Litigation

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    Dela. Riverkeeper Loses Another Court Case Against Marcellus Pipe

    The U.S. Court of Appeals for the District of Columbia Circuit slapped down THE Delaware Riverkeeper in yet another crushing defeat for the virulent anti-fossil fuel organization (and mouthpiece for the William Penn Foundation, its main funder). Even though Williams’ Transco Leidy Southeast expansion project went online some 18 months ago, Riverkeeper sued the Federal Energy Regulatory Commission (FERC) some 14 months ago over its approval of the project (see Dela. Riverkeeper Sues FERC Again – Over Leidy Pipeline Expansion). Leidy Southeast was/is 30 miles of additional pipeline segments laid next to existing pipe, called loops, in Pennsylvania and New Jersey, along with upgrades at several compressor stations. The project bumped up the capacity of the mighty Transco pipeline by an extra 525,000 dekatherms of natural gas per day–enough natural gas to serve 2 million homes. The project means more Marcellus gas now flows south to new markets. Riverkeeper claimed FERC should not have approved the project until PA had issued federal 401 stream crossing permits under the Clean Water Act. It was a “procedural” objection. That is, Riverkeeper claimed FERC did things out of order and should be, we don’t know, shut down? Punished? Flogged? Prevented from doing it ever again? Riverkeeper also went after PA and NJ after they issued the 401 certificates, saying they shouldn’t have. The Third Circuit Court of Appeals (in Philadelphia) rejected that argument last August (see Court Rejects Dela. Riverkeeper Case Against PA DEP Pipe Approval). The new news is that the U.S. Court of Appeals for the District of Columbia Circuit has now rejected Riverkeeper’s case against FERC. The justices said FERC is free to approve projects prior to states issuing 401 certificates because a project approval still doesn’t mean the project will get built–unless the states DO issue those 401 certificates. It all sounds rather complicated to follow. The short version is this: Delaware Riverkeeper lost yet another court case against a pipeline project…
    Read More “Dela. Riverkeeper Loses Another Court Case Against Marcellus Pipe”

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    PA Appeals Court Clears Way for EQT to Drill Jefferson Hills Well

    In December 2015 MDN told you about EQT’s application to drill a single shale well in Jefferson Hills (Allegheny County), PA (see Jefferson Hills, PA Antis Oppose EQT Well Near Future School Site). The well would be drilled “near” where a new school is due to be built, which provided anti-fossil fuelers with an excuse to oppose the project. As part of the a conditional use permit, EQT agreed to (a) not use Borough roads during construction, (b) use a pipeline from a local water company instead of trucks for the water needed to drill and frack, greatly reducing the amount of truck traffic, (c) pledged the project would not impact local streams and wetlands, (d) comply with local lighting regulations, and (e) install sound walls if needed. In other words, EQT bent backwards, forwards, sideways, jump through numerous hoops and turned itself inside out to comply with requests from the town. The Borough Planning Commission unanimously approved the conditional use permit request. But then the town, bowing to pressure from local antis, rejected the request in December 2015, saying the proposed project would endanger local health and the environment. In other words, they had no basis for rejecting the permit. EQT sued and won in the Court of Common Pleas of Allegheny County in June 2016. Jefferson Hills appealed and last week, the Commonwealth Court of Pennsylvania upheld the EQT verdict saying the town arbitrarily rejected the permit and EQT should be allowed to drill…
    Read More “PA Appeals Court Clears Way for EQT to Drill Jefferson Hills Well”

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    DEP Appeals $4.5M Wastewater Leak Fine Against EQT to Supremes

