Litigation

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    Judge Certifies Royalty Class Action Against EQT, CONSOL in VA

    This is a story we have not previously covered on MDN. It goes back to 2010 and involves two of the biggest Marcellus/Utica drillers–although in this case the issue is not related to the Marcellus/Utica. Landowners in southwestern Virginia previously sued both EQT and CONSOL Energy’s CNX subsidiary over charges that EQT and CNX shorted landowners out of royalties owed to them, claiming post-production expenses, deductions for severance taxes, etc. that should not have been taken. The wells drilled were conventional wells–some 3,347 EQT wells and 4,261 CNX wells. The vertical wells targeted methane extraction from coal seams–not horizontal wells through shale, which is far more common today. Some lawsuits were green lighted as class action cases in 2013, with a potential for “thousands of landowners” to participate in sharing $30 million in payouts. Last week a federal judge certified three of the five class action lawsuits, allowing them to move forward…
    Read More “Judge Certifies Royalty Class Action Against EQT, CONSOL in VA”

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    Fed Court Overturns $4.2M Dimock Judgement Against Cabot O&G

    Big news broke Friday afternoon. Short history lesson for those who are new to MDN: There were 14 families along the Carter Road area of Dimock Township, PA (Susquehanna County) that reportedly experienced turbidity in their water from methane migrating, supposedly from Cabot’s drilling operations nearby. The state Dept. of Environmental Protection (DEP) investigated in 2010 and declared Cabot guilty and imposed stiff fines and requirements, including a requirement to install permanent water treatment systems at each home and even an offer to each of the families to pay twice what their property was worth at the time (see PA DEP Takes Aggressive Action Against Cabot Oil & Gas over Dimock Township Methane Contamination). We won’t recount all of the twists and turns we documented over the years, including research that showed Cabot wasn’t responsible for the methane migration. All of the 14 properties either sold to Cabot or got their water systems repaired–except for two holdout families who were riding the horse of hope that they could sue Cabot for big money and retire millionaires. For a time, it appeared their plan worked. Last year, in March 2016, a trial took place in Scranton. It was a sham trial, with the lawyer for the two families engaging in borderline unethical practices in the courtroom in her attempt to influence the jury. One of the two families admitted, under oath on the witness stand, that their water had too much methane in it BEFORE Cabot Oil & Gas began to drill nearby. The same family, the Elys, later built a 22-room, $1 million mansion on the same property AFTER they admit there was trouble with the water. And yet the jury found Cabot at fault and awarded the Elys $2.75 million. The other family suing Cabot got $1.49 million. As we said at the time: “That’s called brain-dead. A total miscarriage of justice–stupidity on the same level as the OJ Simpson jury” (see Dimock Jury Levies $4.24M Judgement Against Cabot in Dimock Case). Indeed it was brain-dead, as we now see from a federal court which heard Cabot’s appeal. On Friday a federal judge tossed out the $4.24 million verdict against Cabot, calling the evidence against Cabot “spare, sometimes contradictory, frequently rebutted by other scientific expert testimony, and relied in some measure upon tenuous inferences” (full copy of the ruling below). Unfortunately the judge did not find for Cabot and dismiss the case, but instead ordered a new/second trial. However, the new trial will not happen in state court amateur hour–instead it will happen in federal court–IF it happens…
    Read More “Fed Court Overturns $4.2M Dimock Judgement Against Cabot O&G”

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    Atlantic Sunrise Uses Eminent Domain in Northeast & Central PA

    As sometimes happens, Williams has had to file 27 eminent domain lawsuits against landowners in northeastern and central Pennsylvania–landowners who have refused to negotiate with the company to allow the now FERC-approved Atlantic Sunrise Pipeline to cross their property. We understand the reluctance of some landowners who would rather not have the pipeline cross their property. But we also understand the necessity of the project–and the need to be reasonable. Some landowners are not reasonable. And so eminent domain is a rare, option-of-last-resort necessity in those cases. But don’t shed too many tears for landowners now being sued. One PA landowner in Luzerne County (Wilkes-Barre area) was originally offered $260,000 for an easement on 7.6 acres of land ($34,211/acre!). He refused. The price has now dropped to $225,000. Guess he should have signed before eminent domain was on the table…
    Read More “Atlantic Sunrise Uses Eminent Domain in Northeast & Central PA”

