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Showing 48 posts in Oil and Gas.

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 »

On Tuesday, the Pennsylvania Supreme Court issued an order refusing to hear an appeal of the Commonwealth Court’s holding that municipalities lack the authority to regulate in the areas of environmental protection reserved to the Pennsylvania Department of Environmental Protection. Frederick v. Allegheny Twp. Zoning Hearing Bd., 196 A.3d 677 (Pa. Cmwlth. 2018).  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 »

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 »

Last Thursday, the Fourth Circuit Court of Appeals held that environmental groups could bring a citizen suit under the Clean Water Act (“CWA”) against the owner of a ruptured gasoline pipeline where the pipeline had been repaired but the spilled gasoline allegedly continued to travel through groundwater and into nearby surface waters regulated by the CWA as “navigable waters.” Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018). In doing so, the Court weighed in on an issue that was of first impression to the Fourth Circuit and has significant implications for CWA liability – whether the discharge of a pollutant that moves through ground water before reaching navigable waters may constitute a discharge of a pollutant pursuant to the CWA. The Court also resolved the preliminary jurisdictional issue by finding that the plaintiffs had adequately alleged an “ongoing violation” as necessary to allege a CWA violation in the district court.   Read More »

Last week, the Pennsylvania Supreme Court issued its highly anticipated opinion in EQT Prod. Co. v. Dep’t of Envtl. Prot., No. 6 MAP 2017, 2018 WL 1516385, (Pa. Mar. 28, 2018), holding that the Clean Streams Law (“CSL”) does not authorize the Department of Environmental Protection (“DEP”) to impose daily penalties for the ongoing, continuing presence of pollutants in waters of the Commonwealth. In the 5-to-2 decision, which affirmed in part the Commonwealth Court’s preceding opinion, the Court ruled that to construe the language of the CSL as allowing penalties for the movement of pollutants from one water body to another (DEP’s “water-to-water” theory) was not only unsupported by the statutory language, but would also expose the regulated community to potentially massive civil penalties, and as such, DEP’s penalty calculations including penalties for the days the pollutants remained in the affected groundwater after the initial discharge were excessive. Read More »

Earlier this month, in B&R Resources, LLC v. DEP, No. 1234 C.D. 2017 (March 15, 2018), Pennsylvania’s Commonwealth Court held that the sole managing member of a limited liability company may be personally liable for his company’s failure to plug certain abandoned wells. In doing so, the Commonwealth Court clarified that the participation theory of liability, which essentially extends liability from a corporation to its officers who “participated” in corporate wrongdoing, may encompass not only intentional misconduct by an officer but also deliberate inaction. Read More »