    There’s a reason hospitals and court rooms are frequently the settings for soap operas on TV–there’s always so much drama surrounding medicine and the law–the latter of which is our focus today. In January MDN reported what seemed like the final chapter in a long, drawn-out case between Marcellus driller EQT and the Pennsylvania Dept. of Environmental Protection (DEP). In October 2014, the DEP fined EQT a whopping $4.53 million for a leaky wastewater impoundment in Tioga County, PA (see PA DEP Levies Biggest Fine Ever, $4.5M Against EQT). While EQT did not say there wasn’t a problem with leaks at the site, they did say the way the DEP calculated the fine is unreasonable and arbitrary. In fact, EQT says the DEP levied the fine and took EQT to court because a few weeks prior EQT had sued the DEP over a different matter–that is, sour grapes. EQT appealed the fine and the case all the way to the PA Supreme Court. In December 2015, the high court handed EQT a “procedural victory” by saying EQT has a point about the manner in which the DEP is calculating the fine (see PA Supreme Court Gives EQT “Procedural Victory” in $4.5M Fine Case). The Supreme Court sent the case back to a lower court, PA Commonwealth Court, for follow up work, and in January 2017, a three-judge panel ruled that the method the DEP currently uses to assess fines–by how many days pollution lingers, instead of by how many days the initial release of pollution lasted–is not legal nor common sense (see EQT Wins Court Case Against PA DEP re $4.5M Wastewater Leak Fine). The judges said such a method in fining, “would result in potentially limitless continuing violations.” Under the old way of calculating fines, the DEP was considering upping the fine on EQT to an insane $157 million. Calculating it under the new way will mean a fine of around $120,000. We thought with that ruling it was all done and dusted. Not so. The soap opera continued when the DEP appealed the Commonwealth Court panel’s ruling back up to the PA Supreme Court where the Supremes will consider it all over again. When you read the “friend of the court” brief just filed by those supporting the DEP in their case, it’s a Who’s Who of Big Green organizations and virulent anti-drillers–which tells you all you need to know about which side is in the right in the case of EQT v DEP… Read More “DEP Appeals $4.5M Wastewater Leak Fine Against EQT to Supremes”

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    Time to Tear Down the DRBC’s Iron Curtain in Pennsylvania

    Wikipedia: “The Iron Curtain was the name for the boundary dividing Europe into two separate areas from the end of World War II in 1945 until the end of the Cold War in 1991. A term symbolizing the efforts by the Soviet Union to block itself and its satellite states from open contact with the West and non-Soviet-controlled areas. On the east side of the Iron Curtain were the countries that were connected to or influenced by the Soviet Union.” There is an “economic Iron Curtain” in Wayne County, PA–a curtain imposed by the Delaware River Basin Commission, or DRBC (equivalent to the Soviet Union in our metaphor). The DRBC refuses to allow shale well drilling and fracking in the Delaware River Basin, while next door in the Susquehanna River Basin such activity has been going great guns for years. As we previously reported, one brave landowner in Wayne County is fighting, in court, to rip down the DRBC Iron Curtain (see Wayne Co. Landowner Welcomes Decision in Dismissed DRBC Lawsuit). Here’s an update on efforts to defeat the Evil Empire… Read More “Time to Tear Down the DRBC’s Iron Curtain in Pennsylvania”

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    Huntingdon Family Lawsuit Against ME2 Pipeline Fails, Game Over

    You may recall our story about the daughter of a Huntingdon County, PA landowner, radicalized by Big Green groups (as evidenced by her association with well known protesters previously arrested), who took to a tree on her mom’s property in order to illegally stop crews working on tree clearing for the Mariner East 2 pipeline (see PA Anti Literally Goes Up a Tree to Stop Mariner East 2 Pipeline). It ultimately didn’t matter, because Sunoco came back and cut down the few trees they need to cut anyway (see Sunoco Tricks Radicalized Protester – Returns and Cuts More Trees). In December, the up-a-tree girl and her mom, with lawyers and backing by Big Green money, launched a final “hail Mary” pass by appealing a case to the PA Commonwealth Court, asking the court to stop the ME2 project by claiming it doesn’t have the right to use eminent domain (see Desperate Antis Try One Last Legal Maneuver to Stop Mariner East 2). Like so many other “hail Mary” desperation passes, this one never found the arms of a receiver. Yesterday the court turned down the appeal… Read More “Huntingdon Family Lawsuit Against ME2 Pipeline Fails, Game Over”