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    PA Court Says Snyder Bros Wells are Strippers, No Impact Fees Due

    In 2014 MDN brought you the interesting story of strippers in the Marcellus–stripper wells, that is (see High-Priced Strippers in PA: Semantic Gymnastics with Impact Fee). Synder Brothers is an oil/gas producer in Pennsylvania. Most of the wells they drill are vertical-only wells. Among them are 24 wells from 2011 and 21 wells from 2012 that are vertical only–but all targeting the Marcellus. According to the definition of a stripper well under the Act 13 law passed in 2012, a well qualifies as a stripper well if it doesn’t produce over 90 thousand cubic feet (Mcf) of natural gas per day for at least one month. Synder Bros. says although their wells may have produced over 90 Mcf in some months, they didn’t produce that much in at least one month during the years in question. Ergo, their wells qualify as stripper wells and not liable to pay an impact fee. The PA Public Utility Commission (PUC), charged with evaluating what does and does not qualify, said nope–your wells target the Marcellus formation and produced above 90 Mcf for “at least” one month out of the year, therefore must pay the impact fee. So the PUC sued Snyder Bros., intending to collect $500,000 in unpaid fees PLUS a $50,000 fine for inconveniencing the PUC (see PA PUC Sues Snyder Bros to Collect $500K in Unpaid Impact Fees). In January of this year, more than a year after first hearing the case, PA Commonwealth Court wanted to hear it all over again (see High-Priced PA Strippers Go Back to Court, Impact Fee Semantics). The court has finally ruled: the law clearly means if production is less than 90 Mcf in any single month, that well is a stripper. Snyder Bros. doesn’t have to pay the $500K impact fee on those wells…
    Read More “PA Court Says Snyder Bros Wells are Strippers, No Impact Fees Due”

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    Wayne Co. Landowner Welcomes Decision in Dismissed DRBC Lawsuit

    As MDN reported, last week U.S. District Judge Robert Mariani ruled against a Wayne County landowner in a lawsuit that challenged the right of the Delaware River Basin Commission (DRBC) to stop fracking in the Delaware River Basin (see Judge Tosses Wayne County, PA Landowner Lawsuit Against DRBC). At first blush this may see like a setback for landowners in Wayne and Pike Counties who have been denied the right to lease and allow drilling under their land for the past 10 years. But looks can be deceiving. As we pointed out in our article, if you read the judge’s decision, he harpoons all of the DRBC’s legal arguments, but in the end rules against the landowner. Why? Because that judge wanted to send this case to a higher court for an ultimate decision–the 3rd Circuit Court of Appeals. In fact, Judge Mariani set up the appeal of the case perfectly, we’d say intentionally, and that has the DRBC and their cohorts at THE Delaware Riverkeeper really nervous. It also has the Wayne Land and Minerals Group, the plaintiff in the case, really happy. MDN friend Tom Shepstone (Natural Gas Now) does a superb job of analyzing Mariani’s decision, and in predicting where things will (rapidly) go from here…
    Read More “Wayne Co. Landowner Welcomes Decision in Dismissed DRBC Lawsuit”

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    PA DEP Issues 2 Wastewater Injection Well Permits, Sues 2 Towns

    Good news for Pennsylvania drillers: the PA Dept. of Environmental Protection (DEP) finally, after years of review, granted permission to two different companies to operate two new wastewater injection wells in the Keystone State. One well is located in Elk County, the other in Indiana County. With these two new injection wells coming online, the state will have a total of eight operating injection wells (vs. hundreds in Ohio). You may have seen news about the newly authorized injection wells from other news sources yesterday. But you read MDN for “the rest of the story.” And here it is, something you won’t find anywhere else (until other news sources read MDN): As soon as the DEP issued the permits for the injection wells, the DEP filed lawsuits against the two townships where the injection wells will be located, because both of those townships–Highland Township in Elk County, and Grant Township in Indiana County–had previously passed so-called Home Rule Charters in an attempt to prevent the injection wells from being located in their towns. The DEP has sued each of them (copy of the Highland lawsuit below) to correct laws that attempt to prevent the DEP from doing its job in authorizing the injection wells. We have the full news of the DEP’s decision to permit the injection wells, along with details about the lawsuits, below…
    Read More “PA DEP Issues 2 Wastewater Injection Well Permits, Sues 2 Towns”

