The Natural Gas Act (“NGA”) of 1938 grants the Federal Energy Regulatory Commission (“FERC”) exclusive authority to regulate sales and transportation of natural gas in interstate commerce. To that end, Section 7 of the NGA empowers FERC to authorize the construction and operation of interstate transportation facilities—i.e., pipelines. FERC does so by determining whether a project serves the…
“A man always has two reasons for doing anything -- a good reason and the real reason.” J.P. Morgan
Whenever an agency proposes to change the procedures it follows to make decisions, it must offer a good reason for the change. When an agency proposes to make multiple changes in its procedures, there is almost certainly a real reason for its proposal. This is why EPA’s May 18 (81 FR31344) proposed…
The United States Court of Appeals for the Fourth Circuit has unanimously upheld the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Raven Crest Contracting, LLC, a subsidiary of White Forest Resources, Inc.
On August 10, 2012, the Corps issued a § 404 “dredge and fill permit” to Raven Crest for its Boone North No. 5 Surface Mine in Boone County, West Virginia. The Ohio…
During surface mining, rock and dirt (known as “overburden” or “spoil”) is removed to access coal seams. This rock and dirt swells, leaving the mining operator with excess material after mining and regrading. In the steep slopes of Appalachia, the only place to safely store this excess material is in valleys and hollows in the form of valley fills.
During surface mining, rock and dirt (known as “overburden” or “spoil”) is removed to access coal seams. This rock and dirt swells, leaving the mining operator with excess material after mining and regrading. In the steep slopes of Appalachia, the only place to safely store this excess material is in valleys and hollows in the form of valley fills.
Aluminum is among the most common elements found in the Earth’s crust. Soil eroded by flowing water invariably discharges aluminum. For surface coal mining, this represents an engineering and technical challenge because rainfall and snow melt must be collected and channeled into ponds for sediment to settle before the water is discharged to a stream. On every particle of discharged…
In Schoene v. McElroy, the Federal District Court for the Northern District of West Virginia recently issued a series of unpublished opinions calling into question the ability of mine operators to rely on severance deeds as a legal basis for employing longwall miners. Additionally, the Court abandoned the long-standing rule in West Virginia that the less costly option between repair of subsidence…
In 2015, a district court in Colorado ruled that OSM had failed to discharge its NEPA obligations in considering applications to modify existing surface mining permits sought by Colowyo Coal Company and Trapper Mining, Inc. The two mines at issue were the primary fuel suppliers for a power plant. The court ruled that OSM had improperly failed to solicit public comment on its…
We have previously reported about Murray Energy’s lawsuit against EPA in the Northern District of West Virginia. There, Murray claims that EPA has failed to conduct studies on the impacts of its rules and enforcement policies on coal industry jobs pursuant to Section 321(a) of the Clean Air Act. EPA filed a motion for summary judgment in early May. Murray claims that EPA has…
“Standing” is a legal principle which is fundamental to every environmental case filed in federal courts. Because the Constitution grants federal courts power to hear only actual “cases and controversies”, a litigant must allege facts to demonstrate why the federal court has the authority to hear the case. Those facts must identify 1) a legal injury suffered, 2) that is traceable to the…
Challenges to EPA’s Clean Power Plan are pending in the Circuit Court for the District of Columbia. Oral argument on those challenges had been scheduled for June 2, 2016. On May 16, though, on its own motion, the D.C. Circuit moved the oral argument date from June until September 27. In addition, the case will no longer be heard before the original three-judge panel assigned to it, but…
On April 27, 2016, the U.S. Fish and Wildlife Service (FWS) published a decision reversing their prior decision and determining that designation of critical habitat is not prudent for the Northern Long-Eared Bat (NLEB).
The NLEB is a wide-ranging species that is found in a variety of forested habitats in summer and hibernates in caves and mines in winter. The FWS determined that the fungal…