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    CORNballs Strike Again, File Lawsuit to Stop NEXUS Pipeline

    A group of landowners in Ohio calling themselves the Coalition to Reroute Nexus (CORN), whom we affectionately call CORNballs, have filed a lawsuit in court against the NEXUS pipeline project. Not to actually reroute NEXUS, but to kill it. To stop it. The landowners are asking a federal court to block the Federal Energy Regulatory Commission (FERC) from allowing the project to proceed–which of course is not going to happen–and to legally bar the NEXUS Gas Transmission project from building the pipeline. Which has been the aim of the CORNballs from the beginning–contrary to the party line that they just want it rerouted around them. The CORNballs seem to be in league with antis in the City of Green, OH, who recently voted to give $100,000 of taxpayer money to high-priced Cleveland lawyers to try and stop NEXUS (see Green, OH Paying Lawyers $100K to Fund Stop NEXUS Crusade). Green also gave CORN $10,000, which no doubt is helping fund CORN’s legal effort to stop NEXUS… Read More “CORNballs Strike Again, File Lawsuit to Stop NEXUS Pipeline”

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    6 Middletown Antis Sue Sunoco LP to Stop Mariner East 2 Pipe

    As we reported last week, six anti-pipeline residents living near where the Mariner East 2 pipeline will pass asked the Middletown (Delaware County, PA) town council to reject the path of the pipeline near their property because it would, supposedly, pass closer than town code allows. At a meeting earlier in the week, town council told the residents they’re out of luck–the town will not pursue any action to block Mariner East 2. Period. The residents, amped up and agitated by Big Green groups, was rumored to be considering a lawsuit against the pipeline to force it to conform with Middletown’s ordinance. It’s no longer a rumor. The amped up antis, spurred on and using lawyers from said Big Green groups, filed a lawsuit in the Delaware Court of Common Pleas on Friday… Read More “6 Middletown Antis Sue Sunoco LP to Stop Mariner East 2 Pipe”

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    Green, OH Paying Lawyers $100K to Fund Stop NEXUS Crusade

    The City of Green, Ohio, located in Summit County (south of Akron, north of Canton) seems to have no problems with spending boatloads of taxpayer money on anti-pipeline efforts. A few weeks ago Green City Council voted to give $10,000 to the anti-pipeline CORN–Coalition to Reroute Nexus. We call the group CORNballs and have written extensively about their supposed desire to just see the NEXUS pipeline routed around them, pretending to be NIMBYs (see our CORN stories here). In reality, CORN wants the pipeline stopped, period. Anti-fossil fuel nuttery. But $10K for the CORNballs is small potatoes for Green–almost a distraction. The city has just “upped the ante” by voting to spend $100,000 to hire a Cleveland law firm to file a lawsuit “aimed at stopping the pipeline from being built or stopping the project altogether.” Since when was it legal for a city like Green to squander taxpayers’ money on cockamamie anti-fossil fuel lawsuits against legal American businesses that build energy infrastructure? Will someone please investigate Green council members and their ties to Big Green groups (no pun intended)? Smells to us like somebody is getting paid off somewhere…
    Read More “Green, OH Paying Lawyers $100K to Fund Stop NEXUS Crusade”

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    PA Supreme Court Rejects Range Resources Well Contamination Case

