In recent months, two courts—a federal district court in Maryland and the U.S. Court of Appeals for the Third Circuit (encompassing Pennsylvania, New Jersey, and Delaware) have ruled that states enjoy “sovereign immunity” to lawsuits by pipeline developers to condemn state-owned lands. See In re PennEast Pipeline Company, LLC, Nos. 19-1191 to -1232 (3d Cir. Sept. 10, 2019) & Columbia Gas…
On August 12, 2019, a federal court in West Virginia ruled that plaintiffs cannot use SMCRA’s citizen suit provision to challenge the validity of a surface mining permit in a suit against the permittee. Order. The Plaintiffs, a group of anti-mining organizations, relied on what has come to be known as SMCRA’s “not started” provision, which provides for termination of permits where mining has not…
In October 2017, the Trump EPA issued a Directive prohibiting anyone who receives EPA grants from sitting on an EPA Science Advisory Board (“SAB”) or similar science advisory committees formed under the Federal Advisory Committee Act. The Directive was immediately challenged by advocacy groups which had long succeeded in placing sympathizers, many from academic communities and non-profits that…
Observant readers may remember that a year ago, the U.S. Supreme Court agreed to hear a mining case, a somewhat rare event for the Court. The case examined whether the Commonwealth of Virginia interfered with an area of law preempted by Congress under the Atomic Energy Act of 1954 (AEA) when it enacted a 1981 moratorium to prohibit uranium mining. In an unusual three-way decision issued on June…
Rose Mary Knick owns 90 acres outside Scranton, Pennsylvania. Her property includes a residence, pasture and a small graveyard where the ancestors of neighbors are supposedly buried. Her Township adopted an ordinance, that broadly defined cemeteries to include the graveyard and that required her to keep it “open and accessible to the general public during daylight hours.” After a Township “Code…
The EPA issued a new guidance document on June 7th instructing other federal agencies and the states how they should interpret and implement §401 of the Clean Water Act (“CWA”). Individually, it is a modest step taken to fulfill an executive order issued earlier this year and will be followed by a new rule updated existing EPA’s §401 regulations. Viewed in context, it is another brick removed…
The Sierra Club and four other non-governmental organizations (NGOs) announced on June 4, 2019 that they are sending Notices of Intent to Sue (NOIs) nine companies in West Virginia and Pennsylvania in federal court for alleged violations of the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA). The notices allege that a total of fifteen facilities owned by the…
The Fifth Amendment to the United States Constitution provides that no private property shall be taken for public use, without “just compensation.” West Virginia’s Constitution contains a similar prohibition.
But the West Virginia Department of Transportation (WVDOT) has felt compelled to violate this most basic right. And, strangely, it has used environmental laws to do so.
On May 15 the Sixth Circuit Court of Appeals decided that a partial owner of the surface may grant the right to mine the coal beneath the severed surface estate notwithstanding the objections of the remaining surface owners. The Court concluded that the right to mine was correctly determined as a matter of Kentucky property law, that the state agency’s…
The U.S. EPA issued an interpretative rule on April 12 which establishes some long-sought clarity to the question of whether a discharge of pollutants into groundwater is subject to its regulation and permitting. The agency concluded that such discharges, even when the pollutants reach navigable waters regulated under the Clean Water Act, are not subject to its permitting authority under §402 of…
Danish insulation manufacturer Roxul (a/k/a Rockwool) was induced to locate a new manufacturing facility in the Eastern Panhandle of West Virginia by local and state officials. One mechanism for doing so was a “payment in lieu of taxes” or “PILOT” agreement to which the Jefferson County Board of Education (“BOE”) was a signatory. But, when the political winds shifted and local opposition grew,…
The Natural Resource Defenses Council (“NRDC”), assisted by the West Virginia Surface Owners’ Rights Organization, has issued a report claiming that West Virginia’s groundwater is not adequately protected from underground injection. https://www.nrdc.org/sites/default/files/west-virginia-groundwater-underground-injection-report.pdf. The Underground Injection Control (“UIC”) program originated from…