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    Constitution Pipeline Still Waiting on “Biggie” Court Decision

    Last week MDN brought you the news that a federal judge had dismissed a case brought by the Constitution Pipeline against the New York Dept. of Environmental Conservation (DEC) over the issue of denying water crossing permits for the project (see Federal Judge Rejects Constitution Pipe Request to Bypass NY DEC). What we have since come to understand is that this was one of two lawsuits filed by the Constitution against the NY DEC. In fact, it was the lesser of the two lawsuits. The “biggie” lawsuit is still not yet decided. That decision will come from the U.S. Court of Appeals for the Second Circuit–and is due to arrive within the next two months. The fate of the project hangs in the balance. Lawyers for the Constitution are confident that the court will find the DEC’s denial of permits is capricious and politically motivated, and will strip the DEC of its role in the project. If that happens, it is the equivalent of a 10.0 earthquake. The DEC will no longer play a role in federally regulated pipeline projects. Perhaps if the DEC wants to maintain a role in such projects, they ought to move forward and issue those permits now (i.e. “settle out of court”), before the ruling comes down…
    Read More “Constitution Pipeline Still Waiting on “Biggie” Court Decision”

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    Judge Tosses Wayne County, PA Landowner Lawsuit Against DRBC

    In May 2016 a landowner in Wayne County, PA–in the Delaware River Basin–filed a lawsuit against the Delaware River Basin Commission (DRBC) asking a judge to declare the DRBC does not have jurisdiction to prevent construction of a natural gas well (see Wayne County, PA Landowner Sues DRBC Over Fracking Ban). MDN has chronicled, for years, the lawless actions of the DRBC in seizing power it does not have to block shale drilling in essentially two PA counties where measurable quantities of shale gas could be extracted: Wayne County and Pike County. DRBC’s former director, Carol Collier, is a hardened anti-driller who colluded with Josh Fox in making his infamous propaganda film Gasland. Collier is gone and it was thought her replacement, Steve Tambini would bring some order and sense to the organization (see DRBC Selects Steve Tambini as New Leader, Enviro Groups Unsure). Unfortunately that hasn’t happened–so far. The DRBC has blocked drilling since it considered rules for drilling in 2010, when it put a “temporary” ban in place. A Wayne County landowner argued in the lawsuit that oil and gas wells, under the DRBC’s charter, do not constitute a “project” that is regulated by the DRBC and therefore are exempt from oversight from the DRBC. Last week U.S. District Judge Robert Mariani disagreed and ruled against the landowner (copy of his ruling below). However, this may not be “bad news” for landowners and “good news” for the DRBC, as it may first appear, on the surface…
    Read More “Judge Tosses Wayne County, PA Landowner Lawsuit Against DRBC”

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    Radical Green Groups File Fed Court Case to Stop Atlantic Sunrise

    Radical green agitating groups, including the Sierra Club, Lancaster Against Pipelines, Lebanon Pipeline Awareness, Allegheny Defense Project, Clean Air Council, Concerned Citizens of Lebanon County, and Heartwood, have filed a lawsuit in the liberal U.S. Court of Appeals for the District of Columbia in an attempt to block construction of the $3 billion Atlantic Sunrise Pipeline project in Pennsylvania. Instead of waiting for the Federal Energy Regulatory Commission (FERC) to consider a so-called re-hearing of their decision to authorize Atlantic Sunrise, a group of radical green organizations are jumping the queue and going directly to court, demanding that a judge stop construction until a quorum is in effect at FERC. Yes, it’s all complicated. We’ll break it down for you. What you need to know up front is that more Big Green money is behind the lawsuit to stop Atlantic Sunrise…
    Read More “Radical Green Groups File Fed Court Case to Stop Atlantic Sunrise”

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    PennEast Celebrates Lawsuit Dismissal, Takes Swipe @ Riverkeeper

