Energy and Environment Monitor

INJUNCTION ISSUED BY MONTANA COURT APPEARS TO PROHIBIT U.S. ARMY CORPS OF ENGINEERS FROM AUTHORIZING ANY UTILITY LINE ACTIVITIES UNDER NATIONWIDE PERMIT 12 UNTIL COMPLETION OF ENDANGERED SPECIES ACT REVIEW

April 20, 2020

In a case challenging the U.S. Army Corps of Engineers’ approval of the Keystone XL pipeline, a federal district court in Montana issued a sweeping injunction last week that, on its face, seems to prohibit the Corps from approving any activities under its Nationwide Permit 12 (“NWP 12”), which authorizes discharges of dredged or fill material associated with utility line activities, until it…

Federal Court Rejects Use of Virginia County Flood Ordinance to Limit Natural Gas Pipeline Construction

April 2, 2020

A federal court in Virginia has ruled that a county’s attempt to impede an interstate gas pipeline with a floodplain ordinance is preempted by the federal Natural Gas Act. See Atlantic Coast Pipeline, LLC v. Nelson County Board of Supervisors, No. 3:18-00115 (W.D. Va. March 9, 2020).

The Atlantic Coast Pipeline (“ACP”) holds a certificate from FERC under the Natural Gas Act to construct and…

West Virginia Enhances Penalties for Trespass and Damages to Critical Infrastructure

April 1, 2020

The West Virginia Legislature has adopted a West Virginia Critical Infrastructure Protection Act. See W. Va. Code §61-10-34 (copy available at https://legiscan.com/WV/text/HB4615/2020). The new Act establishes three categories of criminal actions concerning “critical infrastructure”.

1. Trespass: It is a misdemeanor to “willfully and knowingly … enter[] property containing a critical infrastructure…

EPA Issues COVID-19 Guidance

March 27, 2020

On March 26, 2020, the United States Environmental Protection Agency (“EPA”) issued guidance on how the agency will address compliance and enforcement issues in light of COVID-19.

In its guidance, EPA acknowledges that illnesses, travel bans and social distancing may cause shortages in staffing that impact monitoring or compliance.   Accordingly, the EPA provides that it will, under specifically…

Anti Mining Group Urges Fourth Circuit to Override Clean Water Act Permit Shield

February 26, 2020

          The plaintiffs in an important Clean Water Act (“CWA”) case filed their reply brief with the Fourth Circuit on January 28, 2020.  We have previously written about the ruling in Southern Appalachian Mountain Stewards (“SAMS”) v. Red River Coal Company, here and here.  The case is now on appeal before the Fourth Circuit from the District Court’s ruling, which gave broad effect to the Clean Water…

U.S. Fish and Wildlife Service Proposes Critical Habitat for Two Central Appalachian Crayfish

February 18, 2020

BACKGROUND

In 2016, the U.S. Fish and Wildlife Service (“USFWS” or “Service”) listed the Guyandotte River crayfish as endangered and the Big Sandy crayfish as threatened.  An explanation of those decisions and a map of their range in West Virginia, Kentucky and southwest Virginia may be viewed here.  In 2018, the Center for Biological Diversity sued the USFWS to force the designation of critical…

Ohio Appeals Court Rules that State §401 Waiver Divested it of All Enforcement Authority Over Rover Pipeline

February 3, 2020

     The State of Ohio has failed in its efforts to enforce water laws against a FERC-approved natural gas transmission line because the State waived its right to certify the facility under §401 of the Clean Water Act.  See State of Ohio ex rel. Yost v. Rover Pipeline, LLC, Ohio Ct. App. (Stark County Dec. 9, 2019).  There, both a trial and appeals court have ruled that a state’s waiver of its…

Anti Mining Group Appeals Adverse Clean Water Act “Permit Shield” Ruling

January 8, 2020

      In September, a federal district court in Virginia gave broad effect to the Clean Water Act “permit shield.”  We have written before of the ruling in Southern Appalachian Mountain Stewards (SAMS) v. Red River Coal Company.[1]  The court’s ruling was notable because it extended the “permit shield” to entire “outlets” not expressly controlled by the NPDES permit and not just to individual pollutants…

Third Circuit Declines to Reconsider Eminent Domain Case: Allows States to Block Pipelines

November 11, 2019

We have written about this before. Both the Third Circuit Court of Appeals and the District Court of Maryland (in the Fourth Circuit) have ruled that Congress can convey to FERC-approved energy projects the right to condemn property, but have also held that the right does not extend to state-owned property. See Circuit Court Bars Use of Natural Gas Act Condemnation Authority Against States by…

West Virginia Supreme Court Slams Class Certification Order from Trial Court Judge Who Stood to Benefit from the Class Action

November 7, 2019

The West Virginia Supreme Court has ruled that a Circuit Court judge should not have decided whether to “certify” a class action in which he was a potential class member. In addition, the Court has vacated the certification order of the Circuit Court as inadequately supported. See State ex rel. Municipal Water Works v Swope, No. 19-0404 (W.Va. Sup. Ct. Oct. 18, 2019).

In March 2019, a group of…

Two Sets of Climate Books? Is New York’s Claim Against Exxon Mobil Heating Up or Just a Lot of Hot Air?

November 5, 2019

       The New York Attorney General (“NYAG”) has sued Exxon Mobil (“Exxon”) for fraud and misrepresentation to its investors under a New York securities law known as the Martin Act. The NYAG contends that Exxon represented to the public that it was accounting for “projected carbon costs in evaluating its ongoing investments” using one value ($80.00 per ton of CO₂ emissions) but that internally (and…

The Beginning of the End

October 30, 2019

The U.S. EPA and the Army Corps of Engineers published the repeal of the 2015 “Waters of the United States” (WOTUS) rule in the October 22 Federal Register. With this rulemaking, the agencies are restoring the 1986 rule that defined “waters of the United States” before the 2015 revision. The agencies’ announcement also marks the beginning of the end to one of the most contentious, protracted and…