Rule 23(c)(4) of the Federal Rules of Civil Procedure provides that, “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4). Rule 23(b)(3), on the other hand, provides that a class action may be maintained only where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” R. 23(b)(3). The Second, Fourth, Seventh, and Ninth Circuit have adopted a “broad view” of class certification, permitting a district court to certify a class on particular issues under Federal Rule 23(c)(4), even where the traditional predominance requirements of Rule 23(b)(3) have not been met for the case as a whole. Only two circuits, the Fifth and Eleventh, ascribe to the more “narrow view” in which Rule 23(b)(3)’s predominance requirement is applied to prevent district courts from certifying particular issues under Rule 23(c)(4), without certifying an entire claim. In a recent case brought my homeowners alleging contamination to groundwater, Martin v. Behr Dayton Thermal Products LLC et al., No. 17-3663, --- F.3d ---, 2018 WL 3421711 (6^th Cir. July 18, 2018), the Sixth Circuit has now joined the majority of circuits addressing this issue by endorsing the “broad view” of issue-based class certification. Read More »

Share | Email| Comments|  Topics: CERCLA, Certification, Class Actions, Contamination, Damages, Drinking Water, Federal Procedure, Groundwater, Sixth Circuit, Toxic Torts, Water

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 »

Share | Email| Comments|  Topics: Administrative Appeals, Declaratory Relief, Delaware River Basin Commission, Drilling, Energy, Exploration, Groundwater, Marcellus Shale, Mineral Rights, Natural Gas, Oil and Gas, Pennsylvania, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

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 »

Share | Email| Comments|  Topics: Act 13, Drilling, Energy, Environmental Rights Amendment, Groundwater, Injunction, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Pipelines, Water

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 »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Fourth Circuit, Navigability, Oil and Gas, Pipelines, Water

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 »

Share | Email| Comments|  Topics: Administrative Appeals, Case Update, Cases to Watch, Civil Penalties, Clean Streams Law, Contamination, Decisions of Note, Declaratory Relief, Drilling, EHB, Enforcement Action, Groundwater, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Remediation, Water, Wetlands

Last month, in U.S. v. CITGO Petro. Corp., 711 Fed. Appx. 237 (5th Cir. 2017), the United States Court of Appeals for the Fifth Circuit affirmed an $81 million civil penalty assessment under the federal Clean Water Act (“CWA”) against CITGO Petroleum Corp. (“CITGO”), for unpermitted wastewater discharges from its plant in Lake Charles, Louisiana when a severe rainstorm caused two storage tanks to fail and over 2 million gallons of oil to be discharged into local waterways.  In the underlying case before the United States District Court for the Western District of Louisiana, CITGO conceded liability, and therefore, the only issue for trial was the total penalty to be assessed.  After a two-week bench trial, the District Court determined that CITGO had failed to properly maintain its wastewater storage tanks and allowed sludge and waste oil to accumulate in the tanks, which lessened their total storage capacity and ability to withstand a storm surge.  The District Court ultimately assessed a $6 million civil penalty against CITGO, which EPA appealed.  Read More »

Share | Email| Comments|  Topics: Civil Penalties, Clean Water Act, Cleanup, Contamination, EPA, Fifth Circuit, Louisiana, Storage Tank, Stormwater, Water

Do indirect discharges of pollutants into navigable waters amount to a violation of the Clean Water Act? On February 1^st, the Court of Appeals for the Ninth Circuit held in Hawaii Wildlife Fund et al. v. County of Maui, No. 15-17447, that discharges of pollutants originating from a point source violate the Clean Water Act even if the pollutants first enter another means of conveyance—in this case groundwater—before entering into a navigable waterway. Despite recent EPA efforts to roll back certain environmental regulations, the court gave no deference to EPA’s amicus curiae proposed liability rule requiring a “direct hydrological connection” between the point source and the navigable water. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Drilling, Effluents, EPA, Ninth Circuit, NPDES, Oil and Gas, Permits, Rapanos, Water

On January 22, as Philadelphia Eagles fans continued to celebrate the team’s NFC Championship victory over the Minnesota Vikings, the U.S. Supreme Court was busy issuing a unanimous opinion in National Association of Manufacturers v. Department of Defense concerning the Waters of the United States Rule (“Rule”) promulgated by the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) in 2015. The Rule defines the statutory term “waters of the United States” in the Clean Water Act, and has been subject to appeals in both federal district courts and courts of appeals. On October 11, 2017, the Supreme Court heard oral argument addressing whether appeals of the Rule should be filed first in either the district court or the court of appeals, and held today that because the Rule does not fall within one of the Clean Water Act’s (“Act”) seven enumerated categories of EPA actions for which the courts of appeal have jurisdiction, appeals of the Rule must first proceed in district court. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, Federal Procedure, NPDES, Permits, Procedure, Supreme Court, Water, Wetlands

Western District of Pennsylvania Magistrate Judge Susan P. Baxter reiterated in an opinion issued last Friday that certain municipal laws prohibiting natural gas drilling are preempted by the federal Safe Drinking Water Act and the Pennsylvania Oil and Gas Act. Seneca Res. Corp. v. Highland Twp. et al., No. 16-cv-289 (W.D. Pa. Sept. 29, 2017) (“Seneca III”).  The decision is the result of a complex procedural and political history in the township, and it reinforced an earlier settlement and consent decree between the same parties.  In its opinion, the federal court’s decision provided guidance regarding the interplay among federal, state, and local authority over energy development in Pennsylvania. Read More »

Share | Email| Comments|  Topics: Act 13, Legislation, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania, Pipelines, Safe Drinking Water Act, Water

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