Energy and Environment Monitor

DOE to Order Procurement of Power from Coal and Nuclear Facilities for 2 Years to Prevent Immediate Shutdowns

June 11, 2018

Section 202(c) of the Federal Power Act [16 USC §824a(c)[1] allows the Department of Energy to determine that an emergency exists by reason of sudden increases in demand for electricity, a shortage of electric energy, of generation facility or of fuel; “or other causes.” After making that determination, DOE can require temporary connections with such generation as will best “meet the emergency…

EPA to Reject Claims of Maryland and Delaware that Upwind Power Plants Have Inadequate NOx Controls

June 7, 2018

          EPA has proposed to deny petitions from Delaware and Maryland that sought to force controls on power plants in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia.  The petitions claimed that NOx emissions from coal-fired plants in these states were significantly contributing, or would contribute in the future, to ozone levels in Delaware and Maryland that exceed allowable ambient levels. 

          …

WVDEP Moves to Dismiss Gas Producer Lawsuit Claiming "Flat Rate Statute" is Unconstitutional

June 6, 2018

We have previously written about a gas producer’s suit against WVDEP claiming that West Virginia’s “Flat Rate Statute” unconstitutionally impairs flat rate gas leases. In a flat rate lease, the producer pays a regular, often annual fee to the mineral owner rather than paying a royalty based on the amount of oil and gas that is produced. The history of flat rate leases in West Virginia is…

"As We Know, Elections Have Consequences........"

May 29, 2018

          From the U.S. District Court in Washington comes a lengthy opinion that rejects a challenge from three conservation organizations to a determination of the Army Corps of Engineers to issue a Finding of No Significant Impacts (FONSI) and a decision not to prepare an environmental impact statement. The court’s opinion is a carefully expressed analysis of why the Corps’ decision complied with NEPA…

"Generator Improvements Rule" Becomes Effective June 1, 2018 in West Virginia

May 21, 2018

     In 2016, EPA amended the requirements applicable to hazardous waste generators by promulgating the “Generator Improvements Rule.”  See https://www.epa.gov/hwgenerators/final-rule-hazardous-waste-generator-improvements.  Those requirements become effective in West Virginia on June 1,^, 2018.

Background

     The rules for hazardous waste generators were largely written in the 1980s.  In 2004, EPA…

Fourth Circuit Holds Groundwater Connection to Navigable Waters Triggers CWA Coverage

May 17, 2018

“[T]he fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past.”  Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, Slip Op. at 18) (4th Cir. April 12, 2018)

            The Clean Water Act prohibits unpermitted “discharges” from a “point source” to a “navigable water.” 33 U.S.C. § 1311(a).  Although the definition of what constitutes…

PA Supreme Court Rejects PADEP’s Theory of Limitless Civil Penalties for “Continuing Violation” of Clean Streams Law

April 24, 2018

We have previously written about a declaratory judgment action filed by a natural gas producer against the Pennsylvania Department of Environmental Protection (“PADEP”) challenging the agency’s interpretation of Pennsylvania’s Clean Streams Law. In that proceeding, the gas producer sought pre-enforcement judicial review of PADEP’s legal interpretation of what constitutes a “continuing violation”…

Supreme Court's Answer to Certified Questions Preserves Right to Longwall Mine in West Virginia

April 19, 2018

The West Virginia Supreme Court recently issued a decision upholding the ability of mine operators to rely on severance deed waivers for the right to subside the surface without liability for common law claims and clarifying that mere subsidence damage is not, itself, a violation of the West Virginia Surface Coal Mining and Reclamation Act.

The Court was compelled to reaffirm seemingly…

Supreme Court's Answer to Certified Questions Preserves Right to Longwall Mine in West Virginia

April 19, 2018

The West Virginia Supreme Court recently issued a decision upholding the ability of mine operators to rely on severance deed waivers for the right to subside the surface without liability for common law claims and clarifying that mere subsidence damage is not, itself, a violation of the West Virginia Surface Coal Mining and Reclamation Act.

The Court was compelled to reaffirm seemingly…

Bill Aimed at Eliminating “Chevron Deference” Passes Arizona Senate

April 12, 2018

    Last week the Arizona State Senate passed a bill that would amend that state’s administrative procedure law to kill its version of the “Chevron” doctrine, which requires courts to defer to an agency’s reasonable interpretation of statutes within its purview.

    The doctrine originates from the landmark 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, which set…

West Virginia Supreme Court Dissolves Water Replacement Obligation of Mine Operator

April 10, 2018

By Order dated April 5, 2018, the West Virginia Supreme Court issued its second ruling in the past six months exploring the duties imposed by the West Virginia Surface Coal Mining and Reclamation Act (“WV SCMRA”) upon coal mine operators. See Belcher v. Dynamic Energy, Inc..  WV SCMRA requires mine operators to “replace” water supplies of property owners who use the water for domestic,…

West Virginia Supreme Court Emphasizes Importance of DEP’s Role in SMCRA Citizen Suits

October 12, 2017

On October 5, 2017, the West Virginia Supreme Court ruled that the Wyoming County Circuit Court impermissibly substituted its own judgment for that of the West Virginia Department of Environmental Protection (“DEP”) regarding alleged mining-related contamination of residential water supplies. The Supreme Court’s order raises a number of questions regarding the extent to which citizens may pursue…