use agricultural and residential areas of a Butler County municipality because the pre-existing zoning code had already allowed construction of what the Court found were substantially similar public utility structures. 

The issues in Delaware Riverkeeper et al. v. Middlesex Township Zoning Hearing Board v. R.E. Gas Development LLC et al., 1229 CD 2015, 1323 CD 2015, 2609 CD 2015, arose out of Middlesex Township’s Ordinance 127, enacted in 2014, which sought to add a “oil and gas well site development” use within a Residential-Agricultural (“R-AG”) District. Environmental groups, the Clean Air Council and the Delaware Riverkeeper Network, appealed the Middlesex Township Zoning Hearing Board’s enactment of the ordinance, upheld by the Butler County Court of Common Pleas, which found in part that the added language was a permissible extension of the already existing zoning provisions. Read More »

Share | Email| Comments|  Topics: Act 13, Drilling, Energy, Exploration, Legislation, Marcellus Shale, Mineral Rights, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Real Estate, Zoning

In a 2-1 decision last week, the Michigan Court of Appeals declined to dismiss a lawsuit against Dow Chemical in connection with dioxin contamination in the soils of the Tittabawassee River flood plain. Henry v. Dow Chemical Co., LC No. 03-047775-NZ (Mich. Ct. App. June 1, 2017).  Affirming the lower court’s denial of Dow’s motion for summary disposition, the Court of Appeals rejected the argument that the plaintiffs’ claims for negligence and nuisance were barred by the applicable statute of limitations even though the public was made aware of potential dioxin contamination in the river from Dow’s operations as early as 1984.  The Court’s analysis, which was accompanied by a dissenting opinion, turned on the fact that Dow failed to support its motion with evidence that the floodplain soils on the plaintiffs’ property were contaminated as far back as the 1980s.  Read More »

Share | Email| Comments|  Topics: Cases to Watch, Causation, Contamination, Damages, Discovery, Discovery Rule, Michigan, Negligence, Nuisance, Real Estate, Residential, Sediment Sites, Statute of Limitations, Toxic Torts

The Pennsylvania Environmental Hearing Board (the “Board”) recently stirred up some controversy. Last month, in Lancaster Against Pipelines v. DEP, EHB Docket No. 2016-075-L (May 10, 2017), the Board held that it has jurisdiction to review actions taken by the Pennsylvania Department of Environmental Protection (“PADEP”) involving interstate natural gas pipelines, despite a 2013 decision issued by the U.S. District Court for the Middle District of Pennsylvania that held precisely the opposite. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Water Act, Due Process, EHB, Energy, Federal Procedure, Hearing Board, Natural Gas Act, NPDES, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Procedure, Subject Matter Jurisdiction, Third Circuit, Water