Tuesday, February 24, 2015 1:35 pm by Michael Weller
Last week, the Supreme Court of Ohio ruled that certain oil and gas-related ordinances of the city of Munroe Falls are preempted by the state’s oil and gas law. State ex rel. Morrison v. Beck Energy Corp., Slip Opinion No. 2015-Ohio-485. The decision is the latest in an ongoing battle being waged over the authority of local governments to zone or regulate the operations of oil and gas companies. Often, the success or failure of a local government’s ordinance depends on whether it aims to “regulate” oil and gas operations or simply control their location according to traditional zoning principles.
While a win for industry in this case, the Supreme Court’s holding in State ex rel. Morrison v. Beck Energy Corp. was limited to the ordinances at issue in the case and does not go as far as recent rulings in Pennsylvania and New York that were focused on zoning authority. Previously, in July 2012, the Pennsylvania Supreme Court struck down as unconstitutional certain sections of the recently passed “Act 13” that would have removed a municipality’s ability to zone out oil and gas drilling in Pennsylvania. Huntley & Huntley, Inc. v. Oakmont Borough Council, 600 Pa. 207, 964 A.2d 855 (2009). Then, in August 2014, the New York State Court of Appeals held that municipalities can effectively “zone out” oil and gas operations by passing zoning ordinances that ban oil and gas production activities. Wallach v. Dryden, 23 N.Y.3d 728, 992 N.Y.S.2d 710 (2014). (more…)
Category: Courts, Enforcement, Environmental, Natural Gas/LNG, Regional Energy Law, Shale Development, Upstream Energy
Wednesday, December 10, 2014 9:15 am by Ty Johnson and Kirstin Gibbs
The Texas Railroad Commission has recently promulgated certain rule amendments designed to clarify how much information a pipeline operator must file to be classified, for TRRC regulation purposes, as a common carrier or a private pipeline.
The revisions require pipeline operators to substantiate their claim to be a common carrier or private pipeline when applying for a permit. Currently, the permit application, known as a T-4, requires the pipeline applicant only to “mark [the] appropriate block” to establish its classification as a common carrier or private pipeline. The revised rule, however, will add new informational requirements and certifications that a pipeline operator must submit. Specifically, for a new application the applicant must provide a sworn statement providing the operator’s factual basis supporting the classification and purpose being sought for the pipeline, including an attestation to the applicant’s knowledge of the eminent domain provisions in the Texas code. In addition, the applicant must provide documentation supporting the classification and purpose being sought. (more…)
Category: Courts, Midstream
Thursday, September 25, 2014 10:35 am by Lowell Rothschild
When the U.S. Supreme Court decided in Sackett v. EPA that Environmental Protection Agency (EPA) wetland compliance orders were appealable, one question was how far would other courts extend the Supreme Court’s reasoning? Two years later, the answer is becoming clear on at least one front: courts continue to hold that wetland jurisdictional determinations are not appealable. In Belle Company v. U.S. Army Corps of Engineers, the Fifth Circuit was the latest court to say so. (more…)
Category: Courts, Enforcement, Environmental, Litigation, Midstream, National Energy Law, Natural Gas/LNG, Regional Energy Law, Shale Development, Upstream Energy
Friday, August 22, 2014 10:46 am by Lowell Rothschild and Kevin Ewing
Ruling on a pipeline project and a mine project, two different federal courts issued decisions Monday affirming limits on the scope of environmental review. The pipeline case was a challenge to Enbridge’s Flanagan South pipeline, designed to transport tar sands crude from Illinois to Oklahoma. The mine case involved Raven Crest Contracting’s Boone North No. 5 coal mine in West Virginia. Neither decision breaks new ground; their significance lies in reaffirming that NEPA analysis should be confined to the scope of the federal agencies’ control over the project in question. These cases encourage federal agencies to fend off demands for broader consideration of social and political issues surrounding major infrastructure projects. (more…)
Category: Courts, Environmental, EPAct 2005, Midstream
Wednesday, August 13, 2014 2:58 pm by Richard Alonso, Jeff Holmstead, Tim Wilkins and Sandra Snyder
On August 12, 2014, the 9th Circuit Court of Appeals overturned a Prevention of Significant Deterioration (PSD) permit issued under the Clean Air Act (CAA) by EPA to the Avenal Power Center. Sierra Club v. EPA, No. 11-73342 (9th Cir. Aug. 12, 2014). The PSD permit authorized the construction of a 600 MW natural gas-fired plant located in California’s San Joaquin Valley. The plant was required to install state-of-the-art pollution controls for all traditionally regulated pollutants, such as nitrogen oxides, particulate matter, and carbon monoxide. The Court vacated the PSD permit because it found it was improper for EPA to issue a PSD permit that did not address new CAA requirements that were promulgated by EPA after the application was submitted.
Although EPA has the authority to grandfather pending applications, it must exercise that authority through regulation by setting an effective date for the new regulation which would make the regulation applicable to permit applications submitted after a given date. When EPA does not address grandfathering in its regulations, the court stated that all PSD permits that are not final prior to the effective date of the new rule must be revised to address any new regulatory requirement, even if the permit had already been through the public comment process. The Court implied that any new assessment would likely need to go through a separate public comment process. (more…)
Category: Air Quality/Climate Change, Courts, Electric, Enforcement, Environmental, Litigation, Midstream, National Energy Law, Power, Shale Development, Upstream Energy
Monday, July 28, 2014 10:44 am by Heather Palmer
In towns across America, hydraulic fracturing continues to be a hot-button issue, with municipalities in at least twelve states adopting measures to ban hydraulic fracturing altogether on a temporary or permanent basis. Recent developments in Texas, California, and Colorado demonstrate that battles continue over local bans on hydraulic fracturing. (more…)
Category: Courts, Crude and Products, Environmental, Litigation, Natural Gas/LNG, Regional Energy Law, Shale Development, Upstream Energy