Category Archives: Pennsylvania

Subscribe to Pennsylvania RSS Feed

Rule of Capture is Back for Pennsylvania Oil and Gas Wells . . . Sort Of

On Wednesday, the Pennsylvania Supreme Court overturned a lower court decision that appeared to make the “rule of capture” inapplicable to oil and gas wells subjected to hydraulic fracturing, or “fracking.” Briggs v. Sw. Energy Production Co., No. 63 MAP 2018 (Pa. Jan. 22, 2020) (see majority opinion; see concurring and dissenting opinion). However, the … Continue Reading

Environmental Cases in the Pennsylvania Appellate Courts During 2019

By my count, the three Pennsylvania appellate courts decided 27 environmental cases in 2019. Categorization is somewhat subjective, so I apologize for any omissions. For brevity, citations are truncated, and omitted years are 2019. This survey briefly characterizes those cases under the following categories: Environmental Rights Amendment; pre-emption of local regulation; other local land use … Continue Reading

Are You Ready? Revisions to Management of Fill Policy Take Effect Jan. 1

As the economy strengthens, development and infrastructure projects continue on an upward trend. Whether the project involves remediating a brownfield site or performing utility work in a public right-of-way, the management of fill material such as soil, rock or stone is often a primary consideration impacting the project’s budget. In the Commonwealth of Pennsylvania, the … Continue Reading

Guidance for Voluntary Cleanups and Preserving Potential Contribution Rights

State voluntary cleanup programs have facilitated the cleanup and reuse of contaminated commercial and industrial properties throughout the country. The benefits of cleaning up and reusing contaminated properties are difficult to overstate—these voluntary cleanups promote reuse of existing infrastructure, protect human health, provide economic benefits to the surrounding area and assist in the preservation of … Continue Reading

Recent Executive Orders May Affect Regulatory Guidance

In early October, President Donald J. Trump issued two executive orders aimed to further his administration’s stated goal of reducing both executive agencies’ power and burdens on regulated entities. Both executive orders will affect how federal agencies issue informal guidance documents, through which agencies provide interpretation or clarification of regulations they have promulgated. The first, … Continue Reading

Supplemental Environmental Projects: How Will New Federal Policy Affect Use of SEPs and CEPs in Pennsylvania?

On August 21, 2019, the Justice Department issued a memorandum—Using Supplemental Environmental Projects (“SEPs”) in Settlements with State and Local Governments—which curtails the use of supplemental environmental projects (SEPs) in consent decrees and settlement agreements with state and local governments.  The new policy will directly impact settlements with municipalities in Pennsylvania, while also reducing the … Continue Reading

Court Revisits PEDF on Remand: Limits on Environmental Rights Amendment

On July 29, the Pennsylvania Commonwealth Court returned to Pennsylvania Environmental Defense Foundation v. Commonwealth, a leading case on the Environmental Rights Amendment to the Pennsylvania Constitution. The court appears to have decided that the commonwealth is free to allow use of Pennsylvania’s pubic natural resources and to apply the income however it chooses. Only … Continue Reading

Weathering the Storm: Mitigation of Environmental Risks Caused by Extreme Weather

Imagine that you are environmental, health, and safety (“EHS”) counsel or general counsel for a company dealing with a natural disaster. The company’s facilities are only partially functional, employees have lost their homes, and business unit functionality has been severely disrupted. You find yourself managing the myriad demands of the federal, state, and local environmental … Continue Reading

Is Biomass-Derived Electricity Coming Soon to a Town Near You?

Fifteen years ago, Pennsylvania adopted its alternative energy portfolio standard (AEPS), setting modest goals for investor-owned utilities and retail suppliers to include renewable power sources in their power supply mix. The goals are so modest—just 18% renewables by 2020 to 2021 (compared, for example, to neighboring Maryland’s goal of 25% by 2020 and New Jersey’s goal … Continue Reading

Credits for Superfund Settlement Payments and What That Means for Settlement Strategy

When many parties are jointly and severally liable for the same contamination problem, not every one of those parties can pay more than its fair share of that joint liability in a settlement. Section 113(f)(2) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) assures that the non-settling parties get the benefit … Continue Reading

Pennsylvania Prospective Purchasers of Contaminated Property and Their Administrative Records

