Energy and Environment Monitor

D.C. Circuit Temporarily Recalls Its Mandate in Seesaw Battle Arising Out of EPA’s Efforts to Roll Back Obama-Administration Methane Gas Rules.

July 20, 2017

On July 13, 2017, the U.S. Court of Appeals for the D.C. Circuit temporarily recalled its mandate previously issued contemporaneously with the entry of its July 3^rd opinion rejecting EPA Administrator Scott Pruitt’s stay of portions of Obama-era “New Source Performance Standards” for the oil and gas sector.  In rejecting Administrator Pruitt’s request for a longer extension of time to…

Fourth Circuit Refuses to Order EPA to Conduct Coal Jobs Analysis: When “Shall” Means “Eh, Maybe”

June 30, 2017

Several years ago, Murray Energy sued EPA in the Northern District of West Virginia under § 304(a)(2) of the Clean Air Act, which authorizes actions against EPA when it fails to perform an act or duty “which is not discretionary.” Murray sought to enjoin further rulemaking by EPA and the implementation of the Clean Power Plan until EPA explored the impacts of its Clean Air Act programs…

Pennsylvania Court Rules that DEP Applied Wrong Standard in Requiring Compressor Station and Natural Gas Well Pad to Aggregate Air Emissions for Permitting Purposes

June 15, 2017

In a decision issued on June 2, 2017, a Pennsylvania court disagreed with the conclusions of the Department of Environmental Protection (DEP) and the Environmental Hearing Board (EHB) that a compressor station and natural gas well pad owned and operated by two separate business entities should be considered a single source of air emissions regulated by a single air permit simply because they…

“What Goes Down Will Come Up”

June 5, 2017

The U.S. Court of Appeals for the Eighth circuit issued an opinion on May 22^nd which illustrates the difficulty for an oil and gas producer to win a subsurface claim without having to go to trial, even when the plaintiff has relatively weak facts to support its claim.

The case involved the disposal of fracking wastes from producing shale oil in the Eastern District of Arkansas. Because the…

UTILITY GROUPS ASK EPA TO MODIFY COAL ASH RULE AND TO EXTEND COMPLIANCE DEADLINES

May 18, 2017

Murray Energy Companies Sue the New York Times Company for Defamation

May 11, 2017

On May 3, 2017, Murray Energy Corporation and five of its subsidiaries operating coal mines in West Virginia filed suit in West Virginia state court against The New York Times Company alleging that the Times published false and defamatory statements that injured the reputation and business of the Murray Energy.  The subject statements were made in an op-ed article entitled “Money Talked…

Delaware Riverkeeper Asks Third Circuit to Expedite Review of Corps-Issued Permit for Pipeline

May 9, 2017

We have written before about the effect of the Natural Gas Act on environmental permits issued for pipelines.   Generally, the Natural Gas Act preempts the effect of many local laws on pipelines, but preserves obligations to obtain permits under the Clean Air and Clean Water Acts.  Nonetheless, in 2005, Congress amended the Natural Gas Act to provide that challenges to those permits are to be heard…

EPA Reconsidering Methane Rule

May 4, 2017

In an April 18, 2017 letter to oil and gas industry leaders, Environmental Protection Agency (“EPA”) Administrator Scott Pruitt announced that the agency will reconsider its June 3, 2016 methane emissions rule following a petition from three oil and gas industry associations. See EPA Letter here. The industry petition raised objections concerning provisions for receiving an alternative…

Federal Court in Oregon Rules that EPA Approval of State-Issued TMDLs Can Be an Affirmative Action Triggering Section 7 Consultation Under the Endangered Species Act

May 2, 2017

Section 7 of the Endangered Species Act (“ESA”) requires federal agencies which have undertaken “any action authorized, funded or carried out by such agency” to consult with the U.S. Fish & Wildlife Service to ensure that such action is not likely to jeopardize the continued existence of a protected species. See 16 U.S.C. § 1536(a)(2).  Likewise, USF&WS’s rules provide that each…

South Carolina Federal Court Upholds Distinction Between Point Source and Non-Point Source Pollution

April 25, 2017

On April 20, 2017, a South Carolina federal district court dismissed an environmental group’s Clean Water Act (“CWA”) citizen suit against Plantation Pipe Line Company, Inc. (“PPL”) and its parent company, Kinder Morgan Energy Partner, L.P.  PPL owns a 3,100 mile petroleum pipeline that leaked 369,000 gallons in December 2014.  The leak was repaired within a few days of…

Federal court in Pennsylvania Invalidates Township Ordinance Prohibiting Oil and Gas Waste Disposal

April 13, 2017

By opinion of March 31, 2017, the U.S. District Court for the Western District of Pennsylvania invalidated an ordinance adopted by Pennsylvania’s Grant Township.  The Township’s “Community Bill of Rights Ordinance” prohibited corporations from “engaging in the depositing of waste from oil and gas extraction” and invalidated any “permit, license, privilege, charter or other authority issued…

Maryland General Assembly Bans Fracking

April 6, 2017

Prior law in Maryland required its Department of the Environment to adopt a regulation by October 1, 2016 for the hydraulic fracturing of wells for exploration or production of natural gas, but provided they would not become effective until October 1, 2017. Further, the Department was prohibited from issuing fracking permits until October 2017.

A new bill passed by both the House and Senate of the…