    For years we’ve followed the story of Range Resources and their (former) wastewater impoundments in Washington County, PA. The PA Dept. of Environmental Protection (DEP) fined Range a whopping $4.15 million for violations in September 2014 (see PA DEP Fines Range Resources $4.15M for Wastewater Impoundments). Some of the nearby neighbors claimed that Range’s leaky impoundments (a quarter of a mile away) contaminated their water wells. One of those landowners was Loren Kiskadden, who sued Range in civil court. The problem is, the DEP determined that the nearby Yeager impoundment had not contaminated Kiskadden’s well, which led to allegations that the DEP had bungled the investigation (see Did DEP Mishandle Range Wastewater Impoundment Investigation?). Kiskadden had to press on, because if the DEP doesn’t reverse its finding, he has no civil case against Range. Press on he did (see Hearing on Range Yeager Impoundment/Water Contamination Continues). The matter was heard by the DEP’s Environmental Hearing Board (EHB). The EHB found that Kiskadden didn’t have a case–his well was not contaminated by Range’s impoundment. So Kiskadden and his lawyers asked for a re-hearing. The result of that re-hearing came in December 2015 and, we thought, finally closed the door, once and for all (see DEP Final Determination: Range Didn’t Pollute Kiskadden Water Well). But no, that was not the end. Kiskadden appealed again, and in October 2016 a Commonwealth Court appeals panel affirmed the EHB’s 2015 dismissal of Kiskadden’s appeal of the DEP 2011 ruling that Range’s Yeager site operations did not contaminate Kiskadden’s well water. Case closed, right? Nope. Kiskadden had one card left to play and he did it–filing an appeal with the PA Supreme Court (see Landowner Appeals Range Well Contamination Case to PA Supreme Crt). Earlier this week, the Supreme Court sent back the appeal marked “case denied.” The fat lady has now sung…
    Read More “PA Supreme Court Rejects Range Resources Well Contamination Case”

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    WV Supreme Court Post-Production Royalty Case Hinges on 3 Words

    Yesterday the five justices of the West Virginia Supreme Court reheard a case involving post-production deductions from royalty payments. Last week we reported that the court *might* rehear the case this week–if they didn’t grant a late-breaking motion to dismiss the rehearing (see WV Supreme Court to Rehear EQT Post Production Royalty Case, Maybe). In December MDN reported on the huge West Virginia Supreme Court decision against driller EQT that disallows EQT from deducting post-production expenses from royalty checks, even with signed contracts in place (see WV Supreme Court Rules EQT Can’t Deduct P-P Costs from Royalties). The justices, in their ruling, said that drillers can “not deduct from that (royalty) amount any expenses that have been incurred in gathering, transporting or treating the oil or gas after it has been initially extracted, any sums attributable to a loss or beneficial use of volume beyond that initially measured or any other costs that may be characterized as post-production.” A really big deal. Then in February, with a brand new justice on the bench, the WV Supreme Court agreed to rehear the case after an appeal filed by EQT–a rare and unusual step (see EQT Catches Big Break in WV Supreme Court re Royalty Deductions). Those who won the case say newly elected Supreme Court Justice Elizabeth D. Walker has conflicts of interest and should not have been allowed to vote to rehear the case in the first place (which she did). On that basis, they tried to avoid the rehearing altogether, but that failed, and yesterday the lawyers were in court arguing. As it turns out, the lawyers mainly argued over the meaning of three short words: “at the wellhead”… Read More “WV Supreme Court Post-Production Royalty Case Hinges on 3 Words”

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    Radical Green Groups Sue Fed Govt to Block Fracking in Ohio WNF

    After 10 long years, the Bureau of Land Management (BLM) auctioned 719 acres in Ohio’s Wayne National Forest (WNF) last December (see BLM Auction Leases 17 Parcels, 719 Acres in OH Wayne Natl Forest). In March, the BLM held a second auction for 1,180 acres (see 2nd Wayne Natl Forest Lease Sale Hauls in $5.2M, Double Expectations). Ultimately there are some 18,000 acres under consideration for leasing by the BLM in WNF. WNF is a “patchwork” of public land scattered among private land. Some 60% of the mineral rights below WNF are privately owned. Those mineral rights owners have been denied the use of their property rights for more than a decade. Until now, with these lease sales. Just when progress was being made, three radical Big Green groups have sued the BLM and the U.S. Forest Service to prevent fracking in WNF. Yesterday the odious Sierra Club, Ohio Environmental Council, and Center for Biological Diversity filed a lawsuit (copy below) in federal court to block fracking in WNF…
    Read More “Radical Green Groups Sue Fed Govt to Block Fracking in Ohio WNF”