On April 26, 2019, the Pennsylvania Environmental Hearing Board (EHB) voided two amendments to a prospective purchaser agreement (PPA) for the Bishop Tube Site entered into in 2007 and 2010. Del. Riverkeeper Network v. Dep’t of Envt’l Prot’n, EHB Dkt. No. 2018-020-L (Constitution Drive Partners). The underlying PPA was dated 2005. The Department of Environmental … Continue Reading

Significant Environmental Cases in Pa. Courts During 2018 (Part 2)

Part 2 of this series on the large number of environmental cases decided by the Pennsylvania appellate courts in 2018 discusses enforcement, the Oil and Gas Act, valuation, and a few other cases of note. Read David G. Mandelbaum’s article from The Legal Intelligencer supplement Pa. Law Weekly, “Significant Environmental Cases in Pa. Courts During 2018 … Continue Reading

Significant Environmental Cases in Pa. Courts During 2018 (Part 1)

The Pennsylvania appellate courts decided a relatively large number of environmental cases during 2018. This survey briefly characterizes those cases under the following categories: Environmental Rights Amendment; pre-emption of local regulation; other local land use regulation issues; Sewage Facilities Act (Act 537); and stormwater, earth disturbance, and stream encroachment. Read David G. Mandelbaum’s 42 Pa. … Continue Reading

Staying in Lane Under the Environmental Rights Amendment

The Commonwealth Court recently provided new guidance on the extent to which the Environmental Rights Amendment to the Pennsylvania Constitution gives municipalities or agencies additional powers or imposes on them additional obligations. Frederick v. Allegheny Township Zoning Hearing Board, No. 2295 C.D. 2015 (Pa. Commw. Ct. Oct. 26, 2018), holds that the amendment does not alter … Continue Reading

Environmental Cases in the Pennsylvania Appellate Courts During 2017

The Pennsylvania appellate courts decided about two dozen cases that one could call “environmental” last year. A brief review follows that necessarily gives short shrift to some of these opinions. This review may also omit some cases, for which I apologize. Read Environmental Cases in the Pennsylvania Appellate Courts During 2017 by clicking here.… Continue Reading

How Will Pa. Implement the Environmental Rights Amendment?

The Pennsylvania Supreme Court’s June decision in Pennsylvania Environmental Defense Foundation v. Wolf, 161 A.3d 911 (Pa. 2017) (PEDF), has sparked many conversations about how the newly interpreted Environmental Rights Amendment to the Pennsylvania Constitution will be implemented. In my column this month for the Pennsylvania Law Weekly I hope to catalogue at least some … Continue Reading

What’s Happening With the Environmental Rights Amendment?

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

Help! The DEP Guidance Document I Need is Missing!

The Pennsylvania Department of Environmental Protection (“DEP”), as is typical of government agencies, regularly releases guidance documents explaining how to interpret or apply its programs and regulations. Once drafted and again once finalized, these documents are published in DEP’s Online Library, where they can be accessed through browser searches or directly through the eLibrary.  But … Continue Reading

Philadelphia’s Approach to Nuisance Abatement on Vacant Properties

Conventional environmental lawyers may find themselves in unfamiliar territory when faced with a municipal citation for allowing a vacant property to become a nuisance or a municipal claim to recover the costs of abating that nuisance.  In Philadelphia, the City has a regular program to do both.  That program proceeds under City ordinances and regulations, … Continue Reading

Court Weighs In on the ERA After ‘Robinson Township’

The Commonwealth Court of Pennsylvania recently denied a petition seeking declaratory and mandamus relief to require the Pennsylvania Public Utility Commission and a group of executive government officials to regulate greenhouse gases consistent with Article I, Section 27 of the Pennsylvania Constitution.  Funk v. Wolf, No. 467 M.D. 2015 (Pa. Commw. Ct. July 26, 2016).  … Continue Reading

Independent Scientific Panel Faults the EPA’s Landmark Hydraulic Fracturing Study

In a detailed, 180-page report released Aug. 11, the EPA’s Science Advisory Board (SAB) faulted the clarity and conclusions of the agency’s landmark study on the environmental impacts of hydraulic fracturing, the high-pressure injection of water, sand and chemicals to break open shale and other “tight” geologic formations to release gas and other hydrocarbons. In … Continue Reading

Army Corps’ Jurisdictional Determinations Are Immediately Appealable

As previously covered by this blog, on May 31, in a unanimous ruling, the eight-member U.S. Supreme Court held that a final determination by the U.S. Army Corps of Engineers (Army Corps) as to whether a property contains “waters of the United States,” subject to Clean Water Act regulations, is a final agency action subject … Continue Reading
LexBlog