    As we reported yesterday, a federal judge dismissed a lawsuit filed a year ago by THE Delaware Riverkeeper against the Federal Energy Regulatory Commission (see Fed Judge Dismisses Dela. Riverkeeper Lawsuit Against FERC). The lawsuit aimed to shut down the entire agency by defunding it (see THE Delaware Riverkeeper Sues FERC, Tries to Close it Down). The lawsuit claimed FERC can’t objectively make decisions about projects like the Penn East Pipeline (running from the Wilkes-Barre area to New Jersey) because FERC derives some of its operating revenue from the projects it either approves or does not approve. In other words, Delaware Riverkeeper tried to shut down a national agency because they object to a single pipeline project. Liberal U.S. District Justice Tanya Chutkan found Riverkeeper’s arguments lacking, to say the least. It took a day, but PennEast released their own statement about Riverkeeper’s lawsuit going down in flames. It is an interesting response from PennEast and continues a trend in what we’ve previously noticed: PennEast has (finally) taken the gloves off and is pushing back hard against enviro-jihadists like Riverkeeper…
    Read More “PennEast Celebrates Lawsuit Dismissal, Takes Swipe @ Riverkeeper”

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    Judge Grants Atlantic Sunrise Pipe Access to Schuylkill Property

    Ryan Regec owns 78 acres in Schuylkill County, PA (eastern part of the state). He plans to subdivide the property into smaller properties and sell the building lots–but the Atlantic Sunrise Pipeline is coming through a portion of the property, and Mr. Regec says that means he can’t subdivide and sell it the way he planned. Regec has, in the past, allowed surveyors from Atlantic Sunrise on his property–but recently has refused. Atlantic Sunrise (i.e. Williams) took him to court to force access to complete their surveys, and Williams just won. A judge for the U.S. Middle District Court in PA issued an order allowing Atlantic Sunrise access. A spokesman for the pipeline says the pipeline will only cut through a small portion of Mr. Regec’s 78 acres. Regec claims his subdivision plans will be destroyed. Who’s right?…
    Read More “Judge Grants Atlantic Sunrise Pipe Access to Schuylkill Property”

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    Court Says was OK for ETE to Scuttle $33B Williams Takeover Deal

    Last year an elaborate midstream drama unfolded before our very eyes. Energy Transfer Equity (ETE) pushed and prodded and poked and cajoled and insisted, and finally with the help of an inside corporate raider, forced Williams to agree to a buyout/merger (see Williams Accepts ETE’s “Indecent Proposal” – Price Went Down $10B). Then the bottom dropped out of the price of natural gas and drillers scaled back drilling and consequently midstream (i.e. pipeline) companies like ETE and Williams got pinched. And ETE got cold feet (see ETE Wants Out of Williams Merger/Takeover, Offering $2B Breakup Fee). Williams said “not so fast, you wanted us, you’ll be taking us” and consequently sued ETE to force the merger to happen (see Merger Turns Sour: Williams Sues ETE/CEO Kelcy Warren). However, in the end, the merger never happened (see Dead as a Doornail: ETE Terminates Merger with Williams). Since breaking the agreement, Williams and ETE have been in court battling over lots of things, including a $1.5 billion breakup fee. Earlier this week an appeals court ruled ETE was within its rights to break the deal. What does that mean about paying Williams a breakup fee?…
    Read More “Court Says was OK for ETE to Scuttle $33B Williams Takeover Deal”

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    Fed Judge Dismisses Dela. Riverkeeper Lawsuit Against FERC

    It took a whole year, but a federal court has just thrown out a frivolous lawsuit filed by Maya van Rossum, THE Delaware Riverkeeper, which attempted to defund the Federal Energy Regulatory Commission (FERC). Last year MDN reported on the lawsuit filed by Maya and company–a lawsuit which aimed to shut down the entire agency by defunding it (see THE Delaware Riverkeeper Sues FERC, Tries to Close it Down). Delaware Riverkeeper filed their lawsuit against FERC in U.S. District Court for the District of Columbia–one of the most liberal jurisdictions in the country. The lawsuit claimed FERC can’t objectively make decisions about projects like the Penn East Pipeline (running from the Wilkes-Barre area to New Jersey) because FERC derives some of its operating revenue from the projects it either approves or does not approve. Liberal U.S. District Justice Tanya Chutkan found Riverkeeper’s arguments don’t hold water (pun intended). In her 20-page opinion (copy below), Chutkan doesn’t buy Maya’s BS line that FERC is hopelessly biased. Although Maya tried to spin the bad news as good (because Riverkeeper achieved “standing” in the case), the decision is, in fact, a crushing blow for Maya and her merry band of eco-nuts…
    Read More “Fed Judge Dismisses Dela. Riverkeeper Lawsuit Against FERC”