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    Southwestern Energy Fighting Ohio County, WV Fire Dept. Fee

    Location of Ohio County, WV

    Ohio County, WV, like many rural counties, has a string of volunteer fire departments that respond to calls in their respective localities. When an industrial activity like shale drilling shows up, local volunteers need special (ongoing) training to address the unique circumstances involved with a well pad fire. There’s also all of the extra calls local fire departments get from the sheer volume of vehicle traffic related to workers coming and going, and trucks hauling all manner of materials–from pipes to equipment to water. Those vehicles sometimes get into accidents, requiring a fire truck to respond. So Ohio County passed a $5,000 per well pad fee, per year, to help defray those costs. Southwestern Energy is the only driller active in the county, currently, with some 29 well pads. For Southwestern, the fee equals $145,000 per year, year after year, going to the local fire department effort. When Ohio County sent Southwestern the bill, Southwestern didn’t pay it. Instead, they filed a lawsuit claiming the fee is “arbitrary and excessive”…
    Read More “Southwestern Energy Fighting Ohio County, WV Fire Dept. Fee”

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    WV Supreme Court to Rehear EQT Post Production Royalty Case, Maybe

    More twists and turns to report with respect to an issue we previously reported with the potential to impact every mineral rights owner and driller in West Virginia. In December MDN reported on the huge West Virginia Supreme Court decision against driller EQT that disallows EQT from deducting post-production expenses from royalty checks, even with signed contracts in place (see WV Supreme Court Rules EQT Can’t Deduct P-P Costs from Royalties). The justices, in their ruling, said that drillers can “not deduct from that (royalty) amount any expenses that have been incurred in gathering, transporting or treating the oil or gas after it has been initially extracted, any sums attributable to a loss or beneficial use of volume beyond that initially measured or any other costs that may be characterized as post-production.” A really big deal. Then in February, with a brand new justice on the bench, the WV Supreme Court agreed to rehear the case after an appeal filed by EQT–a rare and unusual step (see EQT Catches Big Break in WV Supreme Court re Royalty Deductions). A member of the West Virginians for Property Rights group said members are “pretty nervous about this.” Those who already won the case say the high court’s decision to rehear is tantamount to playing the fourth quarter of a playoff game all over again–fundamentally unfair. The court will rehear the case next Tuesday–IF they don’t grant a motion to dismiss the rehearing. The mineral rights owners involved filed the motion saying the newest justice who just came on the bench in January should not have voted to rehear a case she previously didn’t hear…
    Read More “WV Supreme Court to Rehear EQT Post Production Royalty Case, Maybe”

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    New PA Bill an Overreaction to Court Ruling on Strippers

