A decision rendered last month by the Supreme Court of Pennsylvania reinterpreted the commonwealth’s obligations under Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment (ERA). The Supreme Court sided with the appellant, Pennsylvania Environmental Defense Foundation (PEDF), in PEDF v. Commonwealth of Pennsylvani a, 10 MAP 2015, and held … Continue Reading
On Friday, June 2, a Pennsylvania intermediate appellate court held that air emissions from a natural gas gathering system compression station and a natural gas well pad served by that gathering system could not be aggregated for purposes of air emissions permitting because they were owned by different corporations, albeit corporate affiliates. National Fuel Gas … Continue Reading
According to the U.S. Energy Information Administration, the commonwealth of Pennsylvania is the largest generator of coal ash in the United States. Pennsylvania is home to roughly 100 coal ash disposal facilities, three of which have been classified as “high hazard” by the U.S. Environmental Protection Agency (EPA). Throughout the country, numerous electric generating facilities … Continue Reading
This month, my column in the Pennsylvania Law Weekly surveys the decisions in the Pennsylvania appellate courts during 2016 addressing environmental issues. The cases cover the Environmental Rights Amendment, impacts of oil and gas drilling, stormwater, land contamination, air pollution, the Alternative Energy Portfolio Standards Act, solid waste management, and enforcement procedure. Read Environmental Cases … Continue Reading
Last month, the U.S. Environmental Protection Agency published its amendments to, and reorganization of, the regulations governing generators of hazardous waste, 81 Fed. Reg. 85,732 (Nov. 28). These rules govern the hundreds of thousands of enterprises nationally that produce wastes characterized or listed as hazardous under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. … Continue Reading
Millions of Americans are coming to grips with the broad social and political ramifications of Donald Trump’s stunning upset victory in last Tuesday’s presidential election. And while the president-elect’s policy pronouncements to date have been short on detail, one thing is clear: those concerned with environmental protection and climate change had better buckle up for … Continue Reading
Recently, lawyers from Philadelphia’s Environmental Practice Group attended the Pennsylvania Environmental Law Forum in Harrisburg, Pennsylvania. Organized by the Pennsylvania Bar Institute, the annual Forum includes educational presentations by experienced practitioners along with networking events. Jillian Kirn gave a presentation on cooling water intake structures commonly used by industrial facilities, such as power plants, and the … Continue Reading
Environmental quality is important, but it is just one set of the objectives of public policy. Is it possible to think about the incentives set by environmental regulatory decisions and the outcomes they induce as part of a more integrated policy? Perhaps not. Consider Michigan v. EPA, No. 14-46 (U.S. Nov. 25, 2014). Last month, … Continue Reading
In February 2012, Pennsylvania adopted comprehensive revisions to its Oil and Gas Act known as “Act 13.” Among the changes was an expanded preemption of local regulation of oil and gas activities. Prior law prohibited municipalities from regulating “how” oil and gas development would proceed, but permitted zoning control over “where” development could occur. Act … Continue Reading
Robinson Twp. v. Commonwealth, No. 63 MAP 2012 (Pa. Dec. 19, 2013), upended a lot of what we thought we knew about the Environmental Rights Amendment to the Pennsylvania Constitution, Pa. Const. art. I, § 27. My January column in the Pennsylvania Law Weekly / Legal Intelligencer addresses that aspect of the decision, one that affects much … Continue Reading
If you know contaminated industrial property would be worth $X clean, what is the proper way to value the contamination? Maybe it is just the “cost to cure,” but that does not capture any “stigma” that may stay with the property. And then there is a wrinkle if the property is the subject of an agreement … Continue Reading
A lot of the climate change news recently — and I note it below — has focused on climate change “mitigation.” Mitigation is steps that might be taken to slow or to avoid changes in the climate. Of course, that first requires an identification of causes of climate change. That runs into an ideological dispute … Continue Reading
As of September 8, 2013, 162 appeals had been filed in the Pennsylvania Environmental Hearing Board. Some are appeals by disappointed applicants for permits. Some are third-party appeals of permits. Some are appeals from enforcement orders. Of those 162 appeals, 19 are appeals from enforcement orders issued to individuals. Of those, at least some are … Continue Reading
On Wednesday, the Pennsylvania Supreme Court decided Butler v. Charles Powers Estate, No. 27-MAP-2012 (Pa. Apr. 24, 2013), re-affirming the general presumption in Pennsylvania law that a deed that conveys or reserves “minerals” does not convey or reserve rights in shale gas. This presumption dates at least from Dunham v. Shortt & Kirkpatrick, 101 Pa. … Continue Reading
Recently introduced legislation in Pennsylvania’s General Assembly proposes to create new statutory requirements for the release of terminated or cancelled oil or natural gas leases of record. If enacted, House Bill 402 would require lessees under oil or natural gas leases to deliver releases in recordable form to landowners at least 30 days prior to the termination or cancellation of such lease. … Continue Reading
Section 613 of the Pennsylvania Solid Waste Management Act (“SWMA”), Pa. Stat. Ann. tit. 35, § 6018.613, allows the Commonwealth or any municipality to recover the “costs of abatement” of “a public nuisance” under SWMA from a person who “causes a public nuisance” if the plaintiff government has in fact abated the nuisance. This provision … Continue Reading
Pennsylvania has been making news recently for being friendly to natural gas development, or at least more friendly than New York. However, examination of recent decisions suggests that the courts may be a little more plaintiff-friendly than, for example, the current administration. I look at some litigation issues arising from natural gas development in my … Continue Reading
My October Environmental Practice Column in the Pennsylvania Law Weekly considers issues presented by the intersection of the bar on pre-enforcement review and reliance on “institutional controls.” These issues come up in federal Superfund matters under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601-75. However, the discussion was motivated by a September 4 ruling by … Continue Reading
On July 2, Pennsylvania Governor Corbett signed Act 87 of 2012 into law imposing a moratorium on issuance of new natural gas well drilling permits for wells targeting the South Newark Basin, a formation that underlies parts of Southeastern Pennsylvania. As has been reported in the press, legislators reacted to a report issued by the … Continue Reading
An injunction in Robinson Township v. Pa PUC on April 11 and a federal Executive Order on April 13 raise the question of which government ought to be the primary regulator of new natural gas development. David Mandelbaum's Pennsylvania Law Weekly column, Preemption and Natural Gas Development: Who is the Decider?, 35 PLW 404 (May 1, 2012), explores the issue.
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In my monthly column for the Pennsylvania Law Weekly / Legal Intelligencer, I examine two bills recently proposed by the Pennsylvania legislature, both of which are intended to address Marcellus Shale gas development.
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Pennsylvania Governor Tom Corbett has announced his plans to implement recommendations made by the Marcellus Shale Advisory Commission, including more rigorous drilling standards and an impact fee.
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Under the terms of a settlement entered into in Chesapeake Bay Foundation v. DEP, No. 2009-116-L (Pa. Envtl. Hearing Bd. July 6, 2011), Pennsylvania will amend its Earth and Sediment Control General Permit (ESCGP-1) to make the General Permit unavailable to oil and gas projects in high quality or exceptional value water bodies, in floodplains or on contaminated land.
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