This Post was authored by Andrew LeDonne, a MGKF summer associate. 

On June 11, 2019 the Commonwealth Court of Pennsylvania upheld a decision by the Pennsylvania Environmental Hearing Board (“EHB”) denying the Sierra Club’s application for fees and costs under section 307(b) of the Clean Streams Law. Sierra Club v. Dep't of Envtl. Prot., 2019 WL 2426771 (Pa. Commw. Ct. 2019).

On September 1, 2016, the EHB consolidated two third-party appeals filed by the Sierra Club to challenge an National Pollution Discharge Elimination System (“NPDES) permit and a Water Quality Management (“WQM”) permit issued by the Pennsylvania Department of Environmental Protection (“DEP”) to Lackawanna Energy Center, LLC (“LEC”). In April 2017, LEC redesigned its powerplant to reduce the amount of industrial wastewater generated by the facility such that the waste could be transported by truck off-site for treatment.  DEP issued a permit modification to LEC because, as a result of the changes to its planned facility, LEC no longer required either the WQM permit or the industrial wastewater discharge portion of its NPDES permit. In light of these changes, all parties moved to dismiss Sierra Club’s appeal. After the EHB dismissed the appeal, Sierra Club petitioned for attorneys’ fees and litigation costs from DEP under section 307(b) of the Clean Steams Law, which the EHB denied after holding an evidentiary hearing on the fee petition. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Streams Law, Commonwealth Court, Fees, Hearing Board, NPDES

Two recent decisions from two different states, Pennsylvania and West Virginia, suggest that courts are becoming increasingly skeptical of landowners seeking to capitalize on oil and gas companies utilizing horizontal directional drilling (HDD) to access resources under the property of the landowners. Read More »

Share | Email| Comments|  Topics: Damages, Deeds, Drilling, Energy, Exploration, Leases, Marcellus Shale, Mineral Rights, Natural Gas, Nuisance, Oil and Gas, Pennsylvania, Property Damage, Property Value, Real Estate, Royalties, West Virginia

In a back and forth battle with the United States District Court for the Northern District of Arizona regarding the scope of judicial power under RCRA, the Ninth Circuit last week reopened three interest groups’ citizen suit claims against the U.S. Forest Service. In Ctr. for Biological Diversity v. U.S. Forest Serv., No. 17-15790, 2019 WL 2293425 (9^th Cir. May 30, 2019), the plaintiffs allege that the use of lead ammunition creates an imminent and substantial endangerment to human health and the environment in the Kaibab National Forest, which borders Grand Canyon National Park in northern Arizona. Reversing the district court, the Ninth Circuit held that the controversy is justiciable because it would allow the district court to issue meaningful injunctive relief and not merely an advisory opinion. Read More »

Share | Email| Comments|  Topics: Arizona, Citizen Suit, Endangered Species Act, Forest Service, Injunction, Ninth Circuit, Public Lands, RCRA