    As previously reported, liberal Pennsylvania House of Representatives Democrat Pam Synder has now introduced a bill (HB 1283, copy below) to “clear up” what the state Public Utility Commission (PUC) is a loophole in the Act 13 law that may allow some drillers to avoid paying impact fees (i.e. drilling taxes) on some Marcellus Shale wells (see PA Lib Dem Introducing Bill to “Fix” Strippers Once and for All). In 2012 Pennsylvania passed the Act 13 law that includes a fee on wells targeting shale layers, including the Marcellus. Snyder Brothers, headquartered in Kittanning, PA, drills mostly conventional (vertical only) wells in southwestern PA. In 2011-2012 they drilled 45 vertical-only wells, targeting the Marcellus–all of the wells fracked. Initially those wells produced more than 90 Mcf/day, but by December of the year they were drilled, they produced less than 90 Mcf/day. The way the 2012 Act 13 law is written, if a well produces less than 90 Mcf/day during “any” month it is considered a stripper well and exempt from paying the impact fee. The state’s Public Utility Commission (PUC) assessed the fee anyway because for 11 months the wells produced more than 90 Mcf/day. Snyder Bros. sued and after an appeal of the case, won their case in March, exempting those wells from paying impact fees (see PA Court Says Snyder Bros Wells are Strippers, No Impact Fees Due). That sent the state Public Utility Commission (PUC) into a tizzy. The PUC and the PA Democrat Party is using the court case to try and accomplish two things they haven’t been able to accomplish heretofore: (1) claim this is a prime example of why a nosebleed high severance tax is needed, in this year’s budget, and (2) fundamentally change the intent of the Act 13 law by passing a “clarification” as introduced by Snyder’s HB 1283 bill. Below we explore this issue in depth and tell you why the Snyder case win is NOT a way for drillers to avoid paying impact fees. In fact, the court’s decision makes it clear that drillers cannot simply reduce production for one month and then claim it’s a stripper well under the 90 Mcf/day definition. Snyder’s bill is an overreaction and does not clear up anything. Instead, it changes everything…
    Read More “New PA Bill an Overreaction to Court Ruling on Strippers”

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    Lawyer to PA Drillers: No Royalties? Time to Terminate the Lease

    For the past couple of years MDN has covered the issue of low and no royalties for landowners in Pennsylvania and other states because of the low commodity price for natural gas–and because drillers are deducting post-production expenses. The problem, from the landowner’s perspective, is that gas is still getting pumped–and they aren’t getting anything in royalties. Who would sign up for that?! The problem, from the driller’s perspective, is that they’ve spent big bucks to drill the well and even if they have to sell the gas at a loss, at least they’re getting some revenue through the door–hoping to hang on until prices go higher again. It is a conundrum. Last month the Pennsylvania Chapter of the National Association of Royalty Owners (NARO) held their annual meeting and convention in State College, PA. A number of interesting bits of information came out of that meeting. One interesting tidbit: A Houston lawyer told attendees that he is now using the strategy of telling drillers if they keep sending royalty statements with no checks (i.e. statements showing the driller is not making a profit)–they have 30 days to terminate their lease with those landowners. Some leases (not all) state that if a well quits producing profitable quantities of gas, the lease is officially ended. While in some respects the lawyer’s innovative interpretation of o&g contracts may be an empty threat, the strategy does appear to be getting results. Another tidbit: There is a concern that drillers may try to deduct losses today from profits in the future–from a landowner’s royalty check. What can landowners do to guard against it?…
    Read More “Lawyer to PA Drillers: No Royalties? Time to Terminate the Lease”

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    NFG Sues NY DEC in Fed Court re Northern Access Pipe Rejection

    Earlier this month MDN brought you the sad (and angering) news that once again Gov. Andrew Cuomo has caved to political pressure from environmental Nazis and instructed the now-corrupted Dept. of Environmental Conservation (DEC) to deny stream crossing permits for National Fuel Gas Company’s (NFG) Northern Access Pipeline project (see Cuomo’s Corrupt NY DEC Blocks NFG Northern Access Pipeline Permit). A few days later, NFG issued a statement to say their proposed pipeline project would have FAR LESS impact on the environment “than either exploding an entire bridge structure and dropping it into Cattaraugus Creek (Route 219) or developing and continuously operating a massive construction zone in the middle of the Hudson River (Tappan Zee Bridge) for a minimum of five years” (see NFG Calls Cuomo DEC Denial of Northern Access Pipe “Troubling”). Both of those projects were reviewed and approved by Cuomo’s DEC, yet the DEC rejected a benign pipeline project. At the time we said this: “While there is no mention of a lawsuit against the DEC, you can bet your bottom dollar such a suit is coming.” Once again, we were right. Last Friday NFG sued the DEC in federal court, asking the court to review the DEC’s action in rejecting permits for the federally-approved project…
    Read More “NFG Sues NY DEC in Fed Court re Northern Access Pipe Rejection”