Reversing the Fourth Circuit, the Supreme Court on Monday issued its opinion in United States Forest Service v. Cowpasture River Preservation Association, No. 18-1584 (June 15, 2020). In a 7-2 decision, Justice Thomas wrote for the majority that the Appalachian National Scenic Trail’s passage through United States National Forest land is best viewed as a grant of an easement to the National Park Service rather than a transfer of ownership of the underlying land. In doing so, the Court upheld the Forest Service’s right to permit a pipeline to run beneath the Trail under the Mineral Leasing Act (MLA). Read More »

Share | Email| Comments|  Topics: Federal Energy Regulatory Commission, FERC, Forest Service, Fourth Circuit, Interior, Mineral Leasing Act, National Forest Management Act, NEPA, Oil and Gas, Permits, Pipelines, Public Lands, Supreme Court, United States Supreme Court

The adage “you can’t put the toothpaste back in the tube” has manifested itself in two recent federal court decisions. Under separate theories, both the Second Circuit and the District Court of the District of Columbia have issued decisions that highlight the difficulty environmental groups faced in challenging energy infrastructure projects that have been completed during the course of litigation. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Procedures Act, Army Corps, Citizen Suit, D.C. Circuit, Energy, Marcellus Shale, NEPA, New York, NPDES, Oil and Gas, Pipelines, Second Circuit

Quoting a Dr. Seuss book, the United States Court of Appeals for the Fourth Circuit on Thursday issued its opinion in Cowpasture River Preservation Association v. United States Forest Service, No. 18-1144 (4^th Cir. Dec. 13, 2018). The Court held that the US Forest Service (the “Forest Service”) violated the National Forest Management Act (“NFMA”) and the National Environmental Policy Act (“NEPA”), as well as lacked statutory authority under the Mineral Leasing Act (“MLA”) to grant a pipeline right of way across the Appalachian National Scenic Trail (the “Appalachian Trail”), failing to “speak for the trees” as Seuss’s Lorax directs. Read More »

Share | Email| Comments|  Topics: Energy, Federal Energy Regulatory Commission, FERC, Fourth Circuit, Mineral Leasing Act, National Forest Management Act, Natural Gas, NEPA, Pipelines

The Delaware River Basin Commission (“DRBC”) was created with the approval of Congress in 1961 through the Delaware River Basin Compact, an agreement between the New York, Pennsylvania, New Jersey, Delaware, and the federal government for planning, conservation, utilization, development, management and control of the water resources of the Delaware River Basin (the “Basin”).  In June, 2010, the DRBC placed  a moratorium on natural gas development in the Basin, which includes areas within the Marcellus Shale formation, pending the adoption of regulations governing such development.  Draft regulations were published for comment in 2010, and revised draft regulations were published in November, 2011.  However, they have not yet been adopted by the DRBC, leaving the moratorium in place. Read More »

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