In Kanawha Forest Coalition, et al. v. Keystone WV, 2:22-cv-00367, 2023 WL 6466210 (S.D. W.V. Oct. 4, 2023), the Honorable Joseph R. Goodwin of the United States District Court for the Southern District of West Virginia, Charleston Division granted summary judgment against the operator of three defunct surface mines for past violations of the Clean Water Act (“CWA”) and Surface Mining Control and Reclamation Act (“SMCRA”) but granted summary judgment in favor of the operator with regard to claims of ongoing permit violations, finding that the Plaintiffs’ theories constituted a collateral attack on validly-issued permits.  Read More »

Share | Email| Comments|  Topics: Citizens Suit, Clean Water Act, Mining, NPDES, Permits, Successor Liability, West Virginia

This post was authored by Trang Do, a summer associate.

In West Virginia v. EPA, the Supreme Court limited the authority of the United States Environmental Protection Agency (EPA) to reduce greenhouse gases by setting emission guidelines for existing power plants, characterizing the energy generation shifting strategy proposed in the Clean Power Plan (CPP) as an overreach of the agency’s power. In a 6-3 decision, with the three liberal justices dissenting, the Court held that the authority to adopt a regulatory program that would significantly alter how the nation’s energy is generated fell under an “extraordinary case” of the major questions doctrine. West Virginia v. EPA 597 U. S. ____ (2022). The major questions doctrine requires that a federal agency have “clear congressional authorization” when acting on issues of great “economic and political significance.” Id. (citing Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324). Read More »

Share | Email| Comments|  Topics: Clean Air Act, Climate Change, Decisions of Note, Electric, Emissions, Energy, EPA, Greenhouse Gas, Legislation, Refinery, Rulemaking, Supreme Court, West Virginia

Rejecting federal officer removal and federal question removal theories, the Fourth Circuit affirmed the District of West Virginia’s remand of a state tort suit against the remediators of an EPA-permitted Resource Conservation and Recovery Act (“RCRA”) site.  W.V. St. Univ. Bd. of Govs. v. Dow Chem. Co. et al., No. 20-1712, __ F.4^th __, 2022 WL 90242 (Jan. 10, 2022). Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Federal Jurisdiction, Federal Procedure, Fourth Circuit, Groundwater, Negligence, Nuisance, Procedure, RCRA, Removal, Subject Matter Jurisdiction, Superfund, Trespass, West Virginia

In MPM Silicones, LLC v. Union Carbide Corporation, the U.S. Court of Appeals for the Second Circuit held that there can be more than one “remedial action” at a site under certain circumstances for the purpose of determining the statute of limitations under CERCLA. Dkt. No. 17-3468(L), 17-3669(XAP) (2d Cir. 2019). The decision clarified a statement in a prior decision by the Second Circuit that had suggested otherwise. Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Groundwater, PCBs, Remediation, Second Circuit, Statute of Limitations, Superfund, West Virginia

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