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Showing 35 posts in Marcellus Shale.

Last month in a 2-1 split, the Third Circuit held that state, not federal, law determined how much a landowner was entitled to as just compensation in condemnation proceedings brought by private entities under the Natural Gas Act of 1938. Tennessee Gas Pipeline Co., LLC v. Permanent Easement for 7.053 Acres, No. 17-3700 (3d Cir. July 23, 2019). The precedential decision will force natural gas companies to account for differences in state law in negotiations with landowners over what constitutes “just compensation” for a taking.   Read More »

On Monday, July 29, 2019, a seven-judge panel of the Pennsylvania Commonwealth Court, in Pa. Envtl. Defense Found. v. Commonwealth, No. 228 M.D. 2012 (Pa. Cmwlth. Dec. 12, 2018) (“PEDF III”), held that two-thirds of rental payments and up-front bonuses received by the Commonwealth as proceeds from oil and gas leases on state forest and park lands must be reserved for conservation purposes under Article I, Section 27 of the Pennsylvania Constitution, also called the Environmental Rights Amendment (“ERA”). Read More »

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 »

In Kerns v. Chesapeake Exploration, LLC, No. 18-3636 (6th Cir. Feb. 4, 2019), released on Monday, February 4, the Sixth Circuit Court of Appeals held that a pipeline’s use of Ohio’s forced pooling law is not a taking under the Fourteenth Amendment. This decision, although not recommended for full text publication, is significant as more states enact and/or expand the scope of such laws, and may influence a similar suit brought in Colorado, within the Tenth Circuit, challenging the constitutionality of Colorado’s forced pooling regulations.  Read More »

In the latest development in parallel cases captioned EQT Prod. Co. v. Department of Environmental Protection which have been moving through Pennsylvania state courts and the Environmental Hearing Board ("EHB") since early 2014, the Commonwealth Court of Pennsylvania affirmed the EHB’s assessment of penalties totaling $1,137,295.76 against the hydraulic fracturing company, EQT Production Company (“EQT”), for contamination to groundwater arising from a leaking wastewater impoundment. EQT Prod. Co. v. Dep’t of Envtl. Prot., No. 844 C.D. 2017, 2018 WL 4289310 (Pa. Commw. Ct. Sept. 10, 2018). Specifically, on September 10, 2018, the Commonwealth Court held that the EHB did not commit an error of law when it held that, under Clean Streams Law (“CSL”), penalties could be assessed for every day that contamination entered the groundwater from soils “through fundamental hydrologic principles,” even if the initial spill event had ceased and there was no direct evidence of daily transmission of contamination from soil to groundwater. Read More »

On September 4, 2018, the U.S. Court of Appeals for the Third Circuit determined that the Third Circuit, and not the Pennsylvania Environmental Hearing Board (“EHB”), has jurisdiction to review Water Quality Certifications issued by the Pennsylvania Department of Environmental Protection (“DEP”) for interstate natural gas projects governed by the Natural Gas Act. See Del. Riverkeeper Network, et al. v. Dep’t of Envtl. Prot., No. 16-221, 2018 WL 4201626 (3d Cir. Sept. 4, 2018). The Third Circuit also held that DEP does not violate Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) by issuing a Water Quality Certification that is conditioned on obtaining substantive permits. Read More »

On August 3, 2018, the Pennsylvania Supreme Court granted the petition for allowance of appeal filed by certain environmental groups challenging the Commonwealth Court’s decision to uphold a municipal ordinance allowing natural gas drilling in a mixed residential and agricultural (“R-AG”) zone.  See Delaware Riverkeeper Network, et al., v. Middlesex Township Zoning Hearing Board, No. 270 WAL 2017.  In doing so, the Supreme Court vacated and remanded the lower court’s June 2, 2017 decision, finding that it had relied on a now-overruled environmental balancing test to decide that the municipal ordinance passed muster under Section I, Article 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment (“ERA”).  Specifically, the Supreme Court directed the lower court to reconsider its decision in light of the Court’s more recent decisions in Pa. Envtl. Def. Fund. v. Commonwealth, 161 A.3d 911 (Pa. 2017), and Gorsline v. Bd. of Sup. of Fairfield Twp., --- A.3d---, 2018 WL 2448803 (Pa. 2018). The Supreme Court also directed the lower court consider the amendments contained in Middlesex Township’s Ordinance 127, which now expressly included gas well development in the R-AG zones. Read More »

Since 2009, the Delaware River Basin Commission (“DRBC”) has effectively placed a moratorium on fracking activity within the Delaware River Basin (the “Basin”), premised on its assertion that any such activity is a “project” over which the DRBC has authority. But in Wayne Land & Mineral Group LLC v. Del. River Basin Comm’n, No. 17-1800, 2018 WL 3233784 (July 3, 2018), the Third Circuit, overturning a Pennsylvania District Court decision, has held that Delaware River Basin Compact’s (the “Compact”) definition of “project” is ambiguous, and that the DRBC may be without authority over fracking. The Third Circuit’s decision creates uncertainty regarding the scope of the DRBC’s authority and the future of fracking and other land use activities in the Basin. Read More »

Earlier this month, the Pennsylvania Supreme Court affirmed in part and reversed in part a preliminary injunction issued by the Pennsylvania Commonwealth Court with respect to newly promulgated regulations regarding unconventional well drilling. Marcellus Shale Coal. v. Dep't of Envtl. Prot. of Commonwealth, 115 MAP 2016, 2018 WL 2452607 (June 1, 2018). In the decision, the Court rejected the argument that courts should defer to a regulatory agency when deciding a preliminary injunction with respect to the agency’s authority to issue regulations, and also shed light on how it interprets allegations of vagueness and conflict in agency regulations. The majority opinion was authored by Chief Justice Saylor and was joined in full by all the associate justices except for Justice Donohue, who authored a concurring and dissenting opinion. Justice Donohue’s opinion, perhaps most notably, voices her disagreement with the Commonwealth Court’s interpretation of Article 1, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment. Read More »

On June 1, 2018, the Pennsylvania Supreme Court, in a 4-3 decision, held that a municipality was required to amend its zoning ordinance before it could allow natural gas operations in a residential-agricultural zoning district. Gorsline v. Bd. of Sup. of Fairfield Twp., et al., No. 67 MAP 2016, 2018 WL 2448803 (June 1, 2018).  Specifically, the Court ruled that the Fairfield Township Board of Supervisors improperly found that the drilling and operation of a natural gas well in a Residential-Agricultural (“R-A”) district was “similar to” other uses in the R-A district.  Although the Township’s zoning ordinance did not specifically allow drilling, the zoning ordinance provided that when a use is not specifically permitted by the zoning ordinance, the Supervisors may permit the use if, among other things, it is “similar to and compatible with the other uses permitted in the zone where the subject property is located.”  The Supervisors found that Inflection Energy, LLC’s proposed gas drilling was “similar to” other uses in the R-A district.  The Commonwealth Court upheld the Supervisors’ decision, finding that the gas drilling was similar to and compatible with a “public service facility,” which is a conditional use in the R-A district, and which is defined as the “erection, construction, alteration, operation or maintenance of buildings, power plants or substations, water treatment plants or pumping stations; sewage disposal or pumping plants and other similar public service structures by a utility, whether publicly or privately owned, or by a municipal or other governmental agency, including the furnishing of electrical, gas, communication, water supply and sewage disposal services.”   Read More »