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 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.
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…
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…
“[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…
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”…
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 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.
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…
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,…
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…