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    OH Court Says Grandkids Can Claim Mineral Ownership Under DMA

    MDN has previously highlighted the importance of last year’s Ohio Supreme Court decision with regard to the Ohio Dormant Mineral Act (DMA). In September 2016 the OH Supreme Court ruled in three DMA cases, saying all of the other cases come under those three (see Important: OH Supreme Court Finally Rules on Dormant Mineral Act). Following that ruling, we brought you insights on what it means from international law firm Jones Day (see One More Look at Important OH Supreme Court DMA Decision). We later ran a copy of an analysis done by attorney David Wigham, who said, “[T]he landscape regarding title and ownership to mineral interests in Ohio has significantly changed” (see Expert Says OH DMA Decision “Significantly Changed” Mineral Rights). The ramifications of the Supreme Court’s decision continues–and various aspects of the now-settled law are still, well, getting settled. Under the DMA if a surface landowner advertises his or her intent to reclaim mineral rights (when the rights have been dormant for period of years), the rights owners have a certain amount of time to respond to reassert their ownership. But what if the original rights owners are now dead. Can their heirs, as in grandchildren, claim those rights? Under a case just decided in Ohio’s Seventh District Court of Appeals, the answer to that would be, “Yes”…
    Read More “OH Court Says Grandkids Can Claim Mineral Ownership Under DMA”

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    Federal Judge Rejects Constitution Pipe Request to Bypass NY DEC

    A disappointing setback for the much-needed Constitution Pipeline–a $683 million, 124-mile pipeline due to run from Susquehanna County, PA to Schoharie County, NY carrying Marcellus gas. As you may recall, in April 2016, New York’s anti-drilling governor, Andrew Cuomo, decided he would cave to pressure from radical environmentalists and block the building of the federally-approved Constitution Pipeline (see NY Gov. Cuomo Refuses to Grant Permits for Constitution Pipeline). Cuomo’s toadies at the Dept. of Environmental Conservation (DEC) decided not to grant (i.e. denied) the Constitution the permits it needs to cross creeks and swamps. That was finally enough for Williams and the other partners in the project, who promptly sued NY in federal, NOT state, court (see Williams Sues NY Over Constitution Pipe – DEC May Lose Authority). Judge Norman Mordue of the Northern District of New York ruled last week that since NY has not officially denied the water crossing permits–simply not yet acted on them–there is no injury to the project. Even though the pipeline is losing money every day it doesn’t get built due to NY’s inaction. We fail to see how not acting on the permits over the long-term is any different from denying those same permits. It is a distinction without a difference in our book. But that’s what the judge ruled, granting the DEC’s motion to dismiss the case. The thread of hope that remains for the project is another case in which Williams (the builder of the Constitution) filed in an appeals court. Williams is maintaining the second case will go in their favor and when it does, construction is not far behind…
    Read More “Federal Judge Rejects Constitution Pipe Request to Bypass NY DEC”

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    OH Supreme Court to Hear Appeal re Driller Who Won’t Explore Utica

    What if a landowner leased his or her land decades ago and a driller drilled a conventional natural gas well on the property, and that well has produced commercial volumes of natural gas for years–and still does. And what if the lease gives that driller the right to drill (or not drill) in any given rock lawyer. And what if that driller is content to simply let that conventional well keep producing and not drill further down, into the now commercially viable Utica (or Marcellus) shale layer? Does the landowner, whose land is located where the Utica/Marcellus exists, have any case for taking back the rights to the deeper shale layers the conventional driller refuses to go after? That’s a case that has now worked its way all the way to the Ohio Supreme Court. The question turns on whether or not “reasonable development” in a lease includes unexplored, deep formations…
    Read More “OH Supreme Court to Hear Appeal re Driller Who Won’t Explore Utica”